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

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-2002

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Contrez Jones, * * Appellant. *

___________ Submitted: December 13, 2007 Filed: January 11, 2008

___________ Before RILEY, COLLOTON, and BENTON, Circuit Judges.

___________ RILEY, Circuit Judge. After a jury convicted Contrez Jones (J ones) 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 re lation 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 viol ation of 18 U.S.C. § 922(g)(1), the district court 1 sentenced Jones to an aggregate of 252 months’ imprisonment and an eight year-2- term of supervised release. On appeal, Jones contends the di strict court erred in denying Jones his constitutional ri ght to call witnesses to te stify on his behalf. Jones does not challenge his sentence on appeal. We affirm.

I. BACKGROUND On December 2, 2005, detectives withthe 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 de tectives approached the car and observed Jones and Dailey in possession of marijuana. The detectives arrested Jones and Dailey for possession of mar ijuana 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 di stribute five grams of cocaine base and possession of marijuana in relation to the D ecember 2, 2005 arrest, t ogether 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 Jone s 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 inquire d how Dailey’s counsel would advise Dailey-3- regarding testifying. Dailey’s attorney responded Dailey would only testify under duress and would invoke his Fifth Amendment right. Th e court asked, “are you telling me that if he were sworn to tes tify, [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, “T hat is exactly what I would advise him of and that is what I believe he would say.”
Jones’s attorney argued J ones had a right to call Dailey as a witness. The government responded, noting a witness’ s invocation of the Fifth Amendment “trumps” a criminal defenda nt’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 ju ry 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 mu st yield to a witne ss’s Fifth Amendment privilege not to give testim ony 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 violat ed his Sixth Amendment right to compel the testimony of witnesses when the districtcourt failed to conduct a sufficient inquiry into Dailey’s invocation of the Fifth Ame ndment privilege against self-incrimination.-4- In doing so, Jones seeks to place the burden on the district court to quiz Dailey’s defense counsel on the questions Jones woul d have asked Dailey a nd their materiality.
As a matter of law, Jones bears the burden to establish Dailey’s testimony would be material and favorableto Jones’s defense. See United States v. Mejia-Uribe , 75 F.3d 395, 399 (8th Cir. 1996). Jones faile d to do so. Jones merely stated an intention to put Dailey on the stand becau se Dailey could “shed some light on this matter.” Shedding light on a matter is insu fficient to establish the materiality of Dailey’s testimony or to dem onstrate Dailey’s testimony woul d be favorable to Jones. Having Dailey testify may ha ve 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 withmarijuana. Without an adequate showing, the district court need not consider whether Daile y 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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