FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 30, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-14859

Non-Argument Calendar

________________________

D. C. Docket No. 05-00158-CR-ORL-19-DAB

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

TYREE RENARD WILSON, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 30, 2007)

Before ANDERSON, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Tyree Wilson, through counsel, appeals his conviction for conspiracy to
2

possess with intent to distribute crack cocaine in violation of 21 U.S.C. §§

841(a)(1) and 846. 

I.

On appeal, Wilson challenges the district court’s jurisdiction, arguing that

the application of the Controlled Substances Act (“CSA”) is unconstitutional

because he was the victim of outrageous government conduct. He argues that the

government fabricated the drug conspiracy and engaged in criminal activity in

implementing the investigation, primarily via the use of confidential informants. 

“We review the constitutionality of a [challenged] statute de novo.” United

States v. Ballinger, 395 F.3d 1218, 1225 (11th Cir. 2005) (en banc). We review

issues not raised before the district court for plain error. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). An unpreserved error will be

corrected only if it is “(1) error, (2) that is plain, and (3) that affects substantial

rights.” Id. (internal quotation marks omitted). 

Wilson’s argument calls into question Congress’s authority under the

Commerce Clause to prohibit the conduct with which he was charged. The

Commerce Clause gives Congress the power to regulate three types of activity: (1)

“the channels of interstate commerce;” (2) “the instrumentalities of interstate

commerce, and persons or things in interstate commerce;” and (3) “activities that
3

substantially affect interstate commerce.” Gonzales v. Raich, 545 U.S. 1, 16-17,

125 S. Ct. 2195, 2205, 162 L .Ed. 2d 1 (2005). The Supreme Court has upheld the

CSA as a valid exercise of Congressional power. Id. at 9, 125 S. Ct. at 2201. 

Accordingly, the district court had jurisdiction in this case and Wilson’s argument

is without merit.

Wilson also argues that that the government’s conduct in this case violated 

his due process rights. We have recognized that government conduct, in rare and

outrageous circumstances, might violate the Fifth Amendment. United States v.

Edenfield, 995 F.2d 197, 200 (11th Cir. 1993). Government infiltration of criminal

activity and the furnishing of something of value to the criminal is a recognized

and permissible means of investigation. United States v. Sanchez, 138 F.3d 1410,

1413 (11th Cir. 1998). “[A]lthough a government agent may provide something of

value to a criminal enterprise, he may not instigate the criminal activity, provide

the place, equipment, supplies, and know-how, and run the entire operation with

only meager assistance from the defendants.” Kett v. United States, 722 F.2d 687,

689 (11th Cir. 1984) (per curiam) (internal quotation marks omitted). 

Wilson’s argument is without merit. It is an acceptable and constitutional

investigatory technique to utilize confidential informants to purchase drugs from

suspected drug dealers. The government’s conduct in this case was not outrageous,
4

and Wilson’s argument conflating government conduct and jurisdiction is no basis

for overturning the conviction. 

II.

Next, Wilson argues that the evidence was insufficient to convict him. He

relies heavily on public policy arguments, characterizing government drug

investigations as reliant on “liar’s evidence.” He defines “liar’s evidence” as

evidence that is conducive to fabrication. In the instant case, he objects to the

government’s reliance on and use of confidential informants. He argues that the

testimony of co-defendants Shaun Dawkins and Anthony Sutton contradicted each

other. He further asserts that the evidence was circumstantial and unreliable, and

the jury could only have found him guilty via “guesswork” and “conjecture.” 

“Sufficiency of the evidence is a question of law that we review de novo.” 

United States v. Gupta, 463 F.3d 1182, 1193 (11th Cir. 2006), cert. denied, __ S.

Ct. __, No. 06-1388, (May 21, 2007) (mem.). In reviewing the sufficiency of the

evidence, we ask “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.” Id. at 1193-94 (internal quotation marks

omitted). Furthermore, we will resolve all reasonable inferences in favor of the

jury’s verdict. Id. at 1194. We keep in mind that credibility determinations are the
5

sole province of the jury. United States v. Chastain, 198 F.3d 1338, 1351 (11th

Cir. 1999).

In order to support a conspiracy conviction under 21 U.S.C. § 846, the

government must establish that (1) a conspiracy existed, (2) the defendant had

knowledge of it, and (3) he voluntarily became a part of it. United States v.

Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005). The “existence of an agreement

in a conspiracy case is rarely proven by direct evidence that the conspirators

formally entered or reached an agreement . . . . The more common method of

proving an agreement is through circumstantial evidence.” United States v.

Glinton, 154 F.3d 1245, 1258 (11th Cir. 1998) (internal quotation marks omitted). 

“[T]he very nature of a conspiracy frequently requires that the existence of an

agreement be proved by inferences from the conduct of the alleged principals or

from circumstantial evidence of a scheme.” United States v. Gold, 743 F.2d 800,

824 (11th Cir. 1984) (internal quotation marks omitted). Uncorroborated

testimony of a co-conspirator may be enough to support a conviction if the

testimony is not incredible on its face or otherwise insubstantial. United States v.

