                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                                                       U.S. COURT OF APPEALS
                       THE ELEVENTH CIRCUIT              ELEVENTH CIRCUIT
                       ________________________             AUGUST 1, 2007
                                                          THOMAS K. KAHN
                             No. 06-14848                      CLERK
                         Non-Argument Calendar
                       ________________________

                 D. C. Docket No. 05-00060-CR-WDO-5

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

JIMMY TIMOTHY BURRIS,

                                                   Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                     _________________________

                              (August 1, 2007)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
       Jimmy Timothy Burris appeals his conviction for possession with intent to

distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(viii). We affirm.

                                  I. BACKGROUND

       In November 2004, a federal grand jury indicted Burris for possession with

intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(viii).1 Burris subsequently moved to suppress any evidence discovered

during the search of his house and argued that the search-warrant affidavit failed to

contain any “evidence of honesty, trustworthiness, or reliability” as to the four

confidential informants who supplied information necessary to establish probable

cause for the issuance of the search warrant. R1-49 at ¶ 6. Burris alleged that the

four confidential informants implicated him in the sale of methamphetamine from

his residence.

       Burris also filed a motion for disclosure of the confidential informants and

contended that his need for that information outweighed the government’s interest

in withholding the informants’ identities and whereabouts. The government

responded that both motions should be denied. The district judge held an

evidentiary hearing on the motions and denied them both. Burris then filed several


       1
         Codefendant Cher Ward was indicted for the same crime. This count was later
dismissed, however, after Ward pled guilty to state charges.

                                             2
motions in limine, including, motions to exclude the testimony (1) of “any agent”

that “others have told the agent that they witnessed the defendant selling

methamphetamine,” on the ground that such testimony would constitute hearsay,

R1-75 at ¶ 1, and (2) the government witnesses should be cautioned not to testify

that officers recovered five guns during the search of Burris’s house, because such

evidence was irrelevant under Federal Rule of Evidence 401 on the issue of

whether he possessed with intent to distribute methamphetamine, R1-78 at p. 2.

      Concerning the first motion in limine, the district judge determined that the

government could establish that police officers searched Burris’s house pursuant to

a search warrant, but the government could not elicit any testimony that the

officers received information from a third source that Burris was dealing

methamphetamine from his house. With respect to the second motion, the district

judge denied the motion and concluded that the government could elicit testimony

that officers discovered guns while conducting the search of Burris’s residence.

      During his opening statement at trial, defense counsel admitted that Burris

was “guilty of possessing . . . methamphetamine, and that is against the law,”

however, he denied that Burris intended to distribute the drug. R5 at 48. The

government called Hubert Jordan, an agent with the Drug Enforcement

Administration (“DEA”), who testified that he discovered methamphetamine at



                                          3
Burris’s residence during the execution of the search warrant. Peter Echevarria, a

DEA forensic chemist, testified that the gross weight of the drugs recovered from

the search of Burris’s residence totaled 206.06 grams. Brandon Sellers, another

government witness, testified that, during the search of Burris’s house, he

discovered $1,558, primarily in one dollar bills, wrapped inside aluminum foil in a

freezer, as well as two firearms. Defense counsel asserted a standing objection to

the relevancy of the guns, but the district judge overruled the objection.

      Thereafter, a juror submitted a question to the judge and asked why officials

searched Burris’s house. During a side-bar conference, the government argued that

it was “essential” that its witnesses be permitted to explain that they had obtained a

search warrant “because of information [from confidential informants] that [Burris]

was dealing drugs out of the house.” Id. at 82. In contrast, defense counsel

maintained that such testimony would violate the Confrontation Clause of the Sixth

Amendment to the Constitution. The judge, however, ruled that the government

could elicit testimony regarding the reason that the officers searched Burris’s

residence.

      The government next presented the testimony of Anna Lumpkin, a local

law-enforcement officer, who testified that she discovered a scanner, which was

programmed to the frequency used by the Baldwin County Sheriff’s Department,



                                           4
in Burris’s kitchen during the execution of the search warrant. Over another

defense objection, Lumpkin testified that criminals often use scanners to listen to

communications within the Sheriff’s Department regarding ongoing investigations

or arrests. Lumpkin also testified that the officers recovered digital scales that

were located in the same box with the methamphetamine, a razor blade, and a glass

tube that probably was used “as a smoking device.” Id. at 98. Lumpkin further

noted that the search of Burris’s master bedroom revealed a book, entitled Secrets

of Methamphetamine Manufacture, Including Recipes for MDMA, Ecstasy, and

Other Psychedelic Amphetamines, as well as firearms. Id. at 100-101, 103.

