UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5034
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL DISTANCE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:08-cr-00597-JFM-1)
Submitted: November 17, 2010 Decided: December 9, 2010
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gerald C. Ruter, THE LAW OFFICES OF GERALD C. RUTER, P.C.,
Towson, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Traci L. Robinson, Special Assistant United
States Attorney, Noah Grynberg, Third-Year Law Clerk, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Michael Distance for
possession of a firearm after having previously been convicted
of a crime punishable by a term exceeding one year of
imprisonment, in violation of 18 U.S.C. § 922(g)(1) (2006). The
district court sentenced Distance to 210 months of imprisonment
and he now appeals. Finding no error, we affirm.
On appeal, Distance argues that the district court
erred in denying his motion for disclosure of the identity of
the confidential informant. This court reviews a district
court’s decision to deny a motion for disclosure of a
confidential informant’s identity for abuse of discretion.
United States v. D’Anjou, 16 F.3d 604, 609 (4th Cir. 1994). The
government has a qualified “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)
(citation omitted). However, the “identity of such an informer
must be disclosed whenever the informer’s testimony may be
relevant and helpful to the accused’s defense.” Id. at 62.
In determining whether to require disclosure, a
district court must balance “the public interest in protecting
the flow of information against the individual’s right to
prepare his defense.” Id. In making this determination, the
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court should consider the circumstances of the case, including
(1) the crime charged, (2) the defendant’s possible defenses,
(3) the possible significance of the informer’s testimony, and
(4) any other relevant factors. Id. The defendant bears the
burden of demonstrating that the Roviaro criteria apply in favor
of disclosure. D’Anjou, 16 F.3d at 609. Moreover, “[t]he
defendant must come forward with something more than speculation
as to the usefulness of such disclosure.” United States v.
Smith, 780 F.2d 1102, 1108 (4th Cir. 1985). The court should
order disclosure only after finding that the informant’s
testimony would be “highly relevant.” Id.
Moreover, “[w]e have drawn a distinction in applying
Roviaro between informants who are participants in a criminal
transaction, and those who are mere tipsters.” United States v.
Mabry, 953 F.2d 127, 131 (4th Cir. 1991) (internal quotation
marks and citation omitted). This court has determined that
disclosure is required where the informant is an active
participant in the crime, “particularly where [she] helps set up
the criminal occurrence.” McLawhorn v. North Carolina, 484 F.2d
1, 5 (4th Cir. 1973). However, we have cautioned that “it would
be a mistake to get caught up in the semantics of whether an
informant was in ‘tipster’ or ‘participant’ status.” Mabry, 953
F.2d at 131 (citing United States v. Brinkman, 739 F.2d 977, 981
(4th Cir. 1984)). The key is balancing the competing interests
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in light of the circumstances of the case. Id. Having reviewed
the record in light of the relevant legal authorities, we
conclude that the district court did not abuse its discretion in
denying Distance’s request for disclosure of the confidential
informant’s identity.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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