                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-2002
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
     v.                                   * District Court for the Eastern
                                          * District of Missouri.
Contrez Jones,                            *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: December 13, 2007
                                 Filed: January 11, 2008
                                  ___________

Before RILEY, COLLOTON, and BENTON, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

       After a jury convicted Contrez Jones (Jones) of (1) possession with intent to
distribute in excess of five grams of cocaine base (crack), in violation of 21 U.S.C. §§
841(a)(1), and 851; (2) one count of carrying a firearm in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c); (3) one count of possession of a quantity of
cocaine base (crack), in violation of 21 U.S.C. §§ 844(a), and 851; and (4) one count
of felony possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), the district
court1 sentenced Jones to an aggregate of 252 months’ imprisonment and an eight year

      1
        The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
term of supervised release. On appeal, Jones contends the district court erred in
denying Jones his constitutional right to call witnesses to testify on his behalf. Jones
does not challenge his sentence on appeal. We affirm.

I.    BACKGROUND
      On December 2, 2005, detectives with the St. Louis (Missouri) Police
Department observed Jones entering Martrell Dailey’s (Dailey) car and sitting in the
passenger seat while Dailey occupied the driver’s seat. Believing Jones and Dailey
were engaged in a drug transaction, the detectives approached the car and observed
Jones and Dailey in possession of marijuana. The detectives arrested Jones and
Dailey for possession of marijuana and seized the marijuana. A search of Jones,
incident to the arrest, revealed cocaine base (crack) and $700 in cash.

      On July 27, 2006, a federal grand jury returned an indictment charging Jones
and Dailey with possession with intent to distribute five grams of cocaine base and
possession of marijuana in relation to the December 2, 2005 arrest, together with other
charges. An arrest warrant for both Jones and Dailey was issued as a result of the
indictment. While Dailey was arrested without incident, Jones twice evaded arrest,
once pointing a handgun at a police officer before driving away at a high rate of speed.
Jones was eventually arrested on August 22, 2006.

        Dailey pleaded guilty to the charges in the July 27, 2006 indictment. Pursuant
to the guilty plea, Dailey admitted giving Jones a bag of marijuana when Jones entered
Dailey’s vehicle on December 2, 2005. Dailey was not sentenced until April 19,
2007.

       Jones’s trial commenced on February 5, 2007. After the government rested its
case in chief, Jones informed the district court he intended to put Dailey on the stand
because he could “shed some light on this matter.” Dailey’s counsel appeared on
Dailey’s behalf. The district court inquired how Dailey’s counsel would advise Dailey

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regarding testifying. Dailey’s attorney responded Dailey would only testify under
duress and would invoke his Fifth Amendment right. The court asked, “are you
telling me that if he were sworn to testify, [Dailey] would say that he would
respectfully decline to testify on the grounds that anything he might say or be asked
about in this proceeding could conceivably be used against him in another criminal
prosecution?” Dailey’s lawyer responded, “That is exactly what I would advise him
of and that is what I believe he would say.”

      Jones’s attorney argued Jones had a right to call Dailey as a witness. The
government responded, noting a witness’s invocation of the Fifth Amendment
“trumps” a criminal defendant’s right to call a witness pursuant to the Sixth
Amendment. Jones’s attorney then asked the court to instruct the jury Jones had
attempted to call Dailey as a witness and Dailey had invoked the Fifth Amendment.
The court denied this request.

      At the conclusion of the trial, the jury found Jones guilty on four of the five
counts against him, finding Jones not guilty of the charge of possessing marijuana on
December 2, 2005. This appeal followed.

II.    DISCUSSION
       “We review for an abuse of discretion a district court’s decision not to compel
testimony after a witness has claimed a Fifth Amendment privilege.” United States v.
Blaylock, 421 F.3d 758, 770 (8th Cir. 2005) (citation omitted). “‘It is well settled that
an accused’s right to compulsory process must yield to a witness’s Fifth Amendment
privilege not to give testimony that would tend to incriminate him or her.’” Id.
(quoting United States v. Habhab, 132 F.3d 410, 416 (8th Cir. 1997)).

       Jones asserts the district court violated his Sixth Amendment right to compel
the testimony of witnesses when the district court failed to conduct a sufficient inquiry
into Dailey’s invocation of the Fifth Amendment privilege against self-incrimination.

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In doing so, Jones seeks to place the burden on the district court to quiz Dailey’s
defense counsel on the questions Jones would have asked Dailey and their materiality.

       As a matter of law, Jones bears the burden to establish Dailey’s testimony
would be material and favorable to Jones’s defense. See United States v. Mejia-Uribe,
75 F.3d 395, 399 (8th Cir. 1996). Jones failed to do so. Jones merely stated an
intention to put Dailey on the stand because Dailey could “shed some light on this
matter.” Shedding light on a matter is insufficient to establish the materiality of
Dailey’s testimony or to demonstrate Dailey’s testimony would be favorable to Jones.
Having Dailey testify may have jeopardized Jones’s one acquittal on the marijuana
count involving the December 2, 2005, car stop and arrest when Dailey and Jones
were discovered together with marijuana. Without an adequate showing, the district
court need not consider whether Dailey properly invoked his Fifth Amendment
privilege.

III.  CONCLUSION
      We find the district court’s decision not to compel Dailey’s testimony was not
an abuse of discretion. We affirm.
                       ______________________________




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