United States v. Caldwell

UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY CALDWELL, Defendant.

No. 4:19CR961 SRC/NCC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

March 18, 2021

ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b).

On December 8, 2020, defendant filed his Motion to Sever (Doc. No. 359); and Motion to Compel Disclosure Regarding Confidential Sources (Doc. No. 357). The Government filed its Responses on December 15, 2020. (Doc. Nos. 363, 364). On February 9, 2021, the parties proceeded by way of argument during a video hearing before the undersigned with the parties' consent. Based on the evidence adduced, as well as a review of the transcript of the hearing in this matter; the undersigned makes the following findings of fact and conclusions of law.

FACTUAL BACKGROUND

This case stems from a long investigation of an alleged fentanyl-distribution conspiracy and related crimes by eleven individuals including defendant. On November 20, 2019, defendant Caldwell was named in Count One with conspiracy to distribute and possess with the intent to distribute more than 500 grams of fentanyl with nine co-defendants. The remaining co-defendant, Deneisha Baker, is named last and she is the sole defendant charged in Count Two with maintaining a drug premises and Count Three with possession with intent to distribute fentanyl. The forfeiture allegation applies to all. On February 5, 2020, the Government moved that the Court designate this case as complex under the Speedy Trial Act, and the undersigned granted the motion. (Docs. 89, 175). The motion regarding speedy trial includes information that law enforcement conducted a long-term investigation in this case that generated court-ordered wiretaps, search warrants, surveillance video, interviews of subjects and seizures of guns and drugs. The parties have estimated that the trial could last a week, depending on the number of defendants who proceed to trial.

DISCUSSION

Defendant Anthony Caldwell's Motion To Compel Disclosure Regarding Confidential Sources (Doc. 357)

Defendant Caldwell seeks to compel the United States to disclose the identities and statements of its confidential informants, and cooperating co-defendants who might testify at trial against him. Caldwell claims that early disclosure is vital because the only evidence against him of which he is aware is information provided by confidential sources and cooperating witnesses. He argues that if confidential informants or cooperating witnesses did observe or participate in the offense, those individuals are material to his defense and must be disclosed far enough in advance of trial for his independent investigation, and impeachment purposes. Devose v. Norris, 53 F.3d 201, 206 (8th Cir. 1995) (citation and footnote omitted). Caldwell acknowledges that Rule 16, Fed. R. Crim. P., addresses the disclosure of prospective-witness statements but is silent when it comes to the Government's obligations to disclose identities. He contends that this is a proper case for the court to use its discretion to compel the Government to disclose identities. United States v. DeCoteau, 186 F.3d 1008, 1010 (8th Cir. 1999). See also United States v. Kazami, No. 4:09CR166 RWS DDN, 2009 WL 1605895 at *2-4 (E.D. Mo. June9, 2009); Memorandum and Order, United States v. Gonzalez, et al., No. 4:19CR211 (E.D. Mo. August 6, 2020), ECF No. 438.

At the hearing on this matter, defense counsel described two major events that could establish Caldwell's guilt and they both depend on direct involvement of confidential sources.¹ The first event is a confidential source's alleged purchase of fentanyl from Caldwell on August 14, 2019. Defense counsel believes that law enforcement agents might also have been present for this event. On September 12, 2019, a confidential source claims to have purchased a controlled substance from Caldwell and no law enforcement agents were present. Counsel argued that disclosure of the identities of the confidential informants must be made regardless of other direct or circumstantial evidence that the Government plans to present at trial. As part of this demand, defendant expects to also receive criminal histories, promises made in exchange for cooperation, addresses, and any prospective witness's track records regarding cooperation.

A. Witness Statements

The Government responds that Caldwell is speculating about the Government's evidence without a sufficient showing or asserting a defense, and counters that the Court should follow relevant case law and the Jencks Act, Title 18 United States Code, Section 3500, which provides in part:

(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in thepossession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

18 U.S.C.A. § 3500. Thus, the Jencks Act speaks to the outer limits by which the Government must make disclosures of such statements for its prospective witnesses. "[A]though in many cases the government freely discloses Jencks Act material in advance of trial, ... the government may not be required to do so." United States v. Wilson, 102 F.3d 968, 971-2 (8th Cir. 1996) (quotation omitted).

Rule 16(a) is consistent with the Jencks Act, and it sets forth the materials that the Government must disclose that are within the United States' possession, custody, or control and

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

More specifically, these items are a defendant's "oral and recorded statements, that defendant's prior criminal record, an opportunity to inspect and copy certain categories of physical evidence, and certain information about expert witnesses." See Fed. R. Crim. P. 16(a)(1). Information the defense is not entitled to is set forth in Rule 16(a)(2) (including "statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500" (Jencks Act))." United States v. Kazami, 2009 WL 1605895, at *3 (E.D. Mo. June 8, 2009); United States v. Pelton, 578 F.2d 701, 707-08 (8th Cir. 1978) ("Discovery of prospective witnesses is not required under Fed. R. Crim. P. 16(a)"). "Criminal defendants, however, have no right in noncapital cases to disclosure of the names of government witnesses under Rule 16(a)." See United States v. Porter, 850 F.2d 464, 465 (8th Cir. 1988); United States v. White, 750 F.2d 726, 728 (8th Cir. 1984). Similarly, Rule 26.2(a), Fed. R. Crim. P., provides that prior statements of witnesses who testified must bedisclosed, on motion, after their direct examination. Defendant's motion to compel early disclosure of statements should be denied. The parties are encouraged to disclose such materials no later than the Friday before trial.

B. Witness Identities

The legal issues surrounding the disclosure of confidential-informant and cooperating-witness identities are distinct from Jencks Act statements, although these two areas do naturally overlap. Courts must balance the interests between the Government's general privilege to withhold a person's identity and the defendant's right to impeach prospective witnesses and prepare for a defense. Rovario v. United States, 353 U.S. 53 (1957) (holding that a defendant is sometimes entitled to know the identity of the government's confidential informant to ensure a fair trial when weighed against the public's interest). Preserving an informant's anonymity and encouraging community members to report crimes is a strong public interest. Thus, generally, the government is not required to broadly reveal the identity of its trial witnesses at an early juncture in a case. United States v. White, 750 F.2d 726, 728 (8th Cir. 1984). See also, United States v. Cole, 449 F.2d 194 (8th Cir. 1971) (recognizing that it is within the discretion of the trial court to order disclosure of names and addresses of witnesses in the proper case). The Government has a general, although not absolute, "privilege to withhold the disclosure of the identity of a confidential informant." Carpenter v. Lock, 257 F.3d 775, 779 (8th Cir. 2001) (citing Rovario, supra). The Eighth Circuit Court of Appeals has also explained that there is no general constitutional right to discovery in a criminal case. United States v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000). Instead, "[i]n most circumstances ... a defendant must point to a statute, rule of criminal procedure, or other entitlement to obtain discovery from thegovernment." Id. "The decision to order disclosure depends on the particular circumstances of each case." United States v. Feldewerth, 982 F.2d 322, 324 (8th Cir. 1993).

Moreover, the requirements for disclosure of a person's identity depend on the degree of the informant's actual involvement. See United States v. Lapsley, 334 F.3d 762, 764 (8th Cir. 2003) ("Consequently, disclosure is typically not required when the informant [a tipster] merely conveys information to the government but neither witnesses nor participates in the offense.") (quotation marks and citations omitted). But this...