 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 15, 2012                   Decided June 22, 2012

                        No. 09-3134

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

                      EDWINA BIGESBY,
                        APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:08-cr-00261-1)


     Neil H. Jaffee argued the cause for appellant. With him
on the briefs was A.J. Kramer, Federal Public Defender.

     Eric C. Tung, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese
III and Courtney Denise Spivey, Assistant U.S. Attorneys.

    Before: BROWN and GRIFFITH, Circuit Judges, and
GINSBURG, Senior Circuit Judge.

    Opinion for the Court by Circuit Judge BROWN.
                              2
    BROWN, Circuit Judge: Edwina Bigesby has been
sentenced to ten years’ imprisonment for various drug-related
offenses. In this appeal, she contends her convictions should
be vacated because the trial judge erroneously excluded
evidence critical to her defense. Alternatively, she claims her
sentence should be reduced under the Fair Sentencing Act.
We reject both arguments, and affirm the judgment below.

                               I

     On June 26, 2008, Metropolitan Police Department
(MPD) investigator Michael Iannacchione submitted an
affidavit in support of a search warrant for 1709 Trinidad
Avenue NE, Apartment 1, in the District of Columbia.
According to the affidavit, a confidential informant (CI) had
told Iannacchione that “an individual identified as Reginald
Whitaker has been selling quantities of illegal controlled
substances from within and outside of 1709 Trinidad Avenue,
apartment #1, Northeast, Washington DC.” The CI claimed
Whitaker would receive cell phone calls from customers,
retrieve 14- to 28-gram packets of crack cocaine from either
Apartment 1 or one of two cars parked near the apartment (a
green truck and a black Honda), and sell the packets for cash.

    The affidavit provided additional details supporting the
CI’s story: Whitaker had been arrested in 2006 at the
Trinidad Avenue apartment for distribution of crack cocaine,
and had been arrested one block away in 2002 for possession
with intent to distribute crack cocaine; a National
Comprehensive Consumer Bureau report indicated Whitaker
had been associated with the apartment from June 2007
through February 2008; a second CI stated an individual had
been selling illegal substances from the apartment; and
surveillance confirmed that a black Honda and a green SUV
were parked in front of the apartment. Based on that
                              3
information, Iannacchione declared “probable cause exists
that secreted within 1709 Trinidad Avenue apartment #1
Northeast, Washington, DC., there is a quantity of illegal
controlled substances[,] namely cocaine.”

     The affidavit mentioned Edwina Bigesby only twice. It
stated that the black Honda parked in front the apartment was
registered in her name; and the mailbox listed to the
apartment had her name on it.

     MPD officers executed the warrant on June 27, 2008.
Inside the apartment, they found Bigesby and her three
children, over 100 grams of crack cocaine—76 grams inside
the rear of the television set, 12.3 grams in a woman’s tennis
shoe, 14.7 grams in a woman’s purse, and 3.4 grams in a
different purse—and 3.9 grams of marijuana in a plastic bag
in the bedroom. They recovered 13 grams of heroin from the
trunk of the black Honda parked outside. Whitaker was not in
the apartment, but investigators did find some signs of his
presence: a pair of men’s dress shoes in the bedroom closet,
mail addressed to Whitaker in the dining room, and a pair of
men’s athletic shoes in the trunk of the Honda.

     Two months after the search, the government indicted
Bigesby on charges of possession with intent to distribute 50
grams or more of crack cocaine, possession with intent to
distribute heroin, and possession of marijuana.          The
government did not arrest or charge Whitaker.

     Bigesby’s trial began in July 2009. The prosecution’s
theory was that Bigesby jointly possessed the drugs in the
apartment and the car with Whitaker, the father of two of her
children. They introduced testimony that one of the purses
containing cocaine also contained Bigesby’s driver’s license
and birth certificate; that Bigesby had said during the search
                              4
that she lived in the apartment and that the drugs were her
own; and that Bigesby’s fingerprints were on two ceramic
plates found next to various drug-related paraphernalia.

    For her defense, Bigesby sought to show that Whitaker
alone possessed the drugs, but her attempts to do so were
purportedly limited by several rulings. The trial judge denied
her motion to compel the government to produce the CIs who
provided the information in the warrant affidavit. The judge
also refused to admit the warrant affidavit into evidence,
refused to admit self-incriminating statements Whitaker had
made to Bigesby’s investigator and attorney, and refused to
admit evidence of Whitaker’s 2002 conviction for possession
with intent to distribute crack.

