-: SJC-13341, Commonwealth v. Jonathan Gandia.
-: Good morning.
May it please the court, Michael Locke for the Commonwealth.
The Commonwealth asked this court to either
remand or reverse the motion judge's order
requiring the Commonwealth to disclose the identity
of the confidential informant
that was involved in this case.
First, at least a remand is required,
because the motion judge failed to appropriately
analyze the defendant's motion
according to the two-stage process
that this court reiterated in Commonwealth v. DM.
As the court knows, in DM,
this court held that it's an abuse of discretion
for a motion judgment...
Analyzing this type of motion
to either or both not take into account
the stage of the proceeding
at which the motion was brought
as the defendant has a higher burden at pretrial
versus at the trial proper.
And, two, the motion judge didn't also fail to engage
in the actual two stage process outlined at DM.
Here, the motion was brought pre-trial
long before the trial proper.
And, as the Commonwealth sets out in its brief
and the court knows
there's long been maintained a difference
between a defendant's request for the ID
of a confidential informant before trial
rather than at the trial proper.
And, again, here,
the motion judge abused discretion,
because she did not cite to DM,
she did not cite to Bonnet,
which came from this court a few years before that,
and she made no mention of the stage of proceedings
at which the defendant brought this motion
and did not discuss the defendant's higher burden
at this stage.
For these reasons, at least a remand is required.
The Commonwealth would further ask the court not to remand,
but to actually reverse the motion judge's order,
because based on the facts before,
the motion judge, as a matter of law,
the motion should be denied.
Here, the CI was not a percipient witness
to the crime that was charged here.
The Commonwealth charged the defendant
with possession with intent to distribute,
not based on any of the transactions
that the CI relayed to police.
He was charged with possession
with intent to distribute based on the cocaine
and the money that was found on his person
and in the vehicle after he was lawfully arrested
for...
-: Along those lines,
let me ask you whether remand is the...
It's the better decision,
because what you say is true.
It was what was found in the fanny pack.
-: Correct.
-: 22 grams?
-: Correct.
-: The defendant might argue that,
putting aside
how the informant could help on this issue for a moment,
the defendant might argue that, sure,
he wasn't a percipient witness
to the search of the fanny pack,
but the informant is the one that says, oh,
a sale just took place and he's leaving.
And, the fact that a sale just took place
is really important and probative on the issue
of intent versus personal use.
So, why isn't a remand better?
-: Because, here, the Commonwealth...
the CI would not be testifying at trial.
So, that evidence wouldn't even come in,
that the CI had seen these prior transactions.
The Commonwealth is going to proceed on the theory
just based on the amount of cocaine.
-: But, the defendant has...
There's a compulsory process clause,
not just a confrontation clause,
that we sometimes forget about.
And, the defendant has a right to put on a case,
and maybe they wanna call the...
Maybe not percipient witness to the search,
but what's going on contemporaneously,
which goes to the state of mind of the defendant
as to whether it was an intent to sell
or whether it actually it was for personal use.
And...
And, I'm putting...
I recognize
I'm putting aside the expected testimony of the informant,
but it's...
Saying not a percipient witness,
technically it's correct,
but the informant is right there as it's happening.
-: Right,
but, again,
the arrest was lawful
based off of the operating without a license.
Defendant was not...
Was not arrested based on...
-: Not talking about search and seizure issues.
I'm talking about the defendant wanting to call somebody
who is right there
that is probative as it relates to state of mind,
it was to intend versus personal use.
And, again, I'm putting aside the expected testimony.
-: I would suggest, your Honor,
the defendant hasn't made...
Hasn't I think based on the facts
and the defendant's argument here,
the defendant has not carried his burden
to even establish that.
-: Wouldn't that be the case
if you were dumb enough to charge him with possession,
with distribution of B,
and you weren't?
-: Correct, the defendant would have a much better argument
if he was charged
with the actual distribution here,
which he was not.
-: How do we know that the Commonwealth
has properly asserted the informant privilege
in the record?
-: The...
I believe I submitted a motion to include the transcripts.
I believe...
This was a 2113.
And, I did not file the transcripts,
with the 2113 petition,
but once this...
It was reserved and reported by the single justice,
I included a motion to include the transcripts
of this hearing.
