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United States v. Alcantara

United States District Court, D. Nevada

July 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDERSON ALCANTARA, et al., Defendants.

          ORDER (ECF NOS. 256, 257, 264, 270)

          C.W. HOFFMAN, JR., UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on defendant Anderson Alcantara's Motion to Compel (ECF No. 256), filed April 16, 2018, and the government's sealed response (ECF No. 306), filed May 29, 2018, as well as joinders by defendants Francisco Filho (ECF No. 257), filed April 18, 2018, Bruno Correia (ECF No. 264), filed April 24, 2018, and Andre Rodrigues (ECF No. 270), filed April 25, 2018. Alcantara did not file a reply.

         I. BACKGROUND

         Numerous Brazilian nationals are alleged to have conspired to commit credit card fraud throughout the United States. The group's fraud activities took place over several years and were conducted by shifting assortments of members of the group. On January 3, 2017, a grand jury returned an indictment charging Alcantara with numerous crimes.[1]

         Alcantara moves for the disclosure of the identity of the four confidential informants noted in the discovery, and requests that they be made available for interview or use as a witness. He argues that their identities and availability are necessary to allow him to prove his defense, which is that his actions were not a “conspiracy” but rather were acts among multiple individual actors committing similar offenses. To challenge the existence of the alleged conspiracy, Alcantara therefore needs access to the confidential informants.

         The government responds that there are only three confidential human sources (“CHS”), which it refers to as CHS #1, CHS #2, and CHS #3. Alcantara already knows their identities, and substantial discovery has been produced which provides their potential testimony. The government asserts the privileged nature of information about the informants, including their whereabouts, for the following reasons. Eight of Alcantara's codefendants are at-large. All of them are aware of the indictment and this pending case, and all therefore have a reason to resent the informants. Some of the defendants have been disseminating information about the informants to others in Brazil. Some of the defendants have been actively dissuading others from cooperating with the government. Codefendant Rodrigues has a history of violent crime, including shooting a police officer with a firearm in Fortaleza, Brazil. His criminal history from Brazil reflects a homicide-related case and investigation. At-large codefendant Bruno Dos Santos has an open March 2017 homicide investigation in Brazil. Accordingly, the government asserts its privilege of confidentiality absent a showing of a need to obtain information about the informants, and argues that the need to protect the informants outweighs defendants' need for access.

         II. DISCUSSION

         In Roviaro v. United States, 353 U.S. 53 (1957), the United States Supreme Court recognized the government's privilege to withhold the identity of an informant. This privilege is based on dual interests of promoting the public interest in individuals coming forward to assist law enforcement and protecting the safety and security of those individuals. The Supreme Court also recognized that an informant's identity should be revealed whenever it would be “relevant and helpful” to an accused's defense or “essential to a fair determination of a cause.” Id. at 60- 61. “[D]etermining whether to reveal an informant's identity requires balancing the needs of law enforcement against the individual's interest in having a fair trial.” United States v. Rawlinson, 487 F.2d 5, 7 (9th Cir. 1973). Whether disclosure is warranted is a fact-sensitive, case-by-case inquiry. Id.

         The Ninth Circuit has identified the following “factors [as] relevant when deciding whether to identify a confidential informant: (1) the crime involved; (2) the possible defenses available to the defendant; and (3) the significance of the informant's testimony.” Gamble v. Deeds, 956 F.2d 1166 (9th Cir. 1992) (citing Roviaro, 353 U.S. at 62). “Mere speculation that the informant's testimony would be helpful is insufficient to compel disclosure.” Id. (citing United States v. Sanchez, 908 F.2d 1443, 1451 (9th Cir. 1990)); United States v. Sai Keung Wong, 886 F.2d 252, 255-57 (9th Cir. 1989) (“The mere suspicion that information will prove helpful is insufficient to require disclosure.” (citation omitted)). The burden is on the defendant to demonstrate the need for disclosure. United States v. Fixen, 780 F.2d 1434, 1439 (9th Cir. 1986).

         The government is not required to disclose an informant's whereabouts even when his identity is already known by the defendant. Such information is still privileged. United States v. Long, 533 F.2d 505, 508 (9th Cir. 1976) (stating that “the informer privilege continue[s] to serve its intended purpose despite the transmittal of the informant's name to counsel”). A court must balance the public interest in nondisclosure of the informant's whereabouts against the defendant's need for disclosure. Rovario, 353 U.S. at 62.

         A. Alcantara already knows the identity of the three confidential sources

         The government indicates that the confidential sources are referred to by name throughout the discovery, including some source reporting, such as FBI and New Jersey state police reports documenting CHS #1's proffer after being arrested in Atlantic City, New Jersey while conducting fraud with Alcantara, Rodrigues, Correia, Rego, and others. CHS #1's true name, former address, and telephone number were included in the discovery, and apparently, Correia's investigator has contacted him.[2] Additionally, text messages sent to CHS #1 by Alcantara and some his co-defendants, such as Correia, are in the discovery. The government indicates that the discovery contains numerous surveillance photographs, videos, and audio recordings of CHS #1 and CHS #2, for example, during multiple controlled operations where Alcantara and his co-defendants are recorded committing credit card fraud. Alcantara has been provided agent surveillance photos, a video and audio body-recording made by CHS #1 when he purchased stolen goods from Alcantara, and surveillance from an airplane of Alcantara when he drove to meet CHS #1 to conduct the transactions. Finally, Alcantara and his codefendants have been provided dozens of FD-1023 confidential source reporting documents and written reports regarding what the CHSs have done and said in relation to individual defendants.

         B. Alcantara's need to interview informants

         Alcantara argues that a principal issue in this case is the extent to which he should be responsible for the actions of other individuals in this case. In other words, he asks whether he should be held responsible for the actions of his co-defendants that occurred without his direction or knowledge, or before the date he is alleged to have entered a conspiracy. He argues that the informants link ...


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