United States v. Tzannos

United States Court of Appeals
For the First Circuit

No. 05-2689

UNITED STATES OF AMERICA,

Appellant,

v.

GREGORY F. TZANNOS, a/k/a Gregory F. Tzannas,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Honorable Joseph L. Tauro, U.S. District Judge]

Before

Lynch and Howard, Circuit Judges,
and Stafford,* Senior District Judge.

Michael L. Tabak, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellant.
Richard M. Egbert, with whom Patricia A. DeJuneas and Law
Offices of Richard M. Egbert, P.C., were on brief, for appellee.

August 22, 2006

*
Of the Northern District of Florida, sitting by
designation.
 LYNCH, Circuit Judge. This is the government's appeal

from a district court's suppression order.

The district court suppressed evidence, seized pursuant

to a state court warrant, based on the defendant's allegations that

the affidavit by a state trooper in support of the warrant

application contained material misrepresentations. In essence,

defendant argued, the affidavit referred to a confidential

informant who did not exist.

Over the government's objections that the defendant had

not made the "substantial preliminary showing" required for a

hearing under Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the

district court convened a hearing. The court appeared to accept

the defendant's representations, and it rejected the government's

request that it consider contrary information, which the government

had sought to present ex parte and in camera based on its

representation that doing otherwise would endanger the informant's

life. Without making specific findings under Franks, the district

court granted the motion to suppress. We reverse and remand with

instructions to deny the motion to suppress.

I.

A. The State Search Warrant Affidavit

On August 28, 2003, Massachusetts State Trooper Pasquale

Russolillo submitted an application for a search warrant to a

magistrate in a state district court in East Boston, Massachusetts.

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Russolillo included a fourteen-page affidavit in support of the

application. The affidavit made the following assertions:

Russolillo and another state trooper knew Gregory Tzannos

to be involved in the bookmaking business from information from

past investigations "coupled with intelligence from other

informants" as well as from the confidential informant central to

this case. In early July of 2003, Russolillo and another state

trooper spoke to the confidential informant, "CI-1." CI-1 agreed

to provide information to the troopers only if his1 identity was

not revealed.

CI-1 told the troopers that he was placing illegal bets

on sporting events with Gregory Tzannos via telephone. The

informant said he had placed the bets by calling (617) 567-6114

("the 6114 line") and by speaking to Tzannos directly. The

officers subpoenaed the telephone company and discovered that that

number belonged to Tzannos and that it was unpublished.

They also discovered via subpoena that calls to the 6114

line had been forwarded to a separate number, (617) 846-6630, on

several days in August. This was significant because bookmakers

often used call forwarding to disguise the location of their

operations. The officers discovered that the second phone number,

(617) 846-6630, was registered to a corporation, DBA: American

1
The gender of the confidential informant was unspecified;
for convenience we use "he."

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Eagle Purchasing Agents, at 381 Winthrop Street, Winthrop,

Massachusetts. The person listed in state records as the

corporation's treasurer and registered agent was Tzannos, who was

also listed on the telephone bill.

Russolillo spoke to CI-1 on August 18 and was told that

CI-1 had placed "several wagers" with Tzannos over the 6114 line on

August 16 and 17. On August 20, another officer spoke to CI-1 and

was told that CI-1 had placed another bet with Tzannos that day,

again on the 6114 line. Troopers subsequently conducted

surveillance at 381 Winthrop Street and, on several separate days,

observed vehicles registered to a Linda Wagner; this was

significant because CI-1 had told police that Tzannos had a

girlfriend named "Linda."

The affidavit recounted that on August 25, 2003, CI-1 and

Russolillo placed a "controlled call" to Tzannos on the 6114 line.

This allegation is key to Tzannos's later Franks motion. The

affidavit explained that in a controlled call, the police officer

dials the number, waits until the target of the investigation

answers, hands the phone to the informant, and then watches as the

informant speaks to the target. CI-1 told Russolillo that Tzannos

was the person who answered the phone during the controlled call,

and that Tzannos proceeded to give a rundown of the day's betting

lines for baseball.

