IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30791

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

LAZANDY DANIELS, 

 Defendant–Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before KING, SMITH, and WILLETT, Circuit Judges. 

DON R. WILLETT, Circuit Judge:

A jury convicted Lazandy Daniels of distributing crack cocaine, aiding 

and abetting possession with intent to distribute crack cocaine, and conspiring 

to distribute powder and crack cocaine. Daniels asserts three errors: (1) the 

district court wrongly denied his motion to suppress evidence; (2) the district 

court wrongly denied him the opportunity to cross-examine an adverse witness 

in violation of the Sixth Amendment; and (3) the trial evidence was insufficient 

to convict him. We reject Daniels’s arguments and AFFIRM his convictions.

I

A

This story starts with Craig James, a cocaine dealer who made his living 

transporting drugs and money between Houston and New Orleans. The 

United States Court of Appeals

Fifth Circuit

FILED

July 10, 2019

Lyle W. Cayce

Clerk

 Case: 18-30791 Document: 00515027992 Page: 1 Date Filed: 07/10/2019
No. 18-30791

2

defendant, Daniels, met James through his brother, Lindsey Daniels. Lindsey 

was a middle man, purchasing cocaine from James and then turning around 

and reselling it. As part of their partnership, Lindsey let James use his New 

Orleans salvage yard for transporting drugs. James would buy cars at auction 

in one city, store cocaine in them, and transport the cars to the other city. He 

also used this strategy to move money.

The law eventually caught up with Lindsey. But James continued to use 

the salvage yard. Daniels started working more closely with James, helping 

him unload the cocaine from the cars and pack them with money before they 

returned to Houston. Sometimes Daniels was around when James distributed 

the drugs, and he would help James package the concomitant cash in 

cellophane. Daniels even dabbled in the drug game himself: James testified 

(and others confirmed) that he occasionally gave Daniels small amounts of 

cocaine to sell.

Besides helping James move cocaine, Daniels acted as James’s 

chauffeur. When James was in New Orleans, Daniels would “[t]ake [James] to 

go get food, pick [him] up from the airport, take [him] to [his] hotel room, things 

like that.” James said he asked Daniels to carry out these tasks because 

Daniels “was a friend . . . . It wasn’t just all business. He was a friend. I trusted 

him.”

May 4, 2015 State Arrest

In May 2015, Daniels was arrested for selling crack cocaine outside his 

house. While conducting surveillance as part of a street-level narcotics 

investigation, New Orleans police Sergeant Joseph Davis noticed a woman in 

a white SUV stop her car, step out, and approach Daniels, who was standing 

on the street. She handed something to Daniels, who went into his house. 

Daniels came back out and handed her another object; then she got back into 

her car.

 Case: 18-30791 Document: 00515027992 Page: 2 Date Filed: 07/10/2019
No. 18-30791

3

Suspicious, Davis followed the SUV and radioed his fellow officers to pull 

it over. While attempting to do so, Officer Jeraire Bridges saw the woman drop 

a small item from her window. Once the woman had pulled over, Bridges 

retrieved the dropped item. It appeared (and was later confirmed) to be a 

plastic bag of crack cocaine. The officers arrested the woman.

Later that day, New Orleans police officers arrested Daniels. The officers 

found him sitting in a pickup truck outside his house. The officers searched the 

truck and the house, finding $2,325 in cash in the vehicle, a video recording 

system monitoring the residence, and what turned out to be cocaine residue in 

a mug in the house. Daniels was charged in Orleans Parish Criminal District 

Court with possession with the intent to distribute cocaine.

December 2, 2015 Drug Enforcement Agency Arrest

These December incidents were initially unrelated to Daniels’s May 

arrest—they arose out of the DEA’s separate surveillance spearheaded by

Agents Justin Moran and Christopher Johnson. Thanks to a confidential tip, 

the DEA learned that James was coming to New Orleans in early December to 

collect some money. Upon his arrival, James took a taxi to the Super 8 Motel 

on Chef Menteur Highway and rented a room.

James testified that on December 1, 2015, a friend paid him an evening 

visit, bringing James a duffle bag filled with various drug paraphernalia, 

including a scale and cowboy boots stuffed with a cutting agent. Daniels came 

by that evening and the next morning to “check on” James. Around noon, 

Daniels left to go to his brother’s salvage yard. He returned around 12:34 p.m. 

