Case5:08-cr-00938-JW Document26 Filed05/22/09 Page1 of 6

1 LAW OFFICES OF VICTOR D. VERTNER, ESQ.

SBN 046100
2 5267 Elrose Avenue
San Jose, CA 95124
3 (408) 266-4198

4 Attorney for Defendant

JAMIE HARMON
5

7 UNITED STATES DISTRICT COURT

8 NORTHERN DISTRICT OF CALIFORNIA

9 SAN JOSE DIVISION

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11 UNITED STATES OF AMERICA, ) No. CR 08 00938 JW/PVT

)
12 Plaintiff, ) NOTICE OF MOTION AND MOTION
) FOR DISCLOSURE AND PRODUCTION
13 v. ) OF GOVERNMENT INFORMANTS;
) MEMORANDUM OF POINTS AND
14 JAMIE HARMON et al., ) AUTHORITIES
)
15 Defendants. )
________________________________________)
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17
TO THE UNITED STATES AND ITS ATTORNEYS:
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19 Please take notice that on June 29, 2009 at 1:30 p.m., or as soon thereafter as

20 this matter may be heard before the Honorable James Ware, United States District

21 Judge, defendant will move this Court to order disclosure and production of government

22 informants.
23 This motion will be based on the accompanying Memorandum of Points and
24 Authorities, the complete file and trial record in this matter and such further evidence
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and arguments as allowed by the Court.
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 Case5:08-cr-00938-JW Document26 Filed05/22/09 Page2 of 6

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 INTRODUCTION
3 Co-defendants HARMON and Pantages are jointly charged in Count Two with
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conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956 and its
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subsections. Specifically, the indictment charges them “and others known . . . to the
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Grand Jury” to have engaged in such criminal activity (emphasis added). By this
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motion, defendant HARMON seeks an order from this court directing the government to
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disclose and produce the “others known” to have participated in the alleged offense.
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Because only HARMON and Pantages are named as defendants, it is reasonable to
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assume that the “others” are cooperating with the government, i.e. he, she or they are
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12 “informants”.

13 ARGUMENT

14 The leading case on disclosure of an informant’s identity provides that whenever

15 the informant’s testimony may be relevant and helpful to the accused, his or her

16 identity must be revealed. Roviaro v. United States, 353 U.S. 53, 60-61 (1957) held:
17 Where the disclosure of an informant’s identity or the
contents of his communications is relevant and helpful to
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the defense of an accused, or is essential to the fair deter-
19 mination of a cause, the [secrecy] privilege must be waived.
In these situations, the trial court may require disclosure
20 and, if the government withholds the information, dismiss
the action. (emphasis added)
21
The “relevant and helpful” language of Roviaro requires disclosure where, as
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here, the apparent informants were percipient witnesses to the transaction alleged or to
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the negotiations which preceded it. United States v. Cervantes, 542 F.2d 773, 775 (9th
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25 Cir., 1976). The same result was reached in United States v. Hernandez, 608 F.2d 741,

26 744-745 (9th Cir. 1979):

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1 In the light of [the informant’s] role in the narcotics trans-

action with which appellants were charged, it cannot be said
2 that disclosure of [the informant’s] identity would not have
been “relevant or helpful” to the appellant’s defense . . .
3 Because [the informant] was a participant in the events that
were critical to the prosecution’s case, no claim could be
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raised under Roviaro, nor was it raised, that [the informant’s]
5 identity could be lawfully withheld from the appellants.
(Citations omitted)
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See also United States v. Miramon, 443 F.2d 361, 362 (9th Cir. 1981) and United States
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v. Bonilla, 615 F.2d 1262, 1264 (9th Cir. 1980).
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The law is quite clear that where an informant’s testimony is essential to a fair
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determination, the government may be required to disclose his identity and address.
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United States v. Anderson, 509 F.2d 724 (9th Cir. 1975). (Within the court’s discretion to
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12 compel disclosure even when use of the information goes only to probable cause.)

