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Adequacy of evidence and the credibility of confidential informers (CI) in a drug distribution case – Colorado

Author: LegalEase Solutions

ISSUE 1: Is the available evidence adequate to support a conviction?

Short Answer:

It doesn’t appear that the available evidence is sufficient to support a conviction. In order to decide whether evidence is sufficient, courts consider whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Given the scope of evidence amounts to an audio recording and witness (confidential informant) affidavit of the alleged event, it appears this is not sufficient evidence to find Defendant guilty beyond a reasonable doubt. There are a number of issues with the available pieces of evidence that could be raised to both challenge their admissibility and discredit the reliability of the witness making them.

The elements of the crime of Distribution of a Controlled Substance, Schedule II, are:
1) That the defendant, 2) in the State of Colorado, at or about the date and place charged,
3) knowingly, 4) distributed with or without renumeration [sic], 5) the Controlled Substance, Cocaine.
The evidence supporting the conviction must be substantial and do more than raise a suspicion of guilt. United States v. Keck, 2011 U.S. App. LEXIS 13401, 4 (10th Cir. 2011). In assessing a claim of insufficiency of the evidence, the test is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Church, 970 F.2d 401, 405 (7th Cir. Ind. 1992); Espinoza v. Estep, 276 Fed. Appx. 781, 787 (10th Cir. 2008). .
Whether the government presented sufficient evidence to support a conviction is a legal question that an appellate court reviews de novo. United States v. Zapata, 546 F.3d 1179, 1188 (10th Cir. 2008). In considering a sufficiency-of-the-evidence challenge, the appellate court views the record in the light most favorable to the government to determine whether a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id. The court does not weigh conflicting evidence or make credibility determinations, as these are exclusively functions of the jury. Id.
A witness’s credibility may always be attacked by showing that his or her capacity to observe, remember, or narrate is impaired. United States v. Robinson, 583 F.3d 1265, 1272 (10th Cir. 2009). Consequently, the witness’s capacity at the time of the event, as well as at the time of trial, is significant. Id. Relevancy is determined by a three tiered analysis: (1) that the proffered evidence relates to a fact that is of a consequence to the determination of the action; (2) that the proffered evidence makes the existence of a fact of consequence to the determination of the action more probable or less probable than it would be without the evidence; and (3) whether the probative value of the evidence substantially outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury. People v. Vazquez, 768 P.2d 721, 727 (Colo. Ct. App. 1988). The totality of circumstances test continues to rely on former elements of probable cause determination, the informant’s veracity or reliability and his basis of knowledge, but also places particular importance on the value of corroboration of the details of an informant’s tip by independent police work. Id. at 725.
In the instant case, the police never arrested Defendant until 6 months after the alleged illegal transaction. Further, it appears that the police were not close enough to the scene to identify the Defendant or observe what proceeded. So the case rests primarily on Confidential informant’s statements and audio recording of the alleged meeting. There appears to be legitimate cause for concern that CI’s capacity to narrate the alleged event may have been impaired, given the length of time that passed since the alleged illegal transaction. More information on the Confidential Informant’s background and health may shed further light on his/her capacity to recall the alleged criminal conduct. Further, it appears that the distribution element of the crime, particularly, will be difficult to prove beyond a reasonable doubt. Given the facts before us, other than perhaps confidential informant’s statement, there is no direct evidence that Defendant distributed anything. The audio recording would be able to capture only the words exchanged between the parties but not the actual physical transaction itself. Further, there might be reason to challenge the authenticity and accuracy of the recording given the length of time that elapsed before arrest.

ISSUE 2: Is it enough that an affidavit is submitted in place of live testimony?

Short Answer:

No. The Confrontation Clause bars the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had a prior opportunity for cross-examination. Edwards v. People, 129 P.3d 977, 978 (Colo. 2006).

