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United States v. Godiksen

United States District Court, D. Connecticut

February 17, 2017



          Hon. Vanessa L. Bryant, United States District Judge

         Before the Court are two evidentiary motions central to the preparation of this case for trial. The first is the Motion for Discovery filed by the Defendant, James Erik Godiksen, on January 6, 2017, seeking the identity of, and communications or documents regarding, a confidential informant housed with him at the New Haven Correctional Center. [Dkt. No. 34]. The second is the Government's Motion in Limine filed on December 22, 2017 seeking to introduce, through a corrections officer's testimony, statements made by the Defendant. [Dkt. No. 28]. As neither party objected to or otherwise responded to their opponent's motion, the Court conducted a hearing on February 16, 2017 which, together with the parties' memoranda of law in support of their motions, informs the Court's decision articulated herein. For the reasons stated below, the motion of the Defendant is DENIED IN PART AND GRANTED IN PART and the motion of the Government DENIED.

         I. Background

         The Defendant was arrested on September 14. 2016 and charged by a Complaint on the following day, which was superseded on September 28, 2016 by an indictment returned by a grand jury charging him with one count of Murder for Hire in violation of 18 U.S.C. 1958. The facts recited in this decision were taken from the Government's timely trial memorandum and the exhibits filed incident thereto and from statements made at the hearing.

         The Defendant was incarcerated for 30 days at the New Haven Detention Center following his arrest for violating a protective order in favor of his former wife, who is the target of the Murder for Hire charge which is the subject of this prosecution. While incarcerated, the Defendant had certain conversations with inmates including an inmate identified as “Josh.” According to Mr. Godiksen, Josh and other inmates, taking advantage of his naivety, induced him to seek to engage a person to murder his former wife. Josh informed a corrections officer of Mr. Godiksen's intent and the corrections officer in turn notified law enforcement. Law enforcement officials conducted an investigation in which an undercover officer called Mr. Godiksen and arranged to meet him to discuss murdering the Defendant's former wife. During the initial conversation, the Defendant indicated that he was expecting the call, expressed a fervent desire to engage the services of the undercover officer to kill Godiksen's former wife, negotiated the price, inquired as to whether the undercover officer would accept a motor vehicle as compensation for his services in lieu of cash, and indicated that he would need time to secure the $5, 000 negotiated price for the murder. Godiksen had several subsequent conversations with the undercover agent in furtherance of the scheme.

         II. The Discoverability of Informant's Identity and Related Communications

         Defendant seeks the informant's identity, any recorded communications between Defendant and the informant, and any “documents or objects” in the Government's possession regarding the confidential informant. The Court will address each request in turn.

         a. The Informant's Identity

         The Government has an Informant's Privilege not to disclose the identity of an individual who informs the Government about violations of law (the “informer's privilege”). Roviaro v. United States, 353 U.S. 53, 59 (1957). However, a Court may order disclosure of an informant's “identity, or the contents of his communication, ” if it is “relevant and helpful to the defense of an accused” or "essential to a fair determination of a cause.” Roviaro, 353 U.S. at 60-61 (1957). In Roviaro, the Court found the nondisclosure was in error because the informant's identity and testimony were “highly relevant” and “might have been helpful to the defense.” Id. at 63. The Court explained the informant was the sole witness to the transaction leading to Defendant's arrest, and his testimony might have disclosed entrapment or lack of knowledge of the contents of the package, and accordingly his identity should have been disclosed. Id. at 65. The court instructed that to determine whether the informer's privilege should apply in a given case, the Court must balance “the public interest in protecting the flow of information against the individual's right to prepare his defense, ” considering “the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.” Roviaro, 353 U.S. at 62.

         In U.S. v. Jacobs, 650 F.Supp.2d 160, 169 (D. Conn. 2009) the court applied Roviaro in a case where the Defendant was arrested for possession with intent to distribute cocaine base. Id. at 163. Defendant reasoned he required the information to investigate the informant's credibility and the source of the informant's alleged knowledge, and asserted the informant likely possessed information “bearing directly on the defense.” Id. Judge Haight considered “three factors” when conducting the Roviaro balancing test: “whether the confidential informant was an eyewitness or mere tipster, the relationship between the issue and the probable testimony of the confidential informant, and the government's interest in nondisclosure.” Id. at 170. The Court denied the disclosure request because the informant was a “mere tipster, ” there was nothing in the defendant's motion to suggest the informant would play any role in the trial on the merits, nor was there anything to suggest the informant could corroborate a defense of entrapment. Id. Similarly, in U.S. v. Muhammad, 3:12-cr-0206 (AVC), 2013 WL 6244139 (D. Conn. Dec. 3, 2013), the District of Connecticut, also applying Roviaro, denied the Defendant's request for information regarding informants reasoning that the Defendant's assertion that “the government is obligated to provide information about informants because these individuals participated in and were material witnesses to the events charged in th[e] indictment” failed to make a “particularized showing of the value of the information to the defendant's defense.” Id. at *2.

