                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        December 6, 2005
                                TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 05-8022
          v.                                            (D. of Wyo.)
 ANGELA LaPLATNEY,                              (D.C. No. 04-CR-168-WFD)

               Defendant-Appellant.


                           ORDER AND JUDGMENT           *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.           **




      A jury in the District of Wyoming found Angela LaPlatney guilty on one

count each of conspiracy to possess with intent to deliver and to distribute

methamphetamine pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851

(2004), and concealing a person from arrest pursuant to § 18 U.S.C. 1071 (2003).

LaPlatney argues on appeal that the court violated her constitutional rights in four


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
distinct ways: (1) the exclusion of the federal sentencing guidelines as a

demonstrative aid violated her Sixth Amendment right to a fair trial; (2) the

exclusion of a series of a witness’s booking photographs during cross-

examination similarly violated her Sixth Amendment right to a fair trial; (3) the

failure of the court to instruct the jury regarding the weight to afford witness

testimony resulted in inadequate jury instructions; and (4) the combination of

these errors denied her a fundamentally fair trial.

      We have jurisdiction under 28 U.S.C. § 1291. Because we find no error,

we affirm.

                                   I. Background

      The events leading to LaPlatney’s federal charges began in September

2003, when she bonded her friend Michael Mills out of a Casper jail. It turned

out, Mills, who later pleaded guilty to conspiracy to possess and distribute

methamphetamine, had been improperly allowed out on bond. When federal

authorities learned of Mills’s release, they contacted LaPlatney for questioning.

During an initial interview, LaPlatney misinformed the police about Mills’s

whereabouts. In a subsequent interview, she refused to give the federal agents

any contact information.

      In November 2003, another friend, Kristi Casciato, stayed at LaPlatney’s

apartment over the Thanksgiving holidays. During this stay, Casciato noticed that


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Mills spent a substantial amount of time in the apartment and even babysat

LaPlatney’s two children. Learning that Mills was wanted on federal charges,

Casciato contacted federal agents and agreed to arrange a meeting with Mills. On

December 9, 2003, agents arrested Mills at LaPlatney’s apartment. Later,

LaPlatney also was arrested and charged with drug distribution and harboring a

wanted person.

      Both Mills and Casciato were key witnesses at LaPlatney’s trial, testifying

that LaPlatney harbored Mills and engaged in drug trafficking. LaPlatney’s

alleged constitutional deprivations relate to the testimony of these two witnesses.

                                    II. Analysis

                   A. Sixth Amendment and Demonstrative Aids

      LaPlatney first argues that the district court’s refusal to allow her to use the

federal sentencing guidelines as a demonstrative aid during Michael Mills’s

testimony denied her the right to present a defense. During cross-examination of

Mills, LaPlatney attempted to use the guidelines, purportedly to clarify to the jury

the likely reduction in Mills’s sentence for cooperating with federal agents by

testifying and consequently his incentive to lie. The district court refused, but did

not otherwise restrict LaPlatney’s ability to question Mills about his sentence

reduction. Ruling that introduction of the guidelines table was neither relevant

nor probative, the court expressed concern that showing the jurors the table would


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potentially cause them to “think how [LaPlatney] might be sentenced if she’s

found guilty by them on one or more count.” (Vol. 3 at 249).

       We review a district court’s decision to exclude evidence for abuse of

discretion. United States v. Solomon , 399 F.3d 1231, 1239 (10th Cir. 2005).

While we ordinarily review de novo an allegation of a constitutional violation,    id. ,

we review merely for plain error if such objection is not explicitly made below.

Id. at 1238. However, this standard is inapplicable when the defendant fails to

argue plain error on appeal. In such instances, we deem the constitutional issue

waived. Id. Here, LaPlatney failed to make an explicit Sixth Amendment

objection below and further failed to argue plain error on appeal; consequently,

this argument is waived. Nevertheless, under any standard of review the district

court committed no error.