While the introduction of testimonial hearsay violates a defendant’s Sixth Amendment right to confront his accuser, if the defendant did not object at trial, the violation requires reversal only when the error is plain. United States v. Powell, 220 Fed. Appx. 805, 809 (10th Cir. 2007).
In United States v. Gaines, 358 Fed. Appx. 34, 35 (10th Cir. Okla. 2009), defendant Gaines was convicted by a jury for distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). On his direct appeal, Gaines challenged the foundation for the evidentiary admission of an audiotaped telephone conversation made on January 5, 2005.
Gaines primarily claimed that, out of court statements made by a confidential informant were used against Petitioner in violation of the confrontation clause and Crawford v. Washington, 541 U.S. 36 (U.S. 2004) [Crawford v. Washington, 541 U.S. 36 (2004), is a United States Supreme Court decision that reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment. The Court held that cross-examination is required to admit prior testimonial statements of witnesses that have since become unavailable]. Further Gaines contended that there was a Crawford violation because it was the confidential informant (“CI”) who told Agent Rosebrough that it was Mr. Gaines’s voice on the January 5 tape, and the CI did not testify at trial. Id. at 36.
The Confrontation Clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination.” Id. Gaines asserted that his right to confront an adverse witness against him was violated by the admission of Agent Rosebrough’s voice identification of him on the January 5 tape when the only basis of the agent’s knowledge came from the CI. Id. at 37.
The court concluded that “the information obtained by the government agents was used solely to facilitate their investigation into the identity of Petitioner as opposed to supplying ‘testimonial’ evidence at trial against Petitioner. Id. The CI’s identification of Mr. Gaines’s voice in the January 5 phone call was not admitted at trial to prove the truth of that identification but only to establish the background for Agent Rosebrough’s ultimate identification of Mr. Gaines as the participant in the January 9 drug sale for which he was convicted. Id.
In the instant case, the confidential informant is a key and arguably the most important witness to the prosecution of Defendant. It appears that his affidavit would be considered an out of court statement and under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Defendant has the right to confront and cross-examine the informant about his/her out of court statements. If the arrested party/defendant does not get an opportunity to cross-examine the witness, the out of court statements of confidential informant would have to be suppressed. Otherwise, Defendant would be denied a fair trial.
ISSUE 3: Can the government be compelled to disclose more than the mere identity of CI?

Short Answer:

Although the State is generally privileged from revealing the name of a confidential informant, disclosure may be required when the informant’s identity is relevant and helpful to the defense or is essential for a fair determination of the State’s case against the accused. People v. District Court of First Judicial Dist., 767 P.2d 1208, 1213 (Colo. 1989).


The government has a qualified privilege to choose not to disclose the identity of a confidential informant. People v. Vigil, 729 P.2d 360, 364 (Colo. 1986). While a defendant generally does not have a constitutional right to learn the identity of a confidential informant, “considerations of fundamental fairness sometimes require that the identity of such an informant be revealed.” Id. The standard described by the United States Supreme Court is as follows: “Where the disclosure of an informer’s identity, or the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Roviaro v. United States, 353 U.S. 53, 60 (U.S. 1957). Therefore, if a defendant has established that learning the informant’s identity, or the contents of the informant’s communication, is either relevant and helpful to his defense or “essential to a fair determination of a cause,” then a trial court can order disclosure. Id. at 61. “The mere involvement of an informant certainly does not justify the compelled disclosure of his identity.” People v. Peterson, 40 Colo. App. 102, 106 (Colo. Ct. App. 1977). Rather, disclosure is required if the facts establish that the informant “was ‘so closely related’ to the defendant” as to make the informant’s testimony highly material. Id. Further, the court can order the production of confidential informant identity at an in camera hearing. People v. Vigil, 729 P.2d 360 (Colo. 1986).
An exception to the above rule is if the informant had acted merely as a tipster and not as an active participant in criminal activity and in which case disclosure of his identity was not required or the court will not compel informant to testify in the court. Many of the cases denying the identification of informant involve an informant that just provided a tip or information to police so that they can conduct surveillance to obtain enough evidence to obtain a search warrant. The facts of the case before us are very different as informant played a much more important role in the case against Defendant. Informant was part of the sting operation during which Defendant allegedly took part in alleged criminal conduct and the primary witness of such conduct happens to also be the confidential informant. Given the case law and the central role the confidential informant plays in this conviction, the identity of the witness should be revealed. Further, other information that is necessary for Defendant to assess the credibility of confidential informant may be attainable.
ISSUE 4: Is evidence from eavesdropping through informant admissible in court?

Short Answer:

Yes, provided informant’s consent was knowing and voluntary. Law enforcement’s eavesdropping or electronically monitoring conversations, with the consent of one of the conversants, does not violate U.S. Const. amend. IV. Such evidence is admissible into evidence. One way to challenge such evidence with respect to Defendant is if the consent of the confidential informant is found to be not knowing and voluntary.


