Navy-Marine Corps Court of Criminal Appeals

United States v. Craven, __ M.J. ___ )N-M Ct. Crim. App. 2022), is an interesting case about the informant privilege. It's a government appeal, which NMCCA grants, but . . . 

There are two informant related Rules of Evidence.

R.C.M. 506
     (a) Protection of Government Information. Except where disclosure is required by a federal statute, government information is privileged from disclosure if disclosure would be detrimental to the public interest.

     (b) Scope. “Government information” includes official communication and documents and other information within the custody or control of the Federal Government. This rule does not apply to the identity of an informant (Mil. R. Evid. 507).

R.C.M. 507
     (a) General Rule. The United States or a State or subdivision thereof has a privilege to refuse to disclose the identity of an informant. Unless otherwise privileged under these rules, the communications of an informant are not privileged except to the extent necessary to prevent the disclosure of the informant’s identity.

Which one would you choose with the following facts (and don't read after the break yet).

• The government had a witness who the defense suspected was an informant.
• The defense moves to get discovery about the primary witness who "has served as a cooperating informant [CI] for the Naval Criminal Investigative Service [NCIS].

In May 2020, after a night of heavy drinking at then MASN Mike’s apartment, MASN Hotel allegedly touched MA3 Sierra on the buttocks while she was asleep. Appellee and MASN Mike were the only two witnesses to this act, for which MASN Hotel pleaded guilty at special court-martial to assault consummated by a battery. At his court-martial, MASN Hotel and the Government stipulated as fact that Appellee “told [MASN Hotel] that he would take a shot of alcohol if [MASN Hotel] touched the lower back and hips area” of MA3 Sierra.

In light of this stipulation, MASN Mike is the Government’s principal witness for its charge that Appellee solicited MASN Hotel to commit abusive sexual contact by touching MA3 Sierra’s “buttocks” without her consent. MASN Mike’s account of Appellee’s involvement has changed over time.
. . . 
​Appellee’s trial defense counsel argued that the apparently lenient handling of MASN Mike’s case suggested he had been serving as a CI for NCIS, and moved to compel confirmation of that and any related information. The military judge ordered the Government to confirm or deny whether now Mr. Mike had been a government source or had a cooperation agreement with NCIS, and if so, to disclose any associated materials to the Defense. The Government responded indirectly by stating that no CI was used in Appellee’s case, and neither confirmed nor denied whether Mr. Mike had worked as a CI in other NCIS cases. Around the same time, the NCIS Director claimed the government information privilege under Mil. R. Evid. 506 over the CI status of Mr. Mike.

What Rule applies--Mil. R. 506 or 507?

[W]e find no abuse of discretion in the military judge’s order that confirmation or denial of Mr. Mike’s CI status and any related privileged materials in NCIS possession be submitted for an in camera discoverability review, as such information reasonably tends to affect the credibility of Mr. Mike. Like our sister court, we find that when it “fail[s] to provide the Defense with information about the CI status of [its material witnesses], the Government essentially preclude[s] the defense from impeaching their credibility and motivation for being involved in the situation involving [Appellee] and his court-martial.” Since it is the witness’s affiliation with one party over the other that gives rise to such issues of credibility and bias, we find that the impeachment value of a witness’s CI status is not limited to the witness’s service as a CI in the particular case at hand. 

Which Rule did you pick?

The central issue in this interlocutory appeal is whether, despite its claim of privilege, the Government is required to identify Mr. Mike as an informant. Both the parties and the military judge cite the Government’s invocation of the government information privilege under Mil. R. Evid. 506 as controlling. However, Mil. R. Evid. 506 expressly states that “[t]his rule does not apply to the identity of an informant” and instead references Mil. R. Evid. 507, which deals specifically with “Identity of Informants.”

An “informant” as defined under Mil. R. Evid. 507 is “a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a person whose official duties include the discovery, investigation, or prosecution of a crime.” Notably absent from this definition is any indication that the rule only applies when the informant has served in that capacity in the instant case. Similar to Mil. R. Evid. 506, the privilege under Mil. R. Evid. 507 attaches when “claimed by an appropriate representative of the United States . . . .” However, unlike the privilege under Mil. R. Evid. 506, the privilege under Mil. R. Evid. 507 exists only to “the extent necessary to prevent the disclosure of the informant’s identity,” and importantly, “no privilege exists . . . if the informant appears as a witness for the prosecution.”

What we cab suspect is that the co-actor / witness's "cooperation" activity was unrelated to the instant case. Citing United States v. Claxton, No. ACM 38188 (rem), 2016 CCA LEXIS 649, *7, 19- 20 (A.F. Ct. Crim. App. Oct. 31, 2016) (unpublished), the court concludes that there was error here.

​We agree with our sister court. We find that under Mil. R. Evid. 507 an in camera review can be used to address issues involving a witness’s CI status, thus preventing disclosure to the defense of any information over which a privilege has been asserted until the military judge has reviewed it and made a determination as to its privileged status and discoverability. We further find that under Mil. R. Evid. 507 a military judge may order such information to be submitted for in camera review, if the military judge determines the order is “required by the interests of justice.” We also find implicit in the rule that even with respect to an ordered disclosure of information to the court for in camera review,

     [i]f, after a reasonable period of time disclosure is not made, the military judge, sua                sponte or upon motion of either counsel and after a hearing if requested by either party,        may dismiss the charge or specifications or both to which the information regarding the        informant would relate if the military judge determines that further proceedings would          materially prejudice a substantial right of the accused.

Because the MJ used the wrong rule and incorrect findings of fact,

Second, we find the military judge’s dismissal of the Charge and Specification as a remedy for nondisclosure of information for in camera review was not predicated on findings of fact that are supported by the evidence of record. Whether under Mil. R. Evid. 506 or Mil. R. Evid. 507, dismissal is appropriate only where the military judge determines that proceeding without the information ordered for review “would materially prejudice a substantial right of the accused.” Based on the record before us, the military judge had no basis to make this determination because, due to the Government’s recalcitrance, he had not yet been able to establish, even in camera, whether Mr. Mike was indeed a CI. He therefore had no basis to find that the Government’s nondisclosure would materially prejudice a substantial right of Appellee.

Accordingly, we conclude we must remand for further consideration of these issues by the trial court. In doing so, however, we note that even where grounds for dismissal are lacking, a military judge is not without recourse to address a party’s failure to comply with his orders regarding the disclosure of information, whether for purposes of conducting an in camera discoverability review or ordering it turned over in discovery to the other party. Depending on the particular situation, the military judge may in his discretion prohibit the party from introducing evidence or calling a witness, enter “such other order as is just under the circumstances,” or even abate the proceedings with respect to any affected charges until the party complies with his order.

We'll have to wait and see if there will be another government appeal of the MJ's ruling or a conviction and UCMJ art. 66 review to see whether the MJ found any of the material reviewed to be necessary for disclosure.

Cheers,