United States v. Rivas (26 F. Supp. 3d 1082, 2014)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendant’s Motion for Discovery, filed November 14, 2013 (Doc. 24)(“Motion for Discovery”); and (ii) the Defendant’s Motion for Disclosure of Identity of and Information About Confidential Informant, filed November 14, 2013 (Doc. 25)(“Motion for Disclosure”). The Court held a hearing on January 8, 2014. The primary issues are: (i) whether Plaintiff United States of America must disclose the identity and other discovery regarding the Confidential Informant (“Cl”); and (ii) whether the United States must provide discovery related to the drug transactions for which Defendant Carlos Gonzalez Rivas was not indicted. The Court will grant in part and deny in part the Motion for Discovery, and will deny the Motion for Disclosure. The Court will not require the United States to disclose the Cl’s identity, because the Cl was not present for the drug transactions with which Rivas was indicted and which make up the relevant conduct for his sentence. Further, Rivas asserts that he believes he knows the Cl’s identity, and the Court concludes that unnecessarily requiring the United States to disclose the Cl’s identity jeopardizes the Cl’s safety. The Court will not require the United States to provide discovery related to the drug transactions for which Rivas was not indicted and which do not make up relevant conduct for purposes of the Presentence Investigation Report, disclosed February 7, 2014 (“PSR”), but will require the United States to provide discovery related to the drug transactions that are included as relevant conduct in the PSR.

FACTUAL BACKGROUND

The Court takes the facts from the PSR, which was “derived from discovery materi-' al contained in the United States Attorney’s file as reported by the Drug Enforcement Administration (DEA).” PSR ¶ 5, at 3. On May 14, 2013, an undercover DEA Special Agent met Rivas in the parking lot of the Big-5 Sporting Center in Los Lunas, New Mexico. See PSR ¶ 6, at 3. The first transaction occurred at approximately 11:47 a.m.; the agent paid Rivas $1,300.00 in exchange for the suspected methamphetamine. See PSR ¶¶ 7-8, at 3. The agent told Rivas that he had enough money for two additional ounces and requested that Rivas contact his source of supply for an additional ounce. See PSR ¶ 9, at 3. The agent saw Rivas make a telephone call, and Rivas told the agent that it would be an hour and a half before he could return with the additional methamphetamine. See PSR ¶ 9, at 3-4. The two agreed to meet later that day. See PSR ¶ 9, at 3-4. At approximately 12:12 p.m., Rivas contacted the agent and told him that he had an additional ounce of methamphetamine for $1,250.00. See PSR ¶ 10, at 4. The two met again at the Big 5 parking lot, and the agent purchased the suspected methamphetamine. See PSR ¶ 10, at 4. The agent purchased 59.3 total grams of suspected methamphetamine from the two May 14, 2013, transactions, and a laboratory report indicated that there were 53.2 net grams of methamphetamine (actual) from the transactions. See PSR ¶ 6, at 3; id. ¶ 10, at 4.

On July 15, 2013, the agent arranged to purchase additional methamphetamine from Rivas. See PSR ¶ 11, at 4. Rivas told the agent that he' would meet Jackie L/N/U in the Big 5 Sporting Store parking lot in Los Lunas. See PSR ¶ 11, at 4. The agent purchased approximately 85.2 grams of suspected methamphetamine from Jackie L/N/U for $3,600.00, and a laboratory report indicated that there was 81.9 net grams of methamphetamine (actual). See PSR ¶¶ 11-13, at 4.

The PSR includes two other drug transactions in the section entitled “Offense Behavior Not • Part of Relevant Conduct,” based on information from the United States’ Response in Opposition to Defendant’s Motion for Discovery (Doc. 24) and Motion for Disclosure of Identity of and Information About Confidential Informant (Doc. 25), filed December 2, 2013 (Doc. 32)(“Response”). PSR at 6. On February 27, 2013, “a confidential source working in an undercover capacity of the. DEA[] made a controlled purchase of 13.6 grams of methamphetamine actual” from Rivas, but the United States “did not charge the defendant in order to protect the identity of the confidential source. Investigative reports and laboratory reports were not disclosed for the transaction.” PSR ¶ 30, at 6. On April 30, 2013, “a CS and a DEA agent, both working in an undercover capacity at the direction of the DEA made a controlled purchase of 28 net grams of cocaine from the defendant.” PSR ¶ 31, at 7. The United States “did not charge the defendant for the 28 net grams of cocaine specifically to avoid having the CS testify should the matter proceed to trial in order to protect the life of the CS.” PSR ¶ 31, at 7. The United States did not include the cocaine for sentencing purposes “in order to protect the confidential source,” and said that “there was no discovery provided regarding this transaction.” PSR ¶ 31, at 7.

Rivas, through counsel, provided his version of the events in the PSR:

I was not in the business of selling methamphetamine. A person who was apparently cooperation [sic] with the government asked me repeatedly to sell some methamphetamine. I repeatedly refused. I even changed my phone number to avoid the repeated requests by this person to . commit this crime. Finally, though, after losing the job I had had, I agreed to do as he asked, and he introduced me to the undercover officer. I had to find someone to provide the methamphetamine the undercover officer wanted. I delivered the methamphetamine to the undercover officer, who paid me for the methamphetamine. I took the money to the source of the methamphetamine, who paid me $200 for .making that transaction. There were two transactions on the same day, conducted in the same way. I was paid $200 each of those transactions. I would not have done this without the persistent requests of the cooperating person.

PSR ¶ 15, at 5.

PROCEDURAL BACKGROUND

A grand jury charged Rivas by Indictment, filed August 6, 2013 (Doc. 2), with two counts of distribution of a controlled substance (Counts 1 and 2), and made forfeiture allegations for $2,250.00. See Indictment at 1-3, filed August 6, 2013 (Doc. 2); Motion for Discovery ¶ 1, at 1; Motion for Disclosure ¶ 1, at 1. The charge against Rivas relates to the alleged undercover purchase of methamphetamines from Rivas on May 14, 2013. See Motion for Discovery ¶ 5, at 2. Others were indicted separately but contemporaneously. See Motion for Discovery ¶ 4, at 2. Rivas was arrested on or about August 12, 2013, and others were arrested around the same time. See Motion for Discovery ¶ 1, at 1. He made his initial appearance before the Court on that date. See Motion for Discovery ¶ 1, at 1; Clerk’s Minutes of Hearing Cimarron Courtroom before Karen B. Molzen, U.S. Magistrate Judge at 1, filed August 12, 2013 (Doc. 5). On August 13, 2013, Rivas appeared for arraignment at a detention hearing. See Motion for Discovery ¶ 1, at 1; Arraignment/Detention Minute Sheet at 1, filed August 13, 2013 (Doc. 9)(“Arraignment Sheet”). At the arraignment, Rivas entered a not guilty plea. See Motion for Discovery ¶ 1, at 1; Arraignment Sheet at 1. The Magistrate Judge released Rivas on conditions. See Motion for Discovery ¶ 1, at 1; Order Setting Conditions of Release at 1-3, filed August 14, 2013 (Doc. 14). Rivas remains compliant with the Conditions that the Magistrate Judge imposed. See Motion for Discovery ¶ 1, at 1.

