                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-12-2008

USA v. Balduino-Solano
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3063




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                                                                 NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                     No: 06-3063
                                   _______________

                           UNITED STATES OF AMERICA

                                            v.

                           MOISES BALDUINO-SOLANO,

                                          Appellant
                                   _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 04-cr-00617-3)
                      District Judge: Honorable Cynthia M. Rufe
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 4, 2008

            Before: BARRY, JORDAN, and HARDIMAN, Circuit Judges.

                                (Filed: March 12, 2008)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Moises Balduino-Solano (“Balduino-Solano”) appeals his conviction on drug

distribution and conspiracy charges under 21 U.S.C. §§ 841(a)(1) and 846. He contends

that the District Court committed prejudicial error by not conducting an in camera
interrogation of a confidential Drug Enforcement Agency (“DEA”) informant before

deciding whether to grant a pre-trial motion to disclose the identity of that informant.1

We will affirm.

Background

       Because we write solely for the parties, we will discuss only those facts relevant to

Balduino-Solano’s appeal. On July 26, 2004, state law enforcement officers arrested

Balduino-Solano, Ramon Collado (“Collado”), and Jose Mieses-Sanchez (“Mieses-

Sanchez”) while they were traveling by car from New York to Philadelphia. The arrests

were made based on a tip from a confidential DEA informant. The arresting officers

found approximately two kilograms of cocaine in the car. As a result, the government

charged each of the three men with one count of possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841(a)(1) and one count of conspiracy in violation of

21 U.S.C. § 846. Collado and Mieses-Sanchez pled guilty and agreed to testify against

Balduino-Solano.

       On January 7, 2005, Balduino-Solano filed a pre-trial motion to compel the

government to disclose the identity of the confidential informant whose tip had led to his



  1
    We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s ruling on
a motion to disclose the identity of a confidential informant for abuse of discretion.
United States v. Johnson, 302 F.3d 139, 149 (3d Cir. 2002) (citing United States v.
Brown, 3 F.3d 673, 679 (3d Cir.1993)). A district court’s determination of the evidence it
chooses to review in deciding whether to disclose that information is, as we discuss
herein, also a matter for the district court’s sound discretion.

                                             2
arrest. At a hearing on the motion, Balduino-Solano argued that disclosing the

informant’s identity would be helpful to him because the informant could testify that he

and the informant did not know each other and that the informant did not know that he

would be present in the car the night he was arrested. He also argued that the informant

could impeach Collado’s credibility by testifying that Collado had engaged in numerous

other drug deals. In response, the government agreed that the informant knew nothing

about Balduino-Solano. The government also agreed that Collado had previously been

involved with drug dealing and that the jury would be told that. In short, the government

argued that, given its concessions, any potential benefit to Balduino-Solano from

revealing the informant’s identity was insufficient to outweigh the government’s interest

in keeping the informant’s identity confidential.

       The District Court indicated that, before ruling on the motion, it might need to see

police reports about the informant as well as reports by the DEA case agent. Both parties

agreed that the District Court could also conduct an in camera examination of the

informant under oath. However, counsel for the government suggested that the

informant might have produced a written report and, in lieu of an in camera examination

of the informant, the District Court could meet with the DEA case agent ex parte and

review that report. Defense counsel then objected, arguing that only an in camera

examination of the informant under oath could provide the Court with a sufficient basis

for a decision on the motion. The District Court decided that it would “take the matter


                                             3
under advisement with the specific advice, that I am free to meet with the case agent

concerning the [informant’s] report–self report.” (Joint Appendix (“JA”) at 151.)

       On February 11, 2005, the District Court denied the motion after “conduct[ing] an

‘in camera’ inspection of the Agents’ reports.” (JA at 3.) Following trial, Balduino-

Solano was convicted and filed this appeal.

Discussion

       According to Balduino-Solano, it is unclear from the District Court’s order

whether the Court reviewed a report written by the informant. Assuming that the District

Court did review such a report, Balduino-Solano contends that an in camera review of

the report, rather than an in camera questioning of the informant himself, violates due

process and our decision in United States v. Jackson, 384 F.2d 825 (3d Cir. 1967). We

disagree.

       First, we note that the District Court was not silent about what it reviewed in

connection with Balduino-Solano’s motion. It said, as quoted above, that it made its

decision after “conduct[ing] an ‘in camera’ inspection of the Agents’ reports.” (JA at 3.)

Since the premise of the Balduino-Solano’s argument is that the District Court reviewed

a report by the informant, and since the District Court’s direct statement is that it

reviewed “Agents’ reports,” one could fairly conclude that the premise has been undercut

and that, therefore, Balduino-Solano’s argument cannot stand. But assuming arguendo




                                              4
that the District Court actually reviewed a report written by the informant,2 Balduino-

Solano still loses. Such a procedure does not necessarily violate either due process

generally, or Jackson in particular.

       In Jackson, we held that a district court may conduct an in camera examination of

an informant when deciding a motion to disclose the informant’s identity. 384 F.2d at

827. However, nothing in Jackson requires that a district court undertake such a

procedure. Indeed, we stated in Jackson that district courts own the “task of balancing

public interest in protecting the flow of information against the individual’s right to

prepare his defense.” Id. (quoting Roviaro v. United States, 353 U.S. 53, 62 (1957)).

The implication is that the procedure for handling that task, and not just the outcome of

the procedure, are committed to the discretion of the district courts. A rule requiring in

camera interrogations of confidential informants in all cases would usurp that discretion

and could waste valuable judicial resources while subjecting informants to what might be

an unnecessary and potentially compromising exercise.

       Neither does due process demand the type of rigid rule Balduino-Solano seeks.

We have of course been cognizant of due process concerns even as we have assiduously


  2
     Balduino-Solano evidently thinks the Court may have reviewed a report by the
informant himself. Thus, Balduino-Solano requests that we determine whether the
District Court kept a record of the documents it reviewed, and, if so, that these
documents be forwarded to us under seal for our review pursuant to Federal Rule of
Appellate Procedure 10(e)(2)(B). Alternatively, if the District Court does not have
copies of the documents it reviewed, Balduino-Solano requests that we remand his case
so that the District Court can develop a more complete record.

                                              5
avoided telling district courts what they shall and shall not do in making the delicate

decision of whether to compel exposing a confidential informant. Ultimately, as the

Supreme Court has recognized, the process that is due may vary from case to case, so that

“no fixed rule with respect to disclosure is justifiable.” Roviaro, 353 U.S. at 62.

       The question remains, though, whether it was an abuse of discretion to forego an

in camera interrogation in this case. We are here dealing with what we have earlier

described as a case “in which the informant is not an active participant or eyewitness, but

rather a mere tipster.” United States v. Jiles, 658 F.2d 194, 197 (3d Cir. 1981). “In such

cases,” we have said, “courts have generally held that the informant’s identity need not

be disclosed.” Id. (citations omitted). Recognizing, then, that the case at bar presents the

weakest of scenarios for compelling disclosure, and recognizing further that the

government in this case essentially conceded the only two points as to which Balduino-

Solano argued the informant could have relevant information, it would be particularly

odd to say that this is the case in which an in camera interrogation is absolutely required.

       We reiterate our advice in Jackson that district courts would do well to consider in

camera questioning of confidential informants when balancing law enforcement interests

and a defendant’s due process rights. On the present record, however, we cannot say that

the District Court abused its discretion in declining to conduct such an interrogation

before ruling on the Balduino-Solano’s motion.

       Accordingly, we will affirm.


                                             6
