James Luvene was found guilty by a jury of conspiracy to possess with the intent to distribute and to distribute over 50 grams of crack cocaine and also of aiding and abetting another in possession with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and
On April 13, 2000, Luvene was arrested after his involvement in a sale of crack cocaine to Minneapolis undercovеr police officer Kevin Angerhofer. Earlier that evening Angerhofer had received information from a woman arrested for selling heroin that Luvene and Bryant Cribbs were crack dealers. She agreed to arrange a drug deal with them. The informant made three taped telephone calls to Luvene and Cribbs. In the first call she told Luvene that she wanted to buy 4 /£ grams of crack for $4,500. She later arranged to meet Cribbs in thе parking lot of a hotel. Angerhofer drove with her to the hotel lot where she joined Luvene and Cribbs in Luvene’s car while Angerhofer waited in his unmarked vehicle. Anger-hofer testified that through his open window he could hеar the others discussing the crack deal since a window in Luvene’s car was also partially open. An agreement was reached, and Luvene and Cribbs told the informant and Angerhofer to wait in the parking lot until they returned. Surveillance officers followed Luvene and Cribbs to their apartment, where the two remained for approximately twenty minutes.
Luvene dropped Cribbs, off elsewhere before driving back to the hоtel lot where he told Angerhofer that his friend had the crack at another location and that Anger-hofer should follow him there. Angerhofer expressed concern that Luvene was trying to cheat him, and Luvene said “No, no. We’re not trying to rip you off.” Anger-hofer told Luvene that he wanted to hold the crack to determine its quality. Luvene answered, “That’s not a problem, you can make sure it’s good.” Luvene then drove to the house where he had left Cribbs, and Angerhofer parked directly behind him. Luvene made a call on his cell phone, and Cribbs came out and walked over to An-gerhofer’s vehicle where the informant took thе crack from Cribbs and passed it to Angerhofer. He then signaled waiting officers to arrest Cribbs and Luvene.
Luvene was searched after he was arrested. He was carrying a key to the apartment he shared with Cribbs, $295 in smаll denominations, and a cell phone. Officers obtained a search warrant for the one bedroom apartment. The officers found crack in a black backpack and in a jacket, a triрle beam scale on the kitchen counter with crack residue on its balance, small plastic bags, another scale with razor marks and cocaine residue in the dining room, $900 cash in an unlocked safe in the bedroom closet, a bulletproof vest, ammunition, and a Glock pistol case.
Cribbs and Luvene were charged jointly, but several days before trial Cribbs pled guilty. Cribbs testified during his plea colloquy that both he and Luvene had possessed the crack with the intent to distribute it, and that they had conspired to do so.
Before trial Luvene hired an investigator to locate the informant. Counsel mentioned at oral argument that the investigator had talked to her on the phone, and Luvene himself had a telephone conversation with her. The investigator also spoke to members of her family, but he was not able to learn where she was. The government disclosed its witness list the week before trial, and the informant’s name was not on it.
On the day before trial Luvene moved in limine, asking the court to order the government to disclose the location of the informant. The court told the government
Luvene indicated he wanted to question Angerhоfer about the whereabouts of the informant, and the court held an evidentia-ry hearing for that purpose. Angerhofer testified that the informant had called him the week after Luvene’s arrest to ask if she would be subpoenaed. She told An-gerhofer that she would not appear in court if she were subpoenaed and implied that she was afraid of being physically harmed. She refused to meet with Anger-hofer, but gave him а telephone number in Chicago. Later it was discovered that she could not be reached at that number. An-gerhofer had no other phone number or address for her.
Luvene’s theory of defense at trial was mere presence, and he testified before the jury. Neither Cribbs nor the informant testified. The jury found Luvene guilty on both counts. The court calculated his sentencing range at 151-188 months and sentenced him at the low pоint of the range. 2 On appeal Luvene asks that his conviction be reversed, arguing that his Sixth Amendment right to compulsory process and his Fifth Amendment right to due process were violated when the government failed tо inform him of the location of the informant and that the district court abused its discretion by not giving an absent witness instruction.
Luvene claims that the informant’s testimony was important to his case because it would have shown thаt the drug negotiation was between her and Cribbs and that Luvene was merely present during their discussion. He claims that her testimony would have been especially important because Angerhofer’s version at trial аbout what happened when the informant got into the car with Luvene and Cribbs differed from his police report and from Luvene’s testimony. The Sixth Amendment provides that “[in] all criminal prosecutions, the accused shаll enjoy the right to ... have compulsory process for obtaining witnesses in his favor.” U.S. Const. Amend. VI. The right to compulsory process is not absolute. Both the Sixth Amendment compulsory process and the Fifth Amendment due process clauses require that a defendant show that the witness “testimony would have been both material and favorable to his defense.”
United States v. Valenzuela-Bernal,
There was ample evidence at trial that Luvene was involved in the drug transaction. The informant’s initial telephone contact was with Luvene when she told him that she wanted to buy crack,
We review the denial of Luvene’s motion for an absent witness instruction under an аbuse of discretion standard.
See United States v. Johnson,
Luvene has not shown that the informant was peculiarly within the government’s power to produce. Luvene alleges that the government was responsible for her unavailability and speculates that her refusal to testify was from fear of being сharged for heroin possession rather than from fear of being harmed by Luvene or his friends. 3 Angerhofer’s testimony, that the informant implied she would be afraid to testify and that she gave him a nonworking Chicago phone numbеr, was unre-butted and supports the government’s argument that it had no control over the informant. Angerhofer’s only face to face contact with the informant was on the day of Luvene’s arrest. Luvene knew the idеntity of the informant and was acquainted with her and her family. He was aware the week before trial that the government did not plan to call the informant to testify, and he waited until the day before trial to ask for disclosure of information about her whereabouts. The court arranged for the government to give him the information, and it conducted an in camera review of the prosecutor’s file and an evidentiary hеaring. It also offered Lu-vene a continuance so that he could try to locate her, but Luvene did not pursue the offer. Luvene has not shown that the government had sole power to produce the infоrmant, and the district court did not abuse its discretion in declining to give an absent witness instruction.
For these reasons, we affirm the judgment of the district court.
Notes
. The Honorable David S. Doty, United States District Judge for the District of Minnesota.
. Luvene was assigned a base offense level of 32 for possession of between 50 and 150 grams of crack cocaine. See U.S. Sentencing Guidelines Manual § 2D 1.1 (c)(4). The district court found that Luvene testified falsely when hе denied involvement in the drug transaction and applied a two level enhancement for obstruction of justice. See id. at § 3C1.1.
. Luvene now argues that the government should have used its influence with the informant to persuadе her to testify, but he never asked the government to attempt to produce the witness. In any event there was sufficient evidence for the jury to find Luvene guilty even if the informant would have given the testimony he has hypothesized.