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 Russolillo's affidavit stated that CI-1 had provided

information to Russolillo and other troopers in the past, and the

information "has proven to be reliable and true." It said the

troopers had known CI-1 for more than two years and that they knew

his identity and address. The affidavit also gave extensive

details on CI-1's past cooperation, stating, for example, that CI-1

had identified various bookmakers and their identities and

telephone numbers, that all of the information had been

corroborated by subsequent investigation, and that past information

from CI-1 had led to the arrest, prosecution, and conviction of

three men for gaming violations. The affidavit stated that CI-1

had also provided general intelligence information regarding other

criminal matters, but that the affiant could not detail the

particulars of these cases, because doing so would compromise the

anonymity of the informant, making him "susceptible to physical

harm and/or retribution." It explained that Russolillo had

"learned that traditional organized crime families (such as La Cosa

Nostra or the Mafia) and other organized crime groups (such as the

Winter Hill Gang) in the Boston area have been heavily involved in

illegal gaming and bookmaking and have maintained a significant

degree of control over organized bookmaking operations."

B. The State Search Warrant, the Search, and the Federal
Indictment

The affidavit asserted that CI-1's information, combined

with the officers' investigation, sufficed to create probable cause

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to believe that Tzannos was violating state laws forbidding certain

gaming activities, see Mass. Gen. Laws ch. 271, §§ 17-17A, and was

doing so from the building at 381 Winthrop Street. It sought a

warrant to search that address. The magistrate agreed and issued

the warrant. Massachusetts state police executed the warrant on

August 28, 2003, and found a fully equipped gaming office.

Officers seized gaming records, $10,200 in cash, and tape recorders

and tapes that had been used to record conversations with

customers. In addition, police found and seized a loaded pistol,

two loaded revolvers, a sawed-off shotgun, various types of

ammunition, three switchblade knives, a pair of brass knuckles, and

a blowgun with needles.

On June 30, 2004, a federal grand jury indicted Tzannos

on charges of violating 18 U.S.C. § 922(g)(1), which prohibits

possession of firearms by convicted felons. The indictment stated

that the offense "involved three to seven firearms" and that

Tzannos possessed at least one of the firearms and at least one

piece of ammunition "in connection with another felony offense, to

wit: occupying a place for registering bets in violation of Mass.

Gen. Laws[] ch. 271, § 17, a Massachusetts offense punishable by

imprisonment for a term exceeding one year."

C. The Franks Hearing and the Suppression Order

On February 15, 2005, Tzannos asked the district court to

conduct a Franks hearing so that he could challenge "the accuracy

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and truthfulness of the affidavit." In his motion papers, Tzannos

argued that the affidavit had to be untruthful because (1)

Russolillo swore that the informant placed calls to the 6114 line

on four particular days, August 16, 17, 20, and 25, and spoke to

Tzannos on each of those days, (2) the defense identified each and

every caller to that number on those days and "ha[d] documentation

to back it up," and (3) each and every one of those callers had

signed a statement denying under oath that he or she was the

informant. Tzannos argued that "[t]he only logical conclusion that

one could possibly reach is that there was no informant, or at

least that no informant did the things described in the

[Russolillo] affidavit." Thus, Tzannos argued, if it were not true

that the informant made gambling-related calls to Tzannos over the

6114 line on the four days, then it was necessarily true that no

informant existed and that Russolillo had lied.

Tzannos's motion was accompanied by an affidavit of

defense counsel, which in turn was supported by several exhibits.

Those exhibits included (1) some handwritten ledger sheets, which

were seized during the execution of the search warrant at issue,

(2) a transcript of one of four audiocassette tapes that were also

seized during the search, and (3) signed statements from

individuals that Tzannos identified, from the ledger sheets, as

having called to place bets with him on the four days in question.

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 Tzannos focused his challenge on Russolillo's allegation

that CI-1 had made a controlled call to Tzannos on August 25, 2003

on the 6114 line. Defense counsel represented that the ledger

sheets show that on August 25, only two individuals, "Jerry" and

"Norton," called to place bets on the 6114 line. Counsel further

represented that the tape is a recording of telephone calls made to

the 6114 line on August 25, 2003, and that a transcript of that

tape shows that only three people, "Paulie," "Jerry," and "Norton,"

made gaming-related calls that day to the 6114 line. Counsel then

attached signed statements from "Paulie," "Jerry," and "Norton,"

swearing that "[a]t no time did I cooperate with the police, nor

was I a confidential informant."