No unlawful interception occurs if one party to an electronically monitored conversation voluntarily consents to such monitoring. People v. Meinerz, 890 P.2d 130, 132 (Colo. Ct. App. 1994). Furthermore, a challenge to the voluntary nature of a party’s consent is determined based upon the totality of circumstances. Id. Colo. Rev. Stat. §§ 18-9-303, -304, do not prohibit or make unlawful the kind of consensual situation where one party to the conversation agrees to the recording, there is no “unlawful interception” within the meaning of Colo. Rev. Stat. § 16-15-102(10).
The recording of a conversation between an informant and a suspect, obtained through an electronic device concealed upon the person of the informant, is admissible into evidence. Holt v. United States, 404 F.2d 914, 920 (10th Cir. Okla. 1968). see also Johnson v. Gibson, 2000 U.S. App. LEXIS 20875 (10th Cir. Okla. 2000) (Clearly established United States Supreme Court precedent provides that law enforcement’s eavesdropping or electronically monitoring conversations, with the consent of one of the conversants, does not violate U.S. Const. amend. IV.) When the government records a defendant’s conversation with another party, pursuant to that party’s consent, neither the U.S. Const. amend. IV 18 U.S.C.S. § 2511(2)(c) is violated. United States v. McKneely, 69 F.3d 1067, 1073 (10th Cir. 1995). If the defendant raises the question whether the consent was knowing and voluntary, the burden of proof then falls on the government to establish the consent. Id.
The federal eavesdropping statute, 18 U.S.C.S. § 2511(2)(c) is analogous to Colo. Rev. Stat. § 18-9-304(1)(a) (1986), stating that it is not unlawful for an individual or a government agent to eavesdrop or monitor a conversation if one of the parties to the conversation consents to the monitoring. People v. Rivera, 765 P.2d 624, 626 (Colo. Ct. App. 1988). In order for a party’s consent to be valid under 18 U.S.C.S. § 2511(2)(c), it must be voluntary and uncoerced. Id. at 627. The prosecution has the burden of proving such voluntariness by a preponderance of the evidence. Id. To prove voluntariness and consent, it is sufficient for the prosecution to show that the informant engaged in the conversation knowing that it was being monitored. Id. However, if there is an allegation of coercion, the prosecution must show that there has been no undue pressure, threats, or improper inducements. Id.
In the case before us, it appears that the confidential informant consented to the eavesdropping by accepting to wear the recording device. Such consent of one of the conversants is sufficient to make the eavesdropping by police permissible. However, if there is reason to suspect that confidential informant may have been misled or tricked into accepting to carry the eavesdropping device thereby rendering the consent not knowing and voluntary, there may be grounds to challenge the constitutionality of the recording and suppressing such recording.
The confrontation clause may be the greatest weapon to challenge confidential informant’s statements as well as obtain information on confidential informant to assess and challenge his/her credibility. The Confrontation Clause bars the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had a prior opportunity for cross-examination. Edwards v. People, 129 P.3d 977, 978 (Colo. 2006). So unless the witness is unavailable and Defendant is provided an opportunity to cross examine confidential informant prior to trial, the defense can argue that the confidential informant’s affidavit should be denied admission to uphold Defendant’s US constitutional right to confrontation.
Further, it appears the informant’s identity is very relevant, helpful to the defense, and is essential for a fair determination of the State’s case against the accused and would thus be provided as well as other necessary information to assess credibility of informant. People v. District Court of First Judicial Dist., 767 P.2d 1208, 1213 (Colo. 1989). If there is reason to suspect confidential informant’s consent is not knowing and voluntary, Defendant can challenge the consent thereby challenging the constitutionality of police eavesdropping and demand suppression of the recording upon which much of the prosecution’s case relies.
Given all the possible challenges to the evidence available and inadmissibility of confidential informant’s out of court statements unless he/she testifies or an opportunity for cross examination is provided, it doesn’t appear that the totality of available evidence is sufficient to support a conviction. Even with the pieces of evidence that may be admissible, it is likely that their probative value would be diminished given the unusual circumstances of the case and passage of time since alleged event until arrest as well as potential confidential informant credibility issues that may surface in the course of obtaining more information on the informant.

