United States Court of Appeals

for the Fifth Circuit

No. 19-40989

Consolidated with

No. 20-40652

United States of America, 

Plaintiff—Appellee,

versus

Winfred Earl Ware, Jr., 

Defendant—Appellant.

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 9:18-CR-43-1

Before Smith, Elrod, and Oldham, Circuit Judges.

Per Curiam:*

Winfred Ware appeals his conviction for conspiracy to possess with 

intent to distribute methamphetamine. Among other claims, he alleges 

violations of his Sixth Amendment right to effective assistance of counsel, 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 13, 2022

Lyle W. Cayce

Clerk

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violations of his Fourteenth Amendment due process rights, and various 

evidentiary shortcomings at trial. Because Ware’s claims are meritless, we 

AFFIRM the judgment of the district court.

I.

In 2014, Panola County, Texas began employing confidential 

informants to help combat drug trafficking. One confidential informant, 

Lyndell Talley, proved particularly prolific. Over the course of one and a half 

months beginning in late 2016 and ending in early 2017, Talley made three 

controlled buys of methamphetamine from the defendant, Winfred Ware. As 

a result, Ware was indicted for conspiracy to possess with intent to distribute 

methamphetamine, obstruction of justice, and witness tampering (the latter 

two charges stemming from Ware’s attempt to manufacture exculpatory 

evidence).

On the eve of trial, the government learned that Ware’s cellmate had 

evidence related to the case. The cellmate testified that Ware claimed to 

have paid or threatened many witnesses to testify on his behalf and that he 

had sold and distributed methamphetamine. The jury ultimately convicted 

Ware on all three counts and sentenced him to 180 months in prison. Ware 

appealed.

II.

After Ware’s counsel filed a brief with this Court, Ware moved to 

discharge his counsel and proceed pro se. With this Court’s permission, Ware 

submitted his own brief. Ware’s attorney raises five claims: (1) violation of 

the Fourteenth Amendment right to due process; (2) violation of the Sixth 

Amendment right to counsel; (3) improper exclusion of evidence regarding 

bias of a cooperating witness; (4) improper exclusion of evidence regarding 

bias of a confidential informant; and (5) violation of the Sixth Amendment 

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right to effective assistance of counsel. Ware raises seven additional claims. 

The government has responded to all claims.1

 We address each claim in turn, 

beginning with those made by Ware’s attorney.

A.

First, Ware’s counsel claims that Ware’s right to due process under 

the Fourteenth Amendment and Brady v. Maryland, 373 U.S. 83 (1963), was 

violated by the district court when it denied Ware’s motion for continuance 

for trial preparation. This claim is reviewed for abuse of discretion. United 

States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999). A Brady violation arises 

when “(1) the prosecution did not disclose evidence; (2) the evidence was 

favorable to the defense; and (3) the evidence was material.” United States 

v. Infante, 404 F.3d 376, 386 (5th Cir. 2005). However, there is no 

violation—even if the government does not disclose evidence until during 

trial—unless “the defendant was prejudiced by the tardy disclosure.” 

United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985). 

Ware’s counsel argues that the government violated Brady by 

disclosing potential impeachment evidence regarding Talley and other 

government witnesses only days before trial. Even assuming arguendo that all 

three Brady elements were met, Ware was not prejudiced because he used 

the relevant evidence at trial. Accordingly, the district court did not abuse 

its discretion by denying Ware’s counsel’s motion for a continuance.

1 To the extent that Ware raises additional claims on reply, “[a]rguments raised for 

the first time in a reply brief, even by pro se litigants . . . are waived.” United States v. 

Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005). 

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B.

Second, Ware’s counsel claims that Ware’s cellmate’s testimony 

violated Ware’s Sixth Amendment right to counsel, but it does not. This 

claim is reviewed for abuse of discretion. United States v. Bates, 850 F.3d 807, 

809–10 (5th Cir. 2017). The Sixth Amendment right to counsel has been 

violated when “(1) [the right] had attached; (2) an individual seeking the 

information was a government agent acting without the defendant’s 

counsel[’s] being present; and (3) that the agent deliberately elicited 

incriminating statements from the defendant.” Id. at 810. This does not, 

however, prohibit the government from benefitting “by luck or 

happenstance.” Maine v. Moulton, 474 U.S. 159, 176 (1985). 

Ware asserts that his cellmate, a former government informant, was 

“actively cooperating with the government and was looking to continue that 

cooperation” and that the cellmate knew that his sentence could be reduced 

if he provided information. But one must be “directed” or “otherwise 

knowingly exploited” by the government to be an agent. United States v. 