Before entering the motel, he retrieved from his trunk a long, thin item that

he kept under his jacket. The concealed item was a roll of cellophane for 

wrapping cash, but the surveilling DEA agents thought it might be a weapon.

Around 2:00 p.m., James’s brother-in-law, Joppa Jackson (whom the 

DEA agents recognized from previous narcotics investigations), came to the 

 Case: 18-30791 Document: 00515027992 Page: 3 Date Filed: 07/10/2019
No. 18-30791

4

motel in his pickup truck. James left Daniels in the motel room and got into 

the pickup, which never left the parking lot. After a bit, James got out of the 

truck with a bag of money, repayment for cocaine James had given Joppa.

Eight minutes later, Daniels and James left the motel to dine at a 

restaurant for a couple hours. The pair returned to the motel room in the late 

afternoon. At around 6:40 p.m., Leon Jackson, James’s other brother-in-law, 

arrived. When Leon exited the motel, DEA Agent Demond Lockhart 

approached him to perform an investigatory stop. Agent Lockhart searched 

Leon’s bag and vehicle and hit the jackpot: several thousand dollars.

The Knock-and-Talk

After interviewing Leon Jackson, the DEA agents decided to do a “knockand-talk,” (when officers knock on a door, contact the resident, and ask to 

search the residence). As he approached the room, DEA Agent Michael Greaves 

could smell marijuana. Agent Greaves knocked on the door, and James asked 

who was there. Greaves initially pretended that he had hit James’s car. James 

did not open the door. Greaves then announced that he was with the police and 

asked James to open the door so they could talk.

After knocking for two minutes, Greaves heard Moran, who was standing 

to his left by the motel-room’s window, say that he could hear the toilet 

flushing. Greaves, inferring that James was destroying evidence, decided to 

kick down the door. DEA Agent Kevin Treigle searched the bathroom, finding

Daniels seated on the toilet, fully clothed, with the seat cover down.

In the room, the officers found a long roll of cellophane, a plastic bag 

filled with cutting agent, a black duffle bag with lots of cash, much of which 

was wrapped in cellophane, a digital scale, and crack cocaine. They seized 

approximately $286,000 and approximately six ounces of crack cocaine.

 Case: 18-30791 Document: 00515027992 Page: 4 Date Filed: 07/10/2019
No. 18-30791

5

B

Daniels was charged with one count of conspiracy to distribute 5

kilograms or more of powder cocaine and 28 grams or more of crack cocaine; 

one count of distributing crack cocaine on May 4, 2015; and one count of 

possessing with intent to distribute 28 grams or more of crack cocaine on 

December 2, 2015.

Daniels moved to suppress the motel-search evidence, arguing that no 

exigency supported the warrantless search. The district court conducted a 

suppression hearing. Several DEA agents testified regarding the knock-andtalk and resulting search. Pertinently, DEA Agent Francisco Del Valle testified 

that he had heard the toilet flush while Agent Greaves was knocking on the 

motel-room door. Daniels had the opportunity to cross-examine each of the 

Government’s witnesses.

Daniels also attempted to subpoena Agent Moran to have him testify at 

the hearing. At the time, Moran was under investigation for misconduct, and 

he asserted his Fifth Amendment rights. Although the court did not require 

Moran to testify, it allowed Daniels’s counsel to explain what he wanted to ask 

Moran.

The district court denied Daniels’s motion to suppress, holding that he

didn’t have standing to challenge the motel-room search because there was no 

evidence indicating he intended to stay overnight. And even if Daniels had 

standing, the Fourth Amendment’s exigency exception permitted the search.

The flushing sounds gave the officers “probable cause to believe that there was 

evidence of criminal activity in the room, and that the evidence was being 

destroyed.”

In preparation for trial, the Government filed a motion in limine to 

preclude Daniels from attacking the credibility of its witnesses based on Agent 

Moran’s alleged misconduct. The Government asked the court to prohibit 

 Case: 18-30791 Document: 00515027992 Page: 5 Date Filed: 07/10/2019
No. 18-30791

6

Daniels from “[i]nflaming the [j]ury” by referencing the investigation during 

trial, arguing that it was irrelevant. The district court granted the motion, 

finding Moran’s alleged misconduct “unrelated to the matter at hand.”