Defense counsel again objected to the testimony with respect to the discovery of

firearms at Burris’s house.

      Lt. Joseph King, another government witness, testified that, in his

experience as an officer in the Baldwin County Sheriff’s Department, “it’s hard to

find a user that ever has much more than a gram” of methamphetamine because he

or she is “going to take it” if it is available. Id. at 112. In describing the

differences between a “dealer” and a “user,” Lt. King testified that the majority of

dealers in Baldwin County carried over a half-ounce of methamphetamine, and

those that carried even more than that were “prominent ice dealer[s].” Id. at 114.

Lt. King also explained that a dealer ordinarily possessed digital scales and had a



                                            5
large amount of currency at home. Moreover, Lt. King testified that the seven

ounces of methamphetamine recovered from Burris’s residence would sell for

more than $20,000 in Baldwin County, and between $7,000 and $9,000 in Atlanta.2

Id. at 118. Importantly, Lt. King also explained to the jury how he sought and

received the search warrant for Burris’s residence:

       Q.     And how did you become involved in that case?

       A.     I gathered enough evidence to seek a search warrant from a
              magistrate judge in Baldwin County.

       Q.     All right. And what evidence did you come into?

       A.     I received information regarding narcotics activity and
              presented it to the judge and was granted a search warrant for
              [Burris’s] residence and the adjacent shop to his house.

Id. at 120 (emphasis added).

       Defense counsel then moved for a mistrial on the basis that Lt. King’s

testimony violated Federal Rule of Evidence 801, as well as the Confrontation

Clause, because “[w]e’ve just been given hearsay evidence from unknown,

unnamed people to which we don’t have the right to confront and cross.” Id. at

121. The district judge denied the motion and did not give a limiting instruction

with respect to Lt. King’s testimony. The government’s final witness, Cher Ward,



       2
         The DEA forensic chemist testified that the 206.6 grams of methamphetamine yielded
140.4 grams of pure methamphetamine. R5 at 58.

                                              6
testified that she was Burris’s girlfriend and that he provided her with

methamphetamine daily. Ward did not see Burris selling to anyone, although she

occasionally noticed some of Burris’s friends, who also were methamphetamine

users, visiting Burris in his mechanic’s workshop, which was located “[a]bout 150

yards from the house.” Id. at 178.

      Ward further testified that she had been charged in state court with

trafficking in methamphetamine, but, as a result of a plea bargain, she eventually

pled guilty to a lesser charge of possession of methamphetamine in exchange for

agreeing to testify truthfully for the government at Burris’s trial in federal court.

Consequently, Ward testified that she was placed on probation for five years and

was fined $1,000. Additionally, Ward testified that the government charged her

with the offense of misprision, but this charge subsequently was dismissed because

she pled guilty in the state court proceeding. The government introduced into

evidence Ward’s indictment, plea agreement, and sentence.

      On cross-examination, Ward conceded that she could have been charged in

federal court with possession with intent to distribute methamphetamine. When

defense counsel began to cross-examine Ward over the possible sentence she could

have received if she had been convicted of that crime, the district judge stopped the

questioning because it was irrelevant. Defense counsel tried to explain that he was



                                            7
“exploring the deal she got,” but the district judge told counsel to “move onto

something else,” because that line of questioning was “not relevant to [his] client.”

Id. at 190-92. After Ward’s testimony, the government rested.

       Defense counsel moved for an advance ruling on whether the government

would be allowed to rebut Burris’s good character witnesses with hearsay that

other people told law enforcement that Burris sold methamphetamine. Defense

counsel explained that this decision would affect his decision on whether to call

character witnesses. The district judge did not rule in advance, and Burris did not

present any testimony on his behalf.

