IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20942
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH JACKSON,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas, Houston
(CR-95-94)
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January 21, 1997
Before JOLLY, JONES, and PARKER, Circuit Judges.
PER CURIAM:*
I
On February 22, 1995, a confidential informant allegedly told
a Houston police officer that he had seen a plastic baggie
containing a significant amount of crack cocaine in Keith Jackson's
house. Based on information received from the informant and from
information acquired during surveillance, the officer obtained an
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
arrest warrant for Jackson and a warrant to search the house.
Jackson was arrested, and upon learning his house was to be
searched, admitted that crack cocaine would be found. The house
was searched and crack cocaine was recovered.
Jackson contends that there was no confidential informant and
that the officer lied about the informant's existence to obtain the
warrants. In support of his position, Jackson produced affidavits
in which his friends and family attest, unsurprisingly, that they
are not the confidential informant. Jackson says that these were
the only people he had seen in the relevant period of time.
Thus, Jackson argues that the district court erred by refusing
to disclose the informant’s identity at the pretrial suppression
hearing. He further contends the district court was required to
hold an in camera hearing to determine if the informant existed.
Finally, Jackson contends the court erred in denying his motion to
suppress. We conclude that each of these contentions is without
merit.
II
The importance of protecting the identity of informants has
long been recognized. See Roviaro v. United States, 353 U.S. 53,
77 S.Ct. 623 (1957). Nevertheless, a defendant's right to a fair
trial is our paramount concern. Therefore, a confidential
informant's identity must be exposed when his testimony critical to
the determination of guilt or innocence of the defendant.
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Branzburg v. Hayes, 408 U.S. 665, 697, 92 S.Ct. 2646, 2665 (1972);
Wolff v. McDonnell, 418 U.S. 539, 600, 94 S.Ct. 2963, 2996
(1974)(Frankfurter, J concurring)(noting that an "if an informer's
information is crucial to the defense" the government must reveal
the informer's identity or dismiss the charges.). In United States
v. Orozco, 982 F.2d 152, 154-55 (5th Cir. 1993), cert. denied, 508
U.S. 945 (1993), we developed a three-part test to determine when
disclosing an informant's identity is mandated. To make this
determination, a court should: (1) "evaluate the level of the
informant's participation in the alleged criminal activity"; (2)
"consider the helpfulness of disclosure to any asserted defense";
and (3) "consider the government's interest in nondisclosure." Id.
The first step of the Orozco test requires a court to examine
the informant's role in the criminal activity. If an informant
did not participate in the alleged criminal activity, but instead,
as is true here, acted only as a tipster, there is a strong
presumption against forced disclosure of the informant's identity.
United States v. Freund, 525 F.2d 873, 876-77 (5th Cir. 1976),
cert. denied, 426 U.S. 923 (1976); see also, United States v.
Cooper, 949 F.2d 737, 749 (5th Cir. 1991), cert. denied 504 U.S.
975 (1992); United States v. Clark, 482 F.2d 103 (5th Cir. 1973);
United States v. Acosta, 411 F.2d 627 (5th Cir. 1969). Therefore,
the first element of the Orozco test weight heavily in favor of not
revealing this informant's identity.
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The second step of the Orozco test requires the court to
evaluate whether revealing the informant's identity will assist the
defendant in presenting a defense. In McCray v. Illinois, 386 U.S.
300, 87 S.Ct. 1056 (1967), the Supreme Court recognized that an
informant's identity need not be disclosed at a preliminary hearing
on probable cause. Id. at 311-12. Similarly, in United States v.
Raddatz, 477 U.S. 667, 106 S.Ct. 2734 (1980), the Court noted that
many of its decisions recognize that the interests at stake in a
suppression hearing are of less importance than those in the actual
criminal trial. Id. at 679. Revealing the tipster's identity
would only challenge the probable cause and suppression hearings.
Jackson's interests in challenging these hearings is outweighed by
the presumption against disclosure, including the privacy and
safety of the tipster and the government's interest in ensuring
tipsters will be willing to step forward in the future. Therefore,
the district court did not err in refusing to disclose the
tipster's identity.
III
The district court was also within its discretion in refusing
to conduct an in camera hearing. Although not usually mandated, an
in camera hearing is an appropriate method for a district court
judge to balance the conflicting interests of the government and
the defendant. See Freund, 525 F.2d at 877-88. Jackson failed to
introduce sufficient evidence to mandate such a hearing. As the
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Seventh Circuit has recognized, "A bald denial of the existence of
an informant does not call for a hearing . . . the defendant bears
a substantial burden to demonstrate probable falsity . . . . The
affidavit of a friend, coupled with counsel's say-so, does not
satisfy that burden." United States v. Hornick, 815 F.2d 1156,
1987 (7th Cir. 1987). The district court has broad discretion in
determining if an in camera hearing is needed. See McCray, 386
U.S. at 318. Although it was certainly within the district court's
discretion to grant an in camera hearing, it was not compelled to
do so. Affidavits from family and friends--with a probability of
bias and a possibility of self-serving--that only proclaim that
none of them is the nefarious snitch, is hardly the stuff that
credibly suggests the need for a hearing on the matter.
IV
Finally, Jackson's contention that the district court erred by
denying his motion to suppress has no merit. A warrant affidavit
carries a presumption of reliability. Franks v. Delaware, 438 U.S.
154, 171, 98 S.Ct. 2674, 2684 (1978). In the instant case, this
presumption is enhanced because a baggie of crack cocaine
conforming to the description given by the informant was found in
Jackson's house. Although Jackson's friends and family attest that
they are not the confidential informant, there was ample time for
Jackson to have had contact with third parties. Ultimately,
therefore, it is only Jackson's only unsupported and self-serving
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affidavit that attacks the warrant affidavit. Therefore, the
district court did not err when it found that Jackson's affidavit,
and the affidavits of his friends and family did not overcome the
warrant affidavit's presumption of reliability.
The judgment of the district court is therefore
A F F I R M E D.
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