     Without that evidence, Bigesby’s defense consisted
solely of the testimony of Shawnta Evans. Evans testified
that Bigesby and her children had been living with her
(Evans) between April and June 2008, and that Bigesby had
returned to the Trinidad Avenue apartment on the day of the
search just to pick up some items. Evans also testified that
Whitaker had keys to the Trinidad Avenue apartment, that she
had seen him outside the apartment twice in June 2008, and
that she had never seen Bigesby drive the black Honda in
which the heroin was found. Apparently unconvinced, the
jury returned a guilty verdict on all counts.

     On January 6, 2010, the trial judge sentenced Bigesby to
ten years’ imprisonment for the crack cocaine conviction, the
mandatory minimum under 21 U.S.C. § 841(b)(1)(A). The
judge sentenced Bigesby to a concurrent ten-year term on the
heroin conviction, and a concurrent one-year term on the
marijuana conviction. He also imposed a five-year term of
supervised release.
                              5
                              II

     Bigesby contends the trial judge improperly excluded
evidence relevant to her defense and the cumulative effect of
those rulings was to deny her constitutional right to present a
complete defense. She also claims she is entitled to be re-
sentenced under the Fair Sentencing Act, which increased the
amount of crack cocaine needed to trigger a ten-year
mandatory minimum sentence. We address those arguments
in turn.

                              A

     Bigesby challenges four rulings: (1) the denial of her
motion to compel the government to produce the CIs; (2) the
exclusion of the warrant affidavit; (3) the exclusion of
Whitaker’s self-incriminating statements; and (4) the
exclusion of Whitaker’s 2002 crack cocaine conviction. In
each instance, we find the trial judge did not abuse his
discretion. See United States v. Warren, 42 F.3d 647, 654
(D.C. Cir. 1994) (reviewing denial of motion to produce CI
for abuse of discretion); United States v. Wilson, 160 F.3d
732, 742 (D.C. Cir. 1998) (reviewing “decision[s] to deny
admission of evidence for abuse of discretion”).

     1. Denial of motion to compel the government to
produce the CIs. Before trial, Bigesby moved to compel the
government to disclose and produce the two CIs who had
provided information used in the warrant affidavit. Bigesby
argued the CIs might corroborate her theory that Whitaker
solely possessed the drugs found in the search.

    The trial judge denied the motion under the standard in
United States v. Gaston, 357 F.3d 77 (D.C. Cir. 2004). The
“informer’s privilege” permits the government to “withhold
                              6
from disclosure the identity of persons who furnish
information of violations of law to officers charged with
enforcement of that law,” Roviaro v. United States, 353 U.S.
53, 59 (1957), and the privilege only gives way when the
informer has “some sort of direct connection, either as a
participant or an eyewitness, to the crime charged,” Gaston,
357 F.3d at 84. Here, the judge determined the privilege
should hold because Bigesby committed her charged crimes
on the day of the search, and the CIs “were neither
participants nor eyewitnesses to th[ose] crimes.”

    Bigesby does not challenge the judge’s finding that the
CIs were neither participants in nor eyewitnesses to the
charged crimes. Instead, she contends the judge erred by
applying Gaston’s “participant or eyewitness” test because
the defendant in Gaston sought the identity of the CIs “to
investigate whether the government’s reliance on such
sources was reasonable,” 357 F.3d at 85, while she sought the
identity of the CIs “to rebut the government’s joint possession
theory,” Appellant’s Br. 20.

     Our precedents give no legal weight to that distinction.
In Warren, the defendant sought the identity of a CI who had
informed officers of drug sales at an apartment. Like
Bigesby, the defendant “wished to argue that other occupants
of the apartment on the day of the arrest were the resident
drug sellers.” 42 F.3d at 655. We applied the same standard
we would later apply in Gaston, and affirmed the district
court’s denial of the defendant’s motion because the CI had
neither participated in nor witnessed the charged crimes. Id.
at 654. We do so again here.

