No: 06-3063 UNITED STATES OF AMERICA v. Moises Balduino-Solano

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No: 06-3063
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UNITED STATES OF AMERICA
v.
MOISES BALDUINO-SOLANO,
Appellant
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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
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Submitted Under Third Circuit LAR 34.1(a)
March 4, 2008
Before: BARRY, JORDAN, and HARDIMAN, Circuit Judges.
(Filed: March 12, 2008)
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OPINION OF THE COURT
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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

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We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s ruling on1
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.
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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

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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

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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

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Balduino-Solano evidently thinks the Court may have reviewed a report by the2
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.
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that the District Court actually reviewed a report written by the informant, Balduino-2
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

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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.

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