                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3988
                                   ___________

United States of America,               *
                                        *
                      Appellee,         *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Kenneth Lanell Lapsley,                 *
                                        *
                     Appellant.         *
                                   ___________

                             Submitted: August 12, 2002

                                  Filed: July 2, 2003
                                   ___________

Before BOWMAN and HEANEY, Circuit Judges, and KOPF1, District Judge.
                         ___________

HEANEY, Circuit Judge.

       Kenneth Lapsley was convicted of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g) and 924(e). He appealed, contending he was denied
a fair trial because the district court did not order the government to disclose the
identity of a confidential reliable informant (CRI). According to Lapsley, the CRI
had relevant, material information, and disclosure of the CRI’s identity was essential


      1
        The Honorable Richard G. Kopf, Chief Judge, United States District Court,
for the District of Nebraska, sitting by designation.
to Lapsley’s right to a fair trial. In 2001, we remanded the matter for the district
court2 to determine if the CRI’s testimony was so integral to Lapsley’s defense as to
overcome the government’s interest in keeping the CRI’s identity secret. See United
States v. Lapsley, 263 F.3d 839 (8th Cir. 2001). On remand, the district court held
an in camera hearing in which it extensively questioned the CRI in order to determine
the CRI’s knowledge of this incident. Finding that the CRI’s testimony was not
material on any disputed issues, the district court denied Lapsley any relief. After
independently reviewing the record, including the sealed transcript of the district
court’s interrogation of the CRI, we agree, and thus affirm Lapsley’s conviction.

       We detailed much of the relevant background of this case in our earlier
opinion. United States v. Lapsley, 263 F.3d 839 (8th Cir. 2001). This case developed
as the result of a search warrant executed on March 14, 1995, in connection with the
murder of Ronald Harris. The warrant was based on information from a CRI, who
had told police that Adrian Riley and others were responsible for the murder.
Lapsley, Mary Riley (Adrian’s mother), and Adrian all lived together at the residence
the police sought to search. According to the CRI, the residence contained a number
of weapons, including a black .380 caliber pistol.

       The officers found all of the weapons described by the CRI when they searched
the residence. While searching Lapsley’s and Mary Riley’s bedroom, officers
discovered a black .380 caliber handgun under the mattress of the bed. Adrian Riley
told the police that the gun belonged to Lapsley. Lapsley denied the gun was his and
suggested it was hidden under his mattress by Adrian or someone else without his
knowledge.




      2
       The Honorable James M. Rosenbaum, United States District Court for the
District of Minnesota.

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       Prior to trial, Lapsley moved the district court for an order requiring the
government to disclose the CRI’s identity. “In a motion to compel disclosure of a
confidential informant, the defendant bears the burden of demonstrating a need for
disclosure.” United States v. Wright, 145 F.3d 972, 975 (8th Cir. 1998). The court
must weigh “the defendant’s right to information against the government’s privilege
to withhold the identity of its confidential informants.” United States v. Fairchild,
122 F.3d 605, 609 (8th Cir. 1997) (quoting United States v. Harrington, 951 F.2d 876,
877 (8th Cir. 1991)). “Where the disclosure of an informer’s identity, or of the
contents of his communication, is relevant and helpful to the defense of an accused,
or is essential to a fair determination of a cause, the privilege must give way.”
Rovario v. United States, 353 U.S. 53, 60-61 (1957).

      While there is no litmus test for determining when disclosure is required, we
have held that perhaps the most important factor for a court in this circumstance to
consider is whether the CRI’s information is material to the defense. Harrington, 951
F.2d at 877. “[E]vidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different.” Id. at 878. Consequently, “disclosure is typically not required when
the informant ‘merely convey[s] information to the government but neither
witness[es] nor participat[es] in the offense.’” United States v. Chevre, 146 F.3d 622,
623 (8th Cir. 1998) (quoting United States v. Harrington, 951 F.2d 876, 878 (8th Cir.
1991)).

      Throughout the entirety of these proceedings, Lapsley has argued that the
CRI’s identity was essential to his defense because “the CRI was potentially the last
person besides [Adrian] Riley to see the firearm before it was seized by the police,
and would testify that Lapsley did not have constructive possession of the gun.”
Lapsley, 263 F.3d at 841. Because our record was unclear on this point, we
concluded that a hearing to fully explore this point was in order. Id. at 843-44. On



                                          -3-
remand, the district court, consistent with our instruction, conducted a lengthy
interview with the CRI and reported the following information:

            At the in camera hearing, the CRI testified under oath about the
      murder of Ronald Harris, the guns used by the murderers, the types of
      guns stored at [the Lapsley/Riley residence], the location of the guns in
      the apartment, and the specific guns used and owned by both Mr. Riley
      and Mr. Lapsley. The CRI further testified that Mr. Riley’s gang
      stockpiled weapons at the house, and that many guns regularly passed
      through the house . . . at any given time. Finally, the CRI testified about
      a chrome and black .380 pistol that belonged to Mr. Riley and that the
      CRI had seen in Mr. Lapsley’s possession.

             The CRI was then shown a picture of the black .380 pistol at issue
      in this case, but could not recall ever having seen either Mr. Lapsley or
      Mr. Riley with an all black .380 like the one in the photo.

United States v. Lapsley, No. 99-CR-252, slip op. at 3-4 (D. Minn. Apr. 15, 2002)
(determination on review). Because the CRI lacked knowledge about whether
Lapsley actually or constructively possessed the gun, the district court refused to
reveal the CRI’s identity.

      After independently reviewing the transcript of the in camera hearing, we find
no error in the district court’s decision. Clearly, the CRI could not have testified
about whether Lapsley actually possessed the gun because the CRI did not remember
ever seeing the gun before. As to constructive possession, again, the CRI could not
have given material testimony about a gun that the CRI had never seen.3 Although
Lapsley now argues that other aspects of the CRI’s testimony may have cast doubts
on the truthfulness of other prosecution witnesses, we do not believe that the


      3
       If anything, the hearing revealed that the CRI would have been an adverse
witness to the defense: the CRI testified unequivocally that Lapsley had indeed been
in possession of a .380 caliber pistol, albeit a silver and black one.

                                         -4-
inconsistencies were so widespread or material as to undermine our confidence in the
trial’s result. Thus, we affirm the conviction.

      A true copy.

            Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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