FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 23, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-15178

Non-Argument Calendar

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D. C. Docket No. 05-00059-CR-FTM-29-DNF

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JEAN LOUIS, 

a.k.a. Black, 

a.k.a. Junior, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 23, 2007)

Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the 1

Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to

2

Jean Louis appeals his convictions for one count of conspiracy to possess

with intent to distribute fifty grams or more of cocaine base in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and 846 and two counts of possession with

intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(iii). We consider his two contentions in turn.

I.

Louis first contends that the district court erred by denying his motion to

compel the government to disclose the identity of a confidential informant who

helped make arrangements for Louis to sell drugs to an undercover law

enforcement agent. If the confidential informant had been able to testify, Louis

asserts, he would have substantiated Louis’ entrapment defense. We review the

denial of the motion for abuse of discretion. United States v. Gutierrez, 931 F.2d

1482, 1490 (11th Cir. 1991).

In determining whether the government must disclose a confidential

informant’s identity, a district court must balance “the public interest in protecting

the flow of information against the individual’s right to prepare his defense.” 

United States v. Gonzales, 606 F.2d 70, 74 (5th Cir. 1979) (quoting Roviaro v.

United States, 353 U.S. 53, 77 S. Ct. 623 (1957)). We have identified three 1
the close of business on September 30, 1981.

3

factors that guide that inquiry: (1) “the extent of the informant’s participation in

the criminal activity”; (2) “the directness of the relationship between the

defendant’s asserted defense and the probable testimony of the informant”; and (3)

“the government’s interest in non-disclosure.” Gutierrez, 931 F.2d at 1490

(quoting United States v. Tenorio-Angel, 756 F.2d 1505, 1511 (11th Cir. 1985)). 

After Louis alleged that the government induced him to sell the drugs, the

district court conducted an in camera, ex parte interview of the informant to see if

he would corroborate Louis’ story. That interview led the district court to

conclude that two of the three factors favored non-disclosure of the informant’s

identity. Although the district court found that the informant’s participation in

Louis’ drug sales was “not insubstantial,” it concluded that his testimony “would

not support [Louis’] claim of entrapment in any of the specifics alleged in the

motion, or in any other fashion” and furthermore that the government “ha[d] a

legitimate interest in the nondisclosure of the informant’s testimony.” 

Louis bears the “heavy burden” of showing on appeal that the district court

abused its discretion. See, e.g., United States v. Costa, 947 F.2d 919, 923 (11th

Cir. 1991). No transcript was made of the district court’s interview of the

informant, and without any transcript, “we are limited in reviewing this issue to the
4

representations made in the briefs and the district court’s statements . . . .” 

Gutierrez, 931 F.2d at 1491. There is nothing in the record that undermines the

district court’s conclusions after the in camera interview with respect to the three

disclosure factors. Accordingly, we have no basis to disturb Louis’ conviction on

the ground that the district court abused its discretion by deciding not to compel

the disclosure of the informant’s identity.

II.

Second, Louis contends that the district court violated his rights under the

Sixth Amendment’s Confrontation Clause by admitting into evidence a tape

recording (and its corresponding transcript) that included certain statements by the

confidential informant, whom Louis was unable to cross-examine. In particular,

Louis’ contention centers on a conversation in which the two men briefly discussed

Louis’ payment to the informant of a fifty-dollar commission that Louis earned in

the sale and had agreed to pay over to the informant.

This contention fails because the informant’s statements on this topic were

offered merely to give context to Louis’ own statements during the conversation

(the admission of which is not contested here) and not for their truth. Accordingly,

the informant’s statements do not fall within the ambit of the Confrontation Clause. 

See Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354, 1369 n.9
5

(2004) (noting that the Confrontation Clause “does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted”).

AFFIRMED.