United States v. Simmons

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA, )
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v. ) Criminal No. 15-0025 (PLF)
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CHRISTOPHER FORD, et. al. )
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Defendants. )
___________________________________ )
OPINION
This matter is before the Court on the motions of Defendants Marcus Fenwick,
Christopher Ford, and Rashard Grant to compel the government to disclose information
regarding its confidential informants and cooperating witnesses or, in the alternative, for a
reliability hearing. Defendants Theodore Sanders, Andre Leach, and Anthony Hager adopt one
or more of the motions. The government opposes the motions. Upon consideration of the
parties’ written submissions, the oral argument at the pretrial motions hearing held on December
16, 2015, the relevant case law, and the entire record in this case, the Court will deny the
motions. 1
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Relevant papers reviewed by the Court include: Superseding Indictment [Dkt.
40]; Government’s Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of
Evidence 404(b) Against Defendants Ford, Simmons, Grant, Hager, Fenwick, and Sanders
(“Rule 404(b) Mot.”) [Dkt. 86]; Defendant Fenwick’s Motion to Compel Disclosure of
Information Regarding Confidential Informants, Witnesses and Cooperating Criminals
(“Fenwick Mot.”) [Dkt. 103]; March 7, 2014 Affidavit of Timothy B. Wolford (“Wolford
Affidavit”) [Dkt. 107-1]; Government’s Omnibus Opposition to Defendant Fenwick’s Motions
(“Opp.”) [Dkt. 108]; Defendant Grant’s Motion to Exclude Cooperating Witness Testimony
(“Grant Mot.”) [Dkt. 117]; Defendant Ford’s Motion to Compel Disclosure of Information
Regarding Confidential Informants and Cooperating Witnesses (“Ford Mot.”) [Dkt. 119];
Defendant Grant’s Motion For a Reliability Hearing [Dkt. 122]; Government’s Omnibus
Opposition to Defendants’ Motions (“Second Opp.”) [Dkt. 137]; Defendant Ford’s Motion to
Join and Adopt [Dkt. 143]; Defendant Grant’s Motion to Adopt [Dkt. 145]; Defendant Ford’s
I. FACTUAL BACKGROUND
The grand jury returned an indictment charging, inter alia, each of the seven
defendants with one count of participating in a conspiracy to distribute phencyclidine (“PCP”), in
violation of 21 U.S.C. § 846. Superseding Indictment at 1-4, 6. The government’s motion to
admit other crimes evidence pursuant to Rule 404(b) of the Federal Rules of Evidence states that
a cooperating witness will testify that it “acquired PCP from Ford in 2007 up until the time
of Ford’s arrest on November 13, 2007” and “purchased multiple ounces of PCP from Ford and
pooled together with other members of the conspiracy, including Simmons and . . . Grant, to buy
eight ounce and 16 ounce quantities of PCP from Ford . . . for redistribution.” Rule 404(b) Mot.
at 2. The Court has already granted the government’s Rule 404(b) motion in part, permitting it
to introduce a “cooperating witness’ testimony concerning Ford’s uncharged involvement with
Simmons and Grant in distributing PCP prior to 2007.” See United States v. Ford, Crim. No.
15-0025, 2016 WL 259640, at *4 (D.D.C. Jan. 21, 2016).
Fenwick and Ford move to compel the government to “disclos[e]” the “identity
and background information of government witnesses who may be considered informants or
cooperating individuals.” Fenwick Mot. at 1; Ford Mot. at 1. 2 The “background information”
Reply to Government’s Omnibus Opposition to Defendants’ Motions (“Ford Reply”) [Dkt. 155];
Notice of Motions Defendant Fenwick Adopts [Dkt. 157]; Defendant Hager’s Motion to Joint
[sic] and Adopt Motions [Dkt. 158]; Defendant Sanders Motion to Adopt [Dkt. 159]; Defendant
Leach’s Motion to Join and Adopt [Dkt. 165]; and Transcript of December 11, 2015 Motions
Hearing (“12/11/15 Tr.”) [Dkt. 181].