       LaPlatney argues that her inability to use the guidelines as a demonstrative

aid impaired her right to present a defense. This right arises under both the Fifth

and Fourteenth Amendment rights to due process as well as the Sixth Amendment

right to compulsory process.    Id. at 1239. It confers on the defendant the ability

to present witnesses, and by necessity, “the right to have the jury hear the

testimony those witnesses are called to give.”    Richmond v. Embry , 122 F.3d 866,

871 (10th Cir. 1997). However, the ability to present such testimony is not

without limits. The defendant is both “constrained by the twin prongs of


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relevancy and materiality,”   Solomon , 399 F.3d at 1239, as well as the “established

rules of evidence and procedure [which] assure both fairness and reliability in the

ascertainment of guilt or innocence.”   Richmond , 122 F.3d at 871–72 (quoting

Chambers v. Mississippi , 410 U.S. 284, 302 (1973)). Accordingly, in determining

whether to permit such evidence, the court must balance the importance of such

evidence to the case at hand against legitimate state interests in excluding such

evidence. Id. at 872.

      LaPlatney’s right to a fair trial was not impeded. Even if the guidelines

chart was relevant, LaPlatney fails to argue how its exclusion materially impeded

her defense. See id. (“[M]aterial evidence is that which is exculpatory- evidence

that if admitted would create reasonable doubt that did not exist without the

evidence.”). The district court allowed LaPlatney wide-latitude to cross-examine

Mills concerning his knowledge of the federal sentencing guidelines generally,

the application of the sentencing guidelines in his case, and the possibility of a

reduction in his sentence under the guidelines. Indeed, as clearly demonstrated in

the trial transcript, LaPlatney took full advantage of such an opportunity.

Additionally, the court recognized that introduction of the guidelines could

prejudice the jury by causing confusion or speculation about their application to

her. As such, the court properly balanced these concerns against the exhibit’s

minimal relevance and materiality.


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       In summary, because the district court permitted LaPlatney to cross-

examine Mills regarding the benefits he expected from the government, and

because the court properly balanced the limited relevance and materiality of the

guidelines chart against its potential prejudicial effect, the district court neither

abused its discretion nor committed plain error. Accordingly, we conclude that

LaPlatney’s constitutional right has not been violated   .

               B. Sixth Amendment and the Exclusion of Photographs

       LaPlatney next asserts that the exclusion of Kristi Casciato’s booking

photographs similarly denied her the right to present a defense. During the cross-

examination of Casciato, LaPlatney attempted to admit a series of historical

photographs in order to impeach Casciato concerning her prior and current use of

methamphetamine. According to LaPlatney, the photographs would “give a

pictorial record of a woman . . . who starts off in 1997 a beautiful young girl

[and] [b]y the time we get to 2004, she looks like the meth posters we see all the

time . . . .” (Vol. 3 at 379). The court ruled that the photographs were

inadmissible, stating “I think you’re asking this jury to conclude that these

pictures, in and of themselves, show that [Casciato] has had ongoing use of

methamphetamine, and I don’t think a clinician would make that assessment. So I

certainly don’t think a layperson, you or I or the jury, should make that kind of

assessment.” (Vol. 3 at 382).


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       Applying an abuse of discretion standard, we find no error. To admit these

photographs, LaPlatney necessarily must lay a proper foundation by showing that

“the matter in question is what the proponent claims.” Fed. R. Evid. 901;   see

United States v. Cardenas , 864 F.2d 1528, 1531 (10th Cir. 1989) (“The condition

precedent to the admission of real evidence is met by providing the proper

foundation.”).   Simply asserting, in the absence of any supporting evidence, that

the photographs evidenced drug use at a particular point in time is insufficient.

Without an adequate foundation, the photographs were properly excluded.       See

United States v. Hart , 729 F.2d 662, 669 (10th Cir. 1984) (“[Q]uestions

concerning the sufficiency of foundation evidence . . . are matters within the

sound discretion of the trial court.”).   1



       In sum, the exclusion of the photographs did not violate LaPlatney’s

constitutional right to present a defense.

                       C. Jury Instruction on Witness Credibility

       LaPlatney’s third argument asserts the district court erred by failing to give

a jury instruction regarding witness credibility. To combat what LaPlatney




       As with the first argument, LaPlatney failed to raise any Sixth
       1

Amendment argument below or plain error on appeal. Since we find no error,
LaPlatney could not satisfy plain error review even if she had preserved this
argument.

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characterized as a series of untruthful witnesses, she proposed the following

instruction:

      The testimony of some witnesses must be considered with more caution
      than the testimony of other witnesses.

      For example, a witness who was using addictive drugs during the time
      he or she testified about may have an impaired memory concerning the
      events that occurred during that time. Also, a witness who has been
      promised that he or she will not be charged or prosecuted, or a witness
      who hopes to gain more favorable treatment in his or her own case, may
      have a reason to make a false statement because he or she wants to
      strike a good bargain with the Government.