       During his closing argument, defense counsel admitted that Burris possessed

methamphetamine but denied that he distributed the drug. The jury subsequently

found Burris guilty of possession with intent to distribute methamphetamine. This

appeal followed. On appeal, Burris presents three arguments that we will address:

whether the district judge erred in (1) permitting a government witness to testify

that he obtained a search warrant based on an out-of-court statement “regarding

narcotics activity” at Burris’s house; (2) admitting evidence at trial that firearms

were discovered during the search of Burris’s house; and (3) limiting defense

counsel’s cross-examination of a government witness at trial.3


       3
         Burris also presents a fourth argument, that the district judge abused his discretion in
refusing to provide an advance ruling on the nature and scope of the government’s rebuttal

                                                 8
                                      II. DISCUSSION

A. Search Warrant Based on Out-of-Court Statement

       Burris argues that Lt. King’s testimony that he obtained a search warrant

based on information from “unnamed, unidentified, confidential informants and a

concerned citizen that there had been repeated drug activity at or near Burris’s

home” constituted hearsay, and that the prejudicial effect of this hearsay

substantially outweighed its probative value. Appellant’s Br. at 10. Burris also

asserts that the government cited certain decisions during his trial for the

“erroneous proposition of law” that hearsay may be admitted if the circumstances

of a search warrant were “inextricably intertwined” with a drug case itself. Id. at

13. Accordingly, Burris contends that he “was denied his right to a fair trial and

his conviction must be reversed.” Id. at 15.

       As a preliminary matter, it appears that Burris, on appeal, is challenging Lt.

King’s testimony that he applied for a search warrant based on “information

regarding narcotics activity” exclusively on hearsay grounds and not on both

hearsay and Confrontation Clause grounds as he did in the district court. Id. at 11;

R5-120; see Favre v. Henderson, 464 F.2d 359, 363 (5th Cir. 1972) (noting that


evidence, if certain defense witnesses were called to testify at trial. Because Burris did not make
an offer of proof on the witnesses’ expected testimony, we cannot consider this claim, since
review of the district judge’s decision for error is “impossible.” United States v. Taylor, 417
F.3d 1176, 1180 (11th Cir. 2005) (per curiam).

                                                 9
hearsay rules and the Confrontation Clause, while “generally designed to protect

similar values,” are not congruent and “merely because evidence is admitted in

violation of a long-established hearsay rule does not lead to the automatic

conclusion that confrontation rights have been denied”). Burris frames his

argument on appeal in terms of an evidentiary violation and not a constitutional

violation. Additionally, the evidentiary standard of review is abuse of discretion,

whereas a Confrontation Clause challenge is reviewed de novo. United States v.

Yates, 438 F.3d 1307, 1311-12 (11th Cir. 2006) (en banc). Moreover, while there

are passing references in the appellate brief to the fact that defense counsel raised a

Confrontation Clause issue in the district court, see generally Appellant’s Br. at 10-

15, the brief presents no formal Sixth Amendment or constitutional argument with

respect to Lt. King’s testimony. Consequently, we must determine whether Burris

has waived any Confrontation Clause challenge on appeal. See United States v.

Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006) (recognizing that a party waives any

substantive argument that is not included on appeal and that a passing reference to

the order from which the appealed is taken is insufficient to raise the issue).

      “We generally review a district court’s admission of evidence for an abuse

of discretion.” United States v. Arbolaez, 450 F.3d 1283, 1289 (11th Cir. 2006)

(per curiam). The Federal Rules of Evidence define hearsay as “a statement, other



                                           10
than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). “We have

ruled that testimony as to the details of statements received by a government agent

and later used as the basis for an affidavit in support of a search warrant, even

when purportedly admitted ‘not . . . for the truthfulness of [what the informant said

but] to show why [the agent] did what he did’ after he received that information,

constitutes inadmissible hearsay.” Arbolaez, 450 F.3d at 1290 (citation omitted)

(omission and alteration in original).

      Even if hearsay is improperly admitted, however, reversal of a conviction is

not necessarily mandated: “[t]o require a new trial . . . [a] significant possibility

must exist that, considering the other evidence presented by both the prosecution

and the defense, the . . . statement had a substantial impact upon the verdict of the

jury.” Id. (citation omitted) (omissions and alterations in original). We have

recognized: “‘[E]videntiary and other nonconstitutional errors do not constitute

grounds for reversal unless there is a reasonable likelihood that they affected the

defendant’s substantial rights; where an error had no substantial influence on the

outcome, and sufficient evidence uninfected by error supports the verdict, reversal

is not warranted.’” Id. (citation omitted) (alteration in original). In Arbolaez, we

concluded that the challenged statement constituted inadmissible hearsay, but



                                           11
nonetheless determined that the error was harmless and, therefore, did not require

reversal. Id. at 1291.