Additional Issues

Sub-Issue: What is the relevance of audio tape recordings in a conviction?

Short Answer:

The confidential informant’s identification of defendant’s voice in an audio tape will not be admitted at trial to prove the truth of that identification but only to establish the background for prosecution’s ultimate identification of Defendant as the participant in the drug sale for which he was convicted. United States v. Gaines, 358 Fed. Appx. 34, 37 (10th Cir. Okla. 2009).

The Supreme Court of Colorado in Alonzi v. People, 198 Colo. 160, 163 (Colo. 1979) held that the trial court properly admitted a sound recording into evidence only when the party introducing it carries its burden of going forward with foundation evidence demonstrating that the recording as played is an accurate reproduction of relevant sounds previously audited by a witness. As a general rule, at least in the context of a criminal trial, this requires the prosecution to go forward with respect to the competency of the operator, the fidelity of the recording equipment, the absence of material deletions, additions, or alterations in the relevant portions of the recording, and the identification of the relevant speakers. Id. The trial court has wide discretion in determining the admissibility of tape recordings, and its finding will not be disturbed on appeal absent a showing of a clearly insufficient foundation. Id. at 164.
The seven factors that must be shown to establish a foundation for the introduction of sound recordings are: (1) That the recording device was capable of taking the conversation now offered in evidence; (2) that the operator of the device was competent to operate the device; (3) that the recording is authentic and correct; (4) that changes, additions or deletions have not been made in the recording; (5) that the recording has been preserved; (6) that the speakers are identified; and (7) that the conversation was made voluntarily, in good faith, without inducement. United States v. Jones, 730 F.2d 593, 597 (10th Cir. Kan. 1984).
Voice Identification
In making factual sentencing determinations, a district court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial so long as the information relied upon has some basis of support in the facts of the particular case and bears sufficient indicia of reliability. United States v. Jackson, 213 F.3d 1269, 1284 (10th Cir. 2000). The credibility of a witness at sentencing is for the district court to evaluate, and an appellate court defers to a district court’s determination of credibility, as the district court is in a better position to judge the witness’s credibility than it is. Id.
Fed. R. Evid. 901(a) provides that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. United States v. Zepeda-Lopez, 478 F.3d 1213, 1219 (10th Cir. 2007). The admissibility of a taped conversation rests within the sound discretion of the trial judge. Id. The United States Court of Appeals for the Tenth Circuit has held that a single telephone call, combined with hearing a voice in court, is sufficient for voice identification testimony to go to the jury. Id. Such voice identification need only rise to the level of minimal familiarity. Id.
Before any item of documentary evidence is admitted, the proponent of that document or recording must lay an adequate foundation for that evidence’s admission. Fed. R. Evid. 901(a). That foundation must establish that the recording is an authentic and true representation of what it purports to have recorded, including an identification of the voices on the recording. Fed. R. Evid. 901(b)(5). Acceptable means of authenticating evidence include testimony of a witness with knowledge and, for identifying a voice, an opinion based on hearing the voice at any time under circumstances connecting it with the alleged speaker. Fed. R. Evid. 901(b)(1) and (b)(5).
Fed. R. Evid. 901(a), (b)(5) requires authentication or identification as a condition precedent to admissibility of audiotaped evidence by means of, inter alia, voice identification. United States v. Gaines, 243 Fed. Appx. 441, 443 (10th Cir. 2007). The identification of a voice may be based on opinion upon hearing the voice at any time under circumstances connecting it with the alleged speaker. Fed. R. Evid. 901(b)(5). Id. Such foundational evidence may be offered in the form of lay opinion testimony, and need only be based on the witnesses’ minimal familiarity with the voice. Id. Once minimal familiarity is satisfied, it is for the jury to assess any issues regarding the extent of the witness’ familiarity with the voice. Id.; see also United States v. Bush, 405 F.3d 909, 919 (10th Cir. Utah 2005).
The witness needs to be able to prove that the recording is an accurate reproduction of the description of the events by the witness. The only evidence in the instant case on which the charge is based is the audio recording of this alleged drug deal. The fact that the recordings remained in the possession of the police/government for a period of six months before the actual arrest was made may provide grounds for suppressing or challenging the authenticity of the recording. Potential issues could be raised with respect to editing, addition, or deletion and whether the recording was even properly preserved and whether it continues to be authentic and accurate.