The case went before a jury. The Government called twelve witnesses, 

among them Agents Greaves and Treigle (the New Orleans police officers 

involved in the May 4 arrest) and Daniels’s alleged co-conspirators, Joppa 

Jackson and James. At the close of the Government’s case in chief, Daniels 

moved for judgment of acquittal, which the court denied. Daniels submitted 

several exhibits to the jury, but he did not testify in his own defense or call any 

witnesses to testify. The jury found Daniels guilty of all three counts. The court 

sentenced Daniels to 240 months’ imprisonment as to all three counts, to be 

served concurrently, and ten years of supervised release. Daniels appealed.1

II

The district court had jurisdiction under 18 U.S.C. § 3231. And we have

appellate jurisdiction under 28 U.S.C. § 1291. 

III

A

First, Daniels challenges the district court’s denial of his motion to 

suppress the evidence from the motel-room search. “When a district court 

denies a motion to suppress evidence, we review the factual findings for clear 

error and legal conclusions . . . de novo.”2 And we may affirm the decision below 

 

1 During the sentencing hearing, Daniels expressed his frustration with his lawyer. 

At the close of the hearing, Daniels’s counsel made an oral motion to withdraw as counsel, 

which the court granted. Daniels then petitioned to vacate his sentence under 28 U.S.C. § 

2255, arguing his counsel failed to follow his instructions to file an appeal. After an 

evidentiary hearing, the court ordered that Daniels be allowed to file an out-of-time appeal 

and dismissed his § 2255 motion as premature.

2 United States v. Beene, 818 F.3d 157, 161 (5th Cir. 2016).

 Case: 18-30791 Document: 00515027992 Page: 6 Date Filed: 07/10/2019
No. 18-30791

7

“on any basis established by the record.”3 The burden is on Daniels to prove, 

“by a preponderance of the evidence, that the evidence in question was 

obtained in violation of his Fourth Amendment rights.”4

“The exclusionary rule allows a defendant to suppress the evidentiary 

fruits of a violation of his Fourth Amendment rights” to be free of unreasonable

searches and seizures.5 Although “searches and seizures inside a home without 

a warrant are presumptively unreasonable,”6 an officer may search a person’s 

property if “‘the exigencies of the situation’ make the needs of law enforcement 

so compelling that [a] warrantless search is objectively reasonable.”7 A valid

exigency exists when an officer believes that evidence is being destroyed—

although an officer “may not rely on the need to prevent destruction of evidence 

when that exigency was ‘created’ or ‘manufactured’ by the conduct of the 

police.”8 In other words, an officer may not “engag[e] or threaten[] to engage in 

conduct that violates the Fourth Amendment” in order to create an exigency 

justifying warrantless entry.9

Assuming without deciding the issue of standing, we will first address 

whether there was an exigency justifying the search.10 To do so, we use a nonexhaustive five-factor test:

(1) the degree of urgency involved and the amount of time 

necessary to obtain a warrant; (2) the reasonable belief that 

 

3 United States v. Iraheta, 764 F.3d 455, 460 (5th Cir. 2014) (quoting United States v. 

Pack, 612 F.3d 341, 347 (5th Cir. 2010)). 

4 Id. (quoting United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir. 1993)).

5 Pack, 612 F.3d at 347.

6 Kentucky v. King, 563 U.S. 452, 459 (2011) (quoting Brigham City v. Stuart, 547 U.S. 

398, 403 (2006)).

7 Id. at 460 (alteration in original) (quoting Mincey v. Arizona, 437 U.S. 385, 394 

(1978)).

8 Id. at 461.

9 Id. at 462.

10 See United States v. Flores, 640 F.3d 638, 642 (5th Cir. 2011) (“[E]ven assuming [the 

Defendant] has standing to challenge the search, the good-faith exception to the exclusionary 

rule applies under these facts.”).

 Case: 18-30791 Document: 00515027992 Page: 7 Date Filed: 07/10/2019
No. 18-30791

8

contraband is about to be removed; (3) the possibility of danger to 

the police officers guarding the site of contraband while a search 

warrant is sought; (4) the information indicating that the 

possessors of the contraband are aware that the police are on their 

trail; and (5) the ready destructibility of the contraband and the 

knowledge that efforts to dispose of it and to escape are 

characteristics in which those trafficking in contraband generally 

engage.11

Daniels argues that a “single toilet flush” was not enough to justify entry. 