The Court set the trial for November 25, 2013. See Order Granting Continuance of Trial Setting at 1, filed October 22, 2013 (Doc. 23); Motion for Discovery ¶ 1, at 1. Rivas requested that a Magistrate Judge set a change of plea before the scheduled trial date. See Motion for Discovery ¶ 1, at 1. Rivas pled guilty to the charges in the Indictment. See Motion for Discovery ¶ 2, at 2.

1. Motion for Discovery.

Rivas received initial discovery on August 19, 2013. See Motion for Discovery ¶ 3, at 2. According to Rivas, the United States has provided reports reflecting the results of laboratory analysis of drugs allegedly connected with the charges against Rivas. See Motion for Discovery ¶ 5, at 2. There is also a report reflecting the. laboratory analysis of cocaine, which the laboratory received in August, 2013. See Motion for Discovery ¶ 5, at 2. There is little mention made in the discovery, however, of the relationship — if any — among the various individuals that the United States has targeted. See Motion for Discovery ¶ 4, at 2. There is no mention in any of the discovery about any transactions involving cocaine; cocaine is not mentioned at all except in the drug laboratory report. See Motion for Discovery ¶ 5, at 3.

Rivas requested additional discovery by letter to the United States on August 20, 2013. See Motion for Discovery ¶ 3, at 2. The United States did not provide any information in response to Rivas’ discovery request. See Motion for Discovery ¶ 3, at 2. Rivas also made that request by letter on October 30, 2013, and in telephone conversations and electronic mail transmissions with the United States. See Motion for Discovery ¶ 3, at 2. The United States provided no information or material in response to these repeated requests. See Motion for Discovery ¶ 3, at 2.

Rivas moves the Court for an order compelling the United States to disclose the materials that the motion identifies. Rivas contends that the matters about which he requests disclosure are relevant to sentencing issues. See Motion for Disclosure ¶ 2, at 2. Rivas anticipates that these matters will relate to questions concerning the drug, drug quantity, role in the offenses, and anticipated arguments for variance from the sentencing guidelines. See Motion for Disclosure ¶ 2, at 2. Rivas maintains that the discovery which the United States has provided has left questions concerning various aspects of the investigation leading to Rivas’ indictment and arrest. See Motion for Discovery ¶ 4, at 2. For example, because the discovery included a laboratory report analyzing cocaine, he presumes that cocaine will become a part of the total drug quantity calculation and will impact the ■ Court’s analysis in determining a proper sentence, and so he asserts that he is entitled to information concerning the cocaine in the laboratory report. See Motion for Discovery ¶ 5, at 3. Rivas’ counsel asserts that, without full disclosure, he “will be in the dark as to information which seems clearly to be in the government’s possession,” and “will not be able to adequately or effectively represent Mr. Gonzalez at sentencing.” Motion for Discovery ¶ 5, at 3. Rivas argues that he is “entitled to all reports, recordings, photographs and other materials relating to any cocaine transactions, possession or use alleged to have occurred in relation to the arrest and charges in this case.” Motion for Discovery ¶ 5, at 3.

Rivas contends that the laboratory reports that the United States provided refer to an additional quantity of methamphetamine — about three ounces — that was from a transaction on July 19, 2013, involving a third person, not Rivas, delivering the methamphetamine to an undercover agent. See Motion for Discovery ¶ 6, at 3-4. He asserts that the discovery that the United States provided “includes a conclu-sory and cryptic assertion that Mr. Gonzalez was somehow involved in the discussions leading up to the July 19 undercover buy,” but does not explain “how that conclusion is reached.” Motion for Discovery ¶ 6, at 3-4. Rivas maintains that, because “it appears that this methamphetamine will be a part of the sentencing calculation and analysis,” he is “entitled to all reports, recordings and other information regarding this methamphetamine transaction in order to properly prepare for sentencing.” Motion for Discovery ¶ 6, at 4.

Rivas explained that, contemporaneous with filing the Motion for Discovery, he also filed the Motion for Disclosure, because he “believes that an individual was working as a confidential informant,” but the discovery does not mention the person’s involvement; he asserts that the suspected Cl “was actively involved in persuading Mr. Gonzalez to participate in the conduct of which Mr. Gonzalez is accused,” and so he is seeking discovery related to .the Cl. Motion for Disclosure ¶ 7, at 4.

Rivas explained that the United States sent an electronic mail transmission on October 11, 2013, “indicating that all available discovery had been provided”; he requests that the “Court set a hearing at which the officers and agents involved in this investigation be present to discuss the existence or non-existence of information responsive to Mr. Gonzalez’ requests.” Motion for Discovery ¶ 8, at 4-5.

2. Motion for Disclosure.

In the Motion for Disclosure, Rivas moves the Court for an order requiring the United States to disclose the identity of, and other information about, the CL See Motion for Disclosure at 1. He argues that the information is essential for his defense at sentencing, because it addresses his role in the offenses and his anticipated request for a variance “on the basis, among other grounds, of sentencing entrapment based on the conduct of the confidential informant.” Motion for Disclosure ¶2, at 2. Rivas’ counsel contends that, without the requested information, he “will be unable to properly represent Mr. Gonzalez at sentencing, jeopardizing Mr. Gonzalez’ rights to due process and effective assistance of counsel.” Motion for Disclosure ¶ 2, at 2.

Pursuant to Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Rivas requests the Cl’s identity, whether the Cl was working in any capacity for any government agency — federal, state, or local— and makes nineteen specific requests for information and material regarding the Cl’s involvement in this and other cases. See Motion for Disclosure ¶ 3, at 2. Rivas asks the Court to require the United States to disclose information such as the names and addresses for any CIs used in this case; whether the United States has used .the CIs in other cases; any payments, rewards, or preferential treatment the United States has provided to the CIs or their families; the CIs’ criminal history, criminal activities, and incarceration history; any prior misconduct while the CIs were performing their roles as informants; any information that the United States has regarding the CIs’ credibility, mental or physical health, or narcotic or alcohol use or other dependency; the CIs’ education, employment history, and military service; and the CIs’ involvement in civil actions. See Motion for Disclosure at 2-7.

