United States v. Welling

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 8, 2003
Charles R. Fulbruge III
Clerk
No. 03-50124
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS FRANKLIN WELLING,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-02-CR-49-4
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Thomas Franklin Welling was convicted of conspiracy to
manufacture and possession with intent to distribute
methamphetamine, and manufacturing and possessing in excess of 50
marijuana plants. Welling appeals the district court’s denial of
motion for disclosure of the identity of a confidential informant
(CI).
Welling argues that he needed the identity of the CI to
prove to the jury that the informant was biased and lied for
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-50124
-2-
financial gain and that disclosure of the information the
informer gave to the Government could have been used to
demonstrate inconsistencies in the testimony of other witnesses.
A court’s refusal to require the disclosure of a CI’s
identity is reviewed for abuse of discretion, while any factual
findings upon which the court relies for its decision are
reviewed under a clearly erroneous standard. United States v.
Vizcarra-Porras, 889 F.2d 1435, 1438 (5th Cir. 1989).
We use a three-part test to determine when disclosing an
informant’s identity is mandated. We evaluate the level of the
informant’s participation in the alleged criminal activity;
consider the helpfulness of disclosure to any asserted defense;
and consider the Government’s interest in nondisclosure. See
Roviaro v. United States, 353 U.S. 53, 59 (1957); United States
v. Orozco, 982 F.2d 152, 154-55 (5th Cir. 1993).
There is no indication that the CI in the instant case did
anything but tip police officers to the possibility of their
finding criminal activity at Welling’s residence. See Orozco,
982 F.2d at 155. Nor does Welling argue that the CI would
provide “testimony [that] would significantly aid the defendant
in establishing an asserted defense.” Id. “[M]ere conjecture or
supposition about the possible relevancy of the informant’s
testimony is insufficient to warrant disclosure.” Id. (internal
quotation marks and citation omitted). Because two prongs of
this circuit’s test support the district court’s determination
No. 03-50124
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that the identity of the CI did not need to be revealed, the
district court’s decision should be affirmed. United States v.
Cooper, 949 F.2d 737, 749-50 (5th Cir. 1991).
AFFIRMED.