In response to Tzannos's motion, the government argued

that he had failed to meet "the substantial preliminary showing

that is a prerequisite to obtaining an evidentiary hearing under

Franks." Specifically, the government argued in its reply papers

(1) that there was no evidence that the police had obtained all the

tapes and written records of Tzannos's illegal gambling activities

on the days in question; (2) that even if the police had seized

every tape and record, "that would not guarantee (nor does Tzannos

clearly assert) that those records reflected every transaction and

phone call that occurred on" those dates; (3) that there was no

evidence that the tape on which Tzannos heavily relies -- which had

no external markings (other than a Bates number added by the

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government) -- was actually a recording of all the calls made to

him on August 25, 2003 and on the 6114 line; and (4) that even if

CI-1 were mistaken about the date or phone line, "that would be an

error on CI-1's part and not any indication of perjury by Trooper

Russolillo."

The government also challenged the reliability of the

signed statements from the bettors Tzannos identified, arguing,

inter alia, that the statements do not reveal the true names of the

purported affiants (whose names and signatures were redacted) and

do not indicate that those affiants were sworn before anyone

authorized by law to administer oaths. Even if the affidavits were

genuine, the government argued, "it would hardly have been

surprising if . . . 'CI-1' had denied to Tzannos that [he or she]

had provided information to the State Police." Finally, the

government argued that Tzannos provided no reason why Russolillo

would have reason to lie and no explanation for how Russolillo

could have divined the detailed information set forth in his

affidavit -- which Tzannos conceded, and the evidence uncovered

during the execution of the search warrant confirmed, was accurate

-- if CI-1 did not, in fact, exist.

In reply, Tzannos essentially reiterated his claim that

he had "identified each and every person who could possibly be CI-

1" and that "each and every one of these people has signed an

affidavit[] denying . . . that s/he is Russolillo's informant." He

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offered in further support of this claim his own conclusory

affidavit, which simply asserted that the police "seized every

single paper and record from the third floor of my home"2 and "also

seized each and every audio cassette from August[] 2003, as well as

all of the tape recorders I had." His affidavit also stated that

he "did not draft any of the papers that were submitted to the

[c]ourt on [his] behalf." His reply papers were also accompanied

by a second affidavit of defense counsel, which stated:

7. I personally drafted each and every one
of those affidavits.

. . . .

16. I listened to the tapes produced by the
prosecution. The vast majority of the tapes
are blank. As for the tapes that do contain
recordings, I, with assistance from Mr.
Tzannos, was able to determine the dates of
each tape by comparing the conversations on
the tapes to the documents that were seized.

17. I was able to determine which tapes
recorded incoming calls on particular
telephone numbers because the affidavits state
which people called each number. For example,
I know from the affidavits which people called
. . . (617) 567-6114 . . . .

Neither Tzannos's affidavit nor that of his counsel stated that the

records and tapes that were seized reflected every gambling-related

2
It appears that the police searched Tzannos's entire
residence, not just the third floor; indeed, Russolillo's affidavit
described 381 Winthrop Street as "a one family, three story, wood
structure, white siding with black shutters."

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transaction and phone call that occurred on the four days in

question.

After discussion with the parties at a status conference

on July 6, 2005, the district court granted Tzannos's motion for a

Franks hearing. The court did not articulate its reasons for

granting the hearing and did not make any specific findings of fact

at this time.3

In a memorandum filed on September 23, 2005, the

government renewed its objection to the Franks hearing. It

reiterated its earlier argument that there was no evidence that

Russolillo had lied. It also explained that it could not divulge

the identity of CI-1 publicly because doing so would endanger the

informant's life. It represented that it was not authorized to

disclose the informant's name without permission from the

Department of Justice or the state Attorney General. The

government offered instead to prove the veracity of Russolillo's

affidavit and the existence of CI-1 in an ex parte, in camera

3
At the Franks hearing itself, however, the court provided
a retrospective account of its reasons for granting the hearing:

We have a record of people testifying . . . the
conversations did not take place at a particular time.
That is sufficient evidence to trigger a Franks hearing.
It isn't like the defendant is just pulling something out
of the clouds.
We have people who have stated under oath certain
facts. And what I want to do is to have them say it on
the witness stand. . . .

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proceeding, in which it would offer, inter alia, testimony of

Russolillo revealing the identity of CI-1.

