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United States v. Payan

United States District Court, D. Nevada

August 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ROGELIO PAYAN, Defendant.

          ORDER

          NANCY J. KOPPE United States Magistrate Judge

         Pending before the Court is Defendant Rogelio Payan's motion to disclose confidential informants and related information. Docket No. 43. The Court has considered Defendant's motion, the United States' response, Defendant's reply, the United States' supplemental brief, the United States' sealed exhibit to its supplemental brief, and Defendant's supplemental brief. Docket Nos. 43, 45, 46, 54, 55, 62.

         BACKGROUND

         On August 9, 2016, a federal grand jury sitting in Las Vegas, Nevada issued an indictment charging Defendant with one count of felon in possession of a firearm, in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2). Docket No. 1. The indictment alleges that, on or about December 23, 2015, Defendant, who had been previously convicted of a felony offense, knowingly possessed a firearm. Id. On August 22, 2016, Defendant made his initial appearance in this Court and entered a not guilty plea to the charge in the indictment. Docket No. 11.

         Defendant seeks an order requiring the United States to disclose the identity (including the name, address, date of birth, telephone number, and social security number) of each of the two confidential informants (CI) used by the United States to obtain a search warrant on December 22, 2015. Docket No. 43 at 1. Defendant further seeks an order requiring the United States to produce “the CIs' files, criminal histories, all reports, memoranda, statements by/concerning the CIs regarding [him], as well [as] any and all police reports and record, whether written or recorded, concerning the CIs' work on other investigations, ” as well as “all payments to the CIs or on the CIs' behalf.” Id. at 2.

         Defendant submits that the confidential informants gave information to law enforcement regarding a shooting that occurred on December 11, 2015. Id. at 3. The CIs both told law enforcement that, while they were riding in a vehicle, Defendant intentionally struck their vehicle with his, and fired several gunshots at them. Id. at 3-4. Defendant notes one significant difference in the accounts, as CI #1 stated that CI #2 returned fire when Defendant began shooting, but CI #2 denied returning fire. Id. Defendant submits that North Las Vegas Police Department Officer Fellig sought, and obtained, a search warrant for his residence based on the information provided by the CIs. Id. at 4-6. On December 23, 2015, when the search warrant was executed, law enforcement recovered, among other things, the Glock handgun whose possession is the basis of the charge against Defendant. Id. at 7.

         Defendant further submits that

the CIs' tip is the primary basis for the search warrant application and the only reason the government obtained the gun in this case. Furthermore, the CIs' identities are critical to developing a substantive defense in this case. At least one CI claimed to have repeatedly entered [Defendant's] home where the gun was found, as recently as December 2015 -when the CIs provided the tip and law enforcement executed the warrant. Thus, without the CIs' identities, criminal histories, complete report of the information they provided, reports concerning the CIs' past work for law enforcement, and any payments to, or for, the CIs, [Defendant] is unable to fully present his arguments with respect to his Franks challenge or to develop a substantive defense at trial.

Id.

         Defendant contends that the CIs are “percipient witnesses” to his possession of a handgun and are, therefore, essential to developing his defense. Id. at 11. In support of this contention, Defendant notes that both CIs identified him as shooting at them with a dark semi-automatic gun. Id. Further, CI #2 specifically stated that the gun was a Glock and that he/she had seen the black Glock inside Defendant's home during that same time period. Id. Defendant submits that CI #2 “could” have planted the gun in the house; “could” have knowledge about the gun and how it came to be in the location where it was recovered by police. Id. at 11-12. Therefore, Defendant contends that the disclosures he has requested regarding the CIs are “necessary to pursue multiple theories of defense.” Id. at 12.

         Finally, Defendant submits that the United States may claim that it does not request the information he has asked the Court to order disclosed. Id. In that instance, Defendant asks the Court to issue a Rule 17(c) subpoena ordering the North Las Vegas Police Department to produce the information. Id. Defendant submits that the information is relevant for him to fully present his Franks motion and to establish trial defenses. Id.

         In response, the United States relies upon its privilege to withhold the identity of confidential informants who furnish information to law enforcement regarding violations of law. Docket No. 45 at 4. The United States notes that, while the privilege is not absolute, Defendant must show a need for the information in order to obtain disclosure. Id. at 5. Here, the United States submits, Defendant has failed to do so. Id.

         The United States submits that neither CI is a percipient witness to the crime charged in the indictment - possession of a firearm on December 23, 2015. Id. at 6. Further, the United States does not anticipate calling either CI to testify at trial. Id. The United States submits that CI #1 provided the initial tip to law enforcement that Defendant was involved in a shooting on December 1, 2015. Id. CI #2, the United States submits, provided “corroborating information” regarding Defendant's involvement in the shooting. Id. The United States contends that this level of involvement does not meet the threshold to require disclosure of the information Defendant requests. Id.

         Additionally, the United States submits that Defendant has failed to raise a defense that would warrant disclosure of the requested information. Id. at 7. The United States submits that Defendant has merely speculated about information that the CIs “could” provide and the potential defenses that “could” be raised, and has therefore failed to show that the requested information would help him establish a defense at trial. Id. The United States contends that it has a strong and legitimate interest in protecting the identity of the CIs that is not outweighed by Defendant's ...


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