United States District Court, D. Nebraska
Gossett, III United States Magistrate Judge
matter is before the court on the Motions for Disclosure of
Confidential Witnesses filed by Defendants Gregory Bahati
(Filing No. 211) and Jerell Haynie (Filing No.
seeks an order requiring the Government to disclose the
identity of C/I 1355. Bahati asserts the informant has
personal knowledge of and can testify about the history of
Omaha gangs, provide exculpatory evidence regarding the
existence of the alleged enterprise, and refute testimony of
the Government's experts. (Filing No. 211).
Haynie seeks an order requiring the Government to disclose
the identity of C/I 1355 as well as the identities of Victim
#1 and Victim #2 referenced in Counts I, II, III, and IV of
the Superseding Indictment. (Filing No. 241). The
Superseding Indictment alleges Haynie used a firearm to shoot
at Victim #1 because Haynie believed Victim #1 was an
informant. (Filing No. 33 at p. 7). The Superseding
Indictment further alleges Haynie engaged in a verbal
altercation with and accused Victim #2 of talking to law
enforcement, and subsequently Haynie shot at a residence
occupied by Victim #2. (Filing No. 33 at p. 9).
need for protecting the identity of government informants is
well recognized.” United States v. Foster, 815
F.2d 1200, 1202-03 (8th Cir. 1987) (citations omitted)).
“In order to override the government's privilege of
non-disclosure, defendants must establish beyond mere
speculation that the informant's testimony will be
material to determination of the case.” United
States v. Hollis, 245 F.3d 671, 674 (8th Cir. 2001)
(quoting United States v. Harrington, 951 F.2d 876,
877 (8th Cir. 2001)).
defendant bears the burden of demonstrating the need for
disclosure.” United States v. Lapsley, 334
F.3d 762, 763 (8th Cir. 2003) (citing United States v.
Wright, 145 F.3d 972, 975 (8th Cir. 1998). “The
court must weigh the defendant's right to information
against the government's privilege to withhold the
identity of its confidential informants.”
Lapsley, 334 F.3d at 763-64 (quoting United
States v. Fairchild, 122 F.3d 605, 609 (8th Cir. 1997)).
When weighing the interests of the accused against the
interests of the public, “the court must consider the
particular circumstances of each case, taking into
consideration the crime charged, the possible defenses, the
possible significance of the informer's testimony, and
other relevant factors.” United States v.
Harrington, 951 F.2d at 877 (citing Roviaro v.
United States, 353 U.S. 53, 62 (1957)). The defendant
must demonstrate that the disclosure of an informant's
identity “is material to the outcome of his case; in
other words, that disclosure is vital to ensure a fair
trial.” United States v. Gonzalez-Rodriguez,
239 F.3d 948, 951 (8th Cir. 2001). “Where the witness
is an active participant or witness to the offense charged,
disclosure will almost always be material to the
accused's defense.” Devose v. Morris, 53
F.3d 201, 206 (8th Cir. 1995) (footnote omitted).
“Where the disclosure of an informer's identity, or
of the contents of his communication, is relevant and helpful
to the defense of an accused, or is essential to a fair
determination of a cause, the privilege must give way.”
Roviaro, 353 U.S. at 60-61.
government represents to the court that C/I 1355 and Victim
#1 will be called to testify at trial, and has provided their
statements to the defense with witness names and identifying
information redacted. (Filing No. 276 at p. 3). The
government has also provided the defense with Victim #2's
statements with the identifying information redacted. The
government asserts the identities of the informant and
victims was redacted to protect their safety. The government
alleges that the defendants are members of a street gang that
routinely engages in witness intimidation and retaliation.
For example, co-defendant Bahati is charged in the
Superseding Indictment with attempting to shoot Victim #5
after accusing Victim #5 of providing information to rival
gang members. (Filing No. 33 at p. 11). Co-defendant
Dionte Dortch is charged in the Superseding Indictment with
witness tampering for threatening and intimidating Victim #10
for talking to law enforcement and testifying before the
grand jury. (Filing No. 33 at pp. 12, 17). On April
10, 2016, Dortch wrote a letter to an individual he
identifies as “Sin, ” asking Sin to “post
my charges on fb [Facebook] and tag me[.] [T]hem bitches Gone
see that and Get spook hopefully they don't show up and
stop cooperating.” Dortch also writes, “I can win
if there's ‘no witnesses' to testify.”
(Filing No. 278 at p. 4).
court finds the defendants have met their burden to show a
need for the disclosure of the identities of C/I 1355, Victim
#1, and Victim #2. The Superseding Indictment charges Haynie
with crimes arising out of his alleged actions against Victim
#1 and Victim #2 directly, and thus they are more properly
characterized as witnesses to the offenses charged, rather
than a confidential informant. See Morris, 53 F.3d
at 206 (“Where the witness is . . . witness to the
offense charged, disclosure will almost always be material to
the accused's defense.”). The court further finds
the identity of C/I 1355 is relevant to the accused's
defense. However, the government has provided evidence of
legitimate concerns for the safety of the witnesses if their
identities were disclosed. Therefore, the court will only
order disclosure of the witnesses' identities fourteen
calendar days prior to trial. Accordingly, IT IS ORDERED: The
Motions for ...