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Ford and Fenwick make essentially the same arguments. Grant Hager and
Sanders adopt Fenwick’s motion, see Dkt. 145, 158 & 159, while Grant, Hager, Sanders, and
Leach adopt Ford’s motion. See Dkt. 145, 158, 159 & 165. Fenwick’s motion is moot as to him
because he now has entered a plea of guilty. See United States v. Ramirez, 54 F. Supp. 2d 25, 27
(D.D.C. 1999) (motions filed by defendants who “entered guilty pleas . . . therefore became
moot”). But it is not moot as to Grant, Hager, and Sanders because they have standing to assert
their own interest in the identity and background of government witnesses grounded in their
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they seek includes “information contained in an informant’s file,” which they argue is critical to
preparing their defense at trial. Ford Mot. at 2. Ford cites Agent Timothy B. Wolford’s March
7, 2014 Affidavit in support of one of two wiretap applications at issue in this case as evidence
that the cooperating witness in the government’s Rule 404(b) motion has a “criminal history,
including narcotics offenses and crimes of violence[, which] are crucial to his impeachment at
trial.” Ford Reply at 4 (citing Wolford Affidavit ¶ 25). Fenwick and Ford ground their
entitlement to this information in part on the government’s obligations under Brady v. Maryland,
373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Fenwick Mot. at 2; Ford
Mot. at 1; Ford Reply at 2. The defense suggests “the issuance of a protective order, which
would satisfy the government’s concern” for the safety of its cooperators and informants. Ford
Reply at 3. Finally, Grant moves separately for a “pre-trial hearing to determine the reliability of
[the] witness” discussed in the government’s Rule 404(b) motion. 3
The government responds that it has already provided a great deal of discovery to
defendants and proffers that it “will continue to comply with its discovery obligations . . . under
Brady, Giglio, and the Jencks Act,” 18 U.S.C. § 3500. Opp. at 26-27. The government contends
that “[t]here is nothing exculpatory about the prospective testimony of any informant” that would
trigger its Brady obligations. See id. at 29. The government has not disclosed Giglio
impeachment material for prospective informants or cooperators who may testify because it
argues: (1) “safety concerns” grounded in “defendant[s’] serious narcotics and weapons charges,
Sixth Amendment fair trial rights. See United States v. Blair, 661 F.3d 755, 772 (4th Cir. 2011)
(“Sixth Amendment rights are at bottom personal to the accused.”).
3
Grant docketed his motion to exclude cooperating witness testimony [Dkt. 117]
separately from his motion for a reliability hearing [Dkt. 122]; however, docket number 122 has
no attached document and docket number 117 makes arguments in favor of both motions. Ford,
Fenwick, Hager, and Leach adopt Grant’s motions. See Dkt. 143, 157, 158, & 165.
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as well as the violent nature of the crew,” id. at 27, warrant delaying disclosure until closer to
trial; (2) Giglio impeachment material need not be disclosed this early when trial is not
scheduled until July 2016; and, (3) the government “has not yet determined which, if any,
cooperating witnesses will be called as witnesses at trial.” Id. at 26-27. Furthermore, in the
government’s view, “[t]he defendant[s] [are] not entitled to the disclosure of the identity of
confidential informants” at this stage of the proceeding because such information is not
necessary for the preparation of a defense. Id. at 28-29. The government states, however, that it
will “make . . . available to the defense” any “informant who participated in the transaction[s]”
and who “does not testify at trial” if “that informant has exculpatory evidence, he or she played a
significant role in the defendant’s crimes, the information cannot be ascertained from other
sources, and/or the informant’s safety is not an issue.” Id. at 29-30 (citing Roviaro v. United
States, 353 U.S. 53 (1957)).
II. DISCUSSION
Defendants request the names of all confidential informants and cooperating
witnesses as well as the investigating agency’s internal file on each informant or cooperator
without regard to whether the informant will testify at trial. See Fenwick Mot. at 1; Ford Mot. at
1. For purposes of analysis, the Court will treat confidential informants and cooperating
witnesses identically.
The government has identified only one cooperating witness who may testify at
trial, who it alleges was involved with Simmons and Grant in purchasing PCP from Ford prior to
Ford’s arrest on November 13, 2007. Rule 404(b) Mot. at 2. Defendants identify no other
cooperating witnesses or confidential informants. The government’s Rule 404(b) motion
indicates that it intends to call this individual at trial, id., while its opposition to defendants’
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motions to compel indicates it has made no decision on the matter. Opp. at 27. According to the
government, defendants will learn the name of this cooperating witness and any other informants
who will testify at the time of trial and defendants are entitled to no earlier disclosure of the
identities of these individuals unless they possess exculpatory information that must be disclosed
under Brady v. Maryland. Opp. at 28-29. The government further states that it will disclose the
names and other information “relevant to cross-examination of an informant at the appropriate
time” under Brady, Giglio, and the Jencks Act. Id. at 29. Because it is unclear whether the
cooperating witness the government identifies in its Rule 404(b) motion or any other informant
or cooperator will testify, it is appropriate to analyze the government’s disclosure obligations
under both circumstances.
