* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### December 6, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 05-8022

v. (D. of Wyo.) ANGELA LaPLATNEY,

Defendant-Appellant. (D.C. No. 04-CR-168-WFD)

ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **

A jury in the District of Wyoming found Angela LaPl atney guilty on one count each of conspiracy to possess with intent to deliver and to distribute methamphetamine pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851 (2004), and concealing a person from arrest pursuant to § 18 U.S.C. 1071 (2003). LaPlatney argues on appeal that the court violated her constitutional rights in four-2-

distinct ways: (1) the exclusion of the federal sen tencing guidelines as a demonstrative aid violated her Sixth Amendment right to a fair trial; (2) the exclusion of a series of a witness’s booking photog raphs during crossexamination similarly violated her Sixth Amendment right to a fair trial; (3) the failure of the court to instruct the jury regarding the weight to afford witness testimony resulted in inadequate jury instructions; and (4) the combination of these errors denied her a fundamentally fair trial. We have jurisdiction under 28 U.S.C. § 1291. Becau se we find no error, we affirm. I. Background The events leading to LaPlatney’s federal charges b egan in September 2003, when she bonded her friend Michael Mills out of a Casper jail. It turned out, Mills, who later pleaded guilty to conspiracy to possess and distribute methamphetamine, had been improperly allowed out on bond. When federal authorities learned of Mills’s release, they contac ted LaPlatney for questioning. During an initial interview, LaPlatney misinformed the police about Mills’s whereabouts. In a subsequent interview, she refuse d to give the federal agents any contact information. In November 2003, another friend, Kristi Casciato, stayed at LaPlatney’s apartment over the Thanksgiving holidays. During this stay, Casciato noticed that-3-

Mills spent a substantial amount of time in the apa rtment and even babysat LaPlatney’s two children. Learning that Mills was wanted on federal charges, Casciato contacted federal agents and agreed to arr ange a meeting with Mills. On December 9, 2003, agents arrested Mills at LaPlatne y’s apartment. Later, LaPlatney also was arrested and charged with drug d istribution and harboring a wanted person. Both Mills and Casciato were key witnesses at LaPlatney’s trial, testifying that LaPlatney harbored Mills and engaged in drug t rafficking. LaPlatney’s alleged constitutional deprivations relate to the t estimony of these two witnesses. II. Analysis A. Sixth Amendment and Demonstrative Aids LaPlatney first argues that the district court’s re fusal to allow her to use the federal sentencing guidelines as a demonstrative ai d during Michael Mills’s testimony denied her the right to present a defense . During cross-examination of Mills, LaPlatney attempted to use the guidelines, p urportedly to clarify to the jury the likely reduction in Mills’s sentence for cooper ating with federal agents by testifying and consequently his incentive to lie. The district court refused, but did not otherwise restrict LaPlatney’s ability to quest ion Mills about his sentence reduction. Ruling that introduction of the guideli nes table was neither relevant nor probative, the court expressed concern that sho wing the jurors the table would-4-

potentially cause them to “think how [LaPlatney] mi ght be sentenced if she’s found guilty by them on one or more count.” (Vol. 3 at 249). We review a district court’s decision to exclude ev idence for abuse of discretion. United States v. Solomon , 399 F.3d 1231, 1239 (10th Cir. 2005). While we ordinarily review de novo an allegation of a constitutional violation, id. , we review merely for plain error if such objection is not explicitly made below. Id. at 1238. However, this standard is inapplicable wh en the defendant fails to argue plain error on appeal. In such instances, we deem the constitutional issue waived. Id. Here, LaPlatney failed to make an explicit Sixth Amendment objection below and further failed to argue plain e rror on appeal; consequently, this argument is waived. Nevertheless, under any s tandard of review the district court committed no error. LaPlatney argues that her inability to use the guid elines as a demonstrative aid impaired her right to present a defense. This right arises under both the Fifth and Fourteenth Amendment rights to due process as w ell as the Sixth Amendment right to compulsory process. Id. at 1239. It confers on the defendant the ability to present witnesses, and by necessity, “the right to have the jury hear the testimony those witnesses are called to give.” Richmond v. Embry , 122 F.3d 866, 871 (10th Cir. 1997). However, the ability to pres ent such testimony is not without limits. The defendant is both “constrained by the twin prongs of-5-