In reply, Tzannos agreed to an in camera proceeding, but

objected to the court's allowing such a proceeding to take place ex

parte. Tzannos also requested that the Franks hearing be

structured as a "full evidentiary hearing," in which defense

counsel would have "the opportunity to cross[-]examine the very

affiant whose allegations are at issue." Finally, Tzannos stated

that it was his intention to show at the hearing, inter alia, that

"as a matter of practice, he recorded each and every incoming

call," and that "[a]fter a week's books were settled, he would

erase the tapes and record over them."

The district court convened the Franks hearing on

September 28, 2005. At the start of the hearing, the district

court announced a procedure that neither party had proposed:

[A]ccording to the defendant's proffer
of evidence, there are three people [who]
spoke [to Tzannos on August 25, 2003]: Paulie,
Jerry[,] and Norton. So Paulie, Jerry[,] and
Norton at the worst come in and testify that
they are not the confidential informant. And
I don't have to hear from anybody claiming to
be the confidential informant.
And if it turns out that I think that
[the controlled] call was not made to [the
6114] line on August 25, 2003, I can determine
that there is no basis for whatever exists and
allow a motion to suppress, without violating
the identity of the confidential informant.

Tzannos made no objections to the procedure; indeed, he

indicated that the three individuals had already been summoned and

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that they were outside the courtroom at that moment and ready to

testify. The government, however, was far less enthusiastic. It

raised two main objections to the procedure. First, it argued that

the procedure placed it in a double bind: if one of the three

individuals were, in fact, CI-1, but testified on the stand to the

contrary, the government would be placed in a position where it

would be forced either to knowingly elicit and condone perjurious

testimony or to "out" an informant and expose him or her to mortal

danger. As a corollary of that argument, the government also noted

that "if one of [the three] is the informant and tells the truth,

then the Court is eliciting a statement that may get the person

killed," which is "not [a] procedure that the government is

prepared to participate in." Second, the government argued that

there was a "fundamental flaw" in the procedure, which it could not

explain in open court without providing information that would

necessarily divulge CI-1's identity, but which it could explain "in

one sentence ex parte [and] in camera." The government stressed

that "the Court would not come out with the truthful and just

result if the Court follow[ed] the procedure that the Court

outlined."

The court refused to hear the government's explanation ex

parte and in camera. It also refused the government's original

proposal, which was to provide to the court evidence of the

existence and identity of the informant ex parte and in camera.

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The court stated that "[t]here are two things I don't want": "one,

I don't want to do an ex parte hearing," and "two, I don't want to

know who the confidential informant is." It also explained:

There is nothing absolute about the
confidential informant and confidentiality. I
mean, it has to be weighed under all the
circumstances.
I think my suggest[ed procedure] is a
good one. I don't even want to know who the
confidential informant is.
I just want to know are these three
people going to take the stand and say they
are not. And if they take the stand and say
they are not, then that is the end of it. I
am not going to say who is it.

The court went further. It stated:

[I]f it turns out that the defendant puts
three people on the stand and the tapes verify
that only these three people made phone calls
and that's it, and none of the three is the
confidential informant, that is it as far as I
am concerned. I don't have to hear any more.
I will allow the motion to suppress.

To the government's argument that "[t]he issue here is not whether

the confidential informant gave somewhat incorrect or incomplete or

any other degree of defective evidence" but "whether Trooper

Russolillo lied under oath," the court stated: "I don't think I

have to find that he lied. I can find that none of those three

people is the confidential informant and that no other calls were

made that day and that, therefore, there is no basis for whatever

it was and then I am going to suppress it."

Unwilling to go along with the court's proposed

procedure, the government submitted a written request that the

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court reconsider its rejection of the government's request to

proceed ex parte and in camera. In the alternative, the government

requested that the court enter an order suppressing the fruits of

the search so that the procedure could be appealed.

Tzannos objected and sought to question the three

individuals, whom he identified as Jerry Ahearn, Paulie DeStefano,

and Joseph McParland. In the ensuing colloquy, the court said that

it was willing to allow the three individuals to testify, in part

so that a record could be created for the appeal. The government

again objected, stating that it could not cross-examine the three

individuals. It then agreed to stipulate that if the three

individuals were called to testify, they would each testify that he

had called Tzannos on August 25, 2003, and that he had never been

a confidential informant or made a controlled call for Russolillo.

