     Case: 10-30716     Document: 00511613407         Page: 1     Date Filed: 09/26/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 26, 2011

                                       No. 10-30716                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee
v.

TRAVIS C. DAVIS,

                                                  Defendant – Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:09-CR-275-1


Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Travis Davis (“Davis”) appeals his conviction on five charges involving
drugs and firearms, arguing that the prosecution should have been required to
disclose the identity of a confidential informant (“CI”) who provided law
enforcement with information leading to a search warrant that, in turn, led to the
evidence offered against him. We AFFIRM Davis’s conviction and sentence,
except that we REMAND to the district court to correct a sentencing error
resulting in Davis’s sentence for one count exceeding the statutory maximum.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   I. FACTS
       Davis was the target of a narcotics-related investigation run by the
DeSoto Parish Sheriff’s Office (“DPSO”) for a number of years. On August 5,
2009, Davis was arrested in his home on domestic violence charges. Detective
Keith Banta (“Banta”) of the DPSO, who was a part of the narcotics
investigation, determined that the time following Davis’s arrest would be an
ideal time to execute a search warrant due to the potential for a greater yield.
He obtained a search warrant to search Davis’s house for drugs and other items
relating to the drug trade. Banta’s probable cause to search the house was based
largely on the testimony of a CI that claimed to have seen a large amount of
crack cocaine cookies in a black plastic trash bag inside the residence within the
twenty-four hours prior to the execution of the search warrant. Banta’s affidavit
in support of his search warrant stated that the CI had been giving him
information about Davis’s drug activities for about six months prior to the arrest
and that the CI’s prior leads had been independently verified.
      Inside Davis’s house, Banta and other officers found a black plastic trash
bag as described by the CI. Inside the trash bag were, among other things, 10
bags of crack cocaine, twenty-eight dosage units of ecstasy, a .40 caliber
Springfield Armory XD with a loaded magazine, scales, and a white plastic bag
containing bags of crack cocaine. Additionally, DPSO uncovered a small amount
of marijuana in the defendant’s top dresser drawer and a box of American Eagle
.40-caliber ammunition.
      After the search of his home, Davis was indicted on two firearms charges,
two drug charges, and a claim for forfeiture of certain items seized. Prior to
trial, Davis filed a motion to suppress the evidence and a motion to disclose the
identity of the CI. The magistrate judge issued a report and recommendation to
the district court recommending that Davis’s motion to suppress be denied. The
report also acknowledged Davis’s motion to disclose the identity of the CI and

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stated that disclosure was not merited.        The district court adopted the
magistrate judge’s report as to Davis’s motion to suppress, but did not explicitly
address Davis’s motion to disclose. At trial, Davis’s counsel cross-examined
Banta and twice asked about information pertaining to the CI; both times the
court ended the line of questioning on the grounds that it would tend to reveal
the CI’s identity. Following trial, the jury convicted Davis on all counts.
      At sentencing, Davis objected to the sentencing calculation of the
presentence investigation report (“PSR”) due to the alleged sentencing disparity
between crack cocaine and powder cocaine and his criminal history. The court
overruled the objections and adopted the PSR. The PSR established that Davis’s
guidelines range for Counts One, Two, and Three was 292 to 365 months.
However, the PSR noted that Davis’s sentence as to Count One could not exceed
ten years, the statutory maximum for that offense. On the first three counts, the
district court sentenced Davis to 300 months, to run concurrently; on Count
Four, the court ordered that Davis serve sixty months to run consecutively with
the other terms. The court noted that it chose the term of 300 months based on
Davis’s “personal history, prior criminal record, and considerations of [18 U.S.C.
§] 3553.” Davis timely appealed.
                               II. DISCUSSION
      A. Disclosure of the Confidential Informant
      Davis argues that the district court erred by not requiring the prosecution
to disclose the identity of the confidential informant who told Banta about the
drugs in Davis’s house, or, in the alternative, by not conducting an in camera
hearing to determine the source of the CI’s information and whether the CI’s
testimony was inconsistent with the testimony of witnesses establishing that he
was not at home for approximately nine hours during the twenty-four hour