     2. Exclusion of the warrant affidavit. In her opening
statement, Bigesby’s counsel claimed the warrant affidavit
would “show . . . that there was a confidential source working
                               7
with Officer Iannacchione.” The government objected, and at
the subsequent bench conference, argued that if the judge
eventually admitted the affidavit into evidence, then he should
also admit: (1) statements from the CIs that they had observed
Bigesby selling drugs in the past; and (2) evidence that MPD
officers had observed Bigesby engaging in suspicious drug-
related behavior in 2007. The trial judge agreed, warning
Bigesby’s counsel that if she persisted in referencing the
warrant affidavit, she would “open[] the door” to the
government’s additional evidence. Bigesby’s counsel opted
not to mention the warrant affidavit in the remainder of her
opening statement.

     The next day, during her cross-examination of Officer
Iannacchione, Bigesby’s counsel once more attempted to
reference statements in the warrant affidavit. When the
prosecution objected, Bigesby’s counsel argued the affidavit
was admissible hearsay. The trial judge repeated his warning
that if he admitted the affidavit, he likely would have to admit
the government’s additional evidence as well. After noting
that both the affidavit and the government’s evidence were
only marginally relevant, the judge chose to exclude both.

     Bigesby now argues the trial judge abused his discretion
by excluding the statements in the warrant affidavit. She
claims the statements were non-hearsay adoptive admissions
under Federal Rule of Evidence 801(d)(2)(b), and were
relevant because they made it less probable that Bigesby
possessed the drugs found in her apartment. The government
concedes both points, see Appellee’s Br. 48, but submits the
judge reasonably excluded the statements under Federal Rule
of Evidence 403 because they were more prejudicial than
probative.
                               8
      We agree. The affidavit’s probative value was limited
because it proved, at most, that the government believed
Whitaker was dealing drugs from the Trinidad Avenue
apartment before it conducted the search. By contrast, the
affidavit had a potentially prejudicial effect. If the judge had
admitted the affidavit but excluded the government’s Rule
404(b) evidence about Bigesby, it could have fostered the
impression that, before conducting the search, the government
believed Whitaker alone had been dealing drugs from the
apartment. That “would have made it easier for the jury to lay
the blame on [Whitaker] for the drug deal despite evidence
presented at trial.” United States v. Lucas, 357 F.3d 599, 606
(6th Cir. 2004). If, on the other hand, the judge had agreed to
admit the government’s 404(b) evidence to counter the
affidavit, it could have distracted the jury from the issue at
hand. See Duran v. Town of Cicero, 653 F.3d 632, 645 (7th
Cir. 2011) (affirming judge’s exclusion of 404(b) evidence
because of the threat of “creating a sideshow and sending the
trial off track”). Faced with those options, the judge did not
abuse his discretion by excluding the affidavit.

     3. Exclusion       of     Whitaker’s   self-incriminatory
statements. At trial, Bigesby sought to introduce the
testimony of her private investigator that Whitaker had
admitted shortly before the trial began “that the cocaine and
the heroin was his and that Ms. Bigesby knew nothing about
it.” The government responded that it had given Whitaker
“multiple opportunities” to meet, and that he had passed up
each one. The government also claimed the circumstances
surrounding the statement did not corroborate it, as required
by Federal Rule of Evidence 804(b)(3). The judge sided with
the government, stating he did not “believe the circumstances
sufficiently indicate[d] trustworthiness.”
                              9
      Under the version of Rule 804(b)(3) in effect during the
trial, a statement is admissible as non-hearsay if “(1) the
declarant was unavailable, (2) the statement was against the
declarant’s interest, and (3) corroborating circumstances
clearly indicate the trustworthiness of the statement.” United
States v. Moore, 651 F.3d 30, 82 (D.C. Cir. 2011). Bigesby
bore the burden of proving the statement met each
requirement. Id.

    The trial judge reasonably found Bigesby had not met her
burden of proof on the third requirement. In United States v.
Edelin, 996 F.2d 1238 (D.C. Cir. 1993), we addressed the
exclusion of a statement from a third party (Bidgell) that the
drugs at issue belonged only to him, not to the defendant
(Edelin). We affirmed the district court’s ruling that there
was a lack of corroborating circumstances because:

       First, Bidgell gave the statements to a defense
       investigator who he knew was working for
       Edelin. Bidgell, who is related to Edelin, may
       have had reason to help the defendant by
       fabricating a story. Second, the investigator
       obtained the statement the day of trial. Third,
       none of the other defense witnesses
       corroborated Bidgell’s statement that the drugs
       did not belong to Edelin.

Id. at 1242.

