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United States v. Hardy

United States District Court, D. New Hampshire

May 26, 2016

United States of America
v.
Jeannette Hardy Opinion No. 2016 DNH 196

          Phillip H. Utter, Esq.

          Charles O'Leary, Esq.

          Jaye Rancourt, Esq.

          Georgiana L. Konesky, Esq.

          Donald A. Feith, Esq. United States Marshal United States Probation

          ORDER

          Landya McCafferty United States District Judge

         Jeannette Hardy is charged with conspiracy with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 846, 841(a). Trial is scheduled to begin on June 21, 2016. In advance of trial, Hardy has filed a motion seeking to compel the government to disclose the identities of confidential sources[1] and to immediately produce exculpatory evidence. The government objects.

         Discussion

         Hardy seeks to compel the government to disclose the identities of confidential sources and to produce exculpatory evidence, including impeachment evidence, relating to the confidential sources, before the deadline to do so under the local rules of this district.

         A. Confidential Sources

         Hardy seeks the disclosure of the identity of confidential sources. According to Hardy, the government has relied on several confidential sources, some or all of whom are likely to have information favorable to Hardy’s case. The government objects, arguing that Hardy has not met the standard for the court to order the government to disclose the identities of confidential sources.

         Courts have long recognized the government’s “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). “‘[W]hen the Government informant is not an actual participant or a witness to the offense, disclosure is required only in those exceptional cases where the defendant can point to some concrete circumstance 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.’” United States v. Tzannos, 460 F.3d 128, 139 (1st Cir. 2006) (quoting United States v. Martinez, 922 F.2d 914, 921 (1st Cir. 1991)). Such circumstances may exist if disclosure of the informant’s identity “is vital to the proper preparation and presentation” of a defense. United States v. Perez, 299 F.3d 1, 4 (1st Cir. 2002). A defendant “bears the ‘heavy’ burden of showing that disclosure is necessary in raising his defense.” United States v. Cartagena, 593 F.3d 104, 113 (1st Cir. 2010) (quoting United States v. Lewis, 40 F.3d 1325, 1335 (1st Cir. 1994)).

         Hardy has not carried her burden to show that this an exceptional case warranting the disclosure of the identity of confidential sources. Hardy simply asserts, without support, that the confidential sources are likely to have information that is “exculpatory” or “favorable” to her. Such vague justifications are insufficient to show that disclosure is necessary in this case. See Martinez, 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, so defendants have an obligation to provide at least some explanation of how the informant’s testimony would have supported their alleged defenses.”).

         The closest Hardy comes to pointing to a specific justification for needing the identity of the government’s confidential sources is that the government obtained a warrant based on the statements of a confidential source to search a safe deposit box, from which it ultimately recovered more than $560, 000. Hardy asserts that other than the confidential source’s statement, “[t]here is no information contained in ...


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