United States v. Wes Davenport

1 F. App'x 608

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 19, 2001
• Docket: 00-2719
• Status: Unpublished

Opinion

PER CURIAM.

Wes Davenport was a confidential informant who occasionally purchased illegal drugs from dealers for the North Little Rock police. On October 31, 1998, he was stopped for speeding and, during a pat-down search, officers found a handgun and crack cocaine. Davenport was arrested and charged with drug and weapons offenses. Davenport was convicted on both counts and sentenced to 180 months’ imprisonment. On appeal, Davenport asserts the district court committed error in refusing to give a jury instruction on his public authority defense. We disagree. The evidence showed Davenport was acting on his own when he sold crack cocaine to an informant and undercover officer on October 27, 1998, and Davenport was not under the supervision or control of the investigators when he was found in possession of crack cocaine and a firearm on October 31, 1998. Because Davenport failed to prove he reasonably relied on the representation of a government official in possessing the gun and drugs, the district court properly refused to give the instruction. See United States v. Achter, 52 F.3d 753, 755 (8th Cir.1995). Davenport also contends the district court committed error in refusing to allow him to ask a police witness a hypothetical question about whether it would be reasonable for a confidential informant to disarm someone during a drug deal. Because Davenport was not acting in a controlled buy situation during the events alleged in the indictment, the hypothetical question assumed facts different from those presented and would have confused and misled the jury. See Iconco v. Jensen Construction Co., 622 F.2d 1291, 1301 (8th Cir.1980). The district court thus properly refused the proposed hypothetical. Accordingly, we affirm Davenport’s conviction.

A true copy.