United States v. Cartagena ( 2010 )

United States Court of Appeals
For the First Circuit
No. 08-2177
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO CARTAGENA,
a/k/a Triste, a/k/a Joselín, a/k/a Charlie,
a/k/a Félix, a/k/a José Mejía,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.
Alan D. Rose, with whom Rose, Chinitz & Rose, was on brief for
appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Michael K. Loucks, Acting United States Attorney, were on
brief for appellee.
January 29, 2010
TORRUELLA, Circuit Judge. Defendant-Appellant Julio
Cartagena ("Cartagena") pled guilty to participation in a drug-
trafficking conspiracy involving the importation and distribution
of heroin and cocaine along the east coast, including the Greater
Boston area. Cartagena appeals the district court's denial of
three motions concerning his suspected involvement in the
conspiracy. First, Cartagena challenges the district court's
denial of a motion to suppress evidence obtained from state and
federal wiretaps, arguing that the affidavits submitted in support
of the wiretap applications omitted material information and that
had this information been included, the wiretap applications would
have failed to satisfy the "necessity requirement" of both 18
U.S.C. § 2518(1)(c) and N.Y. Crim. Proc. Law §§ 700.15(4),
700.20(2)(d). Second, Cartagena appeals the denial of his request
for a hearing under Franks v. Delaware, 438 U.S. 154 (1978).
Third, Cartagena challenges the denial of his motion to compel the
production of documents relevant to the motion to suppress, as well
as the denial of his motion for an in camera inspection of the
government agents' handwritten notes. After careful consideration
of Cartagena's challenges, we affirm in all respects.
I. Background
A. Facts
This appeal concerns information obtained from drug
trafficking investigations conducted by Drug Enforcement
-2-
Administration (DEA) agents operating in Boston, New York, and in
Bogotá, Colombia, in collaboration with the Colombian National
Police (CNP). The DEA focused its investigation on two individuals
operating on the east coast, Luis López ("López") in New York and
Cartagena in Boston. Special Agent Sean Canavan ("Canavan") was
responsible for the investigation of López, and Special Agent Jean
Drouin ("Drouin") was responsible for the investigation of
Cartagena.
Canavan's New York investigation centered on information
regarding López and his role in the distribution of the imported
heroin to wholesalers on the eastern seaboard, including Boston.
The DEA's investigation of López in New York was based on
information provided by a confidential informant, Pablo Báez
("Báez"). Báez worked with the DEA as a paid informant several
years earlier and had re-initiated contact with the DEA in December
2004, providing information concerning drug trafficking activity in
New York.
In mid-May 2005, Báez began providing information about
López's activities. The DEA registered Báez as an official
"confidential source" on June 8, 2005. Báez signed a DEA
Confidential Source Agreement (CSA) that authorized him to engage
in certain activities as an informant. On June 20, 2005, the New
York DEA, relying in part on information that Báez provided,
applied for a warrant, pursuant to the New York state wiretap
-3-
statute, authorizing a wiretap on López's cellular telephone. The
warrant was issued for a period of thirty days, commencing on
June 22, 2005. The DEA discontinued the wiretap on July 11, 2005
because it appeared that López was using a different phone to
conduct his drug-related conversations.
Báez continued to provide the DEA with information and
surveillance opportunities until October 11, 2005. After that, he
ceased contact with the DEA. On November 16, 2005, Canavan
formally deactivated Báez as a confidential source.
While the New York DEA investigated López, Drouin and the
Boston DEA conducted their separate investigation of Cartagena,
whom agents believed to be a cocaine and heroin dealer in
Massachusetts. During the course of the investigation, agents
suspected López of being Cartagena's primary heroin supplier.
Relying in part on information obtained from the New York
investigation of López, Drouin applied for electronic surveillance
on Cartagena's cellular telephone pursuant to Title III of the
Omnibus Crime Control and Safe Streets Act of 1968.1 The wiretap
1
Congress enacted Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 with the stated purpose of "(1) protecting the
privacy of wire and oral communications, and (2) delineating on a
uniform basis the circumstances and conditions under which the
interception of wire and oral communications may be authorized."
Gelbard v. United States, 408 U.S. 41, 48 (1972)(quoting S. Rep.
