W.D.Va.: Whistleblower CI has “strong[er] motive to supply accurate information.”

In a health care fraud case, a whistleblower confidential informant for a search warrant was entitled to more credit than a regular CI because of a likely “strong[er] motive to supply accurate information.” The search warrant for documents here was not overbroad and was as specific as possible. United States v. Indivior Inc., 2020 U.S. Dist. LEXIS 51692 (W.D. Va. Mar. 25, 2020):

The Fourth Circuit has recognized that an informant’s personal interest can create “a strong motive to supply accurate information.” United States v. Miller, 925 F.2d 695, 699 (4th Cir. 1991). The source’s personal interest in the investigation of these defendants also stands in stark contrast to many of the potential interests of informants. See, e.g., Jaben v. United States, 381 U.S. 214, 224, 85 S. Ct. 1365, 14 L. Ed. 2d 345, 1965-2 C.B. 446 (1965) (noting that in a probable cause context the credibility of informants in drug cases and other garden-variety street crimes “may often be suspect” as opposed to classic white-collar crimes like tax evasion). In fact, the Fourth Circuit has found that an informant has higher credibility when they “meet[] face-to-face with an officer [and] provide[] the officer with an opportunity to assess his credibility and demeanor and also expose[] himself to accountability for making a false statement.” DeQuasie, 373 F.3d at 523.

Even if I entertain some doubt as to her motives, the level of detail provided in her description of alleged wrongdoing by the defendants and their employees — along with supportive documents and recordings — clearly demonstrates that she personally observed many of the events due to her position in the defendants’ organization. Her tip is, therefore, entitled “to greater weight than might otherwise be the case.” Gates, 462 U.S. at 234. While inclusion of the source’s potential financial interest might have been relevant for the magistrate judge to conduct a more thorough totality-of-the-circumstances analysis as to her reliability, I do not believe the omission is material. Furthermore, the defendants have not shown evidence of any intention by the government to deliberately mislead the magistrate judge in omitting the information.

The court must also be cautious about importing the panoply of Giglio protections from trial practice into warrant application proceedings. See Colkley, 899 F.2d at 302-03 (discussing refusal to import Brady right to warrant process). The Giglio rule, like the Brady rule, derives from due process concerns and is designed to ensure fair criminal trials. Giglio v. United States, 405 U.S. 150, 155, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). A defendant is cloaked with the presumption of innocence at trial, but the probable cause determination for a search warrant does not involve a definitive adjudication of innocence or guilt. As in Colkley, because the consequences of a search are less severe and irremediable than the consequences of an adverse criminal verdict, a duty to disclose potential impeachment information appropriate in the setting of a trial may be less compelling in the context of an application for a warrant. 899 F.2d at 302-03.