Garcia, 405 F.3d 1260, 1270 (11th Cir. 2005) (per curiam). 

Sufficient evidence supports the jury’s guilty verdict. Sutton stated that he

received drugs from Wilson and shared the profits of drug sales with Wilson. 
6

Dawkins stated that he received drugs from Wilson and provided drugs to Wilson. 

Co-conspirators’ testimony can be enough to support a conviction, and in this case

the offered testimony was not so incredible that the jury could not have credited it. 

Moreover, the testimony from law enforcement agents placing Wilson and Sutton

together before and after the monitored drug deals supports Sutton’s testimony. In

light of the trial testimony, the jury could have concluded beyond a reasonable

doubt that Wilson conspired to possess with intent to distribute crack cocaine. 

Therefore, the district court did nor err in denying Wilson’s motion for a judgment

of acquittal.

III.

Wilson next contends that certain evidentiary rulings by the district court

were erroneous. Wilson argues that the admission of taped recordings between

Dawkins and a confidential informant was erroneous because the recordings (1)

contained statements from a non-testifying confidential informant and (2) were

incomplete and misrepresentative. He also argues that the record supports his

objections regarding the admission of statements he made during the booking

process about his nickname and place of residence. Finally, he argues that the

DEA has an unofficial policy of ensuring that incriminating statements are kept

from defendants before trial. 
7

We review evidentiary rulings for an abuse of discretion. United States v.

Brown, 415 F.3d 1257, 1264-65 (11th Cir. 2005), cert. denied, 126 S.Ct. 1570

(2006). We review constitutional questions de novo. United States v. Brown, 364

F.3d 1266, 1268 (11th Cir. 2004).

Wilson contends that the confidential informant’s recorded statements

should not have been admitted because they are hearsay. Hearsay is an out-ofcourt statement “offered in evidence to prove the truth of the matter asserted.” 

Fed. R. Evid. 801(c). A confidential informant’s statement made during a taped

conversation with the defendant can be admitted to provide context, so long as the

informant’s statements are not admitted for the truth asserted. See United States v.

Byrom, 910 F.2d 725, 737 (11th Cir. 1990). The Confrontation Clause “does not

bar the use of testimonial statements for purposes other than establishing the truth

of the matter asserted.” Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct.

1354, 1369 n.9, 158 L. Ed. 2d 177 (2004).

The admission of the recordings was proper because the confidential

informant’s statements were not admitted for the truth of what he said, but rather

for context. The court instructed the jury not to credit the confidential informant’s

statements as truth, because they were only being provided as context for

Dawkins’s statements. Accordingly, the recording was not hearsay, nor did it
8

violate Wilson’s constitutional right to confrontation because the confidential

informant’s statements were not offered for the truth of the matter asserted. 

Wilson’s argument that the recording was incomplete and misrepresentative of the

conversation is not developed beyond mere allegation, and it was not an abuse of

discretion for the court to admit the recording into evidence. 

Wilson also argues that the government committed a discovery violation by

failing to inform him that it intended to introduce at trial statements he made

during booking. The government must disclose the substance of any oral statement

made by the defendant in response to interrogation by a person the defendant knew

to be a government agent if the government intends to use the statement at trial. 

Fed. R. Crim. P. 16(a)(1)(A). We will not reverse a conviction based on a

discovery violation unless the appellant can demonstrate that the violation

prejudiced his substantial rights. United States v. Quinn, 123 F.3d 1415, 1423

(11th Cir. 1997). “Substantial prejudice is established when the defendant shows

that he was unduly surprised and did not have an adequate opportunity to prepare a

defense or that the mistake had a substantial influence on the jury.” United States

v. Rivera, 944 F.2d 1563, 1566 (11th Cir. 1991). 

A law enforcement officer’s request for routine information during booking

is not an interrogation, and, therefore, is not subject to Miranda v. Arizona, 384
9

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). United States v. Sweeting, 933

F.2d 962, 965 (11th Cir. 1991).

The district court’s decision to admit Wilson’s booking statements does not

require reversal. As an initial matter, routine questioning during the booking

process does not constitute interrogation, and, therefore, the statements did not

violate Wilson’s Miranda rights. The government contends that it did not commit

a discovery violation because Wilson’s comment about living in Georgia to avoid

arrest was discussed during the detention hearing, and the “Blacknet” nickname

was on Wilson’s fingerprint card, which was available to the defendant. Even

assuming that the detention hearing discussion and fingerprint card did not satisfy

the government’s obligation, the court did not abuse its discretion by allowing the

statements to be heard by the jury because the evidence did not violate Wilson’s

substantial rights. Wilson’s conviction principally relied upon the testimony of

Sutton and Dawkins, two co-conspirators who directly implicated Wilson in the

provision and sale of illegal drugs. Accordingly, Wilson has failed to establish that

any possible discovery violation affected his substantial rights.

AFFIRMED.