United States District Court, C.D. Illinois, Springfield Division
ORDER AND OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Joshua Thomas's
Motion for Discovery (d/e ). For the reasons set forth
below, Defendant Thomas's motion is GRANTED in part and
DENIED in part.
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.
3, 2016, Defendant wrote a letter to the Government
requesting disclosure of a variety of evidence.
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.
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 ) 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.
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.
Discovery in criminal cases is limited.
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.
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).
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.”).
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.
Defendant has shown a genuine need for the informant's
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 ...