No. 90-1097, at 66 (1968), as reprinted in 1968 U.S.C.C.A.N.
2153)(internal quotation marks omitted). Title III makes the use of
wiretapping or electronic surveillance by law enforcement "an
extraordinary investigative technique whose use 'is to be
distinctly the exception - not the rule.'" United States v. López,
-4-
order named Cartagena, López, and several of their associates as
targets. The warrant for Cartagena's phone was issued for the
period of September 29, 2005 to October 14, 2005. The only
substantive information included in the application that was
derived from Báez's cooperation concerned López's role in the
conspiracy. As of the application date, Báez had not provided the
DEA with any information that specifically concerned Cartagena.
The district court subsequently granted a wiretap for another phone
used by Cartagena and also granted wiretaps for phones used by
López.
B. Proceedings Below
Based on information obtained from the investigation, a
grand jury indicted Cartagena and eighteen other co-conspirators on
November 13, 2006. Cartagena was charged with conspiracy to
distribute heroin and cocaine, maintaining a place for drug
purposes, and money laundering in violation of 21 U.S.C. § 846, 21
U.S.C. § 856(a)(1), and 18 U.S.C. § 1956(h), respectively. On
August 30, 2006, Cartagena's co-defendant, the former informant
Báez, filed a motion to suppress evidence gathered from New York
and federal wiretaps, arguing that the wiretap affidavit was
tainted by false and misleading statements and material omissions,
300 F.3d 46, 51 (1st Cir. 2002)(quoting United States v. Hoffman,
832 F.2d 1299, 1306 (1st Cir. 1987)). Thus, a law enforcement
official seeking to use electronic surveillance must meet the
specific requirements of Title III's comprehensive regulatory
scheme.
-5-
and that the Government failed to meet the "necessity requirement"
of the state and federal statutes because less intrusive
investigatory techniques were available. 18 U.S.C. § 2518(1)(c);
N.Y. Crim. Proc. Law §§ 700.15(4), 700.20(2)(d). Báez also moved
for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S.
154 (1978), to evaluate the alleged material omissions and false
statements in the federal and state wiretaps. Cartagena and
several other defendants joined Báez's motions.
The district court denied the motion to suppress as to
both the state and federal wiretaps. Regarding the New York
wiretap, the district court deemed the motion moot because the
Government stated it would not offer evidence obtained from the New
York wiretap, and further, no information obtained from that
wiretap had been used in the federal wiretap application. United
States v. López, No. 05-10304-GAO, 2007 WL 4556904, at *2 (D. Mass.
December 12, 2007). Turning to the federal wiretap, the district
court found that the facts set forth were "minimally adequate" to
support a necessity determination and that the wiretap applications
met the statutory requirements of § 2518(c). Id. at *6.
The district court briefly addressed the request for a
Franks hearing, finding that there had not been a substantial
preliminary showing that the affidavit omitted material facts
knowingly and intentionally, or with reckless disregard for the
truth. Id. Additionally, because none of the omitted facts would
-6-
have been material to a probable cause finding, the district court
denied the request for a Franks hearing. Id.
Separate from, but related to, the suppression and Franks
motions, Cartagena moved to compel the production of documents
relevant to his motions to suppress on November 16, 2006. The
magistrate judge denied the motion holding that, because Cartagena
had not presented any evidence supporting his claim that material
facts were omitted concerning other informants' activities or the
scope of the information they could provide, the government was
permitted to withhold the documents in order to shield the
identities of its confidential informants. Cartagena objected to
the magistrate judge's ruling. The district court affirmed the
magistrate judge's denial of the motion.
On August 8, 2007, Cartagena filed another discovery
motion for in camera inspection of handwritten notes of the Special
Agents who prepared the Title III and New York wiretap affidavits.
The district court denied the motion on December 12, 2007, holding
that Cartagena's request for in camera review was not sufficiently
particularized and focused. Following the denial of his motions,
Cartagena entered a conditional plea of guilty, reserving his right
to appeal the denial of the motions to suppress, for a Franks
hearing, and to compel discovery. The district court then
sentenced Cartagena to three consecutive 150 month terms. This
appeal followed.
