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The Honorable E. Richard Webber, United States District Judge for the Eastern

District of Missouri.

 United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2002

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United States of America, *

*

Appellee, *

* Appeal from the United States

 v. * District Court for the Eastern

* District of Missouri.

Contrez Jones, *

*

Appellant. *

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Submitted: December 13, 2007

Filed: January 11, 2008

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Before RILEY, COLLOTON, and BENTON, Circuit Judges.

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RILEY, Circuit Judge.

After a jury convicted Contrez Jones (Jones) of (1) possession with intent to

distribute in excess of five grams of cocaine base (crack), in violation of 21 U.S.C. §§

841(a)(1), and 851; (2) one count of carrying a firearm in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c); (3) one count of possession of a quantity of

cocaine base (crack), in violation of 21 U.S.C. §§ 844(a), and 851; and (4) one count

of felony possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), the district

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 sentenced Jones to an aggregate of 252 months’ imprisonment and an eight year
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term of supervised release. On appeal, Jones contends the district court erred in

denying Jones his constitutional right to call witnesses to testify on his behalf. Jones

does not challenge his sentence on appeal. We affirm.

I. BACKGROUND

On December 2, 2005, detectives with the St. Louis (Missouri) Police

Department observed Jones entering Martrell Dailey’s (Dailey) car and sitting in the

passenger seat while Dailey occupied the driver’s seat. Believing Jones and Dailey

were engaged in a drug transaction, the detectives approached the car and observed

Jones and Dailey in possession of marijuana. The detectives arrested Jones and

Dailey for possession of marijuana and seized the marijuana. A search of Jones,

incident to the arrest, revealed cocaine base (crack) and $700 in cash.

On July 27, 2006, a federal grand jury returned an indictment charging Jones

and Dailey with possession with intent to distribute five grams of cocaine base and

possession of marijuana in relation to the December 2, 2005 arrest, together with other

charges. An arrest warrant for both Jones and Dailey was issued as a result of the

indictment. While Dailey was arrested without incident, Jones twice evaded arrest,

once pointing a handgun at a police officer before driving away at a high rate of speed.

Jones was eventually arrested on August 22, 2006. 

Dailey pleaded guilty to the charges in the July 27, 2006 indictment. Pursuant

to the guilty plea, Dailey admitted giving Jones a bag of marijuana when Jones entered

Dailey’s vehicle on December 2, 2005. Dailey was not sentenced until April 19,

2007. 

Jones’s trial commenced on February 5, 2007. After the government rested its

case in chief, Jones informed the district court he intended to put Dailey on the stand

because he could “shed some light on this matter.” Dailey’s counsel appeared on

Dailey’s behalf. The district court inquired how Dailey’s counsel would advise Dailey
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regarding testifying. Dailey’s attorney responded Dailey would only testify under

duress and would invoke his Fifth Amendment right. The court asked, “are you

telling me that if he were sworn to testify, [Dailey] would say that he would

respectfully decline to testify on the grounds that anything he might say or be asked

about in this proceeding could conceivably be used against him in another criminal

prosecution?” Dailey’s lawyer responded, “That is exactly what I would advise him

of and that is what I believe he would say.” 

Jones’s attorney argued Jones had a right to call Dailey as a witness. The

government responded, noting a witness’s invocation of the Fifth Amendment

“trumps” a criminal defendant’s right to call a witness pursuant to the Sixth

Amendment. Jones’s attorney then asked the court to instruct the jury Jones had

attempted to call Dailey as a witness and Dailey had invoked the Fifth Amendment.

The court denied this request. 

At the conclusion of the trial, the jury found Jones guilty on four of the five

counts against him, finding Jones not guilty of the charge of possessing marijuana on

December 2, 2005. This appeal followed. 

II. DISCUSSION

“We review for an abuse of discretion a district court’s decision not to compel

testimony after a witness has claimed a Fifth Amendment privilege.” United States v.

Blaylock, 421 F.3d 758, 770 (8th Cir. 2005) (citation omitted). “‘It is well settled that

an accused’s right to compulsory process must yield to a witness’s Fifth Amendment

privilege not to give testimony that would tend to incriminate him or her.’” Id.

(quoting United States v. Habhab, 132 F.3d 410, 416 (8th Cir. 1997)). 

Jones asserts the district court violated his Sixth Amendment right to compel

the testimony of witnesses when the district court failed to conduct a sufficient inquiry

into Dailey’s invocation of the Fifth Amendment privilege against self-incrimination.
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In doing so, Jones seeks to place the burden on the district court to quiz Dailey’s

defense counsel on the questions Jones would have asked Dailey and their materiality.

As a matter of law, Jones bears the burden to establish Dailey’s testimony

would be material and favorable to Jones’s defense. See United States v. Mejia-Uribe,

75 F.3d 395, 399 (8th Cir. 1996). Jones failed to do so. Jones merely stated an

intention to put Dailey on the stand because Dailey could “shed some light on this

matter.” Shedding light on a matter is insufficient to establish the materiality of

Dailey’s testimony or to demonstrate Dailey’s testimony would be favorable to Jones.

Having Dailey testify may have jeopardized Jones’s one acquittal on the marijuana

count involving the December 2, 2005, car stop and arrest when Dailey and Jones

were discovered together with marijuana. Without an adequate showing, the district

court need not consider whether Dailey properly invoked his Fifth Amendment

privilege. 

III. CONCLUSION

We find the district court’s decision not to compel Dailey’s testimony was not

an abuse of discretion. We affirm.

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