Rivas argues that the United States should have to disclose the Cl’s identity in this case, because of the Cl’s active role in the case. See Motion for Disclosure at 9. Rivas contends that “the events giving rise to this prosecution would not have occurred absent the actions of the confidential informant,” that the Cl “is likely an eyewitness who possesses information that bears directly on the defense of the instance case,” and that the Cl is the “ ‘only witness in a position to amplify or contradict the testimony of the government witnesses.’ ” Motion for Disclosure at 9 (quoting Roviaro v. United States, 353 U.S. 53, 64, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). He argues that the United States should also produce information related to its prior use of the Cl, because if the Cl used undue persuasion in previous eases, he or she likely used similar tactics in this case. See Motion for Disclosure at 10. Further, Rivas asserts that the Cl’s prior testimony is important impeachment material, because “[pjrevious false testimony is the strongest form of impeachment.” Motion for Disclosure at 11 (citing Bagley v. Lumpkin, 798 F.2d 1297 (9th Cir.1986)).

Rivas requests detailed information and records regarding how the United States treated the Cl and his or her family, including any preferential treatment, threats, paying money or promising financial rewards, and plea agreements. See Motion for Disclosure at 11. He argues that this information may show the Cl’s motivation in cooperating with the United States, and that the information is discoverable to show the Cl’s bias or hostility and is proper impeachment material. See Motion for Disclosure at 12. Rivas requests the Cl’s arrest and conviction record, unauthorized criminal activity, and other misconduct, because it is relevant to the Cl’s “credibility, bias, motive and mo-dus operandi.” Motion for Disclosure at 13. According to Rivas, “[t]his case may raise both sentencing entrapment and the defense of government overreaching, which will be centrally relevant to Mr. Gonzalez’ arguments at sentencing. The issue of who initiated the criminal activity and who misled whom would be the primary focus of such a defense.” Motion for Disclosure at 13-14. Rivas argues that, if the United States has the Cl’s probation records, the United States should disclose those records if they contain information that bears on the Cl’s credibility. See Motion for Disclosure, at 14-15. Rivas also requests the Cl’s personnel files, records and reports, including internal memo-randa that may show the Cl’s bad character, so that he can use the information for impeaching the Cl. See Motion for Disclosure, at 15-16. Rivas requests information reflecting the Cl’s credibility, mental health, drug use, and other dependencies, and argues that the information is discoverable and material to his defense. See Motion for Disclosure at 16. In his view, he is entitled to the information to discredit and impeach the Cl. See Motion for Disclosure at 16-17.

3. Response.

The United States responds that Rivas has not provided “sufficient support for his overly broad and misplaced request,” and that, because “ ‘[t]he constitution does not grant criminal defendants the right to embark on broad or blind fishing expeditions among documents possessed by the Government,’ ” the Court should deny Rivas’ requests. Response at 2 (alteration in original)(quoting United States v. Mayes, 917 F.2d 457, 461 (10th Cir.1990)). The United States views Rivas’ requests in two categories — (i) “a general request for Brady/Giglio information,” and (ii) “a request for specific information that should be provided as a part of discovery.” Response at 2. Under the first category, the United States contends that Rivas misconstrues the Brady v. Maryland standard, which requires that “evidence must be favorable to the accused and material.” Response at 2 (emphasis in original). The United States argues that Rivas did not show that the information he requests is “both favorable and material,” and that “ ‘[t]he mere possibility that evidence is exculpatory does not satisfy the constitutional materiality standard.’” Response at 3 (emphasis in original)(quoting United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir.1994)). The United States asserts that it does not have any information that “would support a claim of innocence” and that, if it acquires any information that would support a claim of innocence, it will disclose that information to Rivas. See Response at 3. Regarding impeachment material, the United States acknowledges that it must disclose exculpatory evidence, including “evidence.that would tend to impeach the credibility of cooperating witnesses,” but that Rivas’ “request for impeachment material” is “misplaced.’.’ Response at 3. The United States argues that, because Rivas entered a guilty plea without a written plea agreement and chose not to proceed to trial, it does not have any obligation to disclose impeachment evidence. See Response at 3 (citing United States v. Ruiz, 536 U.S. 622, 633, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002)(“[T]he constitution does not require the government to disclose impeachment evidence prior to entering into a plea agreement with a criminal defendant.”)).

The United States also responds to the specific categories of discovery material that Rivas requested in the Letter from Marc H. Robert to Samuel Hurtado, sent August 20, 2013, filed December 2, 2013 (Doc. 32-l)(“Discovery Request Letter”). Rivas requested, pursuant to rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure, any statement he made; the United States asserts that it has “disclosed all evidentiary items relevant to the indictment to include audio recordings, photographs, investigative reports, and reports of laboratory analysis,” and that it will disclose an additional one-page consent-to-search form. Response ¶ 1, at 4. Rivas requested arrest reports, notes, and dispatch tapes; the United States contends that it has disclosed investigative arrest reports pertaining to the charges for which Rivas was indicted, including audio recordings, but that it is not aware of any video recordings, 911 calls, or dispatch tapes. See Response ¶ 2, at 4-5. The United States asserts that, while law enforcement must preserve notes, the United States does not have to disclose those notes and that it will “not disclose any notes to defendant unless compelled by the Court.” Response ¶ 2, at 4-5 (citing United States v. Harris, 543 F.2d 1247 (9th Cir.1976)). In response to Rivas’ request for the “the identity of all law • enforcement officers involved in the investigation and prosecution and their affiliation,” the United States argues that it does not have to disclose its witnesses before trial, and that, because the case is not going to trial, the United States has not called any witnesses. Response ¶ 3, at 5-6. Further, the United States asserts that it would not, pursuant to the Jencks Act, 18 U.S.C. § 3500, have to disclose information regarding witnesses until after it calls the witnesses at trial. Regarding Rivas’ request for reports of scientific tests and examinations, the United States represents that it “has disclosed the results of all tests and examinations conducted upon the evidence relevant to the current charges set forth in the indictment against defendant,” including the laboratory reports showing 52.3 net grams of actual methamphetamine from May 14, 2013, and 81.9 net grams of actual methamphetamine from July 15, 2013. Response ¶ 5, at 7. The United States explains that it disclosed a third laboratory report showing twenty-eight net grams of cocaine, but “represents that it will not seek to introduce the cocaine for purposes of sentencing.” Response ¶ 5, at 7-8. Rivas requested his own pri- or record, and the United States says that it provided a copy of his record, which included only traffic-related offenses. See Response ¶ 6, at 8. Regarding Rivas’ requests to view physical evidence and tangible objects, the United States explains that Rivas’ counsel “is welcome to schedule a visit with the DEA any time he wishes,” but that “he has not done so.” Response ¶ 8, at 9: See Response ¶ 10, at 9. The United States explains that it did not respond to some of Rivas’ requests when it did not possess the information requested or when such discovery does not exist, such as electronically stored information, warrantless surveillance or searches, results from Global Positioning System (“GPS”) or other electronic tracking devices, cellular telephone tracking and' locating, internet information or searches, or National Security Agency-acquired information, and that many of the requests overlapped with its continuing obligation to provide material evidence favorable to him pursuant to Brady v. Maryland. See Response ¶¶ 12-27, at 16-21.

