United States of America v. Pedro Gómez-Genao

*Of the Eastern District of Virginia, sitting by designation.
United States Court of Appeals
For the First Circuit
____________________
No. 01-1181
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO GÓMEZ-GENAO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
____________________
Before
Lynch and Lipez, Circuit Judges,
and Doumar, Senior District Judge.*
____________________
Ernesto Reyes Blassino, for appellant.
Guillermo Gil, United States Attorney, with whom Jorge E. Vega-
Pacheco, and Nelson Pérez-Sosa, Assistant United States Attorneys,
were on brief, for appellee.
____________________

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September 14, 2001
____________________

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LYNCH, Circuit Judge. Pedro Gómez-Genao, an illegal
alien, was convicted of possessing with intent to distribute some
thirteen bales of cocaine, smuggled from a beach in Puerto Rico, and
aiding and abetting two others to do the same. 21 U.S.C. § 841(a)(1)
(1994); 18 U.S.C. § 2 (1994). He was also convicted of being in the
United States illegally. 8 U.S.C. §§ 1326(a)(2) and (b)(2) (1994
& Supp. II 1996). He left a fake resident alien card with his
photograph on it at the scene of the crime. He was sentenced to
twenty years.
Gómez-Genao appeals, arguing that his Sixth Amendment
rights were violated by the government’s failure to identify a
confidential source, Graciano Santana, who was neither a witness to
nor a participant in the crimes charged. Santana’s role was
different. He knew Gómez-Genao as "Soler" and Soler had indirectly
and directly bragged to him about the drug smuggling, saying that he
would receive $1,000 per kilo of cocaine for his role. Santana told
the police, who eventually identified Soler and located him. The
government’s reasons for not turning over the name were fears for
Santana’s safety. The street value of the 325 bricks of smuggled
cocaine was in the millions of dollars, a fact which suggests a large
criminal organization, which in turn underlies the government’s fear.
The government responded negatively to Gómez-Genao’s oral
request, first raised in November 1999, for the identity of the

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confidential source. It withheld the name from the Jencks material
it provided on June 9, 2000. Jencks v. United States, 353 U.S. 657
(1957). Nonetheless, Gómez-Genao did not ever move that the
government be compelled to produce the name until June 12, 2000, two
days before the trial began. Gómez-Genao was given the name of the
confidential source on June 14, just before trial. He was given
Santana’s criminal history as well, and used that history to cross-
examine Santana. The name was given to Gómez-Genao before the court
had the opportunity to rule on the motion.
In order to protect the public interest in effective law
enforcement, the government may withhold the identity of a
confidential source. Roviaro v. United States, 353 U.S. 53, 59
(1957). There are limits to withholding that information where the
disclosure of the identity of the informant "is relevant and helpful
to the defense . . . or is essential to a fair determination of a
cause . . . ." Id. at 60-61.
Gómez-Genao bears the burden of persuasion that he was
entitled to the information, a burden described as heavy. United
States v. Robinson, 144 F.3d 104, 106 (1st Cir. 1998). Had Gómez-
Genao filed his motion earlier and given the district court time to
rule on it before trial, and had the court so ruled, we would have
reviewed that ruling for abuse of discretion. United States v.
Lewis, 40 F.3d 1325, 1335 (1st Cir. 1994). However, Gómez-Genao

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neither gave the court enough time to rule on the matter pre-trial,
nor asked for a continuance, so he is ill-situated to complain.
On appeal, Gómez-Genao has shown neither a need for the
information nor that he was prejudiced by not having the information
before June 14. See United States v. Martinez, 922 F.2d 914, 921
(1st Cir. 1991) ("[D]efendants have an obligation to provide at least
some explanation of how the informant's testimony would have
supported their alleged defenses."). We note that Gómez-Genao knew
who it was he had bragged to about the crime. Santana was neither a
participant in the crime, nor an observer of it. At most he was a
tipster. When the informant is a tipster as opposed to a participant
in the crime, disclosure of the informant's identity when there is a
perceived threat is only required in exceptional circumstances under
which it is vital to a fair trial. Lewis, 40 F.3d at 1335. Gómez-
Genao speculates that if he had known the identity earlier, he could
have hired an investigator. The investigator might have come up with
something more, such as whether Santana and Gómez-Genao did eat lunch
together in the cafeteria where the bragging occurred. That is not
enough.
Affirmed.