-7-
II. Discussion
A. Motion to Suppress Wiretaps
1. Title III Wiretap
Cartagena challenges the sufficiency of the government's
showing of necessity pursuant to § 2518(1)(c) of Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
§ 2518. Section 2518(1)(c) sets forth the necessity requirement.
It requires that law enforcement officials applying to use
electronic surveillance include "a full and complete statement as
to whether or not other investigative procedures have been tried
and failed or why they reasonably appear to be unlikely to succeed
if tried or to be too dangerous." Id. In reviewing the
government's showing of necessity, our role "is not to make a de
novo determination of sufficiency as if [we] were [the issuing
judge], but to decide if the facts set forth in the application
were minimally adequate to support the determination that was
made." United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir.
1989)(quoting United States v. Scibelli, 549 F.2d 222, 226 (1st
Cir. 1977))(internal quotation marks omitted).
To establish necessity, the government is not required to
show that other investigative methods have been wholly
unsuccessful, United States v. Villarman-Oviedo, 325 F.3d 1, 9
(1st Cir. 2003), nor must the government exhaust all other
investigative measures before resorting to wiretapping. United
-8-
States v. Abou-Saada, 785 F.2d 1, 11 (1st Cir. 1986); see also
López, 300 F.3d at 52. The government is only required to show
that it has made "a reasonable, good faith effort to run the gamut
of normal investigative procedures before resorting to means so
intrusive as electronic interception of telephone calls." López,
300 F.3d at 52 (citing Hoffman, 832 F.2d at 1306-07).
Turning to the affidavit, we are satisfied that the
application was "minimally adequate to support the determination
that was made." Ashley, 876 F.2d 1074. The DEA Special Agent
filed a fifty-nine-page affidavit that defined the goals of the
government's investigation and supplied a detailed overview of the
investigation to date. The affidavit listed specific reasons why
traditional investigative methods used up to that point --
including informants, physical and video surveillance, controlled
purchases and seizures of heroin, and pen register and toll
analysis -– had not yielded sufficient information. It also
provided thorough explanations as to why other traditional
investigative techniques (e.g., physical surveillance, search
warrants, grand jury subpoenas, telephone records and pen register
data, trash searches, witness interviews, cooperating individuals,
and undercover agents) were unlikely to be fruitful.
Cartagena argues that the affidavit in support of the
wiretap contained material omissions and misleading and false
statements that, if known to the judge, would have prevented a
-9-
finding of necessity. Cartagena contends that the government
omitted material information concerning the extent of Báez's
infiltration into the conspiracy, the frequency, nature, and scope
of his communications with López, the activities he was authorized
to perform, and the quality of information he had provided to the
government.2 He also alleges that the government made false
statements by creating the impression that Báez had only been able
to provide the most general information about the drug enterprise.
Lastly, Cartagena argues that the government omitted material
information that would have established that traditional
investigative procedures were producing some results for the
government. Had this information been included, says Cartagena,
the issuing court would not have been able to find that a federal
wiretap was necessary, requiring the government to continue
pursuing less intrusive investigative techniques. Cartagena's
arguments are flawed for the following reasons.
Section 2518(1)(c)'s "full and complete statement"
requirement does not mandate that officers include every single
detail of an investigation, even if relevant to the need for a
wiretap. United States v. Yeje-Cabrera, 430 F.3d 1, 9-10 (1st Cir.
2
Cartagena additionally argues, regarding both the state and
federal wiretaps, that the government intentionally omitted an
unconstitutional search of López's phone from the affidavits.
Because we do not believe the information obtained from the search
was used in support of the wiretaps, Cartagena's allegation is
irrelevant to his necessity claim.
-10-
2005). Provided that sufficient facts are included supporting the
need for a wiretap over other investigative procedures, the officer
need not set forth the minutiae of an investigation. Id.Furthermore, "[t]here is no rule on the amount of time
investigators must try and fail, using other methods, before
turning to a wiretap application," United States v. Nelson-
Rodríguez, 319 F.3d 12, 33 (1st Cir. 2003). Even if traditional
investigative procedures produce some results, "the partial success
of the investigation [does] not mean that there [is] nothing more
to be done." United States v. Cao, 471 F.3d 1, 3 (1st Cir. 2006).
