United States District Court, D. Nevada
J. KOPPE United States Magistrate Judge
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.
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.
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.
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.
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.
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.
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.
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
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.
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 ...