If a solitary flush were the only evidence of exigency in the record, he might be 

right. But the officers relied on more than just the flush. In fact, they were 

flush with exigency evidence. After he knocked, Agent Greaves could hear 

“running throughout the room, running back and forth like from the right side 

where the door was back to the left side by the window.” He says there were 

times when James’s “voice was real close to the door” and when he “could tell 

he was much further away from the door,” indicating that James was running 

back and forth.12 Agent Greaves had told James he was a police officer, so he 

was “aware that the police [were] on [his] trail.”13 And Agent Webber testified 

that it is “not uncommon for drug dealers to flush narcotics down the toilet.” 

Combined with the toilet-flushing sounds, this all reasonably suggests that the 

room’s occupants might have been attempting to destroy evidence. The Aguirre

factors therefore suggest that exigent circumstances existed justifying the 

warrantless search. So, the district court did not err in finding there was an 

exigency to justify the warrantless search. The officers had a full house of 

evidence, and a full house beats a flush.14

 

11 United States v. Aguirre, 664 F.3d 606, 611 (5th Cir. 2011) (quoting United States 

v. Mata, 517 F.3d 279, 287 (5th Cir. 2008)).

12 Id.

13 Aguirre, 664 F.3d at 611.

14 Poker Rules—How to Play Poker Games, POKERNEWS.COM,

https://www.pokernews.com/poker-rules/ (last visited July 8, 2019).

 Case: 18-30791 Document: 00515027992 Page: 8 Date Filed: 07/10/2019
No. 18-30791

9

Now that we know an exigency existed, we must ask whether the officers 

created the exigency.15 Daniels says the officers’ aggressive conduct made him 

believe that he was trapped, in violation of the Fourth Amendment, thereby 

creating the exigency. But the officers acted within the bounds of our caselaw. 

In King, police “banged on the door as loud as [they] could,” but that did not 

create the exigency.16 Even though the defendant argued that the officers 

“demanded” entry, he couldn’t back that up with any evidence in the record.17

Likewise, Daniels does not point to any evidence in the record that the agents 

actually threatened his Fourth Amendment rights. While the officers here 

knocked vigorously, the knocking was relatively brief—around two 

minutes18—and the officers did not attempt to force entry prior to hearing the 

toilet flush.19 The officers did not create the exigency.

Daniels fails to meet his burden of showing a Fourth Amendment 

violation. So the district court did not err in denying his motion to suppress.20

B

When a defendant makes a general sufficiency-of-the-evidence 

challenge, we review the sufficiency of the evidence supporting a conviction de 

novo.21 But where the defendant asserts “specific grounds for a specific element 

of a specific count” in his motion for judgment of acquittal under Federal Rule 

of Criminal Procedure 29, the defendant fails to preserve any other grounds;22

 

15 See King, 563 U.S. at 461.

16 See id.

17 King, 563 U.S. at 471 (alteration in original).

18 Cf., Westfall v. Luna, 903 F.3d 534, 545 (describing officers’ prolonged attempt to 

knock on door).

19 See United States v. Hernandez, 392 F. App’x 350, 351–53 (5th Cir. 2010) 

(unpublished) (finding a Fourth Amendment violation where the officers attempted to force 

entry by trying to open a locked door and breaking the pane of a screen door with a baton).

20 Iraheta, 764 F.3d at 460.

21 United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013).

22 Id. (quoting United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc) 

(per curiam)).

 Case: 18-30791 Document: 00515027992 Page: 9 Date Filed: 07/10/2019
No. 18-30791

10

accordingly, we must ask whether there has been a “manifest miscarriage of 

justice.”23

The parties disagree over which standard applies. At the close of the 

Government’s case in chief, Daniels’s counsel stated generally that he was 

making “an oral motion as to a directed verdict as to all counts on the 

superseding indictment as they refer to Mr. Lazandy Daniels.”24 And although 

he made specific points to support the motion, they were not specific to the 

elements of the crime. We thus review de novo. And “the relevant question is 

whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.”25

Count 1 convicted Daniels of conspiring to distribute 5 kilograms or more 

of powder cocaine and 28 grams or more of crack cocaine. Per Supreme Court 

directive, “[a] conviction for a drug conspiracy requires proof of ‘(1) an 

agreement between two or more persons to violate the narcotics laws, (2) the 

defendant’s knowledge of the agreement, and (3) the defendant’s voluntary 

participation in the conspiracy.’”26 Here, the alleged “violat[ion of] the 

narcotics laws” is distributing cocaine, so, we must ask whether there was an 

agreement to “(1) knowingly (2) distribute[ ] (3) cocaine.”27

Having reviewed the record, we hold that the evidence was more than 

sufficient for a rational trier of fact to convict Daniels. Although Daniels seeks 

