United States District Court, D. Nevada
ORDER (DOCKET NO. 93)
J. KOPPE, United States Magistrate Judge
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.
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.
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.
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. The United States did not file a
supplemental reply. See Docket.
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.
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.
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.
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.
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
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.