      So, while a witness of that kind may be entirely truthful when
      testifying, you should consider that testimony with more caution than
      the testimony of other witnesses.

(Vol. 1, Def.’s Proposed Jury Instructions). The court refused this instruction,

ruling that phrasing the instruction as LaPlatney proposed would make the court

“an advocate” for the defendant and that the proposed instruction “really is more

argument than it is instructive on the law.” (Vol. 4 at 620–21).

      In lieu of LaPlatney’s proposed instruction, the court tendered standard

instructions concerning witness credibility. For example, Instruction No. 9

addressed the credibility of witness testimony generally:

      In making your assessment [of witness credibility] you should carefully
      scrutinize all of the testimony given, the circumstances under which
      each witness has testified, and every matter in evidence which tends to
      show whether a witness, in your opinion, is worthy of belief. Consider
      each witness’s intelligence, motive to falsify, state of mind, and
      appearance and manner while on the witness stand. Consider the


                                         -8-
       witness’s ability to observe matters as to which he or she has testified
       ....

       Instruction No. 11, addressing Mills’s testimony in particular as a potential

recipient of reduced sentencing, cautioned the jury:

       You have heard that the witness Mike Mills was a defendant and that
       Mr. Mills entered a plea of guilty to a crime. This evidence of Mr.
       Mills’s plea of guilty is admitted for very limited purposes.
       Specifically, the evidence is admitted so that you may assess the
       credibility of this witness as part of your duty in assessing the
       credibility of each and every witness who will appear in this case . . .
       Under no circumstances should the evidence of Mr. Mills’s [] guilty
       plea be used by you as evidence of the guilt of the defendant.

       Instruction No. 12 similarly addressed the issue of witness self-interest:

       You, as jurors, must determine whether the testimony of a witness has
       been affected by self-interest. If you so infer, the testimony must be
       examined and weighed by the jury with greater care than the testimony
       of someone who is appearing in court without a personal interest in
       offering the testimony.

       Finally, Instruction No. 13 addressed the potential effect of alcohol or drug

abuse upon witness credibility:

       The testimony of a drug or alcohol abuser must be examined and
       weighed by the jury with greater care than the testimony of a witness
       who does not abuse drugs or alcohol.

       The jury must determine whether the testimony of the drug or alcohol
       abuser has been affected by drug or alcohol use or the need for drugs or
       alcohol.

       We review a district court’s refusal to give a particular jury instruction for

abuse of discretion.   United States v. Serrata , 425 F.3d 886, 898 (10th Cir. 2005).


                                           -9-
In performing this review, we consider de novo the instructions in their entirety in

order to determine whether they accurately convey the governing law and the

applicable standards to the jury.   Id. ; United States v. Buonocore , 416 F.3d 1124,

1131–32 (10th Cir. 2005).

       We conclude that the court’s tendered instructions more than adequately

conveyed the applicable standards to the jury and therefore the court did not err

by rejecting the instruction proposed by LaPlatney. Instruction Nos. 9, 11, 12,

and 13 provided the jury with an ample description of the law and applicable

standards to consider witness testimony. Accordingly, the district court’s refusal

to tender LaPlatney’s particular jury instruction was not an abuse of discretion.

                            D. Cumulative Error

       LaPlatney finally argues she was denied her due process right to a

fundamentally fair trial through the combined effect of (1) the exclusion of the

federal sentencing guidelines as a demonstrative aid; (2) the exclusion of

Casciato’s booking photographs; and (3) the refusal to tender her proposed jury

instruction.

       “As applied to a criminal trial, denial of due process is the failure to

observe that fundamental fairness essential to the very concept of justice. In

order to declare a denial of it we must find that the absence of that fairness fatally

infected the trial; the acts complained of must be of such quality as necessarily


                                          -10-
prevents a fair trial.”   Lisenba v. California , 314 U.S. 219, 236 (1941). When

performing a cumulative-error analysis, only those matters which we determine to

be error are relevant. Non-errors, by their very nature, are irrelevant to this

analysis. United States v. Rivera , 900 F.2d 1462, 1471 (10th Cir. 1990). Because

we find no errors by the district court, we accordingly find no cumulative error.

                                    III. Conclusion

       For the above stated reasons, we find that LaPlatney has not been denied

her right to a fair trial, and we therefore AFFIRM.

                                                  Entered for the Court

                                                  Timothy M. Tymkovich
                                                  Circuit Judge




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