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                                      No. 10-30716

period prior to the search of his home.1 Davis argues that the CI may have
planted the drugs in his house.
       We review the district court’s decision not to disclose the identity of a
confidential informant for an abuse of discretion. United States v. Sanchez, 988
F.2d 1384, 1391 (5th Cir. 1993). “The purpose of the [informer’s] privilege is the
furtherance and protection of the public interest in effective law enforcement.
The privilege recognizes the obligation of citizens to communicate their
knowledge of the commission of crimes to law-enforcement officials and, by
preserving their anonymity, encourages them to perform that obligation.”
Roviaro v. United States, 353 U.S. 53, 59 (1957). However, “[w]here 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.” Id. at 60–61.
       In weighing the government’s interest in confidentiality against the
defendant’s interest in disclosure, we have established a three-pronged test to
determine when disclosure is mandated. United States v. Cooper, 949 F.2d 737,
749 (5th Cir. 1991). Under this test, we examine: (1) the level of the informant’s
participation in the alleged criminal activity; (2) the helpfulness of disclosure to
any asserted defense; and (3) the government’s interest in nondisclosure (the
“Roviaro factors”). See Roviaro, 353 U.S. at 62–65; United States v. Diaz, 655
F.2d 580, 587-89 (5th Cir. 1981).
       Davis argues that because the district court did not conduct an in camera
hearing, the court cannot properly weigh the first two Roviaro factors. However,
neither an in camera review nor an “on-the-record” Roviaro analysis is required
in every instance involving disclosure of a CI’s identity. See Diaz, 655 F.2d at


       1
        Notably, Davis’s arrest for domestic violence occurred at the same house in which the
drugs were found, establishing that he was at the house for at least some of the period in
question.

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588 (“We do not think that it was necessary for the district court to interview the
informant in camera for we conclude that the informant’s testimony could not
have been significantly helpful to the appellant’s defense.”); United States v.
Hernandez-Vela, 533 F.2d 211, 213 (5th Cir. 1976) (“[A]n appellant must develop
such factors on the record to support an assertion of such error.”)(emphasis
added); see also United States v. Alexander, 559 F.2d 1339, 1344 (5th Cir. 1977)
(“We refuse to adopt a rule requiring a district court to hold an in camera
hearing whenever the identity of an informant is requested.”); United States v.
Toombs, 497 F.2d 88, 90 (5th Cir. 1974) (affirming a district court’s bench ruling
that the defendant’s motion for disclosure was “not . . . sufficient to require the
Court to grant the motion.”). Furthermore, Davis’s interest in the disclosure is
limited by the fact that the CI’s testimony was only used to establish probable
cause to search Davis’s house and was not introduced by the Government at
trial. See United States v. Jackson, 918 F.2d 236, 240 (5th Cir. 1990) (“[T]he
defendant’s interest in disclosure at the suppression state is less than at trial.”).2
       With these principles in mind, we turn to the Roviaro factors. The first
factor, the CI’s involvement in the crime, weighs in favor of nondisclosure. “The
more active the participation, the greater the need for identification.” United


       2
         At oral argument, Davis argued that this lesser liberty interest was not applicable
because he is not challenging the DPSO’s reliance on the CI to establish probable cause, but
rather requesting disclosure so that he could call the CI as a defense witness at trial. We
reject this argument. Davis’s only stated reason for requesting disclosure of the CI’s identity
is to impeach his credibility as it pertains to the discovery of the drugs in Davis’s house.
Davis’s interest in disclosure is not increased by the fact that Davis would prefer to impeach
the CI’s testimony at trial rather than at a suppression hearing. Similarly, nothing in the
disposition of this case presents other legal grounds upon which to challenge the nondisclosure
of the CI’s identity. Because the CI was not called as a witness nor was his testimony used
at Davis’s trial, Davis had no right to disclosure under the Jencks Act. See 18 U.S.C. § 1350
(requiring disclosure after use of testimony at trial). Similarly, there is no indication that the
CI’s testimony would be exculpatory, which would require disclosure pursuant to Brady v.
Maryland, 373 U.S. 83 (1963). We therefore conduct the balancing analysis under the lesser
interest involved where a confidential informant’s testimony only provides probable cause for
a search or seizure.