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*Of the Eastern District of Virginia, sitting by designation.
United States Court of Appeals
For the First Circuit
____________________
No. 01-1181
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO GÓMEZ-GENAO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
____________________
Before
Lynch and Lipez, Circuit Judges,
and Doumar, Senior District Judge.*
____________________
Ernesto Reyes Blassino, for appellant.
Guillermo Gil, United States Attorney, with whom Jorge E. Vega-
Pacheco, and Nelson Pérez-Sosa, Assistant United States Attorneys,
were on brief, for appellee.
____________________

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September 14, 2001
____________________

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LYNCH, Circuit Judge. Pedro Gómez-Genao, an illegal
alien, was convicted of possessing with intent to distribute some
thirteen bales of cocaine, smuggled from a beach in Puerto Rico, and
aiding and abetting two others to do the same. 21 U.S.C. § 841(a)(1)
(1994); 18 U.S.C. § 2 (1994). He was also convicted of being in the
United States illegally. 8 U.S.C. §§ 1326(a)(2) and (b)(2) (1994
& Supp. II 1996). He left a fake resident alien card with his
photograph on it at the scene of the crime. He was sentenced to
twenty years.
Gómez-Genao appeals, arguing that his Sixth Amendment
rights were violated by the government’s failure to identify a
confidential source, Graciano Santana, who was neither a witness to
nor a participant in the crimes charged. Santana’s role was
different. He knew Gómez-Genao as "Soler" and Soler had indirectly
and directly bragged to him about the drug smuggling, saying that he
would receive $1,000 per kilo of cocaine for his role. Santana told
the police, who eventually identified Soler and located him. The
government’s reasons for not turning over the name were fears for
Santana’s safety. The street value of the 325 bricks of smuggled
cocaine was in the millions of dollars, a fact which suggests a large
criminal organization, which in turn underlies the government’s fear.
The government responded negatively to Gómez-Genao’s oral
request, first raised in November 1999, for the identity of the

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confidential source. It withheld the name from the Jencks material
it provided on June 9, 2000. Jencks v. United States, 353 U.S. 657
(1957). Nonetheless, Gómez-Genao did not ever move that the
government be compelled to produce the name until June 12, 2000, two
days before the trial began. Gómez-Genao was given the name of the
confidential source on June 14, just before trial. He was given
Santana’s criminal history as well, and used that history to cross-
examine Santana. The name was given to Gómez-Genao before the court
had the opportunity to rule on the motion.
In order to protect the public interest in effective law
enforcement, the government may withhold the identity of a
confidential source. Roviaro v. United States, 353 U.S. 53, 59
(1957). There are limits to withholding that information where the
disclosure of the identity of the informant "is relevant and helpful
to the defense . . . or is essential to a fair determination of a
cause . . . ." Id. at 60-61.
Gómez-Genao bears the burden of persuasion that he was
entitled to the information, a burden described as heavy. United
States v. Robinson, 144 F.3d 104, 106 (1st Cir. 1998). Had Gómez-
Genao filed his motion earlier and given the district court time to
rule on it before trial, and had the court so ruled, we would have
reviewed that ruling for abuse of discretion. United States v.
Lewis, 40 F.3d 1325, 1335 (1st Cir. 1994). However, Gómez-Genao

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neither gave the court enough time to rule on the matter pre-trial,
nor asked for a continuance, so he is ill-situated to complain.
On appeal, Gómez-Genao has shown neither a need for the
information nor that he was prejudiced by not having the information
before June 14. See United States v. Martinez, 922 F.2d 914, 921
(1st Cir. 1991) ("[D]efendants have an obligation to provide at least
some explanation of how the informant's testimony would have
supported their alleged defenses."). We note that Gómez-Genao knew
who it was he had bragged to about the crime. Santana was neither a
participant in the crime, nor an observer of it. At most he was a
tipster. When the informant is a tipster as opposed to a participant
in the crime, disclosure of the informant's identity when there is a
perceived threat is only required in exceptional circumstances under
which it is vital to a fair trial. Lewis, 40 F.3d at 1335. Gómez-
Genao speculates that if he had known the identity earlier, he could
have hired an investigator. The investigator might have come up with
something more, such as whether Santana and Gómez-Genao did eat lunch
together in the cafeteria where the bragging occurred. That is not
enough.
Affirmed.

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