This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.  480A.08, subd. 3 (1994).


State of Minnesota


Jose Guadalupe Sanchez-Almendariz,

Filed August 13, 1996
Amundson, Judge

Brown County District Court
File No. K19575

Hubert H. Humphrey, III, Attorney General, Mark Traynor, 
Assistant Attorney General, 900 NCL Tower, 445 Minnesota 
Street, St. Paul, MN 55101, James R. Olson, Brown County 
Attorney, Box 428, New Ulm, MN 56073 (for Respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant 
State Public Defender, 2829 University Avenue, Suite 600, 
Minneapolis, MN 55414 (for Appellant)

	Considered and decided by Amundson, Presiding Judge, 
Norton, Judge, and Peterson, Judge.

	U N P U B L I S H E D  O P I N I O N

	 Jose Guadalupe Sanchez-Almendariz challenges his 
judgment of conviction, arguing that he was denied his right to a 
fair trial because the trial court refused to disclose the name and 
background of a confidential reliable informant to the defense.  He 
also argues that he was entrapped and that the state failed to prove 
beyond a reasonable doubt that he was predisposed to sell drugs.  
We affirm.


	On February 6, 1995, and February 21, 1995, appellant Jose 
Guadalupe Sanchez-Almendariz was charged with several counts 
of selling controlled substances (marijuana, and on one occasion 
cocaine) to an informant working for the New Ulm Police 
Department.  The sales allegedly took place on October 18, 1994; 
October 21, 1994; November 17, 1994; December 14, 1994; and 
February 5, 1995.  On February 5, appellant allegedly sold 210 
grams of marijuana and 13.8 grams of cocaine to the informant.  
Appellant allegedly also sold cocaine to another person present at 
the time.
	The state, pursuant to Rule 9.01, sought to avoid revealing 
the informant's identity.  At the omnibus hearing, the trial court 
met in camera with the county attorney and a police officer (but 
without appellant's trial counsel) to discuss the reasons for 
certifying the informant's name.  Two weeks later, the trial court 
held a hearing on appellant's motion to compel the state to disclose 
the informant's identity.  The trial court denied the motion.
	On the first day of trial, defense counsel learned the identity 
of the informant.  On the last day of trial, an anonymous male 
called the public defender's office and said that the informant had 
lied on the stand and had been hospitalized for a drug overdose in 
New Ulm.  On that same day, the jury found appellant guilty of all 
	Appellant moved for a new trial or an acquittal based on the 
anonymous phone call and the failure to disclose the informant's 
name.  The trial court denied the motion.  The court noted that 
appellant did not ask for additional time to make any investigation 
regarding the informant, defense counsel had not verified that the 
information given by the anonymous caller was true, and there was 
no indication that revealing the informant's name earlier would 
have led defense counsel to discover the information alleged by the 
anonymous caller.  	The trial court viewed the seven 
offenses as one behavioral incident and sentenced appellant to 86 
months.  This appeal followed.

	D E C I S I O N

 	I.  Identity of Informant

	Appellant argues that he was denied his right to a fair trial 
because the trial court refused to disclose the name and 
background of the informant.
	A prosecutor generally has a duty to disclose to defense 
counsel the names, addresses, and prior convictions of persons the 
prosecutor intends to call as witnesses.  Minn. R. Crim. P. 9.01, 
subd. 1(1)(a).  There is, however,  an exception to this general rule:
	The information relative to the witnesses and persons 
described in Rules 9.01, subd. 1(1), (2) shall not be subject 
to disclosure if the prosecuting attorney files a written 
certificate with the trial court that to do so may endanger the 
integrity of a continuing investigation or subject such 
witnesses or persons or others to physical harm or coercion 
* * *.
Id., subd. 3(2).  
	At the in camera meeting, a police officer testified that  in 
1994  the informant began working for the New Ulm Police 
Department in its investigation of the sale of drugs in the city of 
New Ulm; had been working as an informant for various 
governmental agencies since 1985; and was then working for a 
governmental agency in the investigation of the sale of drugs in the 
Grand Forks area. The officer also testified that
	Because of that, if his identity would be made known, it is 
known from--or my experience has been is that individuals, 
when they find out they've been had, they've been burnt, 
they've been--somebody had narked them off and was 
working with us, they do whatever they can to try to locate 
these individuals, for the purposes of intimidating them, 
scaring them into not testifying and hopefully, you know,  
getting them to drop the cases or maybe even sometimes 
physical harm, depending upon the degree as to what that 
individual might be involved in as far as the charges go.
	Appellant argues that the mere assertion that an informant is 
involved in an investigation, with no proof that disclosure would 
interfere with the investigation, is insufficient under the rule.  
Appellant notes that, in State v. Hathaway, 379 N.W.2d 498 
(Minn. 1985), the trial court's ruling that witnesses would be 
subject to physical harm or coercion was supported by police 
reports reflecting threats of violence and intimidation attempts 
made against those witnesses.  Id. at 506.
	In Hathaway, however, the determination that certification 
was proper did not depend entirely on those reports.  The Supreme 
Court, in affirming the trial court's certification, stated:
	We hold that in future cases the trial court, upon 
certification by the prosecutor, make a record of the 
evidence presented by the prosecutor and the court's 
determination of its sufficiency before Rule 9.01, 
subdivision 3(2), is applied.