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States v. Ayala, 643 F.2d 244, 246 (5th Cir. 1981). This factor does not weigh
in favor of disclosure where an informant was only a tipster, or when his “level
of involvement in the criminal activity is that of minimal participation.” Diaz,
655 F.2d at 588.     Here, the only evidence that the informant had any
involvement in the criminal activity is the Government’s acknowledgment that
the CI “had minimal participation in the alleged criminal activity.” Davis has
pointed to no evidence in the record that suggests that the CI’s involvement was
more than minimal, so this factor does not weigh in favor of disclosure.
      The second factor, the helpfulness of disclosure to any asserted defense,
also weighs in favor of nondisclosure. Davis’s only asserted defense at trial was
that he was not at home for “most of” the twenty-four hour period before he was
arrested, the period which the CI testified to having seen the drugs in Davis’s
home. Although Davis claims that the CI stated that Davis received the drugs
in this twenty-four hour period, Officer Banta’s affidavit in support of his
request for a search warrant states instead that the drugs had arrived in the
previous forty-eight hours.     Davis makes no attempt to account for his
whereabouts during the forty-eight hour period before his arrest, and even for
the twenty-four hours immediately preceding the arrest, he has no information
about his location for much of that time period.
      Davis’s stated reason for wanting to call the CI as a witness is to test his
credibility and to determine whether the CI planted the drugs in Davis’s home.
Davis admits that he has no evidence that the CI placed the drugs in his home,
therefore disclosure is not warranted on Davis’s theory that the CI may have
planted the drugs. See United States v. Orozco, 982 F.2d 152, 155 (5th Cir.
1993) (“Mere conjecture or supposition about the possible relevancy of the [CI’s]
testimony is insufficient to warrant disclosure.”); see also Toombs, 497 F.2d at
93 n.5 (“Much more than speculation is required. There must be a compelling
reason for the disclosure.”). Similarly, because the CI’s information only went

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to establishing probable cause for searching Davis’s home, his credibility cannot
be put at issue. This is, at least in part, because “the magistrate is concerned,
not with whether the informant lied, but with whether the affiant is truthful in
his recitation of what he was told.” McCray v. Illinois, 386 U.S. 300, 307 (1967).
      In sharp contrast to the lack of evidence that the CI planted the drugs in
Davis’s home, there is substantial evidence in the record that the drugs found
in Davis’s home belonged to Davis. In a phone call that Davis made to his wife
while incarcerated, he expressed relief that the bust had occurred when it did,
because if the police had made the arrest a little later “they would have really
had something.” At trial, Felicia Hendrix, Davis’s cousin, testified that Davis
supplied her with cocaine in return for bringing him buyers. Furthermore, she
would regularly make trips to receive ecstasy and cocaine from Davis’s suppliers
and help Davis cook the cocaine into crack. Hendrix also testified that Davis
sometimes received guns in payment for drugs. The jury also heard evidence
that Davis’s house had surveillance equipment to monitor any approaching
vehicles. Finally, Davis had a previous felony conviction for possession of crack
cocaine and marijuana. Thus, assuming arguendo that Davis were to prove that
he was not in the home with the cocaine at any point, the evidence would still
support a conviction for constructive possession of the drugs and firearms, and
the possibility that the CI would testify that he planted the drugs is too
attenuated to constitute an essential defense. See United States v. Hare, 589
F.2d 242, 243 (5th Cir. 1979) (“Hare’s theory is that, if revealed, the informer
might testify that Hare . . . did not know what was in the sack. . . . [T]his
possibility (if it can be called a possibility at all) is simply too attenuated to be
considered a necessary part of Hare’s defense.”).
      Because the first two factors do not establish a case for disclosure, we need
not consider the third factor. See Cooper, 949 F.2d at 749-50. We do note,



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however, that the Government presented evidence supporting both the CI’s
continued usefulness and the potential danger of disclosing the CI’s identity.
      B. Sentencing
      Count One of the indictment charged Davis with violation of 18 U.S.C.
§ 922(g)(1), possession of a firearm by a person convicted of a felony. The
maximum sentence that may be imposed for a violation of the statute is ten
years. 18 U.S.C. § 924(a)(2). After his conviction, the district court sentenced
Davis to “a term of 300 months as to Count 1, 2, and 3, all to be served
concurrently.” Davis thus challenges his sentence for Count One as being above
the statutory maximum.
      The Government concedes that the sentence on Count One was erroneous,
but argues that the sentence was simply a clerical error which can be remedied
on remand. We agree and remand to the district court for correction of the
sentence as to Count One. See FED. R. CRIM. P. 36; United States v. Jones, 28
F.3d 1574, 1582 (11th Cir. 1994) (remanding case for resentencing because the
Government conceded error and the error was simple to correct), vacated on
other grounds, 516 U.S. 1022 (1995).
      Davis also argues that his sentence is substantively unreasonable due to
the sentencing disparity between crack cocaine and powder cocaine, but concedes
that this issue is foreclosed from consideration by our decision in United States
v. Martin, 596 F.3d 284, 285-86 (5th Cir.), cert. denied, 130 S. Ct. 3480 (2010).
We therefore affirm the substantive reasonableness of Davis’s sentence.
                              III. CONCLUSION
      For the foregoing reasons, we AFFIRM Davis’s conviction and sentence,
except that we REMAND to the district court for correction of his sentence under
Count One.




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