United States v. Welling

77 F. App'x 257

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 8, 2003
• Docket: 03-50124
• Status: Unpublished

Opinion

PER CURIAM. *

Thomas Franklin Welling was convicted of conspiracy to manufacture and possession with intent to distribute methamphetamine, and manufacturing and possessing in excess of 50 marijuana plants. Welling appeals the district court’s denial of motion for disclosure of the identity of a confidential informant (Cl).

Welling argues that he needed the identity of the Cl to prove to the jury that the informant was biased and lied for financial gain and that disclosure of the information the informer gave to the Government could have been used to demonstrate inconsistencies in the testimony of other witnesses.

A court’s refusal to require the disclosure of a Cl’s identity is reviewed for abuse of discretion, while any factual findings upon which the court relies for its decision are reviewed under a clearly erroneous standard. United States v. Vizcarra-Porras, 889 F.2d 1435, 1438 (5th Cir. 1989).

We use a three-part test to determine when disclosing an informant’s identity is mandated. We evaluate the level of the informant’s participation in the alleged criminal activity; consider the helpfulness of disclosure to any asserted defense; and consider the Government’s interest in nondisclosure. See Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Orozco, 982 F.2d 152, 154-55 (5th Cir.1993).

There is no indication that the Cl in the instant case did anything but tip police officers to the possibility of their finding criminal activity at Welling’s residence. See Orozco, 982 F.2d at 155. Nor does Welling argue that the Cl would provide “testimony [that] would significantly aid the defendant in establishing an asserted defense.” Id. “[M]ere conjecture or supposition about the possible relevancy of the informant’s testimony is insufficient to warrant disclosure.” Id. (internal quotation marks and citation omitted). Because two prongs of this circuit’s test support the district court’s determination that the identity of the Cl did not need to be revealed, the district court’s decision should be affirmed. United States v. Cooper, 949 F.2d 737, 749-50 (5th Cir.1991).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.