Fields, 761 F.3d 443, 478 (5th Cir. 2014). As the district court concluded, the 

cellmate acted on his own accord. United States v. Ware, 385 F. Supp. 3d 529, 

535 (E.D. Tex. 2019). The government did not talk to the cellmate until after 

the events here transpired and did not even know where he was held or that 

he was cellmates with Ware. The cellmate did not deliberately question 

Ware to elicit incriminating evidence either. Id. at 536. The record discloses, 

for example, that Ware voluntarily discussed a drug deal with his cellmate; 

only after these incriminating statements did the cellmate question Ware 

about the deal. This testimony was unexpected, but the district court did not 

abuse its discretion by allowing it. The jury was free to believe it or not. 

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C.

Third, Ware’s counsel claims that Ware’s right to cross-examine and 

present a defense was violated when the district court prohibited Ware from 

cross-examining a cooperating witness, Tamar Tucker, to show that Tucker 

was testifying in exchange for a reduced sentence (or to submit other 

evidence related to a potential sentence reduction for Tucker). Limitations 

on a defendant’s Sixth Amendment right to confrontation are reviewed de 

novo, subject to harmless error analysis. United States v. Diaz, 637 F.3d 592, 

597 (5th Cir. 2011). Under the Confrontation Clause, the defense must be 

allowed to “expose to the jury the facts from which [it] . . . could 

appropriately draw inferences relating to the reliability of the witness.” 

United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993). 

The jury was able to hear testimony about Tucker’s potential bias. 

For example, Tucker admitted that he could benefit by cooperating under the 

terms of his plea agreement. Tucker even testified about how much time he 

believed would be shaved off his sentence for cooperation. Here, there was 

no error.

D.

Fourth, Ware’s counsel claims that Ware’s right to cross-examine and 

present a defense was also violated when the district court prohibited Ware 

from introducing evidence to impeach Talley. We also review this claim de 

novo, subject to harmless error analysis. Diaz, 637 F.3d at 597. Talley 

testified that his motivation for serving as a confidential informant was 

making money, not procuring a “get out of jail free card” for any future 

crimes he may commit. But when Talley himself was arrested for possession 

of methamphetamine, he allegedly sought to leverage his status as a 

confidential informant to “make [the] case go away.” Ware attempted to 

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admit a police report to that effect, but the district court prohibited it as 

hearsay.

Federal Rule of Evidence 803(8) provides that a record of a statement 

of a public office is admissible if “it sets out . . . factual findings from a legally 

authorized investigation; and . . . the opponent does not show that the source 

of information or other circumstances indicate a lack of trustworthiness.” 

The report, however, does not include Talley’s statements but a police 

officer’s recollection of those statements. Both statements must qualify for 

a hearsay exception to be admissible. Fed. R. Evid. 805. Even if the officer’s 

statement is admissible under Rule 803(8), no exception applies to Talley’s 

statement. See id. 803, 804. The court also had a second basis for excluding 

the report because it was never authenticated. Ware’s counsel introduced 

neither testimony from the authoring officer confirming its legitimacy nor a 

certification from a custodian of public records. See id. 901(7), 902(4). And 

Talley denied making the statement during cross-examination and never 

otherwise adopted it before trial. 

Moreover, even if excluding the statements had been erroneous, it was 

harmless. Ware’s counsel cross-examined Talley about the alleged 

statement, which gave the jury the same basis for disbelieving Talley’s 

testimony. Excluding the police report was not reversible error.

E.

In addition to the above arguments,2 Ware, acting pro se, raises seven 

additional claims: (1) failure to prove beyond a reasonable doubt that Ware 

2 Ware’s counsel’s fifth and final claim is that Ware’s Sixth Amendment right to 

effective assistance of counsel was violated. Because the record is not sufficiently 

developed, we dismiss this claim without prejudice to a future 28 U.S.C. § 2255 petition. 

See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).

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engaged in conspiracy to sell drugs; (2) improper inclusion of lay testimony; 

(3) improper exclusion of testimony and failure to grant witness immunity; 

(4) improperly answering questions posed by the jury and improperly 

calculating the weight of drugs for sentencing purposes; (5) a defective 

“criminal complaint;” (6) an improper “criminal complaint” and lack of 

subject matter jurisdiction; and (7) failure to confirm or deny “that Ware has 

substantiated the defective nature of his criminal complaint on the record.” 

Because there was subject matter jurisdiction and the indictment was not 

defective, and because the record amply supports the jury verdict and the 

district court’s evidentiary rulings, each of these claims fail as well.

* * *

For the above reasons, we AFFIRM Ware’s conviction. 

Accordingly, we also DENY Ware’s additional motions to unseal 

documents, to supplement the record on appeal, to proceed in forma pauperis, 

and to vacate the decision of the district court. 

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