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United States v. Thomas

United States District Court, C.D. Illinois, Springfield Division

November 23, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA THOMAS, Defendant.

          ORDER AND OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Joshua Thomas's Motion for Discovery (d/e [13]). For the reasons set forth below, Defendant Thomas's motion is GRANTED in part and DENIED in part.

         BACKGROUND

         On February 5, 2016, an indictment was filed against Defendant charging him with both being a felon in possession of a firearm and distributing marijuana on two separate occasions, July 7, 2015 and August 7, 2015.

         On June 3, 2016, Defendant wrote a letter to the Government requesting disclosure of a variety of evidence.

         On August 26, 2016, Defendant filed a Motion for Discovery requesting that the Government provide all information requested in the June 3, 2016 letter [hereinafter Letter], all information the Government has been directed to provide pursuant to Deputy Attorney General Ogden's Memorandum on Guidance for Prosecutors Regarding Criminal Discovery, dated January 4, 2010, and the informant file for Confidential Informant 9776, who was involved in the occurrences giving rise to this case.

         The Government opposed the motion and asserted that it has already provided everything responsive to Defendant's requests “that is required to be disclosed at this stage of the proceedings.” (d/e [15]) Response in Opposition to Defendant's Motion for Discovery [hereinafter Government's Response] at 2. The Government opposed Defendant's request for the informant's identity and stated that the informant is still an informant in pending investigations involving gun violence such that disclosure of his identity could jeopardize pending investigations and risk harm to the informant and others. The Government also opposed Defendant's request for the informant file, stating that it is not required to disclose the file under its discovery obligations.

         In his Response to the Government's Response, Defendant stated his intent to use the defense of entrapment. Defendant asserted that on July 7, 2015, before the charged conduct took place, the informant came to Defendant's residence and gave Defendant a box containing the revolver that Defendant is charged with possessing in Count I of the indictment. Defendant alleges that the informant asked Defendant to hold the box for the informant and that the informant would return later that morning to retrieve it. Id. ¶ 4. Defendant asserts that the informant did in fact return to Defendant's residence later on the morning on July 7, 2015, at which point the informant was wired with a recording device and accompanied by Agent Randy Strode of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Defendant states that the informant then reclaimed the box and its contents as well as a small quantity of cannabis, giving rise to the offenses charges in Counts 1 and 2. Id. ¶ 5.

         II. ANALYSIS

         A. Discovery in criminal cases is limited.

         A criminal defendant has no right to general discovery from the government. Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“There is no general constitutional right to discovery in a criminal case . . . .”); United States v. Rivera, 6 F.3d 431, 441 (7th Cir. 1993) (“we believe the presumption that, absent some specified requirement, the defendant is not entitled to disclosure is the correct one”). Discovery in criminal cases arises from the Due Process Clause, Federal Rules of Criminal Procedure 16 and 26.2, and the Jencks Act, 18 U.S.C. § 3500.

         Criminal defendants are entitled to disclosure of exculpatory evidence from the Government that is material to the defendant's case. Brady v. Maryland, 373 U.S. 83, 87 (1963) (“suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.”); United States v. Tadros, 310 F.3d 999, 1005 (7th Cir. 2002) (“the government must disclose evidence favorable to the defense where the evidence is material to either the guilt or punishment of the defendant”). Brady established a criminal defendant's right to exculpatory evidence that has a reasonable likelihood of affecting the outcome of the case as to guilt or punishment. United States v. Bagley, 473 U.S. 667, 675 (1985). In Giglio v. United States, the Supreme Court expanded the scope of the mandatory disclosures under Brady to include favorable material evidence relating to the credibility of a witness. 405 U.S. 150, 154-55 (1972) (finding that when key witness's credibility was “an important issue in the case . . . evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it”); see Collier v. Davis, 301 F.3d 843, 848 (7th Cir. 2002).

         A defendant's right to discovery under Brady and Giglio is limited to that which is required for a fair trial; it does not create a general right to discovery of exculpatory or other evidence. United States v. Bagley, 473 U.S. 667, 675 (1985) (“The prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.”); Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“There is no general constitutional right to discovery in a criminal case, and Brady did not create one.”).

         In addition to Brady and Giglio disclosures, Federal Rule of Criminal Procedure 16(a) governs the government's duty to disclose pretrial discovery consisting of the defendant's statements, the defendant's prior record, documents and objects, reports of examinations and tests, and expert witnesses. Rule 26.2 and the Jencks Act, 18 U.S.C. § 3500, require production of a witness's statements once that witness has testified on direct examination.

         B. Defendant has shown a genuine need for the informant's identity.

         In his motion for discovery, Defendant requests the identity and location of the informant involved in the charged conduct. See Motion for Discovery Ex. 1 [Letter] ¶ 8.The Government has a privilege to withhold the identity of an informant. Roviaro v. United States, 353 U.S. 53, 59 (1957) (the “informer's privilege” is the government's privilege “to withhold from disclosure the identity of persons who furnish information of violations to officers charged with enforcement of that law”). The Supreme Court explained the rationale for the privilege:

The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by ...

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