13 The rule enunciated in Roviaro requires not only disclosure of the informant but

14 also, in the absence of a strong showing by the government of danger to the informant,

15 the disclosure of the informant’s location, so that defense counsel can contact him or

16 her. Hernandez, 608 F.2d at 745. In United States v. Roberts, 388 F.2d 646, 649 (2nd
17 Cir. 1968), the informant was a witness to the alleged sale of narcotics. The court held
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that the government should have been required to disclose the informant’s
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whereabouts, so that the defendant could interview the informant as a potential
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witness.
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The Eighth Circuit cited Roberts, supra in United States v. Barnes, 486 F.2d 776,
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780 (8th Cir. 1973), stating:
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Turning to the facts here, we feel the government owed a
24 duty to disclose [informant’s] name and address prior to
25 trial. Under the present facts, since the government failed to
make the proper disclosure, the government was obligated to
26 have at least made a reasonable effort to locate him prior to
trial for interview by the defendant and use as a possible
27 witness.
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1 In this case, therefore, the locations or present whereabouts of the informants

2 must be disclosed at this time so that investigation may be made into the credibility and
3 background of the informants prior to trial.
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Any anticipated government assertion that there is some unspecified danger to
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the informants is insufficient to justify withholding the information concerning their
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whereabouts (especially in cases like the instant matter which does not in any respect
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charge a crime of violence or one prone to violence (such as a drug case).) As
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Hernandez makes clear, the decision concerning potential “danger” must be made only
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after an evidentiary hearing. Hernandez, supra, 608 F.2d at 745, and footnote 3.
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Finally, the government’s obligation is not fully satisfied by merely disclosing the
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12 identity and location of each informant. The defense here specifically requests that

13 the informants be produced. The government has an obligation to accomplish this or

14 show that, despite reasonable efforts, it was not able to do so. United States v. Hart, 546

15 F.2d 798, 799 (9th Cir. en banc, 1976) (“[T]he government must use reasonable efforts

16 to produce a government informant whose presence has been properly requested by the
17 defendant.”); See generally Verlarde-Villarreal v. United States, 354 F.2d 9 (9th Cir.
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1965). This reasoning is supported by the Sixth Amendment guarantee of the effective
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assistance of counsel. As the Supreme Court said in Alford v. United States, 282 U.S.
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687, 691-92 (1931):
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Cross-examination of a witness is a matter of right. . . . Its
22 permissible purposes, among others, are that the witness
may be identified with his community so that independent
23 testimony may be sought and offered of his reputation for
veracity in his own neighborhood . . .; that the jury may
24 interpret his testimony in light reflected upon it by know-
25 ledge of his environment . . . ; and that the facts may be
brought out tending to discredit the witness by showing that
26 his testimony in chief was untrue or biased.

27 Thus, the Court concluded (282 U.S. at 692):

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1 Prejudice ensues from a denial of the opportunity to place

the witness in his proper setting and put the weight of his
2 testimony and his credibility to a test, without which the
jury cannot fairly appraise them.
3
Again, in Smith v. Illinois, 390 U.S. 129, 131 (1968), the court held that failure to
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5 disclose the address of a primary prosecution witness was a denial of the defendant’s

6 right to confrontation. By the same logic, the government here should not be allowed to

7 conceal the location of an informant who possesses relevant knowledge of the case and

8 whose presence is required for a fair determination of the cause.

9 CONCLUSION
10 For the reasons stated above, it is respectfully submitted that the government is
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required to disclose the identity and whereabouts of any informants in this case and to
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make such informants available to the defense. A failure to do so would require dis-
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missal of the applicable counts or even the entire indictment.
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15 Dated: May 21, 2009 Respectfully submitted,

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___________________________________
17 VICTOR D. VERTNER
Attorney for Defendant
18
JAMIE HARMON
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1 PROOF OF SERVICE

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The undersigned declares that he/she served the within
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NOTICE OF MOTION AND MOTION FOR DISCLOSURE AND PRODUCTION OF
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GOVERNMENT INFORMANTS; MEMORANDUM OF POINTS AND AUTHORITIES on
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the United States Attorney by delivering a true and correct copy
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in the following manner:
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_____X___ Service by electronic filing to Richard Cheng, United
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States Attorney’s Office
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_____X____ Mail to Richard Cheng, United States Attorney’s
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Office 450 Golden Gate Ave, 11th Floor San Francisco, CA 94102
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I declare the above to be true under penalty of perjury.
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Executed in San Jose, CA on May 22, 2009.
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_______________________
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Victoria D. Vertner
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