A. Non-Testifying Informants and Cooperators
With respect to non-testifying informants, “[t]he Supreme Court has stated that, in
determining whether to require the disclosure of confidential informants, the Court should
balance ‘the probable interest in protecting the flow of information against the [defendant's] right
to prepare his defense.’” United States v. Ramirez, 54 F. Supp. 2d 25, 31 (D.D.C. 1999)
(quoting Roviaro v. United States, 353 U.S. at 62); see United States v. Glover, 583 F. Supp. 2d
5, 12 (D.D.C. 2008) (“Roviaro and its progeny apply only when the informant does not testify at
trial.” (citing United States v. Casseus, 282 F.3d 253, 257 (3d Cir. 2002))). “Where the
disclosure of an informer’s identity, or the contents of his communications, is relevant and
helpful to the defense of an accused, or is essential to a fair determination of a cause, the
[informer's] privilege must give way.” Roviaro v. United States, 353 U.S. at 60. The Court must
consider the particular circumstances of each case, taking into consideration “the crime charged,
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the possible defenses, the possible significance of the informer’s testimony, and other relevant
factors.” Id. at 62.
The defendant bears the “burden of establishing that knowing the identity of the
informant in advance of trial is necessary to the preparation of a defense.” United States v.
Ramirez, 54 F. Supp. 2d at 32 (citing United States v. Mangum, 100 F.3d 164, 172 (D.C. Cir.
1996)); see United States v. Skeens, 449 F.2d 1066, 1070 (D.C. Cir. 1971) (describing the
defendant’s burden as “heavy”). Roviaro does not require disclosure of an informant unless the
informer was “an actual participant in or a witness to the offense charged” and the informant’s
“identity is necessary to [the] defense.’” United States v. Glover, 583 F. Supp. 2d at 12 (quoting
United States v. Magnum, 100 F.3d at 172). Compare Roviaro v. United States, 353 U.S. at
64-65 (“This is a case where the government’s informer was the sole participant, other than the
accused, in the transaction charged. The informer was the only witness in a position to amplify
or contradict the testimony of government witnesses.”), with Rugendorf v. United States, 376
U.S. 528, 534-35 (1964) (declining to require disclosure of informant’s identity because
defendant did not “intimat[e]” that the informant was the sole participant and thus the Court
“cannot say on this record that the name of the informant was necessary to his defense”).
The government’s obligation to disclose information beyond identity, such as the
“background information” or “informant files” that defendants seek here, is limited “to
statements of non-testifying witnesses or co-conspirators if those statements qualify as Brady
material.” United States v. Edelin, 128 F. Supp. 2d 23, 33 (D.D.C. 2001) (citing United States v.
Williams-Davis, 90 F.3d 490, 513 (D.C. Cir. 1996)). Where the government has “promised to
make non-testifying informants available to the defendants upon request,” a defendant’s request
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for information about “informants who were participants in or witnesses of the charged crimes”
may be “moot.” United States v. Glover, 583 F. Supp. 2d at 12-13.
In this case, the cooperating witness mentioned in the government’s Rule 404(b)
motion was not a participant in or witness to the charged crimes, and defendants offer no reason
sufficient to carry their burden of proving that that the witness’ identity or background
information is necessary to preparation of their defense. The only argument other than Brady
that Fenwick and Ford advance is that the cooperator’s identity and background information is
relevant for impeachment purposes. See Fenwick Mot. at 2; Ford Mot. at 2. But the cooperator
cannot be impeached unless he or she testifies, and the government has not yet determined if any
such person will. Defendants fail to “identify any defenses or other arguments of significance
that the early disclosure of an informant’s identity might advance.” See United States v.
Holland, 41 F. Supp. 3d 82, 104 (D.D.C. 2014); see also United States v. Gaston, 357 F.3d 77,
85 (D.C. Cir. 2004) (rejecting motion to compel disclosure where defendant’s “motion did not
even describe the nature of [the] defense; still less did it mention how [the defendant] expected
the informant to advance her cause”); United States v. Glover, 583 F. Supp. 2d at 12 (defendants
failed “to offer so much as a hint about what defenses the informants might help advance or the
possible significance of a particular informant's testimony”). Defendants have failed to meet
their burden to show that early disclosure of the identity of the cooperating witness mentioned in
the government’s Rule 404(b) motion or other unidentified informants or cooperators is
necessary to the preparation of their defense.
Defendants’ broader request for the “background information” and “informant
file” for all “government witnesses who may be considered informants or cooperating
individuals,” Fenwick Mot. at 1, fails for similar reasons. Defendants are not entitled to a non-
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testifying informant’s “background information” or the “informant file” except to the extent it
contains exculpatory Brady information, and defendants have not suggested that the
government’s cooperating witness possesses exculpatory information. See United States v.
Williams-Davis, 90 F.3d at 514 (“Except for bare speculation, [the defense] has nothing to
suggest the existence of favorable materials. . . .”).
