United States v. Ball

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 15, 2002
• Docket: 01-31330
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31330 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LESTER TERRAZE BALL, also known as T-Ball,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CR-50025-ALL -------------------- July 12, 2002

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Lester Terraze Ball appeals his conviction for

distribution of 50 grams or more of cocaine base. Finding no

error, we affirm.

Ball argues first that his conviction on Count 2, the

distribution of crack cocaine, should be reversed because the jury

rendered a not guilty verdict on Count 1, the distribution of

marijuana count. He contends that the same officer, Horton,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-31330 -2-

testified as to both counts and, thus, if the jury found him not

guilty on Count 1, they should have found him not guilty on Count

2.

Inconsistent verdicts are not a bar to conviction if

there is sufficient evidence to support the jury’s determination of

guilt. United States v. Gieger, 190 F.3d 661, 664 (5th Cir. 1999).

The officer who dealt directly with Ball, Horton, testified about

the transaction in which Ball sold him cocaine base. Horton

testified that he met with Ball at Ball’s residence on November 8,

2000, and purchased two ounces of crack cocaine from Ball for

$1,600.00. He testified that he dealt directly with Ball, placing

the money directly in his hands. There was sufficient evidence to

support the conviction on Count 2.

Ball next argues that his conviction should be reversed

because the prosecution failed to provide him with the identity of

the confidential informant. He argues that he was denied the right

to confront the witness against him and was deprived of due

process. The denial of a request for disclosure of an informant is

reviewed for abuse of discretion. United States v. Sanchez, 98

F.2d 1384, 1391-92 (5th Cir. 1993). However, because Ball never

asked the court for disclosure of the informant, the failure of the

Government to provide this information is reviewed for plain error.

United States v. Olano, 507 U.S. 725, 730-37 (1993); United States

v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en banc). No. 01-31330 -3-

In Sanchez, 98 F.2d at 1391-92, disclosure of the

confidential informant’s identity was not required because the

informant was not involved in the heroin transaction. The

informant observed the transaction but did not set up the crime or

lead the police to the crime scene. Disclosure was not essential

to the fair determination of guilt or innocence because the

informant’s participation was limited, and the testimony would not

help the defense. Similarly in this case, the informant did not

participate in the transactions in question, he was merely present

in Ball’s residence and observed, and there is no indication that

his testimony would be helpful to Ball. There was no plain error

in the Government’s failure to disclose the identity of the

informant.

As a corollary to his argument concerning the

nondisclosure of the informant’s identity, Ball argues that the

district court abused its discretion in refusing to instruct the

jury concerning the adverse inference to be drawn from a missing

witness. “The propriety of giving a ‘missing witness’ instruction

is necessarily a matter committed to the discretion of the trial

judge.” Labit v. Santa Fe Marine, Inc., 526 F.2d 961, 963 (5th

Cir. 1976). A missing witness instruction is not justified if it

appears that the testimony of the witness would likely have been

merely cumulative or corroborative. United States v. Jennings, 724

F.3d 436, 446 (5th Cir. 1984). The testimony of the informant in

this case would merely have corroborated the testimony of Officer No. 01-31330 -4-

Horton that crack cocaine and money were on the table in Ball’s

residence. The district court did not abuse its discretion in

refusing to give the missing witness instruction to the jury.

Ball argues that the district court erred in denying his

motion for acquittal because no one specifically identified him as

the person who committed the crime. Because Ball failed to renew

his motion for judgment of acquittal at the close of all the

evidence, review is limited to whether his conviction resulted in

a manifest miscarriage of justice. United States v. Inocencio, 40

F.3d 716, 724 (5th Cir. 1994). Horton positively identified Ball

as the person from whom he purchased the drugs. Ball’s argument

that the evidence of his identity was insufficient is frivolous.

AFFIRMED.