Case: 09-50306     Document: 00511108099          Page: 1    Date Filed: 05/12/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 12, 2010
                                     No. 09-50306
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAVIER VENCES, SR.,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:08-CR-196-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        A jury convicted Javier Vences, Sr., of aiding and abetting in the
possession with intent to distribute at least 100 kilograms of marijuana,
conspiracy to possess with intent to distribute at least 100 kilograms of
marijuana, and possession of a firearm by a convicted felon, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), & 846, and 18 U.S.C. §§ 2, 922(g)(1),
& 924(a)(2). The district court sentenced Vences to concurrent terms of 87
months of imprisonment on each of the three counts of conviction. On appeal,

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-50306   Document: 00511108099 Page: 2         Date Filed: 05/12/2010
                                No. 09-50306

Vences argues that the trial court abused its discretion by denying his motion
to disclose the identity of the confidential informant.
      The district court held an in camera hearing regarding whether the
informant’s identity should be revealed, a procedure that this court has
previously approved. See United States v. Freund, 

, 877-78 (5th Cir.
1976). This court uses a three-part test to determine whether the identity of an
informant should be revealed: (1) the level of the informant’s activity; (2) the
helpfulness of the disclosure to the asserted defense; and (3) the Government’s
interest in nondisclosure. United States v. Ibarra, 

, 531 (5th Cir.
2007). After reviewing the transcript of the in camera hearing, record evidence
relevant to the disposition of this appeal, and the arguments of the parties, this
court finds that the interests balance toward nondisclosure.        Although the
informant’s participation supports disclosure, Vences did not show that the
informant’s testimony would significantly aid in establishing an asserted
defense, which cuts against disclosure. Moreover, the Government’s interest
clearly supports nondisclosure. Where, as here, the relative interests balance
toward nondisclosure, and where the district court held an in camera hearing at
which evidence was presented that enabled the district court to reach its
decision, the district court did not abuse its discretion in withholding the
identity of the informant. See United States v. De Los Santos, 

,
1333 (5th Cir. 1987).
      The judgment of the district court is therefore AFFIRMED.




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