UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 15-cr-178-03-LM Opinion No. 2016 DNH 196 Jeannette Hardy
O R D E R
Jeannette Hardy is charged with conspiracy with intent to
distribute a controlled substance, in violation of 21 U.S.C. §§
846, 841(a). Trial is scheduled to begin on June 21, 2016. In
advance of trial, Hardy has filed a motion seeking to compel the
government to disclose the identities of confidential sources1
and to immediately produce exculpatory evidence. The government
objects.
Discussion
Hardy seeks to compel the government to disclose the
identities of confidential sources and to produce exculpatory
evidence, including impeachment evidence, relating to the
1 In her motion, Hardy uses the terms “confidential sources,” “confidential informants,” and “cooperating defendants” interchangeably. For the purposes of this order, the court will use the term “confidential sources.” confidential sources, before the deadline to do so under the
local rules of this district.
A. Confidential Sources
Hardy seeks the disclosure of the identity of confidential
sources. According to Hardy, the government has relied on
several confidential sources, some or all of whom are likely to
have information favorable to Hardy’s case. The government
objects, arguing that Hardy has not met the standard for the
court to order the government to disclose the identities of
confidential sources.
Courts have long recognized the government’s “privilege to
withhold from disclosure the identity of persons who furnish
information of violations of law to officers charged with
enforcement of that law.” Roviaro v. United States, 353 U.S.
53, 59 (1957). “‘[W]hen the Government informant is not an
actual participant or a witness to the offense, disclosure is
required only in those exceptional cases where the defendant can
point to some concrete circumstance that might justify
overriding both the public interest in encouraging the flow of
information, and the informant’s private interest in his or her
own safety.’” United States v. Tzannos, 460 F.3d 128, 139 (1st
Cir. 2006) (quoting United States v. Martinez, 922 F.2d 914, 921
(1st Cir. 1991)). Such circumstances may exist if disclosure of
2 the informant’s identity “is vital to the proper preparation and
presentation” of a defense. United States v. Perez, 299 F.3d 1,
4 (1st Cir. 2002). A defendant “bears the ‘heavy’ burden of
showing that disclosure is necessary in raising his defense.”
United States v. Cartagena, 593 F.3d 104, 113 (1st Cir. 2010)
(quoting United States v. Lewis, 40 F.3d 1325, 1335 (1st Cir.
1994)).
Hardy has not carried her burden to show that this an
exceptional case warranting the disclosure of the identity of
confidential sources. Hardy simply asserts, without support,
that the confidential sources are likely to have information
that is “exculpatory” or “favorable” to her. Such vague
justifications are insufficient to show that disclosure is
necessary in this case. See Martinez, 922 F.2d at 921 (“Mere
speculation as to the usefulness of the informant’s testimony,
it must be emphasized, is insufficient to justify disclosure of
his or her identity, so defendants have an obligation to provide
at least some explanation of how the informant’s testimony would
have supported their alleged defenses.”).
The closest Hardy comes to pointing to a specific
justification for needing the identity of the government’s
confidential sources is that the government obtained a warrant
based on the statements of a confidential source to search a
3 safe deposit box, from which it ultimately recovered more than
$560,000. Hardy asserts that other than the confidential
source’s statement, “[t]here is no information contained in the
current discovery materials which would link Ms. Hardy to that
safe[] deposit box.” Doc. no 52 at ¶ 2.
That assertion, however, is contradicted by the evidence in
this case, which shows that: (i) the key to the safe deposit box
was recovered during the government’s lawful search of Hardy’s
apartment; and (ii) Hardy confirmed that the key was hers when
confronted by officers after the search, but told them that
there was nothing significant in the deposit box and she had not
used it for some time. Therefore, there is inculpatory evidence
in the record other than the confidential source linking Hardy
to the safe deposit box.
Hardy has failed to “point to some concrete circumstance
that might justify overriding both the public interest in
encouraging the flow of information, and the informant’s private
interest in his or her own safety.” Martinez, 922 F.2d at 921.
Therefore, she has failed to carry her burden of showing that
disclosure of the identities of the government’s confidential
sources is necessary to her defense.
4 B. Early production of evidence
The government must disclose material exculpatory evidence,
which includes impeachment evidence. Giglio v. United States,
405 U.S. 150, 154 (1972); Brady v. Maryland, 373 U.S. 83, 87–88,
(1963). Brady and Giglio material must be disclosed in a timely
manner. United States v. Sepulveda, 15 F.3d 1161, 1178 (1st
Cir. 1993). Under the local rules of this district, disclosure
must be made at least 21 days before trial. LCrR 16.1(d).
