                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                             June 3, 2005

                                                                    Charles R. Fulbruge III
                                                                            Clerk
                               No. 04-40413
                             Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

HENRY DAVID POTWIN,

                                         Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                            (1:03-CR-44)
                        --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant      Henry   David    Potwin,     a     federal    inmate

formerly incarcerated at the Federal Correctional Institution-

Medium, Beaumont (“Beaumont”), appeals his jury-trial conviction

for possession of heroin by an inmate at a federal prison.                  Potwin

argues that the government’s refusal to reveal the identity of its

confidential     informant   and   failure    to   call    him    as   a   witness

violated   his    Confrontation     Clause    rights      under    Crawford       v.

Washington, 541 U.S. 36 (2004).       Potwin asserts that the district


     *
       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this opinion should not be published and is not precedent except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.
court abused its discretion by excluding the testimony of four of

his witnesses: Damon Fisher; William Digilio; J. Brent Liedtke; and

Randall Mark Manuel.      He contends that the district court abused

its discretion by finding that their proffered testimony was

hearsay and irrelevant, and that its probative value was outweighed

by its prejudicial effect.

     Potwin briefly complains that the government never gave him a

proper address for J.J. Cantu, the former Beaumont inmate who,

according to Potwin, planted the heroin in his tobacco pouch.            To

the extent that Potwin seeks relief for this reason, he has waived

the issue by failing to brief it properly.            See Yohey v. Collins,

985 F.2d 222, 224-25 (5th Cir. 1993); FED. R. APP. P. 28.

     We review alleged Confrontation Clause violations de novo.

United States v. Bell, 367 F.2d 452, 465 (5th Cir. 2004).                 We

review the district court’s evidentiary rulings for an abuse of

discretion.     See United States v. Speer, 30 F.3d 605, 609 (5th Cir.

1994). “[I]n a criminal case, however, review of the trial court’s

evidentiary rulings is necessarily heightened.”            United States v.

Carrillo, 20 F.3d 617, 619 (5th Cir. 1994).             Even if we find an

abuse of discretion in the admission or exclusion of evidence, we

review this issue under the harmless error doctrine. United States

v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996).

     As   the    government   did   not   use   any    statements   of   the

confidential informant against Potwin, his reliance on Crawford is

misplaced.      See Crawford, 541 U.S. at 68.          As the confidential

                                     2
informant was merely a tipster, the government was not required to

disclose his identity.    See United States v. Cooper, 949 F.2d 737,

749 (5th Cir. 1991). Furthermore, “the Government is under no duty

to call witnesses even if they are informers.”      United States v.

Frascone, 747 F.2d 953, 956 (5th Cir. 1984) (quoting United States

v. Tatum, 496 F.2d 1282, 1284 (5th Cir. 1974)).      Potwin has not

shown that his Confrontation Clause rights were violated.

       All of the following proffered testimony was based on out-of-

court statements made by someone other than the witness and was

offered to prove the matters contained therein: (1) the testimony

of Fisher, Digilio, and Liedtke regarding Cantu’s alleged attempt

to have his gang kill Potwin; (2) Digilio’s testimony regarding the

argument between Cantu and Potwin, Cantu’s alleged tacit admission

that he set up Potwin, and an inmate’s ability to set up another

inmate; and (3) Liedtke’s testimony regarding the alleged threat

made by Cantu, Potwin’s fear of being transferred, and the results

of Potwin’s drug tests.    All this testimony was hearsay, see FED.

R. EVID. 801(c); and Potwin has failed to show that any of it was

admissible pursuant to any exception to the hearsay rule.    See FED.

R. EVID. 803, 804, and 807. Accordingly, the district court did not

abuse its discretion by excluding this testimony.    See FED. R. EVID.

802.

       Liedtke’s proffered testimony that he believed that Cantu set

up Potwin was opinion testimony from a lay witness.          As this

testimony was not helpful to clearly understand Liedtke’s testimony

                                  3
or to determine a fact in issue, the district court did not abuse

its discretion in excluding this testimony.             See FED. R. EVID. 701.