In response to Rivas’ request for information regarding the Cl, the United States argues that it should not be required to disclose the Cl’s identity, because the charges against Rivas are based on the two transactions from May 14, 2013, and the United States says that the Cl “was not even present” during those transactions. Response ¶ 11, at 11. The United States asserts that it does not have to disclose the Cl’s identity, because the Cl “did nothing more than put the undercover DEA agent in contact with defendant to buy methamphetamine.” Response ¶ 11, at 11. According to the United States, the Cl was present for the February 27, 2013, and April 30, 2013, drug transactions, but the United States is not charging Rivas for either transaction. See Response ¶ 11, at 12.

To the extent that counsel is concerned about the impact that the cocaine may have on defendant’s sentence, the government is willing to disregard the cocaine for purposes of sentencing in order to protect the life of the confidential source. The government is also willing to disregard the 13.6 actual grams of methamphetamine purchased from defendant on February 27, 2013, for purposes of sentencing. The DEA has expressed concern that the confidential source will be killed if the government is forced to disclose the confidential source’s identity. Courts generally will not order disclosure where such disclosure would place the informant in personal danger and the prospective testimony is not exculpatory.

Response ¶ 11, at 12 (citations omitted). The United States asserts that the amount of cocaine from the April 30, 2013, transaction, and the amount of methamphetamine from the February 27, 2013, transaction “is so small that it is unlikely to have any impact on defendant’s estimated sentencing guideline range.” Response ¶ 11, at 13. The United States emphasizes that it does not have to disclose the Cl’s identity, that it “has no intention of calling the confidential source as a witness at trial for the criminal conduct charged in the indictment,” and that, because Rivas pleaded guilty, trial is “no longer a consideration.” Response ¶ 11, at 13. The United States asks the Court to hold an in camera hearing “[i]n the event this Court determines that it cannot make a proper determination regarding the necessity of disclosure based on the facts presently available.” Response ¶ 11, at 15-16 (citing Gaines v. Hess, 662 F.2d 1364, 1369 (10th Cir.1981)).

4. Reply.

Rivas replies that the information he seeks is “essential” for his counsel to represent him at sentencing. Mr. Gonzalez’ Reply to Government’s Consolidated Response to Motions for Discovery and for Disclosure of Information and Identity of Confidential Informant ¶ 2, at 1, filed January 2, 2014 (Doc. 36)(“Reply”). According to Rivas, “[wjithout the information requested in this motion, counsel will be unable to properly represent Mr. Gonzalez at sentencing, jeopardizing Mr. Gonzalez’ rights to due process and effective assistance of counsel.” Reply ¶ 2, at 2. Rivas argues that the United States’ approach— attempting to use the information that the Cl provided while insulating the Cl from disclosure — “jeopardizes justice and due process, and also jeopardizes effective assistance of counsel.” Reply ¶ 5, at 2-3. Rivas contends that, while confidential informants seek out the “big fish,” they sometimes, “in their zeal to please their handlers ... go too far and create crimes which they can then use to provide another body to the prosecutorial machine.” Reply ¶ 6, at 3. According to Rivas, “[t]hat is what happened in this case.” Reply ¶ 6, at 3.

Before the government’s confidential informant went to work on Mr. Gonzalez, he was not in the business of selling methamphetamine. The confidential informant persistently asked Mr. Gonzalez to make a methamphetamine deal for him, and Mr. Gonzalez just as persistently said “no”. The informant’s requests became so insistent that Mr. Gonzalez changed his mobile phone number not once, but twice, to try to avoid the informant’s pestering. Ultimately, Mr. Gonzalez lost his job, and the informant’s pestering finally bore fruit. At-the informant[’]s request and urging, Mr. Gonzalez sold methamphetamine to an undercover law enforcement officer. As such, the informant took a man who was not in the business of selling methamphetamine, coerced him into making a methamphetamine sale to a law enforcement officer for the informant’s personal gain. The informant consciously and intentionally placed Mr. Gonzalez in a position in which Mr. Gonzalez would not have placed himself absent the coercion of the confidential informant.

Reply ¶ 8, at 3-4. Rivas asserts that he “believes, but is not certain,” that he knows the Cl’s identity: “The informant was a friend of Mr. Gonzalez’ father. He apparently got himself into trouble with law enforcement, and entered into some kind of arrangement with law enforcement to go forth and find others to prosecute in exchange for some kind of consideration.” Reply ¶ 7, at 3. He explains that he does. not know, however, “[t]he nature and terms of this agreement, and the nature and extent of the consideration.” Reply ¶ 7, at 3.

Rivas contends that the Cl’s role will be central to two factors that the Court will consider at sentencing: the “ ‘nature and circumstances of the offense’ and ‘history and characteristics of the defendant’.” Reply ¶ 9, at 4 (quoting 18 U.S.C. § 3553(a)). Regarding the first factor, Rivas contends that “this offense would not have happened absent the energetic actions of the government’s confidential informant,” but. that, “[a]t a moment of financial difficulty, Mr. Gonzalez ultimately succumbed to the unceasing persuasions of the informant.” Reply' ¶ 11, at 5. Regarding the second factor, Rivas explains that he “works for a living” and has an extensive employment history, and that, “absent the confidential informant’s consistent and persistent coercion, Mr. Gonzalez would not be in this situation.” Reply ¶ 10, at 5. Although he does not think the facts fit the legal definition of entrapment, he contends that “the nature and circumstances of this offense permit, indeed demand, an[ ] examination of the circumstances surrounding the events leading to Mr. Gonzalez’ arrest, and the role of the confidential informant in creating the offense in the first place.” Reply ¶ 10, at 5.

Rivas argues that the information he seeks “is Brady material concerning potential punishment” and is “ ‘relevant to the defense of [the] accused’ in its possible impact on the sentence determined by the Court.” Reply ¶ 13, at 6 (alterations in original)(quoting Roviaro v. United States, 353 U.S. at 60-61, 77 S.Ct. 623). He asserts that “it is perhaps critical that Mr. Gonzalez knows to a near certainty who the informant is,” and that “[disclosure of the information sought could be made in-such a way as to limit its availability to the public while permitting Mr. Gonzalez full access to the information needed to make his presentation to the Court.” Reply ¶ 14, at 7. Rivas contends that the Cl is not in danger, as the United States asserts, because, “in spite of Mr. Gonzalez’ near certain knowledge of the identity of the informant, no harm has befallen the informant as far as counsel’s limited information would indicate.” Reply ¶ 15, at 7.