The government emphasized, however, that it was making this

stipulation "with the understanding that for the reasons previously

explained the government cannot cross-examine these individuals to

bring out the truth," and that "the government is not conceding the

truth." The court then suppressed the evidence seized pursuant to

the search warrant.

II.

We bypass the question of whether Tzannos made the

"substantial preliminary showing" necessary to invoke a Franks

hearing. Franks, 438 U.S. at 156-57. Instead, we review de novo

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the district court's ultimate decision to suppress the evidence

obtained pursuant to the warrant at issue.4 United States v.

Dessesaure, 429 F.3d 359, 365 (1st Cir. 2005). We also evaluate,

for abuse of discretion, the procedure the district court used at

the Franks hearing and the district court's refusal to hear, ex

parte and in camera, the government's explanation of why that

procedure was flawed. Cf. United States v. Valerio, 48 F.3d 58, 62

(1st Cir. 1995) (noting that "it is entirely within the discretion

of the judge presented with the request to decide whether the

disclosure [of a confidential informant's identity] is necessary in

order to determine the believability of the testifying officer,"

and reviewing for abuse of discretion the trial judge's refusal to

allow an in camera hearing to probe the identity of the informant).

As always, factual findings made by a district court in connection

with a Franks hearing are reviewed for clear error. Id.

A. The Suppression Order

"There is . . . a presumption of validity with respect to

the affidavit supporting the search warrant." Franks, 438 U.S. at

4
That the government requested the entry of the
suppression order -- after its procedural offer was rejected --
does not affect our analysis. The district court made clear that
it intended to go forward with the procedure it devised, and it
also made clear that if each of the three individuals identified by
Tzannos as the only callers to the 6114 line on August 25 were to
testify that he was not the informant, or if the government were to
refuse to participate in the procedure, the consequence would be
suppression. The government's request merely allowed the court
more quickly to reach what the court had already declared to be a
foregone conclusion.

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171. For this reason, a defendant must meet a high bar even to get

a Franks hearing in the first place. In order for a warrant to be

voided and the fruits of the search excluded, the defendant must

meet an even more exacting standard: he must (1) show that the

affiant in fact made a false statement knowingly and intentionally,

or with reckless disregard for the truth, (2) make this showing by

a preponderance of the evidence, and (3) show in addition that

"with the affidavit's false material set to one side, the

affidavit's remaining content is insufficient to establish probable

cause." Id. at 156.

Our analysis turns on the first two factors; we do not

reach the third.

The alleged falsehood in the affidavit is that Trooper

Russolillo fabricated the existence of a confidential informant.

That Russolillo made the false statement knowingly and

intelligently is shown, defendant says, by his having stated that

he was present at the controlled call made by CI-1 to Tzannos on

August 25, 2003 to the 6114 line.

The district court's decision to suppress the fruits of

the search would be proper only if it found, by a preponderance of

the evidence, that Tzannos proved three assertions. First, Tzannos

must show that only "Paulie," "Jerry," and "Norton" made

gaming-related calls to Tzannos on the 6114 line on August 25,

2003, and that therefore CI-1 had to be one of the three. To do

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so, he must show that the audiocassette tape on which he relied was

a recording of calls made to him on the 6114 line, that the

recording was of calls made on August 25, 2003, that all calls made

to the 6114 line on August 25 were in fact recorded on that tape,

and that the transcript entered into evidence was accurate and

complete. Second, even if each of these assertions were proven, it

does not follow that CI-1 does not exist; Tzannos still must prove,

by a preponderance of the evidence, that each of the three

individuals is telling the truth in denying being CI-1 and,

further, that the real CI-1 did not provide misinformation, whether

inadvertently or purposefully, to Russolillo. Third and

ultimately, Tzannos must show, by a preponderance of the evidence,

that Trooper Russolillo made a false statement knowingly and

intentionally, or with reckless disregard for the truth.

We begin with the first of the three assertions Tzannos

must prove. Tzannos did not show that the tape on which he relied

was actually of calls made to the 6114 line on August 25, 2003.