The government's affidavit made clear that although DEA
agents had secured information through traditional investigative
measures, their ability to continue obtaining actionable
intelligence from such methods was limited.3 We have never
required the government to "run outlandish risks or to exhaust
every conceivable alternative before seeking a wiretap," Hoffman,
832 F.2d at 1306, and we find no need to create such a requirement
today. On deferential review, we are satisfied with the issuing
court's determination that the facts provided were sufficient to
3
Specifically, the affidavit provided that traditional law
enforcement investigative techniques had failed to identify the
smuggling locations to which the narcotics were transported, the
exact method by which the conspirators imported the narcotics into
the United States, the persons to whom Cartagena supplied the
narcotics, the method by which the organization laundered its drug
proceeds, or the full nature and scope of Cartagena's drug
trafficking activities.
-11-
rise above the standard of minimal adequacy. See United States v.
Rivera-Rosario, 300 F.3d 1, 19 (1st Cir. 2002) (necessity
established where government described previously pursued
techniques, stated why they were ineffective, and explained why
other methods, including grand jury subpoenas and search warrants,
were not viable options).
Furthermore, even if the affidavit had contained the
information that Cartagena alleges was omitted or misstated, we
find no reason to conclude that the inclusion of such information
would have prevented the judge from deciding that a wiretap should
be issued. In light of the large quantities of evidence from
sources other than Báez, "if we excise (or otherwise appropriately
adjust) all misleading statements from the affidavit, there is
still a more than adequate showing of 'probable cause.' Thus any
misstatements are immaterial." Nelson-Rodríguez, 319 F.3d at 34(quoting United States v. Young, 877 F.2d 1099, 1102 (1st Cir.
1989) (Breyer, J.)). In this case, the affidavit contained
information gathered from several other cooperating informants,
video and physical surveillance, analysis of toll and phone
records, analysis of pen registers, and seizures of heroin and
cocaine. On these facts, we cannot say that the court erred in
concluding that the omission or misstatement of information about
Báez's informant activities did not provide grounds for
-12-
suppression. We therefore affirm the district court's denial of
Cartagena's motion to suppress.4
2. New York Wiretap
Cartagena also challenges the district court's denial of
his motion to suppress evidence obtained from the New York wiretap.
Cartagena argues, as with his Title III contentions, that the
district court should have suppressed the fruits of the New York
wiretap because the affidavit in support of the application omitted
material information and contained misleading statements. However,
upon reviewing the record, we agree with the district court that
the government did not offer evidence obtained from the New York
wiretap against Cartagena. Further, we conclude that any evidence
obtained from the New York wiretap that may have been used in the
Title III wiretap affidavit was not material. Cartagena has not
4
Although we agree with the district court's decision to suppress
the Title III wiretap, we briefly address its discussion of the
necessity standard in order to provide clarification. In applying
Title's III's necessity requirement, the district court imposed two
requirements that we have never demanded to establish necessity.
First, the district court considered whether the informant in this
case "was [] in a position to provide all the information that
objectively reasonable investigators would want or need for a
successful prosecution of the several people involved in the
distribution network." López, 2007 WL 4556904, at *4. Nowhere
does § 2518(1)(c) or this Court's jurisprudence require that we
assess the wants or needs of the objectively reasonable
investigator. Second, the district court considered the
evidentiary reliability of informant-provided information. Id. at
*5. Again, the evidentiary reliability of an informant's testimony
is not part of the necessity requirement under § 2518(1)(c). In
evaluating necessity, a court need only consider whether other
investigatory procedures have been tried and failed or if they
would be unlikely to succeed if pursued.
-13-
demonstrated otherwise. Thus, we affirm the district court's
denial of Cartagena's motion to suppress the fruits of the New York
wiretap as moot.
B. Franks Hearing
Cartagena additionally argues that the case should be
remanded for an evidentiary hearing so that his allegations of
alleged omissions and false statements in the federal and state
wiretap affidavits may be evaluated. To obtain such an evidentiary
hearing, the defendant must make "a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and [that] the allegedly false statement is
necessary to the finding of probable cause." Franks, 438 U.S. at
155-56. Provided the defendant makes the requisite showing, a
Franks hearing may be held to address allegations of both material
omissions as well as false statements. Nelson-Rodríguez, 319 F.3d
at 34. A district court's finding that the requisite showing for
a Franks hearing has not been made will be overturned only if it is
clearly erroneous. Rivera-Rosario, 300 F.3d at 20.