Rivas reiterates his request for discovery regarding the other drug transactions that are not included in the Indictment, because those transactions “could be factors in the Court’s consideration of Mr. Gonzalez’ sentence.” Reply ¶ 16, at 8. “Given that ... and the likelihood that the probation officer will include all information considered relevant in the presentence report regardless of the prosecutor’s intentions, the information sought is indeed relevant to Mr. Gonzalez’ sentencing presentation and the Court’s sentencing analysis.” Reply ¶ 16, at 8.

5. Hearing.

The Court held a hearing on January 8, 2014. See Transcript of Hearing, taken January 8, 2014 (“Tr.”). Rivas explained that he faces a - fairly high sentencing range between zero and twenty years. See Tr. at 2:9-13 (Robert). He said that he thought that he knew the Cl’s identity; he suspected that the Cl is Rivas’ family friend who pushed Rivas to find some methamphetamine to sell to another person to whom the friend wanted to introduce Rivas. See Tr. at 3:8-13 (Robert). Rivas said that, after he lost his job, he “decided to do what this family friend was pestering him incessantly to do.” Tr. at 3:14-18 (Robert). The Court questioned what Rivas would gain by learning the identity, if he already thought he knew the Cl’s identity. See Tr. at 3:19-4:13 (Court, Robert). Rivas explained that he does not want only the Cl’s identity, because he suspects he already knows that fact, but that he needs additional discovery to aid in his defense. See Tr. at 4:14-24 (Robert).

Rivas argued that he needs discovery related to the laboratory report, which indicated that there was cocaine, and that he thinks that discovery related to the Cl and the laboratory report will help him make his case for sentence entrapment. See Tr. at 5:4-21 (Robert). The Court suggested that it could ask the probation officer to come to the hearing and find out whether some of Rivas’ concerns about sentencing might drop out after the United States Probation Office (“USPO”) prepared the PSR. See Tr. at 5:22-6:5 (Court). Rivas explained that he does not dispute that he sold methamphetamine twice in one day to an undercover officer, but he disputes “why that happened, the nature and circumstances of the offense, and the history and characteristics of the defendant.” Tr. at 6:6-15 (Robert). He said that information about the Cl will be important for the Court to consider during sentencing, including the CPs “untoward and coercive relationship” with Rivas, “and the result of his efforts ... was to get Mr. Gonzalez, who is not a methamphetamine dealer, arrested for selling methamphetamine to an undercover cop.” Tr. at 6:16-28 (Robert). Rivas said that his relationship with whom he believes is the Cl will be an important part of his defense at sentencing. See Tr. at 7:6-21 (Robert). The Court noted that it does not normally see requests for discovery during the sentencing phase that are as extensive as Rivas’ requests; Rivas did not know why other defendants might not request as much information, but argued that he needed the information he was requesting to adequately prepare his defense for sentencing. See Tr. at 7:22-9:1 (Court, Robert).

The Court turned the hearing to the specific requests that Rivas made in the Motion for Discovery. See Tr. at 10:1-3 (Court). On the drug quantity or drug type, Rivas noted that the United States said it would ignore the cocaine that was in the laboratory report, but he argued that he needed more discovery, because he did not know if the USPO would ignore the cocaine when it prepares the PSR. See Tr. at 10:4-19 (Court, Robert). Rivas argued that, even if the USPO ignores the cocaine, it will be relevant for sentencing to show his relationship with the Cl. See Tr. at 10:19-11:3 (Robert). Rivas’ counsel said he is aware of the two transactions with which Rivas is charged, but he requested additional information regarding any other methamphetamine transactions with which the United States believes Rivas is connected. See Tr. at 11:4-24 (Robert).

The United States explained that the DEA initiated the investigation about Rivas in February, 2013, based on information from a Cl, who was working “in an undercover capacity at the direction of the DEA” and made a “controlled purchase” of methamphetamine from Rivas on February 27, 2013. Tr. at 13:12-24 (Hurtado). The United States said that, on February 27, 2013, “the confidential source acted alone,” and Rivas was not charged for the methamphetamine he sold that day. Tr. at 13:24-14:3 (Hurtado). On April 30, 2013, the Cl was working undercover for the DEA and arranged to buy cocaine from Rivas; Special Agent Eloy Montoya, who was also working undercover, accompanied the Cl when the Cl purchased twenty-eight net grams of cocaine from Rivas. See Tr. at 14:4-14 (Hurtado). The United States said that it did not intend to disclose the lab results that included cocaine. See Tr. at 14:15-18 (Court). The DEA continued its investigation, and on May 14, 2013, Montoya, without the Cl’s assistance, purchased methamphetamine from Rivas for $2,250.00, for which a grand jury indicted Rivas. See Tr. at 14:19-15:1 (Hur-tado). On July 18, 2013, Montoya, again without the. Cl’s assistance, arranged to purchase methamphetamine from Rivas, and Rivas put Montoya in contact with a person known at the time only as Jackie, who sold 81.9 grams of methamphetamine. See Tr. at 15:2-10 (Hurtado). The Grand Jury did not indict Rivas for the July 18, 2018, transaction. See Tr. at 15:11-13 (Hurtado).

