DEA May Have to Share Records on Ex-Informant

WASHINGTON (CN) - A convicted cocaine trafficker can demand records about a deactivated confidential informant who testified against him, a federal judge ruled.

Rene Cobar, a 46-year-old Guatemalan national, is serving 19 1/2 years in federal prison after he was convicted in 2009 of drug conspiracy charges.

He submitted a request in 2011 under the Freedom of Information Act for information about Carlos Javier Aguilar-Alvarez, whom Cobar identified as a DEA "confidential informant."

Cobar paired his request with an affidavit from a DEA special agent who purportedly investigated Cobar in connection to a drug-trafficking and money-laundering ring.

The agent said Aguilar-Alvarez served as his confidential informant on various investigations from October 2003 to October 2009.

"On February 4, 2010, Aguilar-Alvarez was deactivated by the DEA for providing untruthful information during an investigation initiated in October of 2009," according to the affidavit of Special Agent Anthony Casullo Jr., supplied by Cobar.

The information purportedly concerned a Dec. 8, 2009, debriefing.

Aguilar-Alvarez also "failed miserably" on a polygraph about this information and admitted during the polygraph interview that he lied to his handlers.

Casullo additionally said DEA agents linked Aguilar-Alvarez as a drug dealer's heroin supplier.

Cobar wanted all of the DEA's records on Aguilar-Alvarez, specifically records of his criminal pas, his activation as a source and his subsequent deactivation.

Claiming a FOIA exemption for law-enforcement records, however, the DEA refused to confirm or deny that it had any records on Aguilar-Alvarez as a confidential informant.

This Glomar response, as it is known, takes it name from the Hughes Glomar Explorer, a ship used in a classified CIA project to raise a sunken Soviet submarine from the Pacific Ocean.

The Office of Information Policy affirmed the DEA's Glomar response last year, even though Cobar pointed out that a Glomar response was unavailable because Aguilar-Alvarez testified against him in open court, revealing his identity as a confidential source.

Though the DEA initially used the law-enforcement exemption to shield information that would reveal the identity of a confidential source, the modified response relied on the exemption that shields against unwarranted invasions of privacy.

After Cobar filed suit, the Justice Department moved for summary judgment.

U.S. District Judge Ellen Huvelle declined to let the government off the hook Thursday.

"Here, there can be no question that the identity of the confidential informant has been officially confirmed in light of Casullo's sworn affidavit, the content of Aguilar-Alvarez's public testimony at Cobar's criminal trial, and the district judge's opinion in July 2011 denying Cobar's motion for a new trial," Huvelle wrote. "Accordingly, a Glomar response is not available and defendant is not entitled to summary judgment."

Though the Glomar response is unavailable, the government may still be able to withhold the sought-after documents once it files a Vaughn index, according to the ruling.

This file, which takes its name from the 1973 case Vaughn v. Rosen, identifies each document withheld, states the statutory exemption claimed, and explains how disclosure would damage the interests protected by the claimed exemption.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit