UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5425

CLARA MARSHALL LATTIN,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CR-508-A)

Submitted: February 18, 1997

Decided: March 21, 1997

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,

North Carolina, for Appellant. Helen F. Fahey, United States Attorney, Jay Apperson, Assistant United States Attorney, Alexandria,

Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Clara Marshall Lattin appeals her convictions for conspiracy to

import heroin, 21 U.S.C. § 963 (1994), and conspiracy to distribute

and possess heroin with the intent to distribute, 21 U.S.C. § 846

(1994). Finding no reversible error, we affirm.

First, Lattin asserts the court abused its discretion by refusing

to

permit her to call Josette Breaux, an indicted co-conspirator, as

a witness for the sole purpose of impeaching her testimony. The Government did not call Breaux to testify, but introduced testimony of

three

other indicted co-conspirators who implicated Lattin in their

heroin

trafficking operation. Lattin asked to call Breaux to establish

that she

would have lied had the Government called her to testify; additionally, Lattin asserted that Breaux's impeachment would have

impeached the testimony of the co-conspirators who testified

against

her.

The court did not abuse its discretion because Lattin sought to

impeach a witness who did not testify for the Government. As the

court properly stated, "the Government is not going to call her, so

she

won't implicate your client . . . I am not going to let her be set

up just

to impeach her." While a party may impeach its own witness, the

district court did not abuse its discretion here because the

Government

did not call Breaux to testify. See United States v. Morlang, 531

F.2d

183, 189-90 (4th Cir. 1975). We also note that Lattin fails to

establish

that Breaux's testimony went to the credibility of government witnesses at all. Moreover, Appellant was permitted to argue to the

jury

that the credibility of the conspirators who testified should be

assessed in light of their plea agreements. Thus, the jury had

before

it evidence of possible biases of government witnesses and could

assess their credibility accordingly.

Second, Lattin asserts the district court committed plain error,

see

United States v. Olano, 507 U.S. 725 (1993), in instructing the

jury
about the existence of a conspiracy and about heroin's status as a

controlled substance. Because the Constitution "gives a criminal

defendant the right to have a jury determine, beyond a reasonable doubt,

2
his guilt of every element of the crime with which he is charged,"

United States v. Johnson, 71 F.3d 139, 142 (4th Cir. 1995), a trial

court may not instruct the jury that a fact essential to conviction

has

been established by the evidence. Id.

The district court properly instructed the jury about the

definition

of a conspiracy. Additionally, it instructed the jury that

[i]f you conclude that the conspiracy did exist, you should

next determine whether or not the defendant willfully and

knowingly became a member of the conspiracy.

And indeed, that latter is what the issue is in this case.

While

it is your recollection that counts, it does not seem to me

that here is any real question but that [ ] there is a

conspiracy both to import and to possess with intent and to distribute heroin. What the issue in the case is not whether there

was a conspiracy, but whether this defendant willfully, willfully became a member of that conspiracy.

Further, the court instructed the jury that they were the "sole

judges

of the facts" and "what the Court or the lawyers say to you

regarding

the evidence or their recollection of the evidence is not binding

on

you." Lattin asserts the court's instruction directed a verdict

about the

existence of a conspiracy.

The court also instructed the jury that the law"prohibit(s)

importation of a controlled substance... heroin is a controlled

substance."

Lattin asserts that this instruction was improper because heroin's

status as a controlled substance was a question of fact for the jury

to

decide.

As to the conspiracy instruction, the district court did not commit

reversible error. It surrounded its comments about the existence of

a

conspiracy with instructions that the jury should decide the issue

itself. Thus, it did not preempt the jury from making any factual

determination. See United States v. Gravely, 840 F.2d 1156, 1164-65 (4th

Cir. 1988). As to the heroin instruction, the court did not commit

plain error because heroin is listed as a controlled substance in
21

3
U.S.C. § 812(b) (1994), and the issue of whether it is a controlled

substance is an issue of law, not fact. See United States v.

GonzalesPalma, 645 F.2d 844, 846 (10th Cir. 1981).

Accordingly, we affirm Lattin's convictions. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the material before the court and argument would not aid

the

decisional process.

AFFIRMED

4