Hardy requests disclosure of exculpatory evidence,
including impeachment evidence, in advance of the deadlines set
forth in Local Criminal Rule 16.1(d). Her justification is
simply that “[t]wenty-one days in advance of trial will not
permit sufficient time to conduct necessary investigation.”
Doc. no. 52 at ¶ 14.
Hardy has not offered any reason beyond conclusory
statements why production of Brady/Giglio material in accordance
with the deadline set forth in the local rules is insufficient
to allow her to adequately prepare for trial. Therefore, she
has not demonstrated that she is entitled to early production of
such material. See United States v. Wright, No. 2:15-cr-61-DBH,
2015 WL 4665016, at *3 (D. Me. Aug. 6, 2015) (“The defendant’s
speculation that he might be harmed by the government’s untimely
production of Brady/Giglio materials does not afford a
5 compelling reason to” order immediate disclosure of such
materials.).
Further, the government represents in its objection that
it has complied with its obligations under Brady/Giglio to
disclose evidence that is both favorable to Hardy and material
to either guilt or punishment. Therefore, even if Hardy had
provided an adequate justification for early disclosure of the
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 15-cr-178-03-LM Opinion No. 2016 DNH 196 Jeannette Hardy
O R D E R
Jeannette Hardy is charged with conspiracy with intent to
distribute a controlled substance, in violation of 21 U.S.C. §§
846, 841(a). Trial is scheduled to begin on June 21, 2016. In
advance of trial, Hardy has filed a motion seeking to compel the
government to disclose the identities of confidential sources1
and to immediately produce exculpatory evidence. The government
objects.
Discussion
Hardy seeks to compel the government to disclose the
identities of confidential sources and to produce exculpatory
evidence, including impeachment evidence, relating to the
1 In her motion, Hardy uses the terms “confidential sources,” “confidential informants,” and “cooperating defendants” interchangeably. For the purposes of this order, the court will use the term “confidential sources.” confidential sources, before the deadline to do so under the
local rules of this district.
A. Confidential Sources
Hardy seeks the disclosure of the identity of confidential
sources. According to Hardy, the government has relied on
several confidential sources, some or all of whom are likely to
have information favorable to Hardy’s case. The government
objects, arguing that Hardy has not met the standard for the
court to order the government to disclose the identities of
confidential sources.
Courts have long recognized the government’s “privilege to
withhold from disclosure the identity of persons who furnish
information of violations of law to officers charged with
enforcement of that law.” Roviaro v. United States, 353 U.S.
53, 59 (1957). “‘[W]hen the Government informant is not an
actual participant or a witness to the offense, disclosure is
required only in those exceptional cases where the defendant can
point to some concrete circumstance that might justify
overriding both the public interest in encouraging the flow of
information, and the informant’s private interest in his or her
own safety.’” United States v. Tzannos, 460 F.3d 128, 139 (1st
Cir. 2006) (quoting United States v. Martinez, 922 F.2d 914, 921
(1st Cir. 1991)). Such circumstances may exist if disclosure of
2 the informant’s identity “is vital to the proper preparation and
presentation” of a defense. United States v. Perez, 299 F.3d 1,
4 (1st Cir. 2002). A defendant “bears the ‘heavy’ burden of
showing that disclosure is necessary in raising his defense.”
United States v. Cartagena, 593 F.3d 104, 113 (1st Cir. 2010)
(quoting United States v. Lewis, 40 F.3d 1325, 1335 (1st Cir.
1994)).
Hardy has not carried her burden to show that this an
exceptional case warranting the disclosure of the identity of
confidential sources. Hardy simply asserts, without support,
that the confidential sources are likely to have information
that is “exculpatory” or “favorable” to her. Such vague
justifications are insufficient to show that disclosure is
necessary in this case. See Martinez, 922 F.2d at 921 (“Mere
speculation as to the usefulness of the informant’s testimony,
it must be emphasized, is insufficient to justify disclosure of
his or her identity, so defendants have an obligation to provide
at least some explanation of how the informant’s testimony would
have supported their alleged defenses.”).
