U.S. v. Bowser, s. 90-3234

• Decision Date: 19 July 1991
• Docket Number: Nos. 90-3234,90-3256,s. 90-3234
• Citation: 941 F.2d 1019
• Parties: 33 Fed. R. Evid. Serv. 1312 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Carland A. BOWSER, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1019

941 F.2d 1019

33 Fed. R. Evid. Serv. 1312

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Carland A. BOWSER, Defendant-Appellant-Cross-Appellee.

Nos. 90-3234, 90-3256.

United States Court of Appeals, Tenth Circuit.

July 19, 1991.

Michael G. Katz, Federal Public Defender, and Jill M. Wichlens, Asst. Federal Public Defender, Denver, Colo., for defendant-appellant-cross-appellee.

Lee Thompson, U.S. Atty., and Robert S. Streepy, Asst. U.S. Atty., Kansas City, Kan., for plaintiff-appellee-cross-appellant.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

PER 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. III 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 confrontation 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. In 1984, when he was twenty years old and a student on athletic scholarship at a junior college, defendant was charged in Sedgwick County, Kansas, with conspiracy to commit armed robbery, aggravated robbery, and kidnapping. Within two months, during the time he was released on bond pending trial on those charges, he was arrested for aggravated robbery in Montgomery County, Kansas. He pled guilty to all charges and was sentenced by each court to prison terms of five to twenty years. The court in Montgomery County originally released defendant to probation, but later ordered that his second sentence be served concurrent with the Sedgwick County sentence. He had no other criminal record of either arrests or convictions as a juvenile or as an adult.

Under the sentencing guidelines, defendant's sentence for his current offenses would have been nearly tripled by the enhancement as a career offender:

[T]he presentence report assigned three points for each prior conviction, pursuant to guideline § 4A1.1(a). The report then added two points because Mr. Bowser committed the instant offense while on parole from his state sentence, see U.S.S.G. § 4A1.1(d), and one more point because he committed the instant offense less than two years after release from imprisonment on the state sentence. See U.S.S.G. § 4A1.1(e). This resulted in nine total points, for a criminal history category of IV. Coupled with an offense level of 26 based on the quantity of cocaine base involved, this yielded a guideline range of 92 to 115 months--7.6 to 9.5 years.

... Because Mr. Bowser's two prior convictions qualified as crimes of violence within the meaning of guideline § 4B1.1, he was classified as a career offender. This classification raised his criminal history category from IV to VI and his offense level from 26 to 34, yielding a new guideline range of 262 to 327 months--21.8 to 27.2 years.

Appellant's opening brief at 12-13 (citations omitted).

Pursuant to United States Sentencing Commission, Guidelines Manual, § 4A1.3 (Nov. 1989), ⁵ the district court found that although defendant technically fit within the definition of a career offender, his history of criminal conduct was significantly less serious than that of most defendants categorized as career offenders. The court stated: "I'm going to find that the two prior felony convictions both occurred ... when he was 20 years of age and within two months of each other. I think to consider him a career offender under those circumstances would be unjust.... He also received concurrent sentences for those offenses." R.Vol. IV at 7. The court sentenced defendant to the penalty under the guidelines for his drug sales with his criminal history but without the enhancement of the career offender categorization.

The Sentencing Reform Act allows a sentencing court to depart from the guidelines if "the court finds that there exists [a] ... mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b). As a threshold issue, we agree with the Eighth and Ninth Circuits that the Sentencing Guidelines permit the district court to depart downward from career offender status. See ...