Writing for the Ninth, Judge Stephen Trott repeats some old Franks and CI disclosure law in the new Napier decision. United States v. Arthur Napier, __ F.3d. __, Slip. Op. 1401 (Feb. 7, 2006), available here. There is, however, some potentially dangerous language in the case that – if not explained by the defense– could cause mischief in the hands of a sloppy prosecutor.
Players: Judge Trott writes for the panel.
Facts: Cops get a state search warrant with a CI. Slip. Op. at 1405. The snitch puts Napier in two drug sales in the fall of ‘01. Id. Because of safety concerns, the affidavit identifying the snitch is put under seal. Id. When the case went federal Napier moved for disclosure of the snitch – explaining he had not sold drugs during that time period. Id. at 1406, 1410. The district court disclosed a redacted affidavit, held an evidentiary hearing (on danger to the snitch, it appears), and offered an in camera hearing to reconcile the disputed facts. Napier renewed the CI disclosure motion and asked the Court to undertake its own Franks hearing. Id. at 1406. The court conducted a Roviaro balancing test and denied the motion. Napier pleaded to a conditional plea.
Issue(s): 1. When the defendant flatly denies a CI’s allegations, is he entitled to CI disclosure? 2. If the defendant asks for dates of sales and other such info – instead of the CI’s identity – can the district court conduct a Roviaro balancing and withhold? Id. at 1408.
Held: 1. CI Disclosure When Defendant Denies: It is not an abuse of discretion for a district court to refuse to disclose the identity of a confidential informant despite a defendant’s “naked” denial of a CI’s allegations, when i) the defendant gets a redacted affidavit, ii) the court conducts Roviaro balancing, and iii) the defendant turned down an in camera hearing for the court to examine the truth of the informant’s allegations.
2. Roviaro When CI Identity Not in Issue?: Roviaro balancing – and the informer’s privilege – is as broad as necessary to protect the informant’s safety and usefulness. Roviaro balancing can apply to facts beyond identity that would reveal the informant. Id. at 1408. “The privilege identified in Roviaro protects more than just the name of the informant and extends to information that would tend to reveal the identity of the informant.” Id. at 1408.
Of Note: Much of Rapier is familiar, settled law. There is, however, an unsettling discussion of “lessened” due process rights in suppression hearings. Id. at 1409. Judge Trott writes, “Napier’s argument for an absolute right (for CI disclosure) is further weakened by the Supreme Court’s determination that due process requirements at suppression hearings are less elaborate and demanding than those at trial.” Id. This language should be limited to the context of Napier’s aggressive stance of almost per se disclosure. The defense bar needs to fight the expansion of this “less elaborate” due process approach to suppression hearings – which are, after all, often the whole enchilada in the case.
How to Use: With typical imprecision, ND Cal AUSAs have already read Napier to mean that there is no CI disclosure in Franks hearings. Wrong. Napier doesn’t change established law on CI disclosure.
Moreover, the defendant in Napier turned down the court’s offer of an in camera hearing. That is an important distinction upon which to seize: Napier, at minimum, was entitled to an in camera hearing on the snitch’s allegations. Napier turned down this hearing, but it seems clear that he was entitled to it had it not been waived.
Finally, use Trott’s “less due process” argument against the government. Renew the CI disclosure motion after losing the Franks hearing and when proceeding to trial. Flipping Trott’s logic, there is a higher due process need for disclosure at trial. Therefore, the defense should get a second – and more-favorable – Roviaro hearing for CI disclosure at the pretrial conference.
For Further Reading: (Senior) Judge Stephen Trott is a Highwayman (a singer, not a robber). See article here. This makes him the most conservative 60's folk singer on the federal bench. A Reagan appointee and former Ass’t A.G., Judge Trott is generally a friend of the Right. Like Kozinski, however, he can be a welcome stickler for constitutional protections and can unmercifully grill an AUSA who cut corners or behaved unethically. He also is a vocal skeptic of snitches. See article here. Given that skepticism, one would have hoped some better language in Napier – where the defendant flatly proclaimed that the snitch was lying.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org