relevancy and materiality,” Solomon , 399 F.3d at 1239, as well as the “established rules of evidence and procedure [which] assure bothfairness and reliability in the ascertainment of guilt or innocence.” Richmond , 122 F.3d at 871–72 (quoting Chambers v. Mississippi , 410 U.S. 284, 302 (1973)). Accordingly, in determining whether to permit such evidence, the court must bal ance the importance of such evidence to the case at hand against legitimate state interests in excluding such evidence. Id. at 872. LaPlatney’s right to a fair trial was not impeded. Even if the guidelines chart was relevant, LaPlatney fails to argue how it s exclusion materially impeded her defense. See id. (“[M]aterial evidence is that which is exculpatory- evidence that if admitted would create reasonable doubt thatdid not exist without the evidence.”). The district court allowed LaPlatney wide-latitude to cross-examine Mills concerning his knowledge of the federal sente ncing guidelines generally, the application of the sentencing guidelines in his case, and the possibility of a reduction in his sentence under the guidelines. In deed, as clearly demonstrated in the trial transcript, LaPlatney took full advantage of such an opportunity. Additionally, the court recognized that introductio n of the guidelines could prejudice the jury by causing confusion or speculat ion about their application to her. As such, the court properly balanced these co ncerns against the exhibit’s minimal relevance and materiality.-6-

In summary, because the district court permitted La Platney to crossexamine Mills regarding the benefits he expected fr om the government, and because the court properly balanced the limited rel evance and materiality of the guidelines chart against its potential prejudicial effect, the district court neither abused its discretion nor committed plain error. A ccordingly, we conclude that LaPlatney’s constitutional right has not been violated

.

B. Sixth Amendment and the Exclusion of Photographs LaPlatney next asserts that the exclusion of Krist i Casciato’s booking photographs similarly denied her the right to prese nt a defense. During the crossexamination of Casciato, LaPlatney attempted to adm it a series of historical photographs in order to impeach Casciato concerning her prior and current use of methamphetamine. According to LaPlatney, the photo graphs would “give a pictorial record of a woman . . . who starts off in 1997 a beautiful young girl [and] [b]y the time we get to 2004, she looks like the meth posters we see all the time . . . .” (Vol. 3 at 379). The court ruled th at the photographs were inadmissible, stating “I think you’re asking this j ury to conclude that these pictures, in and of themselves, show that [Casciato ] has had ongoing use of methamphetamine, and I don’t think a clinician woul d make that assessment. So I certainly don’t think a layperson, you or I or the jury, should make that kind of assessment.” (Vol. 3 at 382).1 As with the first argument, LaPlatney failed to ra ise any Sixth

Amendment argument below or plain error on appeal. Since we find no error, LaPlatney could not satisfy plain error review even if she had preserved this argument. -7- Applying an abuse of discretion standard, we find n o error. To admit these photographs, LaPlatney necessarily must lay a prope r foundation by showing that “the matter in question is what the proponent claims.” Fed. R. Evid. 901; see United States v. Cardenas , 864 F.2d 1528, 1531 (10th Cir. 1989) (“The condit ion precedent to the admission of real evidence is met by providing the proper foundation.”). Simply asserting, in the absence of any supporting evidence, that the photographs evidenced drug use at a particular point in time is insufficient. Without an adequate foundation, the photographs were properly excluded. See United States v. Hart , 729 F.2d 662, 669 (10th Cir. 1984) (“[Q]uestions concerning the sufficiency of foundation evidence . . . are matters within the sound discretion of the trial court.”). 1 In sum, the exclusion of the photographs did not vi olate LaPlatney’s constitutional right to present a defense.