B. Testifying Informants and Cooperators
With respect to informants who will testify at trial, the D.C. Circuit has long
recognized that the government need not disclose its witness list before trial except in capital
cases. See United States v. Bolden, 514 F.2d 1301, 1312 (D.C. Cir. 1975) (“Since this was not a
capital case at the time of the trial . . . there was no government duty to disclose the witness
list.”). Of course, the government must disclose Brady material for all testifying witnesses in
advance of trial, see United States v. Safavian, 233 F.R.D. 205, 206-07 (D.D.C. 2006); United
States v. Safavian, 233 F.R.D. 12, 16-20 (D.D.C. 2005), and “[t]he government’s Brady
obligation also extends to information affecting the credibility of a government witness” under
Giglio v. United States. United States v. Sitzmann, 74 F. Supp. 3d 128, 134 (D.D.C. 2014). But
“[i]t does not follow from the prohibition against concealing evidence favorable to the accused
that the prosecution must reveal before trial the names of all witnesses who will testify
unfavorably.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
Separate from the obligations that Brady and Giglio impose upon the government,
Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act, 18 U.S.C. § 3500,
circumscribe when defendants are entitled to the identities, statements, or other information
about the government’s witnesses at trial. Rule 16(a)(2) “prohibits discovery of statements by
government witnesses or prospective government witnesses except as provided in the Jencks
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Act,” United States v. Tarantino, 846 F.2d 1384, 1414 (D.C. Cir. 1988), which makes the
statements of government witnesses not discoverable by the defense “until said witness has
testified on direct examination in the trial of the case.” 18 U.S.C. § 3500(a). “The government’s
obligation [] is not triggered until the witness has testified on direct examination at trial,” United
States v. Sitzmann, 74 F. Supp. 3d at 139, although the government’s Brady and Giglio
obligations, of course, always trump Rule 16 and Jencks. See United States v. Rittweger, 524
F.3d 171, 181 n.4 (2d Cir. 2008); United States v. Rodriguez, 496 F.3d 221, 225-26 (2d Cir.
2007).
A prosecutor’s disclosure obligations under Brady begin as soon as the case is
brought and continue throughout the pretrial and trial phases of the case, and even post-trial. See
Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987); Steidl v. Fermon, 494 F.3d 623, 630 (7th Cir.
2007). All such information must be disclosed promptly after it comes to the government’s
attention. And the prosecutor must disclose all favorable information regardless of whether he or
she thinks it is “material” or would change the outcome of the proceedings. See United States v.
Safavian, 233 F.R.D. at 16-17. The timing for disclosure of impeachment evidence under Giglio
is different and is appropriately analyzed separately. See, e.g., United States v. Frank, 11 F.
Supp. 2d 322, 325 (S.D.N.Y. 1998) (“Provided that the defendant has sufficient time after receipt
of Giglio material to use it effectively at trial, there is no violation of the defendant's rights from
deferring production of this material until closer to the time of the witnesses’ testimony.”).
While the requirements of due process underlie both the Brady doctrine and “its offspring,”
including Giglio, “the very nature of Giglio material dictates a different timetable for its effective
use.” Id. The Court will take steps to assure that the government provides Giglio information
sufficiently in advance of trial.
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C. Request For a Reliability Hearing
Defendant Grant’s motion for a reliability hearing lacks merit for similar reasons.
Grant argues that the Court must hold a reliability hearing “in the interests of justice” because the
cooperating witness mentioned in the government’s Rule 404(b) motion or other cooperators
have cooperation agreements with the government and/or will receive compensation or other
benefits from the government, which affect their credibility. See Grant Mot. at 2-3, 4, 9. The
government points out that “[p]rior disclosures [] indicated that the witness did not have a
cooperating agreement with the government.” See Second Opp. at 14. With respect to other
possible, as-yet-identified informants or cooperators, Grant offers nothing beyond “bare
speculation” to support his claims about cooperation agreements, compensation, or other benefits
or promises. See United States v. Williams-Davis, 90 F.3d at 514. Even assuming that the
government’s witness or witnesses have cooperation agreements or the promise of other benefits,
the Court is not obligated to hold a reliability hearing for the reasons discussed above:
(1) if the witness does not testify at trial, defendants must demonstrate that learning the identity
of the witness and probing his or her reliability is necessary to the preparation of their defense,
unless Brady is implicated; and (2) if the witness does testify at trial, defendants are entitled to
all Brady, Giglio, and Jencks material to probe his or her reliability. See supra at §§ II(A), II(B).
The Court therefore will deny Grant’s motion for a reliability hearing.
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III. CONCLUSION
The Court denies defendants’ requests to compel the government to disclose the
identities and background information of its confidential informants and cooperating witnesses
or, in the alternative, for a reliability hearing. An Order consistent with this Opinion shall issue
this same day.
SO ORDERED.
/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: February 4, 2016
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