       Officer Manuel’s proffered testimony that he observed tension

between Cantu and Potwin was based on his personal observations,

not an out-of-court statement.             Officer Manuel’s testimony that

Cantu called Potwin a rat was not offered to prove the content of

Cantu’s out-of-court statement, i.e., that Potwin was, in fact, a

rat.   Contrary to the district court’s finding, this testimony was

not hearsay.    See FED. R. EVID. 801(c).        Additionally, the following

proffered testimony was based on the witnesses’ personal knowledge

and observations and was not hearsay: (1) Fisher’s testimony

regarding the argument between Cantu and Potwin, Potwin’s habit of

leaving his tobacco pouch on the art room table, and an inmate’s

ability to set up another inmate; (2) Digilio’s testimony regarding

never having seen Potwin possess or use heroin, Potwin’s habit of

leaving   his   tobacco   pouch   on       the   art   room   table,   and   the

questionable safety of inmates deemed to be rats; (3) Liedtke’s

testimony regarding an inmate’s ability to set up another inmate,

Cantu’s marijuana smoking and access to drugs, Cantu’s possible

financial motivation for setting up Potwin, and Potwin’s habit of

leaving his tobacco pouch on the art room table; and (4) Officer

Manuel’s testimony regarding the seriousness of being deemed a rat

in prison, the seriousness of an inmate accusing another inmate of

theft, and Potwin’s habit of leaving his tobacco pouch on the art

room table.     See id.

                                       4
     At trial, Potwin’s theory of the case was that he did not

knowingly possess the heroin found in his tobacco pouch because

Cantu planted it there. Potwin was entitled to present evidence to

support this theory.     See Truman v. Wainwright, 514 F.2d 150, 152

(5th Cir. 1975).     The non-hearsay proffered testimony of Fisher,

Digilio, Liedtke, and Officer Manuel was relevant because it tended

to make Potwin’s theory of the case more probable —— and tended to

make the contention that Potwin knowingly possessed the heroin less

probable —— by showing Cantu’s motive and opportunity to plant the

heroin in Potwin’s tobacco pouch.           See FED. R. EVID. 401; United

States v. Causey, 185 F.3d 407, 419 (5th Cir. 1999) (motive and

opportunity evidence is relevant).

     The district court additionally ruled that the proffered

testimony of Potwin’s witnesses was inadmissible under FED. R. EVID.

403 because its probative value was outweighed by it prejudicial

effect and potential to confuse the jury.            Neither the district

court nor the government, however, has provided any reason as to

why the proffered testimony would unfairly prejudice or confuse the

jury and no such reason is apparent from the record.              The proffered

testimony    was   directly   related      to   whether    Potwin     knowingly

possessed the heroin, the core issue in dispute at the trial.                As

relevant evidence should be excluded pursuant to FED. R. EVID. 403

sparingly,    we   conclude   that   the     district     court     abused   its

discretion by excluding the non-hearsay testimony proffered by



                                     5
Fisher, Digilio, Liedtke, and Officer Manuel. See United States v.

Powers, 168 F.3d 741, 749 (5th Cir. 1999).

     The district court’s abuse of discretion in excluding Potwin’s

witnesses directly affected his compulsory process rights and thus

was an error of constitutional dimension.      See United States v.

Davis, 639 F.2d 239, 244 (5th Cir. Unit B Mar. 1981).   Accordingly,

the abuse of discretion was harmless only if “it is clear beyond a

reasonable doubt that the error did not contribute to the verdict

obtained.”   United States v. Alexius, 76 F.3d 642, 646 (5th Cir.

1996).   Other than Potwin himself, the excluded witnesses were

Potwin’s only witnesses who could testify to facts supporting the

heart of the theory of his case.   Potwin was left with “little more

than the ability to make unsubstantiated and . . . unprovable

claims on the witness stand.”      See United States v. Lowery, 135

F.3d 957, 960 (5th Cir. 1998).         As it is not clear that the

district court’s abuse of discretion did not contribute to the

verdict beyond a reasonable doubt, it was not harmless error.   See

Alexius, 76 F.3d at 646.

     The judgment of the district court is VACATED and this matter

is REMANDED to the district court for a new trial consistent with

this opinion.




                                   6
