UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4046

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MARIO LAMAR WAIR, a/k/a Unda,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. George L. Russell, III, District Judge. 

(1:14-cr-00248-GLR-9)

Submitted: August 11, 2016 Decided: November 21, 2016

Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished opinion. Judge Duncan wrote the 

opinion, in which Judge Floyd and Senior Judge Hamilton joined.

Harry D. McKnett, LAW OFFICE OF HARRY D. MCKNETT, LLC, Columbia, 

Maryland, for Appellant. Rod J. Rosenstein, United States 

Attorney, Seema Mittal, Assistant United States Attorney, Leo J. 

Wise, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

DUNCAN, Circuit Judge:

Mario Wair was indicted on two drug-related offenses for 

conspiring to distribute and possess with intent to distribute 

500 or more grams of cocaine and 280 grams or more of cocaine 

base between June 2013 and June 2014, in violation of 21 U.S.C. 

§§ 841, 846 (Count One), and distributing and possessing with 

intent to distribute more than 28 grams of cocaine or cocaine 

base, in violation of 21 U.S.C. § 841(a)(1) (Count Two). A jury 

convicted him on both counts, and the district court sentenced 

him to 180 months in prison. On appeal, Wair argues that the 

district court erred in (1) striking his testimony regarding his 

public authority defense and (2) instructing the jury to 

disregard such testimony during its deliberations. For the 

following reasons, we affirm.

I.

In March of 2008, Wair agreed to serve as a confidential 

informant (“CI”) for the Baltimore Police Department (“BPD”) in 

exchange for a reduction in his sentence from a prior drug 

conviction. As part of his agreement with BPD, Wair agreed to 

refrain from engaging in criminal activities or undertaking any 

investigation without the express approval of his supervising 
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officer.1 Under BPD’s CI program, a supervising officer could

authorize a CI to make a controlled purchase of illegal drugs 

under “very strict circumstances.” J.A. 157. BPD required 

supervising officers to maintain control and supervision over a 

CI before, during, and after any controlled purchase.2 BPD never

permitted supervising officers to approve the sale of illegal 

drugs under any circumstances.

Wair was initially assigned to Detective Hagee, but he 

began working under the direction of Officer Lettau beginning in 

2009. Between August and October of 2009, Wair worked for

Lettau as a CI on three occasions, making one controlled 

purchase and providing information on two other occasions. 

After Wair assisted BPD on those three occasions, Lettau lost

 1 The registration form Wair signed to become a CI contained 

clear conditions and directives regarding the permissible scope 

of his activities, including: 

You shall not initiate a plan to commit criminal 

activities.

You shall not become involved in criminal activities.

You shall not undertake any investigation of any kind 

without the expressed approval and direction of your 

control agent.

Supp. J.A. 11.

2 According to Officer Lettau, a BPD officer would typically 

meet with a CI to provide instructions and funds to complete the 

drug transaction, surveil them as they engage in the 

transaction, and then meet them at a predetermined location to 

recover the drugs that had been purchased.
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contact with him. On January 18, 2012, BPD deactivated Wair as 

a CI due to inactivity. While Lettau tried to alert Wair, no 

evidence established that Wair was ever informed of his 

deactivation.

On February 4, 2014--more than two years after BPD 

deactivated Wair and over four years since Wair last provided 

formal assistance to BPD--FBI agents stopped Wair as he left the 

home of codefendant Kareem Moore and seized 140.9 grams of 

cocaine base and 261.6 grams of cocaine from him. Wair provided 

the names of his supervising officers to the agents and claimed 

that he was working as a CI. He admitted to purchasing cocaine

earlier that day and selling some of it to Moore. He also 

admitted to having sold cocaine to Moore on as many as 

50 occasions during the past several years. After being 

released by FBI agents on February 4, he was arrested on July 8, 

2014. Wair was indicted for the relevant crimes in connection 

with the criminal prosecution of four other codefendants.