The tape itself was unmarked, and nothing in the transcript

supplied by Tzannos identifies what number the callers dialed or on

what date they called. The only proffer Tzannos made relating the

three conversations he transcribed off of that tape to the

particular line and date of the controlled call were his own

affidavit, two affidavits of counsel, and their accompanying

exhibits. Counsel's second affidavit stated that, with Tzannos's

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help, counsel determined the date of the tape by comparing the

recorded conversations to the ledgers that were seized, and

determined the line on which those conversations had taken place by

looking to the signed statements she solicited from the bettors.

Nothing in the record establishes that the bettors' statements were

truthful or accurate, or that the seized documents completely and

accurately recorded all betting-related transactions. Indeed, what

Tzannos asserted is the ledger from August 25 stated only that

"Jerry" and "Norton" called to place bets; it made no reference to

"Paulie" or to individuals who called to discuss betting lines

without placing a bet.

Further, Tzannos has failed to show (1) that he recorded

every gambling-related call, on every line, and on every date as a

matter of course, (2) that the four tapes identified in his

counsel's affidavit contained every call to the 6114 line that

Tzannos recorded on August 25, and (3) that the one transcript

Tzannos provided of calls allegedly made on August 25 to the 6114

line was complete and accurate. Indeed, while Tzannos stated in

his pre-trial memorandum that he would prove at the Franks hearing

that he routinely taped every incoming call, he never made that

showing.

Tzannos largely disproved his own argument. He admitted

in that same pre-trial memorandum that after a week's books were

settled, it was his practice to erase the tapes and to record over

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them. He did not say on which day of the week he did so, or

whether the practice was irregular. Most of the tapes seized

during the search were blank or unintelligible, tending to disprove

his assertion that the tapes are accurate evidence of the calls he

received.5 He did not show that the tapes contained each and every

call made to him on the four dates in question, let alone on August

25. In fact, defense counsel's affidavit made reference to three

other tapes, allegedly of incoming calls made by a number of other

callers "on several days, including August 25, 2003." Tzannos did

not provide transcripts of any of these other tapes.

Nor did he prove the accuracy of the one transcript he

did provide. The transcript itself appears to end mid-

conversation, thus suggesting that either the transcript was

incomplete or that the tape stopped recording in the middle of a

call. These inconsistencies substantially undercut Tzannos's

showing.

5
Even the tape on which Tzannos largely relies appears to
have some technical problems. For example, according to the
transcript, the tape has a two-line conversation between two
unidentified individuals, in which the name "Dahlia" is mentioned:

F: Heya. [inaudible]. I [inaudible]. I ain't
[inaudible] that's bad luck. C and Dahlia.

F2: Dahlia.

Nothing in the record explains who took part in this conversation,
what the conversation was about, and whether the conversation was
actually only two-lines long or whether it was recorded over or cut
off.

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 The district court did not make any explicit findings of

fact at the Franks hearing. Nonetheless, it must implicitly have

found that Tzannos's evidence was sufficient to show, by a

preponderance of the evidence, that only "Paulie," "Jerry," and

"Norton," made gambling-related calls to Tzannos on the 6114 line

on August 25. Given the substantial gaps in the evidence, this

finding was clear error and alone provides a basis for reversal.

There are further grounds, however, for reversing the

suppression order. Even if Tzannos had proven his first assertion

by a preponderance of the evidence, it does not follow that he

proved by a preponderance of the evidence that no confidential

informant exists.

Ultimately, Tzannos must demonstrate, by a preponderance

of the evidence, that the affiant, Trooper Russolillo, rather than

the informant, made a false statement knowingly and intentionally,

or with reckless disregard for the truth. "Allegations of

negligence or innocent mistake are insufficient," Franks, 438 U.S.

at 171, as are allegations going to show that the informant relayed

misinformation to the affiant, see id. ("The deliberate falsity or

reckless disregard whose impeachment is permitted today is only

that of the affiant, not of any nongovernmental informant.");

United States v. Southard, 700 F.2d 1, 10 (1st Cir. 1983) ("Franks'

requirements cannot be satisfied by a showing that an informer lied

to an unsuspecting affiant, even when the lie was deliberate.").

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 Tzannos has not contested the accuracy of any of the

substantive information provided by CI-1 to Russolillo, and has not

explained how Russolillo would have obtained such detailed and

accurate information if CI-1 did not exist. Nor has Tzannos made

any showing of why Russolillo would have reason to lie. He thus

has not met his burden of showing that Russolillo made a false

statement knowingly and intentionally, or with reckless disregard

for the truth. To the extent that the district court held

otherwise, it committed clear error.6 We hold that the court erred

in suppressing the evidence.