The United States, said it wanted to frame the argument around the May 14, 2013, transaction only; the Court noted that Rivas was relying on an entrapment defense, and thus that it would not be appropriate to limit the hearing to only the one transaction. See Tr. at 15:14-24 (Hur-tado, Court). The United States argued that, pursuant to United States v. Ortiz, 804 F.2d 1161 (10th Cir.1986), “the disclosure of a confidential source’s identity is not required where the confidential source merely serves to introduce a drug dealer to an undercover agent,” and that, because the Indictment is for the May 14, 2013, transaction, which occurred without the Cl’s involvement, the United States does not have to disclose the Cl’s identity. Tr. at 16:6-23 (Hurtado). The Court noted that Rivas said that he knows the Cl’s identity and that the Cl may already be in danger, and asked whether the parties are “fighting about anything that has a real world consequence.” Tr. at 16:24-17:6 (Court). The United States said that it is trying to lessen the Cl’s exposure, because the Cl is “still involved in a series of ongoing investigations with the DEA in a proactive capacity.” Tr. at 17:7-18 (Hur-tado). The Court asked whether it could strike a balance by not requiring the United States to disclose Cl’s name, but if the Cl is whom Rivas thinks he or she is, by precluding the United States from denying that the person was the Cl; Rivas noted that he could subpoena the person he believes is the Cl to the sentencing. See Tr. at 17:19-18:12 (Court, Hurtado, Robert). The United States argued that the Court’s suggestion would implicitly reveal the Cl’s identity, which would set bad precedent for future cases; the Court questioned whether it would be precedent for any other cases, because the situation was unique in that Rivas said he knew almost to a certainty the Cl’s identity, while most defendants request disclosure because they do not know the informant’s identity. See Tr. at 18:14-19:15 (Court, Hurtado). The United States argued that, had the case proceeded to trial, Rivas could not have subpoenaed whom he believes to be the Cl to testify, because the charge was for the May 14, 2013, transaction, and the Cl was not present for that transaction, and therefore, the Cl would not be relevant in the trial. See Tr. at 19:16-20:15 (Court, Hurtado). The Court noted that it can consider more information at sentencing than it could at trial. See Tr. at 20:16-22 (Court). The United States argued that the existing case law does not require disclosure when the “informant plays only a small or passive role in the offense charged, has no firsthand information, or where his potential disclosures are already known to the defendants,” and that in this case, the Cl “played no role at all.” Tr. at 20:23-21:10 (Hurtado)(citing United States v. Moreno, 588 F.2d 490 (5th Cir.1979)). The Court asked whether the Cl could play a role in the sentencing enhancement. See Tr. at 21:11-15 (Court). The Court asked, based on United States v. Moreno, whether this situation was one where it should not force the United States to disclose the Cl, and “just stop there and then let it play out however the defendant wants to play it out. And we’ll deal with some of these issues about relevancy, how strong their argument is at sentencing.” Tr. at 21:18-22:3 (Court). The United States maintained that, even though Rivas says he is nearly certain of the Cl’s identity, the Cl’s safety may be threatened if the United States has to disclose the Cl’s identity, or sit silent and implicitly confirm the Cl’s identity at the sentencing hearing, especially if the Cl’s identity is confirmed on the record, such as in the transcript. See Tr. at 22:4-18 (Hurtado). The United States suggested that the Court could seal the sentencing proceeding; Rivas said sealing the record may put 'him in danger, because some people who see sealed dockets assume that the defendant is cooperating. See Tr. at 23:17-24:15 (Hurtado, Court, Robert). The United States emphasized that it does not think that the Cl would add anything relevant or material to the sentencing, because the 'Cl was not present for the May 14, 2013, drug transaction, and the. United States maintained that “[tjhere is no exculpatory information that could be gleaned by having the confidential source here.” Tr. at 25:12-16 (Hurtado). The United States compared the case to United States v. McKenzie, No. CR 08-1669 JB, 2010 WL 597971 (D.N.M. Jan. 28, 2010)(Browning, J.), in which the Court limited the defendant’s discovery to events that occurred in Albuquerque, New Mexico, and did not order disclosure of confidential sources of information out of Flagstaff, Arizona; the United States argued that, similarly, the Court should focus on the drug transaction that occurred on May 14, 2013, and not on other dates where the Cl may have been present. See Tr. at 25:17-26:12 (Hurtado). The United States said that it did not intend to disclose the laboratory report which included the cocaine and that, although it has been disclosed, it is irrelevant to a sentencing entrapment argument. See Tr. at 27:2-8 (Court, Hurtado). The United States said that it has not disclosed any other information regarding the cocaine transaction, such as investigative reports or audio recordings, if they exist. See Tr. at 27:14-28:1 (Court, Hurtado). The United States said it referenced the February 27, 2013, methamphetamine transaction to fully disclose information to Rivas, that it told Rivas about that transaction on page 12 of the Response, but that it is withholding investigative reports, audio recordings, and lab results pertaining to the February 27, 2013, cocaine transaction and the April 30, 2013, methamphetamine transaction. See Tr. at 28:3-29:9 (Hurtado, Court, Robert). The United States asserted that it has produced everything it has,' including arrest reports, notes, and tapes, from the drug transaction with which Rivas has been charged. See Tr. at 30:18-31:6 (Court, Hurtado).

Addressing the sentencing entrapment issue, the United States explained that Rivas’ argument is that he would not be in this situation had it not been for the Cl, and that the Cl somehow coerced or pressured him to traffic drugs; the United States pointed to United States v. McClelland, 72 F.3d 717 (9th Cir.1995), a case from the United States Court of Appeals for the Ninth Circuit which listed a variety of factors to consider when determining whether a defendant is entitled to a downward departure when the government unduly pressured a defendant who was predisposed to commit a crime. See Tr. at 31:9-32:4 (Hurtado). The United States said that it could not find a case from the United States Court of Appeals for the Tenth Circuit recognizing the sentencing entrapment issue. See Tr. at 32:5-12 (Court, Hurtado). “Those factors include the amount of inducement, the level of reluctance on the defendant’s part and who acted first.” ' Tr. at 33:2-4 (Hurtado). The United States asserted that United States v. McClelland presented a situation in which the defendant was in the midst of a divorce and custody battle, was emotionally vulnerable and susceptible to the government agent’s influence, and repeatedly expressed reluctance to commit the crime, but that the agents prodded and encouraged him whenever he expressed hesitation, and that this case is factually different, because Rivas did not express reluctance during the drug transactions. See Tr. at 33:4-17 (Hurtado). The United States said that it would like to call Montoya to establish a record that Rivas was not reluctant; Rivas objected, arguing that, before the United States could call Montoya, he needed the discovery he was requesting: See Tr. at 33:17-34:10 (Hurtado, Robert). The Court said it would permit the United States to establish the record to respond to Rivas’ sentencing entrapment defense. See Tr. at 34:19-22 (Court).

a. Testimony from Special Agent Eloy Montoya.

The United States called Montoya, who testified that he initially contacted Rivas on April 30, 2013, after Task Force Officer Lawrence Montano requested that Montoya conduct a series of undercover purchases with individuals in the Los Lunas and Belen, New Mexico, area. See Tr. at 35:11-37:16 (Hurtado, Montoya). Montoya testified that, at the April 30, 2013, meeting, he and the Cl were present with Rivas and a female later identified as Rebecca Miranda, and that during the meeting, Montoya purchased an ounce of cocaine directly from Rivas. See Tr. at 37:22-38:18 (Hurtado, Montoya). Montoya said the Cl was present for the sole purpose of introducing Montoya to Rivas. See Tr. at 38:19-24 (Hurtado, Montoya). He said he purchased $640.00 worth of cocaine, which weighed approximately 30.6 grams. See Tr. at 39:2-5 (Montoya, Hurtado). Montoya said that he spoke in English and Spanish to Rivas, that Rivas appeared to understand what Montoya was telling him, and that Rivas appeared calm and did not express reluctance in selling cocaine to Montoya. See Tr. at 39:9-25 (Hurtado, Montoya).