	The trial court in this case followed that procedure, stating:

	Well, absent any guidance from the courts or rules, this 
Court finds that on the sworn testimony that the witness is 
currently involved with a governmental agency on a 
continuing drug investigation, that they're--the requisite 
sufficiency has been met for the Rule 9.01, subd. 3(2), 
	In addition, appellant's interpretation is not supported by the 
language of the rule, which only requires that the certificate 
indicate that disclosure "may endanger" the investigation.  The rule 
does not require any particular findings by the trial court and it 
does not require a finding that the disclosure will endanger the 
	Finally, we believe that requiring evidence of specific 
threats before certification is allowed could produce disastrous 
results in cases such as this.  The whole idea behind having an 
informant is that the person selling drugs, etc., does not know that 
the person he is dealing with is a potential witness.  If the seller 
does not know that the person he is dealing with is a potential 
witness, he will not make threats about the informant testifying.  If 
no such threats are made, then the rule would not apply.
	There are, of course, some risks involved in letting police 
officers simply assert that a witness could be threatened.  The rule 
could be used as a tool to obtain an unfair advantage over defense 
counsel.  However, a trial court should be able to judge when that 
assertion is unfounded. 
	Thus, we decline to impose requirements for certification 
that are not contained in the rule or case law and conclude that the 
trial court properly certified in this case.
	Appellant claims he was prejudiced because he could not 
investigate and discover whether the informant had received 
clemency for past assistance to law enforcement, whether he had a 
history of drug problems, or "other information that would have 
permitted the defense to thoroughly cross-examine him to 
demonstrate the dubiousness of his testimony."  Appellant also 
argues that if he would have had access to the informant's name 
before trial, he "may have discovered evidence" that would cast 
doubt on the informant's testimony and bolster appellant's 
entrapment claim.
	As the trial court noted, however, there is no indication that 
appellant would have discovered such evidence had the informant's 
name been revealed earlier.  In addition, clemency granted for past 
testimony would not have been relevant to the most recent deal 
with the informant, and there was no evidence of any clemency 
granted in exchange for the informant's testimony in this case.  
Any prejudice, therefore, is purely speculative. 

	II. Entrapment

	Appellant argues that this court should reverse his 
conviction because the informant entrapped him.
 	A defendant pleading the defense of entrapment has the 
option of presenting the issue to the jury as a factual issue or to the 
court as a matter of law, although based on the same factual 
elements.  State v. Grilli, 304 Minn. 80, 87, 230 N.W.2d 445, 451 
(1975).   Appellant chose to have the issue tried to the jury, and the 
jury rejected the defense.  In reviewing the sufficiency of the 
evidence, this court must assume the jury believed the state's 
witnesses and disbelieved evidence to the contrary.  State v. 
Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980).  "[T]he jury 
determines the credibility and weight given to the testimony of 
individual witnesses."   State v. Bias, 419 N.W.2d 480, 484 (Minn. 
	Appellant makes various arguments regarding why the jury 
should have found him more credible than the informant, but it did 
not.  The only argument regarding sufficiency of the evidence that 
is not dependent on this court finding him more credible than the 
informant, which this court cannot do, is his argument that the 
defense was precluded from further impeaching the informant's 
credibility because of the trial court's ruling on certification.  As 
we already noted, it is speculative that releasing the informant's 
name earlier would have led appellant to discover impeachment 
evidence. Thus, we conclude that there was sufficient evidence to 
support the jury's verdict.