Defendants Seek Undercover Agent’s Identity

File opposition to Government’s motion to seal…

The Government filed a motion (ECF No. 1440) on January 27th, 2017 requesting a protective order on the identity of an undercover employee (UCE). The Government wishes to call the witness to testify, but expresses concern that revealing the identity of the UCE could jeopardize other ongoing investigations. The UCE’s investigation apparently led to the arrest of the defendants in Tier 3. Further, the Government asked the court to preclude any cross-examination that might shed light on the UCE’s identity. The defendants seek undercover agent’s identity in order to investigate the UCE’s history and strength of character for cross-examination. According to the Government, the UCE could play conversations they recorded with the defendants.

Not so fast…

Wait | Defendants Seek Undercover Agent's IdentityDefendants Drexler, Parker, and Stewart argue that sealing a UCE’s identity from their investigators is both a violation of their rights and fatal to due process. First, two landmark Supreme Court decisions (Brady and Giglio) directly address this type of evidence. Second, any evidence this UCE might produce did not appear in discovery evident before the January 6th, 2017 deadline set in ECF No. 1017. As such, they oppose the motion and ask the Court to preclude this UCE’s testimony.

The Brady watershed…

In Brady vs. Maryland (1963), defendant Brady received a murder conviction even though a co-defendant confessed to the crime. ┬áBrady’s defense counsel never saw this evidence. Subsequently, certain information has to be available to a defense team. The Supreme Court ruled:

[…] that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Translation: it doesn’t matter whether the withholding of evidence is negligent or intentional. The failure of the Government to produce evidence favorable to a defendant is fatal to due process.

The Giglio extension…

In Giglio vs United States (1972), defendant Giglio fell under indictment because of cooperation between a co-defendant and the US Attorneys Office. A grand jury issued an indictment and two years later, a different US Attorney prosecuted the case. A discrepancy over the cooperating defendant did not factor into the case. Consequently, the Supreme Court granted Giglio a new trial. The Supreme Court thus extended Brady, ruling that:

When the “reliability of a given witness may well be determinative of guilt or innocence,” nondisclosure of evidence affecting credibility falls within (the Brady) rule.

Prosecutors now have a mandate to disclose information about witnesses if that information could affect the credibility of the witness. Courts routinely set a deadline for the dissemination of “Giglio Material”.

Defendants Seek Undercover Agent’s Identity

Drexler doesn’t challenge the Government’s motion with regard to keeping the UCE’s identity secret to the public. He does however object to the Government’s motion with regard to keeping the UCE’s identity secret to his defense counsel and investigative team. Without the ability to run background checks and look for other incidents that might impact the character or integrity of the UCE, Drexler (and the others) will be denied the right to due process under Brady and Giglio.

Beyond the obvious violation of due process, the Government did not disseminate the information in a timely manner. Drexler argues that failure to do so should preclude the witness from testifying.

Failure to release this information could result in a mistrial. As such, the defendants seek undercover agent’s identity.

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