We find no clear error in the district court's denial of
a Franks hearing. First, and as set forth above, we agree with the
district court that Cartagena failed to make a substantial
preliminary showing that the wiretap applications suffered from
knowingly or recklessly made material omissions or false
-14-
statements. See, e.g., id. (denial of Franks hearing upheld where
defendant failed to show that alleged omission of information
regarding a cooperating witness, who had some information
concerning the government's targets, was sufficiently material to
warrant evidentiary hearing where that information was immaterial
to the charges against defendant). Second, and as previously set
forth, even if Cartagena could meet this preliminary showing, he
has failed to show that absent the false information, or including
the omitted information, the affidavit contained insufficient
evidence to support a finding of probable cause. See, e.g.,
Nelson-Rodríguez, 319 F.3d at 34 (denial of Franks hearing upheld
where defendant failed to show that alleged omissions were
necessary to the issuing judge's finding of probable cause for
wiretap). The preliminary showing for a Franks hearing requires
that both of these elements be established. Id. (citing United
States v. Adams, 305 F.3d 30, 36 n.1 (1st Cir. 2002)). Cartagena
has established neither, and we thus affirm the district court's
denial of a Franks hearing.
C. Discovery Motions
Cartagena's final argument on appeal is that the district
court abused its discretion in denying his discovery motions.5 We
review the district court's denial of discovery motions for abuse
5
Cartagena moved for discovery pursuant to Rule 116.2(A) of the
Local Rules of the District of Massachusetts.
-15-
of discretion. United States v. Bucci, 582 F.3d 108, 113 (1st Cir.
2009).
Cartagena's first discovery motion sought disclosure of
information on the confidential informants identified in the
wiretap affidavits. It is well-established that the government has
a "privilege to withhold from disclosure the identity of persons
who furnish information of violations of law to officers charged
with enforcement of that law." Roviaro v. United States, 353 U.S.
53, 59 (1957). This privilege is not absolute. "Where the
disclosure of an informant'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." Id. at 60-61.
Cartagena bears the "heavy" burden of showing that
disclosure is necessary in raising his defense. United States v.
Lewis, 40 F.3d 1325, 1335 (1st Cir. 1994)(citations omitted); see
also United States v. Robinson, 144 F.3d 104, 106 (1st Cir. 1998).
Cartagena's argument, based entirely on speculation, falls far
short of meeting this burden. Cartagena's claim is limited to
arguing that communications concerning the other informants could
have provided important exculpatory evidence that would have
corroborated his subjective belief that the government omitted
material information from the wiretap affidavits. Specifically,
Cartagena contends that if the government made material omissions
-16-
in the affidavits concerning Báez, it also could have omitted
information as to the other four informants, entitling him to
discovery. Cartagena offers no evidence nor points to any facts to
support this contention.
Cartagena further argues that he is only seeking the
contents of the informants' conversations, not their actual
identities. The government asserted below that disclosure of the
informants' communications would effectively disclose their
identities and put them at risk because of the specific context in
which the communications were made. Roviaro makes clear that, if
disclosure of a communication's contents will also tend to reveal
an informant's identity, the contents are also privileged. 353 U.S.
at 60; see also United States v. Tzannos, 460 F.3d 128, 140 (1st
Cir. 2006)(holding that the privilege "extends to information that
would tend to reveal the identity of the informant")(quoting United
States v. Napier, 436 F.3d 1133, 1136 (9th Cir. 2006)). Cartagena
offers no facts to dispute the government's assertion, nor does he
point to any evidence that would allow us to plausibly infer that
the contents should not be deemed privileged.
Lastly, at no point in his argument does Cartagena raise
facts or offer evidence showing that the other informants were
either active participants, supporting his claim for disclosure, or
-17-
mere tipsters whose disclosure is "vital to a fair trial."6 Lewis,
40 F.3d at 1335 (explaining that a mere tipster will generally
deserve anonymity unless an exceptional case is presented showing
that disclosure is "vital to a fair trial."). This is particularly
relevant in this case because at the suppression stage, the
defendant's interest in disclosure, weighed against the
government's interest in protecting the informant's
confidentiality, is of a lesser magnitude than at the trial stage.
