United States District Court, D. Nebraska
Michael D. Nelson United States Magistrate Judge
matter is before the Court on the motion seeking generally
the disclosure of the identity of the government's
confidential informant (C/I) and the production of unredacted
police report(s) filed by Defendant Kordaye Carter
(Filing No. 40). The government agrees to the granting
of the motion, in part, and otherwise opposes the motion
(Filing No. 45).
seeks an order requiring the government to disclose the
identity of its C/I, asserting that such individual
participated in, and otherwise witnessed, certain events
which led to his arrest and the instant prosecution. He
further asserts that the identity of the C/I, and the
disclosure of such individual through the production of
unredacted police report(s), may lead to exculpatory and/or
impeaching information of which he is entitled under
Brady and Giglio. The government agrees to
the disclosure of the identity of the C/I within fourteen
(14) days of trial, but opposes the production of unredacted
police report(s), arguing that the redactions are limited to
an internal case identifier, internal witness identifying
number, and internal indexing information. (Filing No. 45
at page 3).
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 it will offer
testimony from its C/I, and has provided redacted reports to
the defense. The government asserts that the identity of the
C/I has not yet been disclosed to the defense in order to
limit the risk of danger to such individual (Filing No.
45 at page 3).
Court finds that Defendant has met his burden to show a need
for the disclosure of the identity of the government's
C/I; however, the Court finds that Defendant has not
demonstrated the need for the production of unredacted police
report(s) given the nature of the redactions and the
government's intention to otherwise disclose the identity
of such individual. The two count Indictment (Filing No. 1)
charges Defendant with distribution of a controlled substance
and the use of a weapon, which the parties have each stated
involved the government's C/I. Thus, this individual is
more properly characterized as a witness 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 that the identity of the government's
C/I is relevant to the accused's defense. However, the
government has asserted legitimate concerns for the safety of
the witness if his/her identity was disclosed. Therefore, the
Court will only order disclosure of the witness's
identity fourteen calendar days prior to trial. Accordingly,
IT IS ORDERED: Defendant's motion at
Filing No. 40 is granted in part, and denied in
part. The government shall disclosure the identity of its
confidential informant and witness to the defense at least
fourteen (14) calendar days in advance of trial, and
otherwise comply with its constitutional obligations under
Brady and Gigilio. The government is not
required to produce to the defense unredacted police
report(s), unless doing so would be necessary to otherwise
comply with this Order. The remainder of Defendant's
motion is denied.
 Defendant's filing was captioned
“BRIEF IN SUPPORT OF MOTION TO COMPEL DISCLOSURE AND
PRODUCTION OF CONFIDENTIAL INFORMANTS AND UNREDACT THE POLICE
REPORT.” Despite counsel's failure to comply with
NECrimR 12.3(b)(1), the court will treat Defendant's
filing as both a motion and a supporting brief. Counsel is