      A statement by a law-enforcement officer during trial that he obtained a

search warrant for Burris’s residence based on information that he received

“regarding narcotics activity” there constitutes hearsay. See Arbolaez, 450 F.3d at

1290. Because none of the hearsay exceptions applies in this case, it appears that

the admission of the challenged statement into evidence was improper.

Nevertheless, we conclude that the error, if any, was harmless, because other

evidence independently supported the jury’s verdict. This included seizure of

seven ounces, or 206.06 grams, of methamphetamine, digital scales that were

located in the same box with the methamphetamine, a razor blade, a glass tube that

could have been used as a smoking device, a book entitled Secrets of

Methamphetamine Manufacture, Including Recipes for MDMA, Ecstasy, and

Other Psychedelic Amphetamines, five guns, a scanner that was set to the same

frequency used by the Sheriff’s Department, as well as $1,558 wrapped inside

aluminum foil in a freezer. Additionally, the government presented testimony

from police officers who explained the differences between a “user” and a

“dealer.” A user ordinarily does not possess more than a gram of

methamphetamine at any time, and seven ounces, 206.06 grams, of



                                         12
methamphetamine were worth approximately $20,000 in Baldwin County,

Georgia. In contrast, a dealer ordinarily possesses digital scales and has a large

amount of currency at home. Additionally, the testimony of Burris’s girlfriend was

that he provided her with methamphetamine on a daily basis and that his friends,

some of whom also were methamphetamine users, occasionally visited him in his

mechanic’s workshop.

       Moreover, Burris’s own attorney admitted during opening and closing

arguments that Burris was “guilty of possessing . . . methamphetamine, and that is

against the law.” R5 at 48. A juror reasonably could have interpreted “narcotics

activity” as referring to the act of possession and personal use of an illegal drug

and not to the distribution of methamphetamine. Consequently, the challenged

statement did not necessarily have any more of a substantial impact on the jury’s

verdict than did defense counsel’s own admission with respect to his client’s drug

use. Accordingly, the judge’s error, if any, in admitting the challenged statement

was harmless, and so reversal is not merited on that basis.4 See Arbolaez, 450 F.3d

at 1291.

B. Admission of Firearms Evidence Found During Search of Burris’s House



       4
         To the extent that Burris argued in the district court that the police officer’s statements
violated the Confrontation Clause of the Constitution, he waived this claim by not formally
arguing it on appeal. See Gupta, 463 F.3d at 1195. Therefore, we do not address this claim.

                                                 13
      Burris argues that the district judge erred in admitting evidence at trial that

firearms were discovered during the search of his house, because it was as likely

that he “possessed the weapons for reasons unrelated to an intent to distribute

drugs as it is that he used them to further drug distribution.” Appellants’ Br. at 24.

He asserts that the government failed to establish “a nexus between the gun and the

drug trafficking operation,” id. at 23, and, thus, this evidence was “impermissibly

prejudicial,” id. at 24.

      We review a properly preserved claim of evidentiary error for abuse of

discretion. United States v. Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992). We

have identified the presence of weapons with the conclusion that a defendant is

dealing or manufacturing drugs. United States v. Ramsdale, 61 F.3d 825, 830

(11th Cir. 1995). Moreover, we have explained that “[i]t is uniformly recognized

that weapons are often as much ‘tools of the trade’ as the most commonly

recognized narcotics paraphernalia.” Id. (citation omitted) (alteration added).

Under Ramsdale, we conclude that the district judge did not abuse his discretion in

allowing the government to introduce evidence that weapons were seized from

Burris’s house as part of its case in chief to prove the charge of possession with

intent to distribute methamphetamine.

C. Limitation of Cross-Examination of Government Witness by Defense Counsel



                                          14
      Burris argues that the district judge abused his discretion in sua sponte

foreclosing his cross-examination of Cher Ward, whose testimony “became the

lynchpin of the Government’s case.” Appellant’s Br. at 20. Burris asserts that it

was “essential” for Ward’s “bias to be revealed to the jury to determine how to

consider her testimony,” id. at 21, and that her bias “could only be revealed in the

method [Burris] used in the beginning of his cross-examination—to set forth the

charges and sentence to which Ward was exposed before she made the decision to

enter a guilty plea and to contrast that with the benefit of the bargain she received

once she agreed to testify for the Government against Appellant Tim Burris,” id. at

21-22. Burris cites three cases, Olden v. Kentucky, 488 U.S. 227, 109 S.Ct.