     Those considerations support the ruling below. Whitaker
admitted his sole ownership of the drugs to Bigesby’s
investigator and attorney, who he knew were in a position to
help her, and he had reason to help her because he was the
father of two of her children. And Whitaker provided the
statement a month before trial—more than a year after
                              10
Bigesby’s arrest, and more than nine months after the
government had started trying to meet with him. In light of
the similarities between the circumstances here and in Edelin,
we find the judge did not abuse his discretion by excluding
Whitaker’s admission.

      4. Exclusion of Whitaker’s prior conviction. Before
trial, the judge denied the government’s motion to introduce
evidence under Federal Rule of Evidence 404(b) that officers
had stopped and interrogated Bigesby in July 2007 after
observing her engaging in what appeared to be a drug
transaction. The judge found the proffered evidence to be “of
little, if any relevance to the material issues in the case”
because of “the significant time lapse, almost a full year,
between the [stop] and the events underlying the case.” He
ruled the evidence inadmissible because its “prejudicial
[effect] . . . substantially outweigh[ed] its probative value.”

     Later, during trial, the judge denied Bigesby’s request
under Rule 404(b) to introduce Whitaker’s 2002 conviction
for possession with intent to distribute crack cocaine. The
judge warned Bigesby that if he agreed to admit Whitaker’s
prior conviction, he “would probably have to re-evaluate” his
pre-trial exclusion of the evidence relating to Bigesby’s 2007
stop and interrogation. He concluded that “the cleanest thing
to do” was to simply deny Bigesby’s request.

     The judge’s ruling was within his discretion under Rule
403. The six-year gap between Whitaker’s conviction and the
discovery of drugs at the Trinidad Avenue apartment limited
the conviction’s probative value. And just as with the warrant
affidavit, Whitaker’s conviction had a potentially prejudicial
effect whether the judge had chosen to admit the
government’s 404(b) evidence to counter it, or had chosen to
exclude that evidence. See supra II.A.2.
                              11
     Because we find the trial judge did not abuse his
discretion with any of the four challenged rulings, we need
not reach Bigesby’s claim that the judge’s errors deprived her
of her constitutional right to present a complete defense.

                              B

     As a fallback, Bigesby argues she is entitled to a reduced
sentence under the Fair Sentencing Act (FSA), which
increased the quantity of crack cocaine needed to trigger the
ten-year mandatory minimum in 21 U.S.C. § 841(b)(1)(A).
But Bigesby cannot benefit from the FSA because it was
enacted eight months after her January 2010 sentencing, and it
is not retroactive.

     The general savings statute provides that “[t]he repeal of
any statute shall not have the effect to release or extinguish
any penalty . . . incurred under such statute, unless the
repealing Act shall so expressly provide.” 1 U.S.C. § 109.
We agree with every circuit court to address the issue that
there is simply “no evidence that Congress intended the
[FSA] to apply to defendants who had been sentenced prior to
the August 3, 2010 date of the Act’s enactment.” United
States v. Baptist, 646 F.3d 1225, 1229 (9th Cir. 2011) (per
curiam) (citing decisions from every circuit court except this
one and the Federal Circuit).

    Bigesby claims we should deviate from our sister circuits,
but her arguments are unpersuasive. She contends Congress
expressed its preference for retroactivity when it gave the
Sentencing Commission authority to promulgate emergency
amendments to implement the FSA, but “Congress’s desire to
have the FSA implemented quickly in no way suggests that it
also intended to have the Act apply retroactively to
defendants sentenced before it was passed.” United States v.
                              12
Bullard, 645 F.3d 237, 248 (4th Cir. 2011). She argues that
not giving the FSA retroactive effect raises equal-protection
concerns, but any such concerns are resolved by Congress’
rational basis for limiting the FSA’s retroactive effect—its
“interest in the finality of sentences.” United States v.
Johnson, 544 U.S. 295, 309 (2005). Finally, Bigesby asserts
that “a new rule for the conduct of criminal prosecutions is to
be applied retroactively,” Griffith v. Kentucky, 479 U.S. 314,
328 (1987), but that Supreme Court pronouncement only
applies to judicially created rules, not statutory amendments
like the FSA, see id. at 322–23.

                              III

    Because the trial judge did not improperly exclude
evidence relevant to Bigesby’s defense, and because Bigesby
is not entitled to re-sentencing under the FSA, the sentence
imposed below is
                                                   Affirmed.