C. Jury Instruction on Witness Credibility LaPlatney’s third argument asserts the district cou rt erred by failing to give a jury instruction regarding witness credibility. To combat what LaPlatney-8-

characterized as a series of untruthful witnesses, she proposed the following instruction: The testimony of some witnesses must be considered with more caution than the testimony of other witnesses. For example, a witness who was using addictive drug s during the time he or she testified about may have an impaired memo ry concerning the events that occurred during that time. Also, a wit ness who has been promised that he or she will not be charged or pros ecuted, or a witness who hopes to gain more favorable treatment in his o r her own case, may have a reason to make a false statement because he or she wants to strike a good bargain with the Government. So, while a witness of that kind may be entirely tr uthful when testifying, you should consider that testimony withmore caution than the testimony of other witnesses. (Vol. 1, Def.’s Proposed Jury Instructions). The c ourt refused this instruction, ruling that phrasing the instruction as LaPlatney p roposed would make the court “an advocate” for the defendant and that the propos ed instruction “really is more argument than it is instructive on the law.” (Vol. 4 at 620–21). In lieu of LaPlatney’s proposed instruction, the co urt tendered standard instructions concerning witness credibility. For e xample, Instruction No. 9 addressed the credibility of witness testimony gene rally: In making your assessment [of witness credibility] you should carefully scrutinize all of the testimony given, the circumst ances under which each witness has testified, and every matter in evi dence which tends to show whether a witness, in your opinion, is worthy of belief. Consider each witness’s intelligence, motive to falsify, state of mind, and appearance and manner while on the witness stand. Consider the-9-

witness’s ability to observe matters as to which he or she has testified

. . . . Instruction No. 11, addressing Mills’s testimony inparticular as a potential recipient of reduced sentencing, cautioned the jury : You have heard that the witness Mike Mills was a de fendant and that Mr. Mills entered a plea of guilty to a crime. Thi s evidence of Mr. Mills’s plea of guilty is admitted for very limited purposes. Specifically, the evidence is admitted so that you may assess the credibility of this witness as part of your duty inassessing the credibility of each and every witness who will appe ar in this case . . . Under no circumstances should the evidence of Mr. M ills’s [] guilty plea be used by you as evidence of the guilt of the defendant. Instruction No. 12 similarly addressed the issue of witness self-interest: You, as jurors, must determine whether the testimony of a witness has been affected by self-interest. If you so infer, t he testimony must be examined and weighed by the jury with greater care t han the testimony of someone who is appearing in court without a pers onal interest in offering the testimony. Finally, Instruction No. 13 addressed the potential effect of alcohol or drug abuse upon witness credibility: The testimony of a drug or alcohol abuser must be e xamined and weighed by the jury with greater care than the test imony of a witness who does not abuse drugs or alcohol. The jury must determine whether the testimony of th e drug or alcohol abuser has been affected by drug or alcohol use or the need for drugs or alcohol. We review a district court’s refusal to give a part icular jury instruction for abuse of discretion. United States v. Serrata , 425 F.3d 886, 898 (10th Cir. 2005).-10-

In performing this review, we consider de novo the instructions in their entirety in order to determine whether they accurately convey t he governing law and the applicable standards to the jury. Id. ; United States v. Buonocore , 416 F.3d 1124, 1131–32 (10th Cir. 2005). We conclude that the court’s tendered instructions more than adequately conveyed the applicable standards to the jury and t herefore the court did not err by rejecting the instruction proposed by LaPlatney. Instruction Nos. 9, 11, 12, and 13 provided the jury with an ample description of the law and applicable standards to consider witness testimony. According ly, the district court’s refusal to tender LaPlatney’s particular jury instruction w as not an abuse of discretion. D. Cumulative Error LaPlatney finally argues she was denied her due pro cess right to a fundamentally fair trial through the combined effec t of (1) the exclusion of the federal sentencing guidelines as a demonstrative ai d; (2) the exclusion of Casciato’s booking photographs; and (3) the refusal to tender her proposed jury instruction. “As applied to a criminal trial, denial of due proc ess is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that t he absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily-11-

prevents a fair trial.” Lisenba v. California , 314 U.S. 219, 236 (1941). When performing a cumulative-error analysis, only those matters which we determine to be error are relevant. Non-errors, by their very n ature, are irrelevant to this analysis. United States v. Rivera , 900 F.2d 1462, 1471 (10th Cir. 1990). Because we find no errors by the district court, we accordi ngly find no cumulative error.
III. Conclusion For the above stated reasons, we find that LaPlatne y has not been denied her right to a fair trial, and we therefore AFFIRM. Entered for the Court Timothy M. Tymkovich Circuit Judge