United States District Court, D. Nevada
CAM FERENBACH, Magistrate Judge.
This matter involves Jeremy Halgat's alleged conspiracy to distribute a controlled substance in violation of 21 § U.S.C. 846(a)(1), (b)(1)(C) and 21 § U.S.C. 841(a)(1) and (b)(1)(C). (Indictment #1). Before the court is Halgat's motion to compel information regarding the Government's confidential informant (#38). The Government opposed (#44); and Halgat replied (#53). Also before the court is Halgat's motion to compel information regarding an undercover agent's cell phone records (#39). The Government opposed (#45); Halgat replied (#54); and on April 8, 2014, the court heard oral argument on Halgat's motions. For the reasons stated below, the motions are granted.
This matter arises from the Bureau of Alcohol, Tobacco, Firearms and Explosives' undercover sting, Operation Pure Luck. (Def.'s Mot. to Compel (#38) at 3:3, 11). It began in 2011. ( Id. ) The target: Vagos Motorcycle Club. ( Id. at 3:8). Through Operation Pure Luck, the ATF planned to infiltrate Vagos using a Vagos insider acting as the ATF's confidential informant and an undercover ATF agent, Task Force Officer Agostino Brancato. ( Id. at 3:18-19). Together, the confidential informant and Brancato infiltrated the Vagos circle where a series of criminal acts occurred. Operation Pure Luck lasted two and half years and resulted in the indictment of Udell Wickham and Jeremy Halgat, among others. ( Id. at 3:11-12).
Operation Pure Luck began with a stroke of luck. The ATF unexpectedly recruited a fully "patched" member of the Vagos Motorcycle Club who agreed to act as a confidential informant and introduce Brancato to the informant's Vagos "brothers." ( Id. at 3:8-16); ( see also Doc. #59 at 5:5-9). Defendant Jeremy Halgat was one of the "brothers" at Brancato's initial meeting with the Vagos gang. ( Id. ) Halgat was the Vagos Vegas Valley Vice President and Southern Nevada Regional Sergeant at Arms. (Gov't's Opp'n (#45) at 2:13-14). The confidential informant told Halgat that Brancato could be trusted because both Brancato and the informant came from the same neighborhood. (Doc. #59 at 5:3).
Before meeting Brancato, Halgat had no criminal record and had never been arrested. (Doc. #59 at 5:8-9). In fact, after surveilling Halgat for eight months, the ATF was unable to produce any evidence of any criminal activity. ( Id. at 5:14). Halgat's lawful behavior continued even while those around him broke the law. For instance, on February 18, 2011, Halgat rode down to Mexico with his Vagos confederates. ( Id. 5:10-16). The confidential informant went along, purchased drugs for the Vagos group, and observed several Vagos brothers using the drugs. ( Id. ) But, Halgat abstained. ( Id. )
On July 5, 2012, Brancato solicited Halgat to sell Brancato a semi-automatic gun. ( Id. at 5:17-24). In response, Halgat procured a lawfully purchased and legally possessed firearm. ( Id. ) Later, Brancato solicited Halgat for a second gun. Again, Halgat procured a lawfully purchased and legally possessed firearm. ( Id. ) Then, Brancato solicited Halgat to sell Brancato a fully-automatic gun. ( Id. ) In response, Halgat told Brancato that he did not possess fully automatic firearms and proceeded to explain to Brancato the law governing fully automatic guns. ( Id. at 18:1-4).
On August 10, 2012, Brancato approached Halgat with a comparable request, which yielded comparable results. Brancato solicited Halgat to sell Brancato a quarter-pound of cocaine. Halgat responded: "Honest, that will be a problem." ( Id. at 6:8). And, Brancato replied: "Yeah, but, you know what, homey, sometimes you have to take a risk, you know. Times are hard right now, homey. [...] [F]or me, right now, it's worth the risk." ( Id. at 6:8-12). Later that evening, Brancato asked Halgat to put Brancato in touch with Halgat's co-defendnat, Udell Wickham, so that Brancato could purchase cocaine from Wickham. ( Id. at 6:13-14). Halgat responded by saying that all he will contribute is an introduction to Wickham. ( Id. )
Nonetheless, Halgat eventually participated in four illegal drug-related transactions. ( See Indictment (#1) at 2-3). On September 19, 2012, Halgat met Brancato at his residence, discussed buying cocaine from Wickham, and arranged for Brancato to purchase one ounce of cocaine from Wickham for $800.00. (Gov't's Opp'n (#45) at 2-3). Later that day, Halgat and Brancato drove to Hooters, met Wickham on the restaurant's patio, and went inside where Brancato paid Wickham $700.00 for cocaine. ( Id. at 4). After dinner, Halgat gave Brancato a purple Crown Royal bag. ( Id. ) Brancato and Halgat returned to Brancato's home; Brancato opened the bag and discovered approximately 29 grams of cocaine. ( Id. ) Halgat said that he would tell Wickham the cocaine weighed exactly one ounce before departing. ( Id. )
On October 11, 2012, Brancato bought a second ounce of cocaine from Halgat and Wickham at Michael's Pub. ( Id. ) The only difference between this transaction and the previous purchase was that Wickham handed the cocaine directly to Brancato. ( Id. at 5). The next day, Brancato, Halgat, and Wickham returned to Michael's Pub for a third purchase. ( Id. ) On October 26, 2012, a fourth transaction occurred. ( Id. ) Lab results revealed that the substance purchased at each transaction was, in fact, cocaine, which weighed 27.95g, 27.91g, 27.88g, and 27.60g. ( Id. )
Now, Halgat moves to compel the Government to disclose (1) the confidential informant's case file, (2) Brancato's cell phone for a forensic examination, and (3) two ATF's related agents' cell phones, call logs, and cell phone bills. ( See Def.'s Mots. to Compel #38, #39); ( see also Mins. Proceedings #65) (oral motion for Agent Ware and Agent Arboreen's cell phones and cell-phone records). Halgat argues, inter alia, that the information should be compelled because it contains potentially exculpatory evidence in support of Halgat's entrapment defense. ( Id. )
Halgat's motions raise three questions: whether the Government should produce (1) information regarding its confidential informant under Maryland & Roviaro; (2) Agent Brancato's cell phone for forensic analysis under Rule 16; and (3) Agent Ware and Agent Arboreen's cell phones and ...