                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 16-4046


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARIO LAMAR WAIR, a/k/a Unda,

                Defendant – Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:14-cr-00248-GLR-9)


Submitted:   August 11, 2016                 Decided:   November 21, 2016


Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished opinion.        Judge Duncan wrote the
opinion, in which Judge Floyd and Senior Judge Hamilton joined.


Harry D. McKnett, LAW OFFICE OF HARRY D. MCKNETT, LLC, Columbia,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Seema Mittal, Assistant United States Attorney, Leo J.
Wise, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

     Mario Wair was indicted on two drug-related offenses for

conspiring to distribute and possess with intent to distribute

500 or more grams of cocaine and 280 grams or more of cocaine

base between June 2013 and June 2014, in violation of 21 U.S.C.

§§ 841, 846 (Count One), and distributing and possessing with

intent to distribute more than 28 grams of cocaine or cocaine

base, in violation of 21 U.S.C. § 841(a)(1) (Count Two).                   A jury

convicted him on both counts, and the district court sentenced

him to 180 months in prison.             On appeal, Wair argues that the

district court erred in (1) striking his testimony regarding his

public     authority    defense    and        (2)    instructing   the   jury    to

disregard    such     testimony   during       its    deliberations.     For    the

following reasons, we affirm.



                                         I.

     In March of 2008, Wair agreed to serve as a confidential

informant (“CI”) for the Baltimore Police Department (“BPD”) in

exchange    for   a   reduction   in     his    sentence    from   a   prior    drug

conviction.       As part of his agreement with BPD, Wair agreed to

refrain from engaging in criminal activities or undertaking any

investigation without the express approval of his supervising




                                         2
officer. 1         Under BPD’s CI program, a supervising officer could

authorize a CI to make a controlled purchase of illegal drugs

under       “very       strict      circumstances.”       J.A.   157.     BPD    required

supervising officers to maintain control and supervision over a

CI before, during, and after any controlled purchase. 2                         BPD never

permitted supervising officers to approve the sale of illegal

drugs under any circumstances.

     Wair         was     initially      assigned   to    Detective     Hagee,    but   he

began working under the direction of Officer Lettau beginning in

2009.        Between          August   and   October     of   2009,    Wair   worked    for

Lettau       as     a    CI    on    three   occasions,       making    one   controlled

purchase          and    providing      information      on    two    other   occasions.

After Wair assisted BPD on those three occasions, Lettau lost



        1
       The registration form Wair signed to become a CI contained
clear conditions and directives regarding the permissible scope
of his activities, including:

        You shall not initiate a plan to commit criminal
        activities.
        You shall not become involved in criminal activities.
        You shall not undertake any investigation of any kind
        without the expressed approval and direction of your
        control agent.

Supp. J.A. 11.

        2
       According to Officer Lettau, a BPD officer would typically
meet with a CI to provide instructions and funds to complete the
drug   transaction,  surveil   them   as   they  engage  in   the
transaction, and then meet them at a predetermined location to
recover the drugs that had been purchased.



                                               3
contact with him.          On January 18, 2012, BPD deactivated Wair as

a CI due to inactivity.                While Lettau tried to alert Wair, no

evidence         established     that     Wair      was     ever    informed      of     his

deactivation.

       On       February   4,    2014--more         than    two     years     after      BPD

deactivated Wair and over four years since Wair last provided

formal assistance to BPD--FBI agents stopped Wair as he left the

home       of   codefendant     Kareem    Moore      and    seized    140.9      grams    of

cocaine base and 261.6 grams of cocaine from him.                          Wair provided

the names of his supervising officers to the agents and claimed

that he was working as a CI.               He admitted to purchasing cocaine

earlier that day and selling some of it to Moore.                                 He also

admitted        to   having     sold     cocaine      to    Moore     on    as   many     as

50 occasions         during     the    past       several    years.         After      being

released by FBI agents on February 4, he was arrested on July 8,

2014.       Wair was indicted for the relevant crimes in connection

with the criminal prosecution of four other codefendants.