480 (1988) (per curiam), United States v. Baptista-Rodriguez, 17 F.3d 1354 (11th

Cir. 1994), and Lankford, 955 F.2d 1545, where courts have concluded that a

district judge violated the Sixth Amendment to the Constitution by limiting cross-

examination of a particular witness.

      A district judge’s discretion in limiting the scope of cross-examination is

subject to the requirements of the Sixth Amendment. Lankford, 955 F.2d at 1548.

The right of cross-examination is embodied in the constitutional right of

confrontation guaranteed by the Sixth Amendment. Id.

      Cross-examination has traditionally been allowed for the purpose of
      impeaching or discrediting the witness. In particular, the exposure of a

                                          15
      witness’ motivation in testifying has been labelled by the Supreme
      Court as an important function of the Sixth Amendment right to
      cross-examination. “This court has long recognized the particular
      importance of searching cross-examination of witnesses who have
      substantial incentive to cooperate with the prosecution.” The
      importance of such cross-examination does not depend upon whether
      or not some deal in fact exists between the witness and the
      government. What counts is whether the witness may be shading his
      testimony in an effort to please the prosecution. “A desire to cooperate
      may be formed beneath the conscious level, in a manner not apparent
      even to the witness, but such a subtle desire to assist the state
      nevertheless may cloud perception.” And further, where the witness
      sought to be cross-examined is the government’s “star” witness,
      “‘providing an essential link in the prosecution’s case, the importance
      of full cross-examination to disclose possible bias is necessarily
      increased.’”

Id. (citations omitted).

      If a district judge improperly limits the cross-examination of a witness,

under the Sixth Amendment, reversal of a conviction is not automatically required.

To the contrary, reversal is required only if the error was not “‘harmless beyond a

reasonable doubt.’” Id. at 1552 (citation omitted). “In making this determination,

a ‘host of factors’ are to be considered, including “the importance of the witness’

testimony in the prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the testimony of the

witness on material points, the extent of cross-examination otherwise permitted,

and, of course, the overall strength of the prosecution’s case.” Id. (citation

omitted). “The test for the Confrontation Clause is whether a reasonable jury

                                          16
would have received a significantly different impression of the witness’ credibility

had counsel pursued the proposed line of cross-examination.” United States v.

Garcia, 13 F.3d 1464, 1469 (11 th Cir. 1994).

      From an evidentiary standpoint, a trial court has “broad discretion under

Federal Rule of Evidence 611(b) to determine the permissible scope of

cross-examination.” Lankford, 955 F.2d at 1548. “Cross-examination should be

limited to the subject matter of the direct examination and matters affecting the

credibility of the witness. The court may, in the exercise of discretion, permit

inquiry into additional matters as if on direct examination.” Fed.R.Evid. 611(b).

An evidentiary error will require reversal only if it had a prejudicial effect on the

defendant. United States v. Reed, 700 F.2d 638, 646 (11th Cir. 1983). This

requires “‘an examination of the facts, the trial context of the error, and the

prejudice created thereby as juxtaposed against the strength of the evidence of

defendant’s guilt.’” Id. (citation omitted). The defense had the constitutional right

to question the cooperating government witness over the plea bargain and any

“‘substantial incentive’” that she may have received in exchange for testifying at

Burris’s trial. See Lankford, 955 F.2d at 1548 (citation omitted). Because the plea

bargain was initially discussed on direct examination, it was within the scope of

permissible cross-examination under the Federal Rules of Evidence. See



                                           17
Fed.R.Evid. 611(b).

      Nevertheless, we conclude that the error, if any, was harmless. While the

witness’s testimony undoubtedly was an important part of the government’s

prosecution of Burris, since she provided direct testimony that Burris distributed

drugs to her on a daily basis, there was overwhelming additional evidence

supporting Burris’s guilt. Moreover, Burris did not argue in the district court and

does not argue on appeal that he intended to introduce evidence to contradict the

witness’s testimony on any material point. Rather, Burris asserts that he wanted to

reveal the witness’s bias in favor of the government because of the plea agreement,

a revelation that already had been made during direct examination. Therefore, this

issue on appeal fails.

                                III. CONCLUSION

      Burris has appealed his conviction for possession with intent to distribute

methamphetamine based on various trial rulings. As we have explained, none of

these challenges on appeal merits reversal of his conviction. Accordingly, Burris’s

conviction is AFFIRMED.




                                         18