 

23 Id. (quoting United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007)).

24 See United States v. McCall, 553 F.3d 821, 830 (5th Cir. 2008) (“Rule 29 motions 

need not be specific.”).

25 United States v. Cooper, 714 F.3d 873, 880 (5th Cir. 2013) (quoting United States v. 

Uvalle–Patricio, 478 F.3d 699, 701 (5th Cir. 2007)). 26 United States v. Scott, 892 F.3d 791, 797 (5th Cir. 2018) (quoting United States v. 

Booker, 334 F.3d 406, 409 (5th Cir. 2003)).

27 United States v. Gordon, 876 F.2d 1121, 1125 (5th Cir. 1989) (citing 21 U.S.C § 

841(a)(1)).

 Case: 18-30791 Document: 00515027992 Page: 10 Date Filed: 07/10/2019
No. 18-30791

11

to characterize himself as James’s unwitting, overly helpful friend, the trial 

evidence was sufficient to prove that Daniels agreed to distribute both powder 

and crack cocaine; that he knew about the agreement; and that he participated 

voluntarily.28 James and Joppa Jackson testified that Daniels helped them 

transport cocaine from Houston to New Orleans.29 Sometimes Daniels would 

provide drugs to Joppa Jackson even when James wasn’t around. James also 

testified that Daniels helped him wrap money in cellophane and load the cars 

with money “[a]ll the time.” Both James and Joppa Jackson testified that they 

fronted crack cocaine to Daniels so that Daniels could sell it.

A rational trier of fact could easily find that Daniels was conspiring to 

distribute 5 kilograms or more of powder cocaine and 28 grams or more of crack 

cocaine beyond a reasonable doubt. There was sufficient evidence to convict 

Daniels of Count 1.

Count 2 accused Daniels of knowingly and intentionally distributing 

crack cocaine on May 4, 2015 (the white SUV episode). As with Count 1, there’s 

ample evidence to show that Daniels “(1) knowingly (2) distributed (3) [crack] 

cocaine.”30

The jury saw video footage of the transaction. Officers apprehended the 

woman shortly after and saw her throw a piece of crack cocaine out her car 

window. And when officers searched Daniels’s house later, they found cocaine 

residue and $2,000 in cash. A rational trier of fact could easily find that Daniels 

knowingly and intentionally distributed crack cocaine. There was no error.

 

28 See Scott, 892 F.3d at 797.

29 Joppa testified that he would buy “between 10 and 20” kilograms of cocaine from 

James at a time, which he would pick up from Daniels at the salvage yard. James also 

testified that Daniels would help him unload anywhere from 4 to 12 kilograms of cocaine 

from the cars at a time.

30 Gordon, 876 F.2d at 1125.

 Case: 18-30791 Document: 00515027992 Page: 11 Date Filed: 07/10/2019
No. 18-30791

12

Count 3 accused Daniels of aiding and abetting the knowing and 

intentional possession of 28 grams or more of crack cocaine with intent to 

distribute on December 2, 2015 (the motel-room episode).31 As we reiterated in 

United States v. Cain, “[t]he essential elements of possession with the intent 

to distribute controlled substances . . . are 1) knowledge, 2) possession, and 3) 

intent to distribute the controlled substances.”32 A conviction for aiding and 

abetting requires proof that “the substantive offense occurred and that the 

defendant (1) associated with the criminal venture; (2) purposefully 

participated in the crime; and (3) sought by his actions for it to succeed.”33 And 

as Scott clarified, a defendant who aids and abets the possession with intent to 

distribute a controlled substance “need not have actual or constructive 

possession of the drugs.”34

Daniels’s arguments focus on possession of the drugs. He says he didn’t

have any drugs on him when he was found in the motel bathroom and that his 

friend was the only person who actually brought crack cocaine to the motel 

room. But Count 3 was for aiding and abetting, so actual or constructive 

possession is irrelevant.35

The record clearly reflects Daniels’s association with the criminal 

venture. As already mentioned, Daniels has a long history of assisting James 

with his drug smuggling business. He also closely associated himself with the 

criminal venture on the day in question by coming and going from the motel 

room and by dining with the other participants.