And, at the hearing the Commonwealth asserted the privilege
and asserted that the CI safety was in danger
and that it would shill the further CI's
from cooperating with the Commonwealth
if the motion were allowed.
-: And, just remind me that motion is still pending?
-: I believe so, your Honor.
-: [Justice Wendlandt] Okay.
-: I suppose I'll go back to, here,
the defendant can't establish
that the CI's identity is material to his defense at trial.
And, again, this is...
We have to look at this in the context of
that this motion was brought far before trial,
before even a motion to suppress.
And, part of the issue
when these motions are brought so early
is that the motion judge had no real basis
to make factual findings or credibility determinations.
The motion judge was acting on this motion
having only the police report in front of her,
which, again,
I would argue is part of the reason why
the defendant has a heightened burden so early,
because we don't really know where this case is going yet.
And, the motion judge doesn't really know
where this case is going yet. For all we know, these...
The drugs and the money found here
might be suppressed at a motion to suppress
and the CI issue becomes mute,
because the case is gonna be dismissed,
because there's no more contraband
that the Commonwealth can put forward at trial.
And, here the defendant has tried to,
I suppose this kind of goes to Justice Lowy's question,
has tried to manufacture materiality here
by asserting that they...
He would call the CI at trial
to testify that there was no actual transactions here.
I would just state that that's entirely speculative
and it's entirely contrary to what the record
and the record that the judge had before
which is the...
Only the police report
where the police report states
that the CI told officers that he had been witnessing
the defendant engage in drug transactions.
-: Yeah.
So, I understand that the two stage Bonnet process
wasn't followed.
I just want to, again,
I'm just trying to figure out the remand
or don't remand issue.
So, if this goes to trial.
presumably the officers would testify
as to individuals going up to the defendant
and leaving quickly.
The inference that they'd wanna leave for the jury
is that those were sales.
And, the informant's a percipient witness to that.
And, the defendant I think would make the argument that,
since the informant was right there,
that they'd be able to speak to that.
And, I understand 22 grams is a tough argument
that it's...
It's for personal use and not intent.
But, that doesn't mean that they don't have a right
to present their side of the story.
-: Right, and I think this is the tension that we have
where the Commonwealth has this privilege
and the defendant here has not satisfied his burden
in establishing that he has a right to this information.
I think just simply asserting,
"actually, there were no deals here",
is enough for the Commonwealth
to have to give up this information and...
-: Well, that's the stage two balance thing.
Attorney Locke: Right.
-: I mean okay,
but that, as you point out,
that whole process didn't occur.
-: Right.
I think based on the facts before this court,
this court is in the same exact position
as the motion judge was.
And, I think this court can reverse
based on having the police report in front of them.
That's the exact same...
That's all the motion judge had in front of her.
And, I would assert that, here,
the defendant has not met his burden,
especially at such an early stage.
Finally, just a few things.
First, the Commonwealth would object to, in his brief,
the defendant moves to join his case
with the brief in the next case,
under Rule 16.
Rule 16 only covers cases
where there's more than one appellate
or appellant in the case
and they join their briefs.
So, the Commonwealth would object to that motion.
And, I would just say here,
when these type of decision or motions are allowed,
the Commonwealth is severely prejudiced,
particularly here where the analysis isn't followed.
Because, here, once this motion is allowed,
the Commonwealth now has to decide
whether to file a 2113,
where this court has said that the court
will not take every 2113 regarding a CI issue,
or it ends up...
The Commonwealth ends up dismissing these cases,
because we know that this puts the CI's in danger
when we have to turn over the information to them.
So, I would...
I would ask the court to reemphasize the importance
of engaging in this two step analysis.
There are no further questions. I would rest on my brief.
-: [Chief Justice Budd] Thank you.
-: Okay, Attorney Schneiderman.
-: Good morning.
Good morning.
May it please the court,
I am Joseph Schneiderman.
I represent Jonathan Gandia.
I think, your Honor,
Justice Lowy actually hit the nail on the head
as to why disclosure was proper in this case,
because the confidential informant was right there
was the only non percipient government...
Was the only percipient, backwards,
only percipient non-government witness.
And, that credibility of that witness is the heart
of any defense at trial.
-: This is just a routine case.
We...
The rules of the road as I think I understood them,
would be if the governed is stupid enough
to charge distribution of B
and there's controlled buys for instance,
so, hypothetical case,
there's a series of controlled buys with an informant.