Montoya said that the next interaction he had with Rivas was on May 14, 2013, that he directly contacted Rivas and discussed purchasing methamphetamine, and that the Cl was not involved in calling or negotiating the purchase. See Tr. at 40:1-41:1 (Hurtado, Montoya). Montoya testified that, for the May 14, 2013, meeting, he met Rivas, who was accompanied by another Hispanic female, at a store in Los Lunas; that they spoke in English and Spanish with each other; that the meeting’s purpose was for Montoya to purchase methamphetamine; that Montoya asked for three ounces, but Rivas came up with one ounce and sold it for $1,300.00; and that Montoya said he had money to purchase more methamphetamine. See Tr. at 41:5-42:15 (Hurtado, Montoya). Montoya testified that, at the time, an ounce of methamphetamine in the Albuquerque area was selling between $800.00 and $1,000.00 an ounce, and that $1,300.00 was substantially above the market price. See Tr. at 42:19-43:7 (Hurtado, Montoya). Montoya testified that, during the transaction, Rivas did not appear confused and did not express reluctance to complete the drug transaction, and that Rivas’ tone of voice was “friendly, it was cordial, it was business. We spoke of cars, we spoke of different things. It was calm.” Tr. at 43:8-19 (Hurtado, Montoya). Montoya explained that he gave Rivas the $1,300.00 for the methamphetamine, and that Rivas took custody of the money, did not try to explain that the money was not for him, and did not suggest that he was undergoing any personal or financial hardships in life that forced him into a situation where he was selling drugs. See Tr. at 44:22-45:7 (Hurtado, Montoya). Montoya said that he did not pressure or coerce Rivas to sell him methamphetamine, and that, to his knowledge, the Cl never coerced or pressured Rivas into selling methamphetamine. See Tr. at 45:8-21 (Hurtado, Montoya). Montoya said that, after he purchased one ounce for $1,300.00, he expressed interest in wanting to buy more methamphetamine and showed Rivas the additional cash he had for the subsequent purchase, and that Rivas called someone whom Montoya believed was the supplier; Montoya and Rivas met later that same day, and Montoya purchased an additional ounce of methamphetamine for $1,250.00. See Tr. at 43:23-44:21 (Hurtado, Montoya); id. at 45:22-46:11 (Hurtado, Montoya). Montoya testified that Rivas did not seem confused with Montoya’s request to purchase more methamphetamine and did not express reluctance to sell the drugs, and that his tone of voice was “normal” and “friendly.” Tr. at 46:12-23 (Hurtado, Montoya).

Montoya said that Rivas arranged for Montoya to purchase an additional ounce of methamphetamine on July 19, 2013, and that a female identified only as Jackie met Montoya in Los Lunas to sell the methamphetamine. See Tr. at 46:24-48:10 (Hurta-do, Montoya). Montoya testified that the Cl was not involved in the May 14, 2013, or July 19, 2013, transactions, nor did the Cl negotiate the prices. See Tr. at 48:11-19 (Hurtado, Montoya). Montoya said that the conversation he had with Rivas was recorded, and the United States played a portion of the audio recording. See Tr. at 49:25-50:9 (Hurtado, Montoya). The first clip introduced “the who, what, when, where of the transaction that’s about to take place,” when Montoya was “getting ready to conduct the deal on May 14, 2013.” Tr. at 30:16-24 (Montoya, Hur-tado)(playing UC Meth Buy — 11:01 AM 05/14/13 DVD, Exhibit 1 to the hearing (“UC DVD”)). The next segment involved Montoya discussing that Rivas had vehicle issues, but Montoya testified that he still believed the deal would proceed at that point. See Tr. at 51:1-17 (Hurtado, Mon-toyaXplaying UC DVD starting at 37:41). Montoya testified that, when he and Rivas attempted to meet in the Big 5 Sporting Center parking lot in Los Lunas, they did not know what vehicle the other was driving; Rivas called and said he was driving a Black Mustang. See Tr. at 51:18-52:6 (Hurtado, MontoyaXplaying UC DVD at 46:15-49:55). After the men made contact, Montoya said he saw Rivas with the methamphetamine and handed him the cash. See Tr. at 52:19-52:24 (Montoya, Hurtado). According to Montoya, they had a “casual conversation,” and spoke about cars, the woman who had been with Rivas during a previous transaction, and Montoya’s undercover story that he was a drug dealer from out of town and he wanted more drugs to take with him; Montoya said that he asked Rivas to call his source for more drugs and complained about the price, and that Rivas said that, if Montoya would buy on a more regular basis, Rivas could get him a better price. Tr. at 53:1-15 (Montoya). Montoya said that Rivas did not appear uneasy, and that he and Rivas can be heard “laughing, having a good time.” Tr. at 53:16-24 (Hurtado, Montoya). Montoya described the next portion of the audio:

What we’re trying to do is to wait to see if he can provide additional ounces of methamphetamine. We’re talking about vehicles, my undercover story to him is that I live up in the Denver area, I transport cars that I purchase at a[n] auto auction, bring them down here, that also I have family members that I visit while I’m here but I turn around and I return and the story goes not to lose time or money I take drugs back with me. This is why I’m trying to take additional amounts testify methamphetamine with me and at the same time he’s' on the cellular telephone talking to someone.

Tr. at 54:3-14 (Montoya)(playing UC DVD at 49:55-53:05). After listening to the final portion of audio, Montoya explained that he and Rivas were waiting for “another phone call from what I believe is the source of the meth to see if he’s able to produce the additional amounts of methamphetamine,” and that they are talking generally “about cars, about work” when Rivas received “a phone call and says he can come up with additional amounts, but it’s going to be an hour and a half. I’m trying to speed this up, safety sake, trying to get this thing done.” Tr. at 54:15-55:4 (Hurtado, MontoyaXplaying UC DVD at 53:05-56:21). Montoya said he showed Rivas the money, and they agreed to meet a half hour later. See Tr. at 55:4-7 (Montoya). Montoya said that he did not threaten, coerce, or pressure Montoya into selling him methamphetamine. See Tr. at 55:8-15 (Hurtado, Montoya). After concluding the audio portions of the UC DVD, the United States moved to admit it as Exhibit 1; Rivas objected that the matter would be properly addressed at sentencing after he had an opportunity to review the discovery he had requested, but agreed that the UC DVD would be relevant to the sentencing entrapment argument, and the Court admitted the UC DVD. See Tr. at 55:16-56:7 (Hurtado, Robert, Court).

Before cross-examining Montoya, Rivas’ counsel noted that he did not feel as though he could properly' cross-examine Montoya without the discovery he requested, and that he objected to “being put in the position of potentially violating Mr. Gonzalez’ rights to due process [and] effective assistance of counsel.” Tr. at 56:20-25 (Robert). On cross examination, Montoya testified that Rivas did not supply the methamphetamine and that he had to contact someone else to obtain the methamphetamine, and that Montoya did not know if Rivas set the price. See Tr. at 57:3-17 (Robert, Montoya). Montoya said that the first time he worked with the Cl was when he purchased an ounce of cocaine on April 30, 2013, that he was not part of the February, 2013, transaction with the Cl, and that he did not know if someone else worked with the Cl or how the Cl got involved. See Tr. at 57:18-58:6 (Robert, Montoya). Montoya testified that, other than April 30, 2013, he had not been in the same room or same physical space when the Cl and Rivas had been together, either before or after April 30, 2013. See Tr. at 58:19-59:6 (Robert, Montoya). Montoya agreed that he did not “have any factual notion about what conversations took place between”.Rivas and the Cl other than on April 30, 2013. Tr. at 59:16-19 (Robert, Montoya). He said that he- did not talk with the Cl about his conversations with Rivas, but that, regarding the April 30, 2013, transaction, he wrote a report, a recording was made, he did not know if any photographs were taken, and Task Force Officer Montano was the case agent in charge of that deal. See Tr. at 59:23-60:13 (Robert, Montoya). Montoya said that Rivas had changed his telephone number, that Montoya received the telephone number from Montano, but that he did not know if Rivas had changed his telephone number “because he was trying to avoid the confidential informant’s phone calls.” Tr. at 60:24-61:12 (Robert, Montoya). Montoya said that he knew Rivas’ brother Willy, who was arrested around the same time that Rivas was arrested. See Tr. at 62:6-14 (Robert, Montoya).

On redirect examination, Montoya testified that he was not “the controlling agent for the confidential source in this ease” and that the Cl “would not have any reason to report back” to Montoya. Tr. at 62:24-63:7 (Hurtado, Montoya),

b. Testimony from Task Force Officer Lawrence Montano.

The United States called Montano, a DEA task force officer for Valencia County, New Mexico. See Tr. at 63:19-64:8 (Hurtado, Montano). Montano testified that he was the case agent on Rivas’ case, that the Cl told him that Rivas was “selling narcotics in the Valencia County area,” and that he initiated the investigation in February, 2013, which lasted until May. Tr. at 64:18-65:9 (Hurtado, Montano). He said that he used the Cl during Rivas’ investigation, that he did not “instruct the confidential source to pressure or coerce Mr. Rivas into selling drugs to the confidential source or anybody else,” and that he was not aware that the Cl had coerced or pressured Rivas. Tr. at 64:11-24 (Hur-tado, Montano). The United States asked the Court to hold a portion of the hearing outside the presence of Rivas and his counsel, “with respect to a threat that was made against the confidential source.” Tr. at 65:25-66:10 (Hurtado, Court). Rivas objected: “[0]n the basis of effective assistance of counsel and due process, ... what the prosecutor proposes is inappropriate and denies Mr. Gonzalez his constitutional rights, and his right to confrontation as well, Your Honor.” Tr. at 67:5-12 (Robert).

. Rivas cross-examined Montano; Monta-no testified that he “sign[ed] up the confidential source,” that he was present when Rivas met with the Cl on February 27, 2013, and April 30, 2013, that he did not participate in or listen to any other conversations between Rivas and the Cl, and that he did not know “what might have passed between Rivas and the source other than your presence at these two transactions,” including whether “the source was threatening or coercing or intimidating or in some other way influencing Mr. Gonzalez.” Tr. at 68:19-70:6 (Robert, Montano). Montano said that there were recordings made of the February 27, 2013, and April 30, 2013, transactions, that he thought there were photographs, but that he did not think there was video. See Tr. at 70:7-20 (Robert, Montano).

c. Continued Arguments at Hearing.

The United States explained that it tried to establish that “[tjhere is nothing in the record to suggest that [Rivas] was at any time pressured to sell drugs,” that Rivas’ conversation with Montoya was a “very causal [and] jovial social conversation,” and that there was “nothing to suggest that the defendant was under the influence of drugs or suffering or experiencing any personal or financial hardships” like the defendant in United States v. McClelland. Tr. at 71:16-72:5 (Hurtado). According to the United States, Rivas’ “allegation of sentencing entrapment is wholly baseless, just meritless.” Tr. at 72:5-7 (Hurtado).

[T]he United States would argue that there is no basis for which the Government should be held to disclose the identity of the confidential informant. The confidential informant does not offer anything material, anything relevant, anything exculpatory to the charges listed in the indictment against the defendant for which he already pleaded guilty to.

Tr. at 72:12-19 (Hurtado). The United States clarified that it has not disclosed discovery pertaining to the two deals not listed in the Indictment and that it resists disclosure related to the Cl. See Tr. at 72:25-73:15 (Court, Hurtado). The Court asked what discovery the United States would provide if a defendant called a witness at trial; the United States responded that, if the witness were a civilian, the amount of information it would disclose would depend on a case-by-case analysis, but that if the witness were a professional law enforcement witness, the United States would have a continuing duty to disclose any impeachment information. See Tr. at 73:16-74:22 (Court, Hurtado).

Rivas’ counsel said that, although the Court questioned earlier why he was seek-' ing the extent of discovery in this case, he “learned a lot about my case today, about Mr. Gonzalez’ case, that I didn’t know and it seems unfortunate that it has to come to this for something even remotely [close to] full discovery to happen, but I’m certainly of the opinion that these sorts of things are necessary and should be done more often because otherwise we’re left in the dark.” Tr. at 75:13-22 (Robert). Rivas’ counsel explained that he was asking for discovery to know whether he could credibly make a sentencing entrapment argument and that, without discovery, he could not effectively assist Rivas. See Tr. at 76:1-25 (Robert).

The Court decided to permit the United States to present testimony in camera regarding a threat against the Cl. The Court identified several cases that indicated that an in camera procedure would be appropriate to determine the credibility of a confidential informant and determine whether a court should disclose a confidential informant’s identity, and explained that it would be appropriate for it also to consider evidence in camera regarding a threat against the Cl to help it determine whether to disclose the Cl’s identity in this case. See Tr. at 77:18-79:23 (Court)(citing Gaines v. Hess, 662 F.2d at 1369; United States v. Cruz, 680 F.3d 1261, 1263 (10th Cir.2012); United States v. Singh, 922 F.2d 1169, 1172-73 (5th Cir.1991)). The C