United States District Court, E.D. Texas
MEMORANDUM & ORDER
A. CRONE, UNITED STATES DISTRICT JUDGE
before the court is Mohammed Ibrahim Ahmed's
(“Defendant”) Motion for Identification of and
Equal Access to Government Informant or Witness for Interview
(#56), wherein he requests the court to order the Government
to identify informants and witnesses in this case and to make
the same available to the defense for pretrial interviews.
The Government opposes the motion. Having considered the
motion, the submissions of the parties, and the applicable
law, the court is of the opinion that the motion should be
12, 2018, a grand jury sitting in the Eastern District of
Texas returned a five-count First Superseding Indictment
against Defendant. The First Superseding Indictment charges
Defendant in Count One with Attempting to Provide Material
Support or Resources to a Designated Foreign Terrorist
Organization, in violation of 18 U.S.C. § 2339B; in
Counts Two, Three, and Four with Providing False Statements
Involving International Terrorism, in violation of 18 U.S.C.
§ 1001; and in Count Five with Solicitation to Commit a
Crime of Violence, in violation of 18 U.S.C. § 373(a).
Defendant's case is currently set to proceed to trial on
December 2, 2019.
requests a pretrial opportunity to interview any Government
informants or unidentified witnesses regarding their
participation in, and observation of, the alleged acts as
well as any knowledge they may have of related acts.
Defendant asserts that the testimony of any informants or
unidentified witnesses is material to his guilt or innocence,
and, therefore, pretrial access is necessary to safeguard the
Defendant's Sixth Amendment right to confront witnesses
against him. In its response, the Government asserts that it
has provided the defense with the identities of all the
witnesses that it intends to call at trial. Also, the
Government argues that the defense cannot require a
government witness to appear for a pre-trial interview and
that a government witness has the right to refuse an
interview by the defense.
Supreme Court has established that there is no constitutional
right to pretrial discovery of witnesses in non-capital
cases.” United States v. Aguilar, 503 F.3d
431, 434 (5th Cir. 2007), cert. denied, 552 U.S.
1215 (2008) (citing Weatherford v. Bursey, 429 U.S.
545, 559 (1977)); accord United States v. Dominguez,
No. H-17-651-4, 2018 WL 2057442, at *9 (S.D. Tex. May 3,
2018). Additionally, “[t]he Government has a privilege,
usually referred to as the informer'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.'” United
States v. Ortega, 854 F.3d 818, 824 (5th Cir. 2017)
(citing Roviaro v. United States, 353 U.S. 53, 59
(1957) (“The privilege recognizes the obligation of
citizens to communicate their knowledge of the commission of
crimes to law-enforcement officials and, by preserving their
anonymity, encourages them to perform that
obligation.”)). The informer's privilege, however,
is not absolute and there is “no fixed rule” as
to when an informant's identity should be disclosed.
Roviaro, 353 U.S. at 62. Thus, when faced with this
dilemma, “the issue ‘calls for balancing the
public interest in protecting the flow of information against
the individual's right to prepare his
defense.'” Ortega, 854 F.3d at 824
(quoting Roviaro, 353 U.S. at 62).
United States Court of Appeals for the Fifth Circuit applies
a three-factor balancing test to determine whether an
informant's identity should be disclosed: “(1) the
level of the informant's activity; (2) the helpfulness of
the disclosure to the asserted defense; and (3) the
Government's interest in nondisclosure.”
Roviaro, 353 U.S. at 53; Ortega, 854 F.3d
at 824 (quoting United States v. Ibarra, 493 F.3d
526, 531 (5th Cir. 2007)). For the initial burden, “[a]
defendant seeking to compel disclosure must make a sufficient
showing that the informer's testimony would significantly
aid the defendant in establishing the asserted
defense.” United States v. Davis, 655 F.2d
580, 588 (5th Cir. 1981) (citing United States v.
Ayala, 643 F.2d 244, 247 (5th Cir. 1981)); Boykin v.
Stephens, No. H-14-1894, 2015 WL 5007923, at *11 (S.D.
Tex. Aug. 20, 2015) (citing Bodin v. State, 807
S.W.2d 313, 318 (Tex. Crim. App. 1991)). “If the
defendant fails to meet this burden, disclosure will not be
required.” Davis, 655 F.2d at 588 (citing
United States v. Franklin, 598 F.2d 954, 957-58 (5th
there is no need to apply the balancing test stated above
because the Government asserts that it has provided to the
defense the identities of all witnesses that it intends to
call at trial. United States v. Hansen, No.
3:04-CR-148-D, 2005 WL 1206868, at *3 (N.D. Tex. May 18,
2005) (finding a need to apply the balancing test only when
an informant will be called as a trial witness). Even if the
court did apply the balancing test, Defendant's request
would be denied because he does not satisfy his initial
burden. Specifically, he does not identify what information
he seeks or explain how the information will significantly
aid in his defense. Consequently, his request is speculative
at best. United States v. Gonzales, 606 F.2d 70, 75
(5th Cir. 1979) (“[M]ere conjecture or supposition
about the possible relevancy of the informant's testimony
is insufficient to warrant disclosure.”); see
United States v. Aguilar, No. 4:08-CR-0998-Y, 2009 WL
10667017, at *3 (N.D. Tex. Feb. 27, 2009) (finding no basis
to order the disclosure of an informant's identity
because the plaintiff did not assert “specific
contentions as to the relevance and helpfulness of any
informant's identity or the information such informant
could provide . . . .”). Furthermore, the Government
states that it has complied with, and will continue to comply
with, its discovery obligations as required by 18 U.S.C.
§ 3500. For these reasons, the court finds that no order
is necessary, and, accordingly, Defendant's request is
with the foregoing analysis, Defendant's Motion for
Identification of and Equal Access to Government Informant ...