*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 95-20942

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEITH JACKSON,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas, Houston

(CR-95-94)

 

_________________________________________________________________

January 21, 1997

Before JOLLY, JONES, and PARKER, Circuit Judges.

PER CURIAM:*

I

On February 22, 1995, a confidential informant allegedly told

a Houston police officer that he had seen a plastic baggie

containing a significant amount of crack cocaine in Keith Jackson's

house. Based on information received from the informant and from

information acquired during surveillance, the officer obtained an
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arrest warrant for Jackson and a warrant to search the house.

Jackson was arrested, and upon learning his house was to be

searched, admitted that crack cocaine would be found. The house

was searched and crack cocaine was recovered.

Jackson contends that there was no confidential informant and

that the officer lied about the informant's existence to obtain the

warrants. In support of his position, Jackson produced affidavits

in which his friends and family attest, unsurprisingly, that they

are not the confidential informant. Jackson says that these were

the only people he had seen in the relevant period of time.

Thus, Jackson argues that the district court erred by refusing

to disclose the informant’s identity at the pretrial suppression

hearing. He further contends the district court was required to

hold an in camera hearing to determine if the informant existed.

Finally, Jackson contends the court erred in denying his motion to

suppress. We conclude that each of these contentions is without

merit.

II

The importance of protecting the identity of informants has

long been recognized. See Roviaro v. United States, 353 U.S. 53,

77 S.Ct. 623 (1957). Nevertheless, a defendant's right to a fair

trial is our paramount concern. Therefore, a confidential

informant's identity must be exposed when his testimony critical to

the determination of guilt or innocence of the defendant.
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Branzburg v. Hayes, 408 U.S. 665, 697, 92 S.Ct. 2646, 2665 (1972);

Wolff v. McDonnell, 418 U.S. 539, 600, 94 S.Ct. 2963, 2996

(1974)(Frankfurter, J concurring)(noting that an "if an informer's

information is crucial to the defense" the government must reveal

the informer's identity or dismiss the charges.). In United States

v. Orozco, 982 F.2d 152, 154-55 (5th Cir. 1993), cert. denied, 508

U.S. 945 (1993), we developed a three-part test to determine when

disclosing an informant's identity is mandated. To make this

determination, a court should: (1) "evaluate the level of the

informant's participation in the alleged criminal activity"; (2)

"consider the helpfulness of disclosure to any asserted defense";

and (3) "consider the government's interest in nondisclosure." Id.

The first step of the Orozco test requires a court to examine

the informant's role in the criminal activity. If an informant

did not participate in the alleged criminal activity, but instead,

as is true here, acted only as a tipster, there is a strong

presumption against forced disclosure of the informant's identity.

United States v. Freund, 525 F.2d 873, 876-77 (5th Cir. 1976),

cert. denied, 426 U.S. 923 (1976); see also, United States v.

Cooper, 949 F.2d 737, 749 (5th Cir. 1991), cert. denied 504 U.S.

975 (1992); United States v. Clark, 482 F.2d 103 (5th Cir. 1973);

United States v. Acosta, 411 F.2d 627 (5th Cir. 1969). Therefore,

the first element of the Orozco test weight heavily in favor of not

revealing this informant's identity.
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The second step of the Orozco test requires the court to

evaluate whether revealing the informant's identity will assist the

defendant in presenting a defense. In McCray v. Illinois, 386 U.S.

300, 87 S.Ct. 1056 (1967), the Supreme Court recognized that an

informant's identity need not be disclosed at a preliminary hearing

on probable cause. Id. at 311-12. Similarly, in United States v.

Raddatz, 477 U.S. 667, 106 S.Ct. 2734 (1980), the Court noted that

many of its decisions recognize that the interests at stake in a

suppression hearing are of less importance than those in the actual

criminal trial. Id. at 679. Revealing the tipster's identity

would only challenge the probable cause and suppression hearings.

Jackson's interests in challenging these hearings is outweighed by

the presumption against disclosure, including the privacy and

safety of the tipster and the government's interest in ensuring

tipsters will be willing to step forward in the future. Therefore,

the district court did not err in refusing to disclose the

tipster's identity. 

III

The district court was also within its discretion in refusing

to conduct an in camera hearing. Although not usually mandated, an

in camera hearing is an appropriate method for a district court

judge to balance the conflicting interests of the government and

the defendant. See Freund, 525 F.2d at 877-88. Jackson failed to

introduce sufficient evidence to mandate such a hearing. As the
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Seventh Circuit has recognized, "A bald denial of the existence of

an informant does not call for a hearing . . . the defendant bears

a substantial burden to demonstrate probable falsity . . . . The

affidavit of a friend, coupled with counsel's say-so, does not

satisfy that burden." United States v. Hornick, 815 F.2d 1156,

1987 (7th Cir. 1987). The district court has broad discretion in

determining if an in camera hearing is needed. See McCray, 386

U.S. at 318. Although it was certainly within the district court's

discretion to grant an in camera hearing, it was not compelled to

do so. Affidavits from family and friends--with a probability of

bias and a possibility of self-serving--that only proclaim that

none of them is the nefarious snitch, is hardly the stuff that

credibly suggests the need for a hearing on the matter.

IV

Finally, Jackson's contention that the district court erred by

denying his motion to suppress has no merit. A warrant affidavit

carries a presumption of reliability. Franks v. Delaware, 438 U.S.

154, 171, 98 S.Ct. 2674, 2684 (1978). In the instant case, this

presumption is enhanced because a baggie of crack cocaine

conforming to the description given by the informant was found in

Jackson's house. Although Jackson's friends and family attest that

they are not the confidential informant, there was ample time for

Jackson to have had contact with third parties. Ultimately,

therefore, it is only Jackson's only unsupported and self-serving
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affidavit that attacks the warrant affidavit. Therefore, the

district court did not err when it found that Jackson's affidavit,

and the affidavits of his friends and family did not overcome the

warrant affidavit's presumption of reliability.

The judgment of the district court is therefore

A F F I R M E D.