         The Defendant failed to present sufficient facts to overcome the privilege under the Roviaro framework. The Defendant failed to show that the information sought would aid him in pursuing an entrapment defense. In order to establish an entrapment defense, a defendant must show government inducement of criminal activity, and the defendant's lack of predisposition to engage in the criminal conduct. U.S. v. Kopstein, 759 F.3d 168, 173 (2d Cir. 2014) (stating elements of entrapment.) Here, the Defendant has not shown that the information he seeks has any tendency of assisting him in establishing either of the two elements. He was unable to cite any facts suggesting that any governmental official induced the Defendant. The Defendant admitted that he was induced by fellow inmates and offered no viable theory which implicated the involvement of a corrections officer who informed law enforcement about the plot or any other government official. He surmised government involvement from the mere fact that the Defendant was naïve, having never been incarcerated and was detained for only thirty days when he met Josh, the confidential informant, who claimed to have served time before. The Defendant asserts government involvement through a theory that the corrections officer learned of the plan from Josh, informed law enforcement of the plot, and provided law enforcement with the Defendant's cellphone number. The Defendant could not cite any fact tending to show that the corrections officer was collaborating with the confidential informant. Nor did he describe a sequence of events which would have enabled the corrections officer to collaborate with the confidential informant.

         The Defendant also offered no facts tending to suggest that the information sought would assist in satisfying the second prong of the Roviaro analysis. Godiksen failed to present any facts or theories tending to show that the information sought would assist him in demonstrating that he lacked the proclivity to commit a crime of violence against his former wife. On the contrary, the facts presented established that Godicksen not only had a predisposition, but had previously committed or threatened to commit a crime of violence against his former wife, resulting in the entry of a judicial restraining order, the violation of which was the reason he was in jail with the confidential informant. Under Connecticut law, a “family or household member” may apply for a restraining order if he or she “has been subjected to a continuous threat of present physical pain or physical injury, stalking or a pattern of threatening” by the subject of the proposed restraining order, and the Court may “make such orders as it deems appropriate for the protection of the applicant and such dependent children or other persons as the court sees fit.” Conn. Gen. Stat. § 46b-15. A person violates a restraining order when he or she, “having knowledge of the terms of the order, (A) does not stay away from a person or place in violation of the order, (B) contacts a person in violation of the order, (C) imposes any restraint upon the person or liberty of a person in violation of the order, or (D) threatens, harasses, assaults, molests, sexually assaults or attacks a person in violation of the order.” Conn. Gen. Stat. § 53-223b(a). As such, Mr. Godiksen has twice demonstrated a predisposition to commit or threaten acts of violence against his former wife. Further, his imprisonment for violating the restraining order precluding him from having personal contact with her constitutes a motivation for him to engage the services of another person to harm her. The Defendant has not demonstrated the need for, or any prejudice which would result from withholding, the identity of the confidential informant.

         Further, the Defendant has other means to develop information to formulate an entrapment defense. The informant is the "tipper" and the corrections officer is the "tippee, " thus the Defendant is not totally precluded from obtaining information about potential entrapment. Defense counsel has not yet spoken to the corrections officer and therefore cannot assert that disclosure is either needed or essential to establish an entrapment defense.

         The cases Defendant cites in support of his motion to discover the informant's identity do not suggest a different result. Defendant relies on United States v. Jackson, 345 F.3d 59, 70 (2d Cir. 2003), which is distinguishable from the present case because the informant in that case was the only person with direct personal knowledge of the defendant's conduct. Here, the Government did not rely on the information provided by the confidential informant. The investigation included several independently recorded telephone and in-person communications between Godiksen and an undercover law enforcement agent during which the Defendant repeatedly and fervently corroborated the confidential informant's tip, stating his desire to have his former wife killed and the manner of the killing. As the Second Circuit said in Jackson, there is “no case . . . provid[ing] defendants with a generalized affirmative right . . . to obtain statements of non-witnesses merely because they happen to be informants.” Id. In addition, the ...

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