You've seen a thousand of these cases.
They execute a search warrant,
they find 16 grams,
and the dispute is personal use,
versus distribution use,
or distribution amount.
There's no...
We've never authorized discovery
or to breach the informant privilege
for the controlled buys, right?
'Cause, they charge him with possession
with intent to distribute.
So, why is this case different
from the routine case that we always see?
-: Your Honor, what I think is different
or what this court has reaffirmed
in the last five years
is the breadth of the Commonwealth's discovery obligations,
but for the fact that the informant is involved,
any information that the informant might have...
-: But, this is the one sliver the Commonwealth has
where you have to show something.
-: I appreciate that your Honor,
that this is...
The defendant does have to show something.
And, here I would suggest that the defendant
can't be held to anything heavier than what he has.
This is occurring right early in the case.
All the defendant has is a police report.
The defendant doesn't have anything further.
I mean, the police report,
which is reproduced in the record appendix at record--
-: We agree with you on this case.
We get the hypothetical case I just talked about
with the control buys.
And, you say, well,
it's going to be relevant
as to whether or not this person's telling the truth.
We want discovery.
It's every case if there's no standard, correct?
-: It may be every case, your Honor,
but and the defendant would still have to meet a burden.
And, I would suggest that here
the defendant did meet their burden based on what they had
and to suggest otherwise would be to hold the defendant
to an unrealistic burden.
The defendant here just had the police report.
The police report at record 15 says
the CRI I has engaged in...
Left a warrant,
but there's nothing else.
Captain Keenan at the Springfield Police Department
knows who this CI is,
but we don't have anything else to go on.
There's no references to warrants, other cases,
which information the Commonwealth
could have provided when they opposed this motion
to say, wait a minute,
we have someone here who is indeed reliable
and who we can believe in.
The Commonwealth didn't do that.
That actually goes to something I wanted to respond.
Justice Wendlandt had asked
about the invocation of the privilege.
At transcript six,
the Commonwealth walks back
through much of what is in the police report,
but they don't articulate anything more concrete
about this informant,
unlike, as Justice Giziano,
you might have been driving at,
I don't wanna put words in your mouth, DM,
where, in DM,
there was a history of gang involvement,
unlike Barry,
where indeed a single justice of this court
had to intervene to safeguard witnesses.
The Commonwealth's invocation of the privilege
I would suggest,
if it is fairly invoked,
is tenuous at best.
And, I think the motion judge was alert to that at...
-: And, you don't oppose the motion to submit the transcript,
'cause that seems to be the only place
where this is asserted.
-: Not at all, your Honor.
That's best practice of single justice advocacy
is if you have a transcript,
bring it to this court.
So, I do not oppose that in the slightest.
I commend my brother actually
for having the wherewithal to submit that.
So, assuming though.
Your Honor, yes.
-: No, I'm just saying,
you're a frequent flyer.
You would've submitted the...
The transcript?
-: Absolutely, your Honor.
And, I've said rule number one of single justice practice
is to have an adequate record in this court four years ago.
So, yes, I absolutely would have.
I do not oppose it at all.
I commend my brother for that.
-: And, we commend you for commending him.
-: Thank you.
Commendations are all around.
(everyone chuckling)
Back to the merits though,
I think though this is...
The difference here
and this goes back
to what Justice Lowy was asking my brother,
the defendant can't know what he doesn't know.
And, at this juncture,
all the defendant knows and has to go on
is the word of Detective Aguire
and possibly also Captain Keenan.
We don't have anything else beyond that.
All we have is an informant.
We don't have hand to hands going on at 49 School Street.
We don't have that.
We do have some repetitive behavior,
but the difference between--
-: And, I can see now,
if the defendant doesn't know
what the defendant doesn't know
is enough to breach the privilege,
then what isn't?
That is, if it's enough for you to say,
I don't know what I don't know,
therefore tell me who the the CI is,
is that what you're arguing the legal regime should be?
-: Not quite, your Honor.
I appreciate the point.
I'm saying that,
based on the record he had,
the very minimal record that he had.
-: Right,
and based on what the government's asserting
as the offenses charged,
go ahead.