B. Problems with the District Court's Procedure at the
Franks Hearing

The government also appeals (1) the district court's

refusal to hear the government's one-line explanation of why the

procedure that the court devised for the Franks hearing was, in the

government's view, flawed, and (2) the court's ultimate decision to

go forward with the hearing without listening to that explanation.7

6
The district court stated: "I don't think I have to find
that [Russolillo] lied. I can find that none of those three people
is the confidential informant and that no other calls were made
that day and that, therefore, there is no basis for whatever it was
and then I am going to suppress it." The court did not state that
if Tzannos did not show that Russolillo lied, then he at least
needed to show that Russolillo acted with a reckless disregard for
truth.
7
The government does not appeal from the court's rejection
of its initial proposal to have an evidentiary hearing, ex parte
and in camera, in which it would, inter alia, call Russolillo to
testify to the truth of his affidavit and to identify CI-1.

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 At the Franks hearing, when the government asked to

explain to the court, in one sentence, what the government argued

was a "fundamental flaw" in the court's analysis, the court refused

to hear the explanation ex parte and in camera, despite the

government's entreaties that the way the court structured the

proceeding would jeopardize the life of the informant and lead to

a miscarriage of justice. The court in essence shifted the burden

of proof to the government: short of proving CI-1's existence,

there was no way the government could disprove the defendant's

allegations.

The court's position effectively eliminated the privilege

the government has under Roviaro v. United States, 353 U.S. 53

(1957),8 to protect the identity of confidential informants. The

court's refusal to hear the government's explanation and its

insistence on going forward with the procedure of its own devising

were thus an abuse of discretion.

In oft-quoted language, Roviaro stated:

What is usually referred to as the informer's
privilege is in reality the Government'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. The purpose of the
privilege is the furtherance and protection of

8
Unlike Roviaro, the issue here is not the suppression of
the informant's testimony, but rather the suppression of the fruits
of the search pursuant to a warrant issued by a state court judge
and presumed to be valid.

-23-
 the public interest in effective law
enforcement.

Id. at 59 (citations omitted). The privilege, while significant,

is not absolute. Thus, "[w]here the disclosure of an informer's

identity, or of the contents of his communication, is relevant and

helpful to the defense of an accused, or is essential to a fair

determination of a cause, the privilege must give way." Id. at 60-

61; see also id. at 60 (holding that "where the disclosure of the

contents of a communication will not tend to reveal the identity of

an informer, the contents are not privileged," and that

"[l]ikewise, once the identity of the informer has been disclosed

to those who would have cause to resent the communication, the

privilege is no longer applicable").

Ultimately, Roviaro requires a "balancing [of] the public

interest in protecting the flow of information against the

individual's right to prepare his defense." Id. at 62. "Whether

a proper balance . . . [requires] nondisclosure . . . must depend

on the particular circumstances of each case, taking into

consideration the crime charged, the possible defenses, the

possible significance of the informer's testimony, and other

relevant factors." Id.; see also McCray v. Illinois, 386 U.S. 300,

311 (1967). This court has stated that "when the government

informant is not an actual participant or a witness to the offense,

disclosure is required only in those exceptional cases where the

defendant can point to some concrete circumstance that might

-24-
justify overriding both the public interest in encouraging the flow

of information, and the informant's private interest in his or her

own safety." United States v. Martinez, 922 F.2d 914, 921 (1st

Cir. 1991).

Tzannos, as the party seeking disclosure, bore the burden

of persuasion in this analysis. See United States v. Gomez-Genao,

267 F.3d 1, 2 (1st Cir. 2001); see also United States v. Perez, 299

F.3d 1, 3-4 (1st Cir. 2002) ("[T]he law places the burden squarely

on the party seeking disclosure (typically, the defendant) to

demonstrate that knowledge of the identity of a confidential

informant is vital to the proper preparation and presentation of

his case."). This court has described this burden as a "heavy"

one. United States v. Robinson, 144 F.3d 104, 106 (1st Cir. 1998).

The government argues that Tzannos has failed to meet this burden

and that the court abused its discretion in implicitly holding

otherwise.

