United States District Court, D. Utah, Northern Division
ORDER AND MEMORANDUM DECISION
CAMPBELL, U.S. DISTRICT COURT JUDGE.
Milton Berry, who has been indicted on a firearm charge,
moved to compel the Government to produce information related
to its principal witness, a confidential informant.
(See ECF No. 35.) Mr. Berry seeks the name and
address of the witness, as well as various information about
the witness' criminal history, background, and role as an
informant, as well as monies paid or promises made to the
witness by the Government. The Government, in its opposition,
contends that it cannot reveal the identity of the witness
because of the threat to the witness' safety, and has
either produced or lacks the information responsive to each
request. (See ECF No. 40.)
September 6, 2018, the court heard argument on Mr.
Berry's motion and testimony from Special Agent Tyler
Olson of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF), who is leading the operation-nicknamed
“Founding Fathers”-that led to Mr. Berry's
indictment. For the reasons set forth below, the court grants
in part and denies in part Mr. Berry's motion.
Sixth Amendment's Confrontation Clause guarantees the
right of a defendant in a criminal proceeding “to be
confronted with the witnesses against him.” U.S. Const.
amend. VI. “The main and essential purpose of
confrontation is to secure for the opponent the opportunity
of cross-examination.” Davis v. Alaska, 415
U.S. 308, 315-16 (1974) (quoting 5 J. Wigmore, Evidence
§ 1395, p. 123 (3d ed. 1940)). Accordingly, “the
right of confrontation necessarily includes the right to
‘ask the witness who he is and where he lives'
because this is ‘the very starting point in exposing
falsehood and bringing out the truth through
cross-examination' when ‘the credibility of a
witness is in issue.'” United States v.
Gutierrez de Lopez, 761 F.3d 1123, 1140 (10th Cir. 2014)
(quoting Smith v. Illinois, 390 U.S. 129, 131
the right to discover the identity of a witness is not
absolute. In Smith, the Supreme Court qualified the
right to exclude “questions which go beyond the bounds
of proper cross-examination merely to harass, annoy or
humiliate [the witness].” 390 U.S. at 133. In a
concurrence, Justice White “place[d] in the same
category those inquiries which tend to endanger the personal
safety of the witness.” Id. at 133-34 (White,
J., concurring). The Tenth Circuit, following Justice
White's concurrence, permits anonymous testimony (and
thus the withholding of a witness' identity) if (i) the
government demonstrates a threat, and, if so, (ii) the
anonymous testimony will not “deprive the defendant
of an opportunity for effective cross-examination.”
Gutierrez de Lopez, 761 F.3d at 1140.
first prong, the government must demonstrate a specific
threat; it cannot rely only on generalized assertions that a
witness would be endangered if their identity were revealed.
Id. at 1144-45. In Gutierrez de Lopez, in
which the defendant was prosecuted for her role in
transporting undocumented aliens into the United States from
Mexico, the government sought to protect the identities of
two confidential informants. Id. at 1139. At trial,
counsel for the government justified their anonymity because
of an “ongoing investigation . . . that reaches some
dangerous elements” in Mexico:
There are cartel connections to this case, and so while these
defendants, these particular defendants are not killers, if
the identity of these [witnesses are] disclosed in open court
or where there's a record of it, I'm concerned that
that may ultimately make it back to the cartel.
trial court found the justification sufficient and allowed
the witnesses to testify under pseudonyms. But the Tenth
Circuit, while ultimately affirming the district court on
grounds of harmless error, held that the government had not
met its burden. The government needed to “produce
specific evidence of a threat”-to indicate actual
individuals or entities that could threaten or harm the
witnesses. Id. at 1144. The government could not
rely “on cursory ‘generalized statements'
that anyone who cooperates in a case with cartel connections
faces danger.” Id. at 1145 (quoting United
States v. Ramos-Cruz, 667 F.3d 487, 501 (4th Cir. 2012)
(alteration marks omitted)).
the Government has met its burden of showing a specific
threat to the witness. In its opposition, the Government
notes that Mr. Berry is one of ten defendants charged in
separate, related cases stemming from the Founding Fathers
operation. Some of the defendants are currently in custody in
local Utah jails, where word of the witness' identity may
(and likely will) reach them before they face trial. Other
defendants are not in custody and out in the community, and
could actually harm the witness. Moreover, the lead
defendant, Darrell Washington, has a history of violent
crime, including homicide arrests. Special Agent Olson
testified that the ATF has already moved the witness twice
out of concerns for his safety, and plans to move the witness
out of state at the conclusion of the operation.
are not “generalized concerns” about the
witness' safety. Rather, the Government has demonstrated
a threat of harm from specific individuals-the other
defendants, and Mr. Washington in particular-who have an
incentive to prevent the witness from testifying against them
or might seek retribution.
the Government has met its initial burden, the Confrontation
Clause still requires the opportunity for an adequate
cross-examination. “The touchstone for whether the
Confrontation Clause has been satisfied is ‘whether the
jury had sufficient information to make a discriminating
appraisal of the witness' motives and bias.'”
United States v. Mullins, 613 F.3d 1273, 1283 (10th
Cir. 2010) (quoting United States v. Gault, 141 F.3d
1399, 1403 (10th Cir.1998). Clearly, “[t]he
witness' name and address open countless avenues of
in-court examination and out-of-court investigation.”
Smith, 390 U.S. at 131. But “if the government
provides defense counsel with sufficient background
information on the anonymous witness (e.g. criminal history,
nationality, etc.), then withholding the witness's name
or address does not necessarily deprive the defendant of an
opportunity for effective cross-examination.”
Gutierrez de Lopez, 761 F.3d at 1143.
for Mr. Berry requests that the Government release the name
of the witness for two main reasons: first, so that she can
investigate his background, and second, so that she can
discuss the witness with her client before trial to
understand any interactions the two may have had leading up
to Mr. Berry's arrest. The Government has produced or
agreed to produce a number of redacted background materials
about the witness-for example, paystubs for the witness'
work in the Founding Fathers operation, the witness'
immigration documents, the witness' criminal history, and
an unsigned copy of the ATF's confidential informant
agreement. While this information may be sufficient to permit
an adequate cross-examination, counsel's investigation
could reveal additional background information. Counsel
notes, for example, that the Government may not have