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United States v. Payan

United States District Court, D. Nevada

February 7, 2018

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

          ORDER (DOCKET NO. 93)

          NANCY J. KOPPE, United States Magistrate Judge

         Pending before the Court is Defendant Rogelio Payan's motion to unseal Magistrate Judge's ex parte hearings and government exhibits. Docket No. 93. The Court has considered Defendant's motion, the United States' response, and Defendant's reply. Docket Nos. 93, 98, 99.

         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.

         On April 5, 2017, Defendant filed a motion to disclose confidential informants and related information. Docket No. 43. Defendant sought 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 for his residence on December 22, 2015. Id. at 1. Defendant asked the Court to order 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.

         After Defendant's motion was fully briefed, the Court ordered supplemental briefing from both Defendant and the United States. Docket No. 49. The Court found that certain issues exist in the briefing that were not fully addressed by either party. Id. at 2. Therefore, the Court gave the parties the opportunity to address the factors that the Court must consider in making its decision. Id. The Court set out certain issues that the United States was directed to address, and allowed a response on those issues from Defendant, as well as a reply from the United States. Id. at 2-3. The United States filed a supplemental brief, and Defendant filed a supplemental response. See Docket Nos. 54, 55, 62.[1] The United States did not file a supplemental reply. See Docket.

         The Court held a bifurcated ex parte in camera hearing on August 7, 2017, and on August 11, 2017. Docket Nos. 75, 77. Prior to the hearing, the Court allowed Defendant to submit questions for the officers, which the Court agreed to consider asking. Docket No. 71 at 2. Defendant submitted a list of questions prior to the hearing. Docket No. 74. During the hearing, the Court heard the testimony of Officers Forsberg, Fellig, and Ochoa and, among other questions, asked the questions submitted by Defendant that the Court deemed appropriate. Docket Nos. 75, 77.

         On August 15, 2017, the Court denied Defendant's motion to disclose confidential informants and related information. Docket No. 78. The Court found that Defendant's conclusory assertions regarding the CIs and their potential testimony failed to “meet the burden of establishing that the CIs' identities are relevant and helpful to any specific defense or essential to a fair determination of the case.” Id. at 9. The Court further found that, after questioning three separate law enforcement officers, it was “convinced that the concern for the safety of the CIs is real, and that disclosure would almost certainly place each CI in significant personal danger.” Id. Further, the Court noted that the United States had represented that it did not intend to call either CI as a witness at trial, that the CIs are not percipient witnesses to the crime charged in the indictment, that the information given by the CIs as used to establish probable cause for the search warrant that was executed at Defendant's residence, and that neither CI was present during the execution of the search warrant or was involved in the crime charged in the indictment. Id. The Court therefore found that Defendant had failed to meet his burden for disclosure of the CIs' identities. Id. at 10.

         On September 19, 2017, Defendant objected to the Court's report and recommendation regarding his motion to suppress evidence. Docket No. 84. In that objection, Defendant included a footnote wherein he stated, in toto, “Mr. Payan also objects to the Magistrate Judge's orders denying his access to the CI hearings on August 7th and 11th[] (ECF No. 71)[, ] and denying his motion regarding production of the CI-related information[] (ECF No. 78).” Id. at 3, n. 1. The United States submitted that Defendant's footnote did not constitute a proper objection to either of the Court's orders, and therefore asked that it not be considered. Docket No. 88 at 2. On December 27, 2017, Chief United States District Judge Gloria M. Navarro noted that Defendant's footnote failed to provide any argument or legal basis. Docket No. 91 at 4, n. 1. Chief Judge Navarro held that, because Defendant did not develop any argument in support of his objections to the orders at Docket Nos. 71 and 78, the Court would not address those objections. Id. Chief Judge Navarro also overruled Defendant's objection to the undersigned's report and recommendation, and denied his motion to suppress evidence. Id. at 8.

         Defendant has now filed the instant motion, which asks the Court to unseal the hearings conducted on August 7, 2017, and August 11, 2017, as well as the related government exhibits. See Docket No. 93. Defendant submits that unsealing the hearings and related exhibits will “allow defense counsel to examine the record to determine whether [Defendant] should plead guilty” in the instant case. Id. at 1. Defendant further reiterates his objections to the Court's denial of his request for a Franks hearing and motion to suppress, id. at 5-6; however, he submits that he “does not wish to rehash” the arguments he made previously in both his motion to suppress and objections to the report and recommendation. Id. at 7. Defendant submits that the Court's orders to deny his request for Franks hearing and to disclose confidential informants and report and recommendation to deny his motion to suppress are “premised on facts gathered” by the Court at ex parte sealed hearings and in sealed exhibits provided ex parte to the Court. Id. at 5. As a result, Defendant submits, he asks the Court to unseal the hearings and exhibits, so that his attorney can review the record to properly advise him how to proceed in the instant case. Id. If a concern exists as to the names of the CIs, Defendant submits, the Court can either order the United States to redact their names or issue a protective order allowing only counsel to have access to the unsealed items. Id. at 7.

         In response, the United States submits that Defendant's motion is essentially an untimely motion for reconsideration of the Court's order denying his motion to disclose confidential informants and, as such, should be denied. Docket No. 98 at 1. The United States further submits that disclosure of a confidential source is required only where it would be “relevant and helpful to the defense or essential to a fair trial.” Id. at 2 (citing Rovario v. United States, 353 U.S. 53, 60-61 (1957)). The United States notes that the Court, in its order denying Defendant's motion to disclose confidential informants, applied the Rovario test and determined that Defendant failed to meet his burden of showing that disclosure was relevant and helpful to the defense or essential to a fair trial. Docket No. 98 at 2. The United States further rebuts Defendant's contention that the Court did not address why he was not entitled to disclosure for his Franks argument, submitting instead that the Court specifically addressed this issue. Id. at 2-3. Finally, the United States submits that Defendant provides “no legal authority to support his argument that disclosure is warranted in order to evaluate whether he should or should not plead guilty to the charge in the criminal indictment.” Id. at 3. The United States therefore asks the Court to deny Defendant's motion. Id.

         In reply, Defendant submits that his motion is not an untimely motion for reconsideration of the Court's prior order. Docket No. 99 at 2. In support of this contention, Defendant submits that no deadline exists for filing a motion for reconsideration. Id. Further, Defendant submits that this motion is different from his previous motion, in that, instead of the information on the confidential informants to present his Franks arguments, he now seeks disclosure so his counsel can advise him how to proceed in the instant case. Id. at 2-3. Additionally, Defendant submits that he is not asking for disclosure of the CIs' identities despite the fact that he believes he has provided “sufficient identifying information” in prior motions. Id. at 3. Rather, Defendant submits, the United States may redact identifying information or the Court may issue a protective order prohibiting counsel from disclosing the identities to him. Id. Finally, Defendant submits that he did, in fact, provide legal authority in support of his request to disclose the information sought with appropriate protective measures. Id. at 2.

         ANALYSIS

         A. ...


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