Tzannos, 460 F.3d at 140 (citing United States v. Raddatz, 447 U.S.
667, 679 (1980)); see also McCray v. Illinois, 386 U.S. 300, 312
(1967)(informant's identity need not always be disclosed at trial,
"let alone in a preliminary hearing to determine probable cause"
for a search).
Disclosure is only proper if Cartagena shows us "concrete
circumstances that might justify overriding both the public
interest in encouraging the flow of information, and the
informant's private interest in his or her own safety." Tzannos,
460 F.3d at 139 (citation omitted). Cartagena fails to point us to
concrete facts that would support the conclusion that disclosure
6
A "mere tipster" is one who "neither participated in nor
witnessed the events that inculpated the defendant and led to his
arrest," or "who does little more than put a flea in an officer's
ear." Robinson, 144 F.3d at 106-07; see also United States v.
Martínez, 922 F.2d 914, 921 (1st Cir. 1991)("[W]here the informant
is a mere tipster, a conduit rather than a principal or active
participant in the enterprise, disclosure is not required, even in
those instances where the informant was present during the
commission of the offense.").
-18-
would have aided his defense. Such speculation is not enough to
overcome the government's privilege. See, e.g., Martínez, 922 F.2d
at 921 ("Mere speculation as to the usefulness of the informant's
testimony, it must be emphasized, is insufficient to justify
disclosure of his or her identity. . . ."). We therefore hold that
the district court did not abuse its discretion in refusing to
require the government to produce documents containing identifying
information as to the other informants.7
Cartagena's second discovery motion requested the court's
in camera inspection of all handwritten notes taken by the two DEA
agents who prepared the Title III and New York wiretap affidavits.
Similar to his document production motion, Cartagena argues that
because the DEA agents may have omitted material information as to
Báez's role as an informant, "the Government may well have omitted
information with respect to the other informants in the case." As
the district court aptly noted, however, Cartagena never asserts
that the agents' notes contain specific information that is
potentially exculpatory or material to his defense; he only asserts
that they might.8
7
Based on our review of the record, it does not appear that
Cartagena sought in camera inspection of these communications at
the district court level, and Cartagena does not allege doing so.
8
The district court cases on which Cartagena relies to support
his speculative proposition do not assist him. For example, in
United States v. Henderson, the requested information "was material
to the merits of the Motion to Suppress," not possibly material.
265 F. Supp. 2d 115, 116 (D. Mass. 2002)(emphasis added). In
-19-
In the absence of a specific reference or "particularized
and focused request" for potentially exculpatory evidence, we hold
that the district court did not abuse its discretion in denying in
camera review of the DEA agents' notes.9 See United States v.
Caro-Muñiz, 406 F.3d 22, 30 (1st Cir. 2005)(upholding denial of in
camera review where defendant submitted that seventy-one tape
recordings "may" contain exculpatory evidence).
Affirmed.
United States v. Ramos, the defendant made a particularized demand,
requesting disclosure of an informant's name, residential address,
telephone number, criminal record, and any cases pending against
him. 210 F. Supp. 2d 1, 2 (D. Mass. 2002). Here, Cartagena has
requested all of the DEA agents' handwritten notes, totaling
hundreds of pages, with no further specifications or
identifications. Thus, his situation cannot reasonably be compared
to that of the defendant in either case.
9
Because Cartagena has provided us with no "indication that the
materials to which he . . . needs access contain material and
potentially exculpatory evidence," United States v. Brandon, 17
F.3d 409, 456 (1st Cir. 1994), there is no Brady claim pursuant to
Brady v. Maryland, 373 U.S. 83 (1963). Compare United States v.
Duval, 496 F.3d 64, 75 (1st Cir. 2007)(defendants' theory that
additional exculpatory evidence could exist in informant payment
records, fostered by government's pattern of non-disclosure, deemed
to be a "shot in the dark" insufficient to require in camera
review), with United States v. Rosario-Peralta, 175 F.3d 48 (1st
Cir. 1999)(disclosure granted where defendants made clear showing
that sought evidence existed and would support validity of their
defense theory).
-20-