For his part, Tzannos offers no arguments as to why

disclosure of the confidential informant's identity was warranted

in this case. Instead, Tzannos puts all of his stock in two

arguments, of which we readily dispose. His first argument is that

he never asked the court to order the disclosure of CI-1's identity

and thus Roviaro does not even apply. The court's procedure,

however, placed the government in a Catch-22: it could not

participate in the Franks hearing without risking exposing its

-25-
informant (or suborning perjury), and it could not explain to the

court, beyond the other arguments it made, why the court's analysis

was flawed without effectively disclosing the identity of its

informant. That the court did not require the government to say

the actual name of the informant is of little significance; it was

requiring the government to provide information that would, for all

practical purposes, divulge the informant's identity. "The

privilege identified in Roviaro protects more than just the name of

the informant and extends to information that would tend to reveal

the identity of the informant." United States v. Napier, 436 F.3d

1133, 1136 (9th Cir. 2006).

Tzannos's second argument as to why Roviaro does not

apply is that "if one of the three would-be witnesses turned out to

be CI-1, then that witness had voluntarily put himself in the

position of having to admit being an informant." Tzannos's

argument rests on mistaken premises: as we noted above, the Roviaro

privilege does not belong to the informant, but rather to the

government. Thus, even assuming that CI-1 was one of the three

individuals identified by Tzannos, so long as that individual has

not voluntarily disclosed his status as an informant to the

defendant, the government may still invoke its "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, 353 U.S. at 59.

-26-
 The government emphatically argued that the particular

circumstances of this case warranted protection of the informant's

identity. It repeatedly stressed during the course of the Franks

hearing and in its filings that CI-1 would likely be murdered if

his identity were publicly disclosed. It also pointed to

Russolillo's affidavit, which stated that "traditional organized

crime families (such as La Cosa Nostra or the Mafia) and other

organized crime groups (such as the Winter Hill Gang) in the Boston

area have been heavily involved in illegal gaming and bookmaking

and have maintained a significant degree of control over organized

bookmaking operations," and that "compromis[ing] the anonymity of

the confidential reliable informant [would] mak[e] him/her

susceptible to physical harm and/or retribution."

Against the government's interest in protecting the

identity of the informant, we must balance "the fundamental

requirements of fairness" and Tzannos's right to prepare his

defense. Roviaro, 353 U.S. at 60. Generally, the defendant's

competing interests are of a lesser magnitude at the suppression

stage than at trial. See United States v. Jackson, 918 F.2d 236,

240 (1st Cir. 1990) (citing United States v. Raddatz, 447 U.S. 667,

679 (1980)); cf. McCray, 386 U.S. at 312 ("[T]he Court in the

exercise of its power to formulate evidentiary rules for federal

criminal cases has consistently declined to hold that an informer's

identity need always be disclosed in a federal criminal trial, let

-27-
alone in a preliminary hearing to determine probable cause for an

arrest or search."). These interests are especially weak here,

where the informant is not "the sole participant, other than the

accused, in the transaction charged," Robinson, 144 F.3d at 106;

was not "the only witness in a position to amplify or contradict

the testimony of government witnesses," Roviaro, 353 U.S. at 64;

and in fact had no involvement whatsoever in the crime charged --

to wit, possession of firearms and ammunition by a felon, see

United States v. Gray, 47 F.3d 1359, 1365 (4th Cir. 1995); United

States v. Bender, 5 F.3d 267, 270 (7th Cir. 1993). Nor has Tzannos

shown that the disclosure of the informant's identity would allow

him to meet his burden under Franks.

Tzannos has failed to show why disclosure of the identity

of CI-1 is warranted in the circumstances of this case. See United

States v. Brown, 3 F.3d 673, 679 (3d Cir. 1993) ("A defendant who

merely hopes (without showing a likelihood) that disclosure will

lead to evidence supporting suppression has not shown that

disclosure will be 'relevant and helpful to the defense . . . or is

essential to a fair determination[.]'" (omission in original)

(quoting Roviaro, 353 U.S. at 60-61)); United States v. Barone, 787

F.2d 811, 814-15 (2d Cir. 1986). The district court's decision to

go forward with its own procedure and to refuse to hear the

government's ex parte, in camera explanation of why that procedure

was problematic was an abuse of discretion.

-28-
 III.

We reverse the district court's order suppressing the

evidence and remand with instructions to deny the motion to

suppress.

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