-: Based on the offenses that are charged
and the world of difference
between possession with intent to distribute
and straight possession,
which is a felony as opposed to a misdemeanor,
the difference is significant,
the collateral consequences are significant,
and all of that has factored in to the government...
To the analysis under DM and Bonnet.
The nature of the crimes charged
and what the possible defenses are.
Discovery may actually foster further proceedings
in this case.
Indeed, discovery could lead to,
as my brother hinted at perhaps,
a motion to suppress,
discovery could lead to a disposition.
We just don't know.
-: What we don't know though...
-: Or, dismissal,
'cause they don't wanna give up the informant.
-: That's quite possible too, your Honor, yes.
Your Honor.
-: Yeah, I guess the issue is that Bonnet lays out a process
and after the Commonwealth
has provided sufficient information,
stage one, the defendant has to come up with something,
something that they can argue
to determine whether or not
there's something there
that the privilege should be set aside,
because it might interfere with the defense.
If they establish that,
then you go to balancing,
you don't go right to balancing.
And...
And, we didn't have that stage one.
And, I'm not...
When I say it's a question, not an answer,
when I say the informant's information
being there at the scene
when this alleged hand to hands right before
might be probative on the issue of intent.
I'm asking the question of whether or not
that satisfies stage one,
not what happens if it does
when the judge goes to stage two
and does the Bonnet balancing.
So, I don't see anything on this record
even close to affirmance,
but I'm asking whether or not
the process should be implemented
that was supposed to be implemented with this,
a two stage process in Bonnet.
And, is there enough for stage one or not
that this person, unlike the...
Any control, most controlled buys,
which particularly when they're not part of indictments,
whether or not there's enough that...
It's a question not an answer,
that the informant was there?
Does that satisfy...
Is that enough of a concern for a remand
as it relates to stage one,
and then presumably you'd go to,
if the answer were yes,
you'd go to stage two,
and see what happens with the balancing?
There's...
I don't see any root to affirmance here.
-: Your Honor,
as I've open with,
it's not just that the informant was there.
He's the only person...
Or, they are,
I'm sorry, because we don't know the informant's gender.
They are the only person who saw the drugs themselves.
Yes, the police ultimately find drugs on Mr. Gandia.
But, the fact of the informant's presence,
and I appreciate the point,
presence could very much be overburdened,
presence and observations,
and indeed at record 15 into 16,
the informant is saying,
Mr. Gandia is getting ready to leave.
This informant was there in real time.
The heart of this case is likely going to be credibility,
even if the Commonwealth
doesn't want to call Mr. Gandia,
we may want to,
or I'm sorry,
that's backwards.
Even if the Commonwealth doesn't want to call the informant,
Mr. Gandia still should have some opportunity
to at least get into that,
and figure out if the informant is credible.
So, I think on that balance, your Honor,
the combination of it,
the informant being there, witnessing the drugs,
witnessing them going back and forth,
all of that is just enough to satisfy stage one,
and any further questions
perhaps may be well suited for a remand.
But, I say we satisfied stage one, the...
And, the motion judge was alert to that.
At Addendum-170,
she recognizes the salutary nature
of the informant's privilege.
She then says, I find though at...
This is the problem with tabs.
It was...
The court finds that the CRI,
it was the CRI who observed
what he determined to be crack cocaine
and a drug deal prior to the defendant's arrest
that provided the requisite probable cause.
The court finds that the CRI is essential
to the defendant's defense.
That should be enough and any further questions
should be left perhaps for a remand.
But, I think at this juncture,
there was enough for the motion judge to order disclosure,
and to hold otherwise would be to put the defendant
at an extreme disadvantage
to even be able to formulate and foster defense.
And, that's his right is to figure out strategically
how to figure, formulate,
and foster a defense.
And, indeed, even in Bonnet,
this court recognized that the ability to form a defense
has to be solicitous.
That's I believe at page 847 into 848 of Bonnet-1.
And, that all stems from past decisions
involving informants.
In sum, your Honors,
I think there is just enough on this record
for the motion judge to conclude
that disclosure was necessary and appropriate.
Although the motion judge did not take the ideal course
to show her work
and walk through the sequential analysis in DM and Bonnet,
the order nevertheless remained sound,
because the informant was there,
was the only non-government percipient witness,
and would be the heart of it,
even if the Commonwealth chooses never to call them.
Unless your Honors have further questions,
I thank you for your time.