United States of America, Plaintiff-Appellee-Cross-Appellant v. Carland A. Bowser, Defendant-Appellant-Cross-Appellee

941 F.2d 1019, 33 Fed. R. Serv. 1312, 1991 U.S. App. LEXIS 15900, 1991 WL 130560
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 19, 1991
Docket90-3234, 90-3256
StatusPublished
Cited by91 cases

This text of 941 F.2d 1019 (United States of America, Plaintiff-Appellee-Cross-Appellant v. Carland A. Bowser, Defendant-Appellant-Cross-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States of America, Plaintiff-Appellee-Cross-Appellant v. Carland A. Bowser, Defendant-Appellant-Cross-Appellee, 941 F.2d 1019, 33 Fed. R. Serv. 1312, 1991 U.S. App. LEXIS 15900, 1991 WL 130560 (10th Cir. 1991).

Opinions

[1021]*1021PER CURIAM.

Defendant Carland A. Bowser was convicted of two counts of distribution of a Schedule II narcotic, crack cocaine, pursuant to 21 U.S.C. 841(a)(1).1 On appeal, defendant challenges the admission of certain evidence and the court’s prohibition of his attempted cross-examination concerning the identity of a confidential informant. On cross-appeal, the government challenges the district court’s downward departure from the applicable sentencing guideline.2 We affirm.

On January 10, 1990, defendant made a hand-to-hand sale of 2.7 grams of crack cocaine to an undercover agent of the federal Bureau of Alcohol, Tobacco, and Firearms. The next day, he made a second hand-to-hand sale of 6.6 grams of crack cocaine to the same agent. Both sales were witnessed by another undercover agent.

During the second sale, the agent was “wired” with a sound transmitter, and the entire transaction was tape recorded. After the second sale, defendant attempted to evade arrest by running into a nearby department store, where his flight with police pursuit and his capture and arrest were videotaped by the store’s in-house security system.3

Following his conviction, defendant unsuccessfully moved for a new trial, a request he renews here on appeal. Defendant first argues that the admission of certain testimony by one of the undercover agents was irrelevant and prejudicial in contravention of Fed.R.Evid. 402 and 403. The agent testified that a confidential informant told him defendant carried a gun during drug transactions and defendant would like to kill the undercover agent. R.Vol. Ill at 29-30.

We review questions concerning the admission of evidence under an abuse of discretion standard. United States v. Cooper, 733 F.2d 1360, 1366 (10th Cir.), cert. denied sub nom. Threat v. United States, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984) (admission of evidence); see also United States v. Silverstein, 737 F.2d 864, 866 (10th Cir.1984) (“Balancing the probative value of evidence against its prejudicial effect is within the sound discretion of the trial court.”). Because defendant did not object to admission of this testimony at trial, we review for plain error. Fed.R.Crim.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”). Plain errors are those errors that when viewed against the entire record “ ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Young, 470 U.S. 1, 15-16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1984) (citation omitted); accord United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986).

We hold that the evidence was not hearsay because it was not introduced for the purpose of proving defendant carried a gun or intended to kill the agent. Fed. R.Evid. 801(c). The statements were introduced merely to explain the officer’s aggressive conduct towards the defendant. In that context the statements were relevant.

Second, defendant claims a violation of his Sixth Amendment right to confronta[1022]*1022tion when the district court sustained the government’s objection to defense counsel’s demand that a witness identify a confidential informant. At trial, an undercover agent testified that the agents made contact with defendant through information provided by a confidential informant. Defense counsel attempted to cross-examine the agent about the identity of the informant, but the court sustained the government’s objection, citing Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Defendant claims this ruling to have been an abuse of discretion, if not an abridgement of his Sixth Amendment right of confrontation.

The right of cross-examination is fundamental. However, any reversal of a conviction on the basis of undue limitation upon cross-examination must demonstrate a denial of a due process right of confrontation as guaranteed in the Sixth Amendment, or an abuse of discretion by the trial court in limiting cross-examination. The exercise of discretion by the trial court will not be upset unless it is determined to be clearly prejudicial.

United States v. Walton, 552 F.2d 1354, 1364 (10th Cir.) (citations omitted), cert. denied, 431 U.S. 959, 97 S.Ct. 2685, 53 L.Ed.2d 277 (1977). We hold that the trial court was correct in this matter, although for different reasons than those articulated from the bench.4

Determination of whether the identity of a confidential informant must be disclosed on cross-examination requires a case-by-case balancing of the public interest in protecting the flow of information from informants to the police against the individual’s right to prepare his defense with relevant, helpful information essential to the fair determination of a cause. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628. Revelation of the identity of an informant is compelled by the Sixth Amendment only when the informant’s testimony might be relevant to the charges against defendant, or when the informant was a witness to or participant in the charged conduct. United States v. Freeman, 816 F.2d 558, 562 (10th Cir.1987); United States v. Halbert, 668 F.2d 489, 496 (10th Cir.), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 453 (1982). The informant in the present case did not testify at trial, nor was he or she a witness to the two sales of crack cocaine. In addition, defendant made no showing that direct confrontation with the informant would assist defendant in his attempt to establish his defense at trial, that of duress, or that his case was prejudiced by the government’s refusal to identify this informant. We conclude that defendant suffered no constitutional violation when the court denied his demand for the identity of the undercover agent’s source of confidential information and decline to remand for new trial.

Turning to the cross-appeal, the government urges that the district court erred in its downward departure from the sentencing guidelines. The drug sales of which defendant was convicted were not his first criminal offense.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Ibarra-Diaz
805 F.3d 908 (Tenth Circuit, 2015)
United States v. Newhouse
919 F. Supp. 2d 955 (N.D. Iowa, 2013)
Tanner v. San Juan County Sheriff's Office
864 F. Supp. 2d 1090 (D. New Mexico, 2012)
United States v. Flemming
617 F.3d 252 (Third Circuit, 2010)
Thakore v. Universal MacHine Co. of Pottstown, Inc.
670 F. Supp. 2d 705 (N.D. Illinois, 2009)
United States v. Harris
223 F. App'x 747 (Tenth Circuit, 2007)
United States v. Nielsen
427 F. Supp. 2d 872 (N.D. Iowa, 2006)
United States v. Ruben Dean Ledford
443 F.3d 702 (Tenth Circuit, 2006)
United States v. Ledford
154 F. App'x 692 (Tenth Circuit, 2005)
United States v. Mathis
357 F.3d 1200 (Tenth Circuit, 2004)
United States v. Freddie Gilbert Greger
339 F.3d 666 (Eighth Circuit, 2003)
United States v. Torres
71 F. App'x 103 (Third Circuit, 2003)
United States v. Powell
165 F. Supp. 2d 1230 (D. Kansas, 2001)
United States v. Luna
13 F. App'x 795 (Tenth Circuit, 2001)
United States v. Caldwell
219 F.3d 1186 (Tenth Circuit, 2000)
United States v. Georges Debeir
186 F.3d 561 (Fourth Circuit, 1999)
United States v. Webb
139 F.3d 1390 (Eleventh Circuit, 1998)
United States v. Wilke
995 F. Supp. 828 (N.D. Illinois, 1998)
United States v. Martinez
978 F. Supp. 1442 (D. New Mexico, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
941 F.2d 1019, 33 Fed. R. Serv. 1312, 1991 U.S. App. LEXIS 15900, 1991 WL 130560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-plaintiff-appellee-cross-appellant-v-carland-a-ca10-1991.