 

31 We think it important to note that while the First Superseding Indictment charged 

Daniels with intentional possession, his ultimate conviction was for aiding and abetting.

32 440 F.3d 672, 675 (5th Cir. 2006) (quoting United States v. Delgado, 256 F.3d 264, 

274 (5th Cir. 2001)).

33 Scott, 892 F.3d at 798 (quoting United States v. Pando Franco, 503 F.3d 389, 394 

(5th Cir. 2007)). 34 Id. at 799 (quoting United States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993)).

35 See Scott, 892 F.3d at 799 

 Case: 18-30791 Document: 00515027992 Page: 12 Date Filed: 07/10/2019
No. 18-30791

13

The record is replete with evidence relevant to elements two and three: 

(2) purposeful participation and (3) seeking the crime’s success. Daniels visited 

the hotel room where the crime took place multiple times in the days leading 

up to the arrest. Daniels provided the cellophane for cash wrapping. After the 

fateful toilet flush, DEA agents entered the room and found Daniels seated on 

the toilet, fully clothed, with the seat cover down. The hotel room contained 

$286,000 in cash and six ounces of crack cocaine.

Viewing the evidence in the light most favorable to the prosecution, a 

rational trier of fact could easily conclude that Daniels was aiding and 

abetting.36 There was sufficient evidence to convict Daniels of Count 3.

C

Next, Daniels says the district court abused its discretion when it 

granted the Government’s motion in limine to stop him from discussing Agent

Moran’s alleged misconduct. After all, says Daniels, Moran played a vital role 

in his arrest, so information regarding his credibility is relevant, and the risk 

of prejudice to the Government is low. The Government flatly disagrees. We 

agree with the Government and cannot say the district court abused its 

discretion in granting the motion in limine.

We review evidentiary rulings for abuse of discretion.37 We “will not 

vacate a conviction based on an error committed by the district court unless 

the error was harmful, affecting a substantial right of the complaining party,” 

meaning that the “trier of fact would have found the defendant guilty beyond 

a reasonable doubt with the additional evidence inserted.”38

 

36 See Cooper, 714 F.3d at 880.

37 United States v. Willett, 751 F.3d 335, 343 (5th Cir. 2014); cf. FED. R. EVID. 103(b) 

(moving party does not need to renew objection to court ruling on the record to preserve claim 

of error for appeal).

38 Willett, 751 F.3d at 343 (quoting United States v. Wen Chyu Liu, 716 F.3d 159, 169

(5th Cir. 2013)).

 Case: 18-30791 Document: 00515027992 Page: 13 Date Filed: 07/10/2019
No. 18-30791

14

Generally, relevant evidence is admissible.39 Nevertheless, a court may 

exclude relevant evidence “if its probative value is substantially outweighed by 

a danger of one or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.”40

Although Moran was under investigation, the district court didn’t believe 

that fact was particularly probative. Nothing in the record indicates that 

Moran’s investigation concerned anything in this case; rather, it was a “broad 

probe into law enforcement misconduct involving members of a DEA Task 

Force that included DEA Special Agents, officers from the Tangipahoa Parish 

Sheriff’s Office, and officers from the Hammond Police Department.” The 

Government’s case didn’t require Agent Moran’s testimony. Allowing Daniels 

to present testimony on this point, however, would likely have unfairly 

prejudiced the Government’s case. Plus, it could easily have confused the jury 

about whose guilt was at issue. Given all of this, we can’t say the district court 

went so far afield as to abuse its discretion.

This too merits mention: Even if the district court had abused its 

discretion, the only error that resulted was harmless. Daniels hasn’t explained 

what information about Moran’s conduct he would have presented to the jury. 

