United States District Court, D. New Hampshire
Phillip H. Utter, Esq.
Charles O'Leary, Esq.
Georgiana L. Konesky, Esq.
A. Feith, Esq. United States Marshal United States Probation
McCafferty United States District Judge
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 and to immediately produce exculpatory
evidence. The government objects.
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.
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
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)).
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
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 ...