At trial, Wair attempted to invoke the public authority 

defense, which provides an affirmative defense for a defendant 

who reasonably relied on the authority of a government official 

in committing otherwise illegal acts.3 He testified that he

 3 Wair failed to provide adequate notice of his intention to 

raise a public authority defense as required by Rule 12.3 of the 

Federal Rules of Criminal Procedure. The district court

(Continued)
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believed he was acting as a CI under the direction of Hagee 

during the alleged drug conspiracy between June 2013 and June

2014. He claimed that he continued to remain in communication 

with Hagee and provided him with information from 2008 up until 

February 2014 “and beyond.” J.A. 238. Wair stated that he had 

not spoken to Hagee for “at least” a week before engaging in the 

drug transactions on February 4, but intended to notify him 

after the fact. J.A. 243. Wair testified that he had received 

payments from Hagee on several occasions for providing 

information and making controlled purchases, but offered no 

evidence to substantiate this claim. While Hagee acknowledged 

having infrequent contact with Wair over the years, he denied 

ever providing Wair with any payments, or having directed him to 

engage in covert activity during the time of the alleged 

conspiracy.

The government moved to strike the portion of Wair’s 

testimony pertaining to his public authority defense. Over 

Wair’s objection, the district court granted the government’s 

motion, and instructed the jury to disregard any testimony that 

 

conditionally admitted his testimony regarding this defense, but 

reserved the right to strike all such testimony and admonish the 

jury if he failed to present evidence that Hagee possessed 

actual authority to authorize his actions. See Fed. R. Evid. 

104(b), 401.
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Wair believed he was acting on behalf of law enforcement during

the time of the alleged drug conspiracy. In support of its 

ruling, the district court noted “[t]here is no evidence in the 

record, in fact, there’s evidence to the contrary that Detective 

Hagee possessed any actual authority to be able to authorize the 

defendant Wair to engage in the behavior that he engaged in 

during the course of the conspiracy between June of 2013 and 

June of 2014.” Supp. J.A. 14.

II.

Trial courts have “broad discretion in ruling on the 

admissibility of evidence, and we will not overturn an 

evidentiary ruling absent an abuse of discretion.” United 

States v. Hedgepeth, 418 F.3d 411, 418–19 (4th Cir. 2005). We 

have held that “a defendant's right to present a defense is not 

absolute: criminal defendants do not have a right to present 

evidence that the district court, in its discretion, deems 

irrelevant or immaterial.” United States v. Malloy, 568 F.3d 

166, 177 (4th Cir. 2009).

The public authority defense “allows a defendant to seek

exoneration based upon his objectively reasonable reliance on 

the authority of a government official.” United States v. 

Fulcher, 250 F.3d 244, 253 (4th Cir. 2001). This affirmative

defense requires the defendant to establish that he reasonably 
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relied upon the authority of a government official with actual--

not apparent--authority to authorize his otherwise illegal 

actions. Id. at 253–54.

The district court did not abuse its discretion in 

excluding Wair’s testimony regarding his public authority 

defense. Wair admitted to not only purchasing cocaine on 

February 4, but also selling cocaine to Moore on that day and as 

many as 50 prior occasions. Hagee had the authority to permit

controlled purchases by a CI only under “very strict 

circumstances.” J.A. 157. Moreover, he lacked any authority to 

approve the sale of illegal drugs. Even assuming that Hagee’s 

authority extended beyond Wair’s termination as a CI in 2012, 

Wair failed to present any evidence that Hagee possessed the 

actual authority to authorize these illegal transactions.4

III.

For the foregoing reasons, we affirm the district court’s 

ruling. We dispense with oral argument because the facts are 

 4 Because we affirm the district court’s ruling that Wair 

failed to establish that Hagee possessed actual authority to 

authorize his actions, we need not address whether Wair

presented sufficient evidence that he was “objectively 

reasonable” in relying on Hagee’s authority. Fulcher, 250 F.3d 

at 253.
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adequately presented in the materials before the court, and 

argument would not aid the decisional process.

AFFIRMED