On top of that, it’s not clear that any such information would’ve been 

admissible.41 After all, the Government argues, Moran never testified, so 

Federal Rules of Evidence 608 and 609 would probably render Daniels’s

hypothetical evidence inadmissible. Additionally, Federal Rule of Evidence 

404(a)—prohibiting the admission of character evidence “to prove that on a 

 

39 FED. R. EVID. 402.

40 FED. R. EVID. 403.

41 Even though the Government pointed this out in its briefing, Daniels didn’t respond 

or elaborate in his reply brief.

 Case: 18-30791 Document: 00515027992 Page: 14 Date Filed: 07/10/2019
No. 18-30791

15

particular occasion [a] person acted in accordance with the character or trait”—

would likely close the door on Daniels.

In sum, the district court didn’t abuse its discretion. And even if it did, 

any resulting error was harmless.

D

Now we come to the final issue: Did the district court violate the 

Confrontation Clause? That is, did Agent Moran have to testify at the 

suppression hearing after he asserted his Fifth Amendment right against selfincrimination? Daniels says yes, because Moran played a significant role in the 

case, and his testimony was necessary. The Government responds that: (1) the 

district court couldn’t have made Moran testify after he asserted his Fifth 

Amendment rights; (2) Moran didn’t even testify, so Daniels didn’t lose his 

ability to cross-examine him; and (3) Daniels said he would’ve asked Moran 

about his police report and search-warrant applications—but both of these 

were written after the search, so they’re not relevant. Again, we side with the 

Government.

We review Confrontation Clause objections de novo, subject to harmless 

error review.42 The Sixth Amendment guarantees a defendant the right “to be 

confronted with the witnesses against him.”43 This means a prosecutor can’t 

rely on an “out-of-court testimonial statement unless the witness is 

unavailable and the defendant had a prior opportunity to cross-examine the 

witness.”44 We’ve said before that, although the Sixth Amendment right to 

confront is a trial right, it also applies to suppression hearings.45

 

42 United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007).

43 U.S. Const. amend. VI.

44 Acosta, 475 F.3d at 680.

45 United States v. Stewart, 93 F.3d 189, 192 n.1 (5th Cir. 1996).

 Case: 18-30791 Document: 00515027992 Page: 15 Date Filed: 07/10/2019
No. 18-30791

16

The district court didn’t err: The Sixth Amendment didn’t require Moran 

to testify. Daniels doesn’t cite any case that says the district court could have 

and should have compelled Moran to testify. And we can’t find any such case 

either.46

Daniels argues that Moran was the only one who heard the toilet flush. 

If Moran were the only witness who could offer toilet testimony and the 

Government had presented hearsay evidence about it, then the district court 

might have violated Moran’s right to confrontation. But the Government didn’t 

even need to rely on hearsay to establish that the toilet flushed because Agent 

Del Valle also testified about it. Plus, Daniels had the opportunity to crossexamine Agent Del Valle.

At the very least, Daniels argues, Moran should have been forced to 

testify about his police report or his application for a search warrant. But 

(again) he doesn’t point to any evidence that the Government broached these 

topics at the suppression hearing. And (again) the police report and warrant 

application both happened after the warrantless entry, so they weren’t relevant 

to the suppression hearing. So even if the district did misstep, the error was 

harmless.

The Government’s failure to put Moran on as a witness also didn’t violate 

Daniels’s Sixth Amendment right to compulsory process. The right to 

compulsory process is the defendant’s own right to present evidence that 

“would have been relevant and material to the defense.”47 Daniels can’t use the 

compulsory-process clause to compel the Government to call its own witnesses. 

And even if Daniels were arguing that he wanted to call Moran in his own 

 

46 The Government pointed out that Daniels can point to no authority to support his 

position, but Daniels still didn’t cite any case law in his reply brief.

47 Washington v. Texas, 388 U.S. 14, 23 (1967).

 Case: 18-30791 Document: 00515027992 Page: 16 Date Filed: 07/10/2019
No. 18-30791

17

defense, we have held that “a witness’[s] right against self-incrimination will 

outweigh a defendant’s right to force that witness to testify.”48

For all these reasons, we find that the district court committed no 

harmful error by not requiring Moran to testify.

IV

For the reasons explained above, we AFFIRM Daniels’s convictions.

 

48 Brown v. Cain, 104 F.3d 744, 749 (5th Cir. 1997).

 Case: 18-30791 Document: 00515027992 Page: 17 Date Filed: 07/10/2019