The closest Hardy comes to pointing to a specific
justification for needing the identity of the government’s
confidential sources is that the government obtained a warrant
based on the statements of a confidential source to search a
3 safe deposit box, from which it ultimately recovered more than
$560,000. Hardy asserts that other than the confidential
source’s statement, “[t]here is no information contained in the
current discovery materials which would link Ms. Hardy to that
safe[] deposit box.” Doc. no 52 at ¶ 2.
That assertion, however, is contradicted by the evidence in
this case, which shows that: (i) the key to the safe deposit box
was recovered during the government’s lawful search of Hardy’s
apartment; and (ii) Hardy confirmed that the key was hers when
confronted by officers after the search, but told them that
there was nothing significant in the deposit box and she had not
used it for some time. Therefore, there is inculpatory evidence
in the record other than the confidential source linking Hardy
to the safe deposit box.
Hardy has failed to “point to some concrete circumstance
that might justify overriding both the public interest in
encouraging the flow of information, and the informant’s private
interest in his or her own safety.” Martinez, 922 F.2d at 921.
Therefore, she has failed to carry her burden of showing that
disclosure of the identities of the government’s confidential
sources is necessary to her defense.
4 B. Early production of evidence
The government must disclose material exculpatory evidence,
which includes impeachment evidence. Giglio v. United States,
405 U.S. 150, 154 (1972); Brady v. Maryland, 373 U.S. 83, 87–88,
(1963). Brady and Giglio material must be disclosed in a timely
manner. United States v. Sepulveda, 15 F.3d 1161, 1178 (1st
Cir. 1993). Under the local rules of this district, disclosure
must be made at least 21 days before trial. LCrR 16.1(d).
Hardy requests disclosure of exculpatory evidence,
including impeachment evidence, in advance of the deadlines set
forth in Local Criminal Rule 16.1(d). Her justification is
simply that “[t]wenty-one days in advance of trial will not
permit sufficient time to conduct necessary investigation.”
Doc. no. 52 at ¶ 14.
Hardy has not offered any reason beyond conclusory
statements why production of Brady/Giglio material in accordance
with the deadline set forth in the local rules is insufficient
to allow her to adequately prepare for trial. Therefore, she
has not demonstrated that she is entitled to early production of
such material. See United States v. Wright, No. 2:15-cr-61-DBH,
2015 WL 4665016, at *3 (D. Me. Aug. 6, 2015) (“The defendant’s
speculation that he might be harmed by the government’s untimely
production of Brady/Giglio materials does not afford a
5 compelling reason to” order immediate disclosure of such
materials.).
Further, the government represents in its objection that
it has complied with its obligations under Brady/Giglio to
disclose evidence that is both favorable to Hardy and material
to either guilt or punishment. Therefore, even if Hardy had
provided an adequate justification for early disclosure of the
material, in light of the government’s representation, there is
no need to compel disclosure. See United States v. Carpenter,
No. 3:13-CR-226(RNC), 2015 WL 9480449, at *3 (D. Conn. Dec. 29,
2015); United States v. Russo, 483 F. Supp. 2d 301, 308
(S.D.N.Y. 2007). To the extent the government either possesses
or discovers Brady/Giglio material that has not already been
produced, it shall disclose such material to Hardy no later than
21 days before trial.2
2 Although unclear from her motion, Hardy may also be seeking to compel the government to immediately produce witness statements under the Jencks Act, 18 U.S.C. § 3500. Local Criminal Rule 16.1(e) requires the government to disclose witness statements at least seven days before trial. Hardy appears to seek early disclosure of the material because she believes the statements are likely to be exculpatory. However, “numerous courts have concluded that district courts cannot compel the early disclosure of Jencks material that [does not] amount to Brady [or] Giglio material.” United States v. Perry, 37 F. Supp. 3d 546, 560-61 (D. Mass. 2014) (collecting cases). Even if the court could compel early disclosure on that basis, Hardy has not provided the court with any non-conclusory justification for early disclosure.
6 Conclusion
For the reasons stated above, Hardy’s Motion to Compel
Disclosure of Confidential Informant and Timely Disclosure of
Brady/Giglio Material Related to Confidential Informant (doc.
no. 52) is denied.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
May 26, 2016
cc: Phillip H. Utter, Esq. Charles O'Leary, Esq. Jaye Rancourt, Esq. Georgiana L. Konesky, Esq. Donald A. Feith, Esq. United States Marshal United States Probation