       At trial, Wair attempted to invoke the public authority

defense, which provides an affirmative defense for a defendant

who reasonably relied on the authority of a government official

in committing otherwise illegal acts. 3                      He testified that he


       3
       Wair failed to provide adequate notice of his intention to
raise a public authority defense as required by Rule 12.3 of the
Federal Rules of Criminal Procedure.         The district court
(Continued)
                                              4
believed he was acting as a CI under the direction of Hagee

during the alleged drug conspiracy between June 2013 and June

2014.    He claimed that he continued to remain in communication

with Hagee and provided him with information from 2008 up until

February 2014 “and beyond.”                   J.A. 238.        Wair stated that he had

not spoken to Hagee for “at least” a week before engaging in the

drug    transactions        on    February       4,     but    intended    to    notify    him

after the fact.           J.A. 243.         Wair testified that he had received

payments          from    Hagee        on     several     occasions        for    providing

information         and   making       controlled        purchases,       but    offered   no

evidence to substantiate this claim.                          While Hagee acknowledged

having infrequent contact with Wair over the years, he denied

ever providing Wair with any payments, or having directed him to

engage       in    covert   activity          during     the    time      of    the    alleged

conspiracy.

       The     government        moved      to   strike       the   portion       of   Wair’s

testimony         pertaining      to    his    public     authority       defense.        Over

Wair’s objection, the district court granted the government’s

motion, and instructed the jury to disregard any testimony that




conditionally admitted his testimony regarding this defense, but
reserved the right to strike all such testimony and admonish the
jury if he failed to present evidence that Hagee possessed
actual authority to authorize his actions.    See Fed. R. Evid.
104(b), 401.



                                                 5
Wair believed he was acting on behalf of law enforcement during

the time of the alleged drug conspiracy.                            In support of its

ruling, the district court noted “[t]here is no evidence in the

record, in fact, there’s evidence to the contrary that Detective

Hagee possessed any actual authority to be able to authorize the

defendant Wair to engage in the behavior that he engaged in

during the course of the conspiracy between June of 2013 and

June of 2014.” Supp. J.A. 14.



                                            II.

      Trial   courts    have     “broad           discretion        in    ruling   on   the

admissibility     of    evidence,           and     we     will      not    overturn    an

evidentiary   ruling        absent     an    abuse       of    discretion.”         United

States v. Hedgepeth, 418 F.3d 411, 418–19 (4th Cir. 2005).                              We

have held that “a defendant's right to present a defense is not

absolute: criminal defendants do not have a right to present

evidence   that   the       district    court,        in      its    discretion,    deems

irrelevant or immaterial.”              United States v. Malloy, 568 F.3d

166, 177 (4th Cir. 2009).

      The public authority defense “allows a defendant to seek

exoneration based upon his objectively reasonable reliance on

the   authority   of    a    government          official.”          United    States    v.

Fulcher, 250 F.3d 244, 253 (4th Cir. 2001).                              This affirmative

defense requires the defendant to establish that he reasonably

                                             6
relied upon the authority of a government official with actual--

not   apparent--authority         to       authorize      his    otherwise    illegal

actions.    Id. at 253–54.

      The    district    court     did       not    abuse       its   discretion     in

excluding     Wair’s     testimony         regarding      his     public     authority

defense.      Wair     admitted    to      not     only   purchasing       cocaine   on

February 4, but also selling cocaine to Moore on that day and as

many as 50 prior occasions. Hagee had the authority to permit

controlled     purchases     by        a     CI    only     under     “very     strict

circumstances.”      J.A. 157.         Moreover, he lacked any authority to

approve the sale of illegal drugs.                  Even assuming that Hagee’s

authority extended beyond Wair’s termination as a CI in 2012,

Wair failed to present any evidence that Hagee possessed the

actual authority to authorize these illegal transactions. 4



                                           III.

      For the foregoing reasons, we affirm the district court’s

ruling.     We dispense with oral argument because the facts are




      4 Because we affirm the district court’s ruling that Wair
failed to establish that Hagee possessed actual authority to
authorize his actions, we need not address whether Wair
presented    sufficient  evidence  that  he   was   “objectively
reasonable” in relying on Hagee’s authority. Fulcher, 250 F.3d
at 253.



                                            7
adequately   presented   in   the   materials   before   the   court,   and

argument would not aid the decisional process.

                                                                 AFFIRMED




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