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United States v. Bias

United States District Court, D. Minnesota

July 6, 2018

United States of America,, Plaintiff,
v.
Terrell Bias 06,, Defendant.

          Jeffrey S. Paulsen, United States Attorney's Office, for Plaintiff United States of America

          Shannon Elkins, Officer of the Federal Defender, for Defendant Terrell Bias.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is the Government's Appeal [Doc. No. 334] of the Magistrate Judge's Order Dated May 24, 2018 [Doc. No. 331]. For the reasons set forth below, the Government's appeal is granted in part and denied in part, and the May 24, 2018 Order (“the Order”) is clarified.

         I. BACKGROUND

         In this multi-defendant case, Defendant Terrell Bias was charged with conspiracy to distribute cocaine and cocaine base, and an individual count of possession with intent to distribute cocaine based on acts allegedly occurring on November 9, 2017. (Indictment, Counts 1 & 17 [Doc. No. 1].) During the investigation of the crimes charged in the Indictment, the FBI obtained a wiretap, and continuation of the wiretap, on the mobile cellular telephone of Bias' brother and co-defendant, Jimmie Lee McGowan, Jr. (See Gov't Ex. 7 (Initial Wiretap Application & FBI Special Agent Marshall First Aff.) (“First Marshall Aff.”); Gov't Ex. 8 (Continuation Wiretap Application & FBI Special Agent Marshall Second Aff.) (“Second Marshall Aff.”) [Doc. No. 295].) As part of the probable cause for issuance of the wiretaps, the FBI's affidavits relied on information from confidential reliable informants, or CRIs. (See, e.g., Govt. Ex. 7, ¶¶ 14-25 (First Marshall Aff.).) One particular CRI, identified as CRI-1, supplied information concerning Bias. (See id. ¶¶ 18, 58, 61, 78, 83.)[1]

         In January 2018, Bias filed a pretrial motion requesting that the Government disclose and make informants, specifically CRI-1, available for interview. (Def.'s Mot. to Disclose at 1 [Doc. No. 132].) Bias argued that the information provided by CRI-1 was vitally important to his defense because “there is no other information in the wiretap or any of the other police reports connecting Mr. Bias to the allegations surrounding Mr. McGowan, his brother.” (Id.) Defendant thus surmised that the Government “must be relying on the accusations made by the paid informant, ” and that he should be permitted to confront his accuser. (Id.)

         On May 24, 2018, Magistrate Judge Noel issued a two-page Order on three Defendants' non-dispositive pretrial motions, including those filed by Bias. Magistrate Judge Noel summarily ruled, in pertinent part:

Bias' motion to disclose and make informants available for interview (ECF 132) is GRANTED to the extent that any informant or witness has information about any fact the Government intends to prove at trial, regardless of whether the Government intends to call the informant as a witness or not.

(Order at 2.)

         The Government appeals this ruling, arguing that this portion of the Order is clearly erroneous and contrary to law. (Gov't's Appeal at 1.) It contends that the ruling is overbroad because, as written, it requires the disclosure of any informant, including informants who acted as mere tipsters. (Id. at 2.) The Government asserts that it only utilized tipsters in connection with the charges against Bias. (Id.) Thus, the Government requests that the ruling be reversed and modified, limiting disclosure only to those informants who were percipient witnesses to the crimes with which Bias is charged, or those who will be witnesses at Bias' trial. (Id. at 3.)

         In response, Defendant asserts that the Order is not overbroad. (Def.'s Resp. to Appeal at 5 [Doc. No. 339].) He contends that his motion was limited to CRI-1 and similarly situated informants and that the magistrate judge's order should be construed accordingly. Bias further argues that CRI-1 was not a mere tipster, and that the magistrate judge properly ordered that he be identified and made available for interview. (Id. at 6.)

         II. DISCUSSION

         A. ...


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