F I L E D

United States Court of Appeals

Tenth Circuit

November 8, 2005

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee,

v.

PATRICK HOWARD GEAMES, also

known as Pat Geames, also known as

Patrick H. Geames, also known as Pat

James,

Defendant - Appellant.

No. 04-4266

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 2:03-CR-378-01-DAK)

Richard P. Mauro, Salt Lake City, Utah, for Defendant-Appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (Paul M. Warner,

United States Attorney, with her on the brief), District of Utah, Salt Lake City,

Utah, for Plaintiff-Appellee.

Before McCONNELL, McKAY, and TYMKOVICH, Circuit Judges.

McKAY, Circuit Judge.
1Defendant had admitted to possession of the drugs, and the only issue for

the jury to decide was whether he intended to distribute them. Rec., Vol. IX, at

569.

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After a jury trial, Defendant was convicted of possession with intent to

distribute five grams or more of methamphetamine in violation of 21 U.S.C. §

841(a)(1) and of simple possession of cocaine in violation of 21 U.S.C. § 844(a). 

Defendant was sentenced to serve a term of one-hundred-twenty-months’

imprisonment.1

An investigation began when officers from the Sandy City Police

Department received information that Defendant and his son were involved with

narcotics. Subsequent collection and analysis of the garbage (known as “trash

covers”) outside Defendant’s home were conducted on March 7 and March 21,

2003. Both trash samples revealed the presence of methamphetamine.

On March 28, 2003, after finding methamphetamine at Defendant’s home,

Sandy City police officers executed a controlled buy of methamphetamine with

Defendant’s son. The police relied on a confidential informant who posed as the

buyer of methamphetamine. This confidential informant had previously agreed to

cooperate with the Sandy City Police Department after methamphetamine was

found in an unrelated police raid of his home on March 5, 2003. In return for not

filing charges concerning the methamphetamine, the confidential informant

promised to assist the police. Rec., Vol. VIII, at 235-37.
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Sandy City police officers operated surveillance, from several locales, to

monitor the controlled buy. The surveillance revealed the following: First, the

confidential informant met Defendant’s son at a 7-Eleven store. The two quickly

departed for Defendant’s son’s trailer home where the confidential informant gave

$100 to Defendant’s son. Next, Defendant’s son drove to Defendant’s home

where he entered and remained for fifteen minutes. Directly following this visit,

Defendant’s son returned to his trailer home to meet the confidential informant. 

The confidential informant then entered Defendant’s son’s trailer home and, after

several minutes, exited with a small bag of methamphetamine which he

subsequently turned over to the officers conducting the surveillance.

Warrants were issued on April 2, 2003, to search the homes of both

Defendant and his son. At Defendant’s home, officers found 16.1 grams of pure

methamphetamine, 26.3 grams of cocaine, a digital scale, small clear plastic

baggies, various pipes, lighters, and syringes. Defendant stated that all of the

drugs and paraphernalia in the house were for his personal use. Rec., Vol. VIII,

at 298. 

On January 14, 2004, the confidential informant was placed in the Adult

Detention Center on traffic warrant violations. In exchange for agreeing to testify

at Defendant’s trial, the informant was released from incarceration that evening. 

Rec., Vol. VIII, at 237-38. At Defendant’s trial (February 25-27, 2004), the
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confidential informant testified that Defendant was a distributor of

methamphetamine. Rec., Vol. VIII, at 239. 

In June of 2004, nearly four months after Defendant’s trial, various charges

were filed by the Salt Lake County Attorney’s Office against the confidential

informant for other crimes which allegedly occurred on January 13, 2004. These

charges were dismissed on September 13, 2004. 

Defendant now appeals his conviction because (1) the government failed to

disclose material exculpatory evidence for purposes of impeaching the

confidential informant witness, (2) the court improperly limited the crossexamination of the confidential informant witness, and (3) the trial court erred in

sentencing Defendant by applying the United States Sentencing Guidelines in a

mandatory fashion. 

We review de novo the denial of a motion for a new trial based on a claim

that the prosecution failed to disclose material exculpatory evidence, in violation

of the standard set forth in Brady v. Maryland, 373 U.S. 83 (1963). United States

v. Hughes, 33 F.3d 1248, 1251 (10th Cir. 1994). 

Defendant maintains that the trial court erred in denying his request to set

aside the verdict on the ground that the government withheld material exculpatory

evidence. Specifically, Defendant states that the prosecution did not properly

disclose evidence of additional criminal acts committed by the confidential
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informant who testified against Defendant at trial. Defendant argues that the

disclosure of these additional charges would have significantly assisted him in 

impeaching the credibility of the confidential informant and exposing the

confidential informant’s motive to cooperate with the government.

In a criminal case, the prosecution has a duty to disclose exculpatory

evidence: evidence is exculpatory under Brady if it is either generally favorable to

the accused’s defense or impeachment evidence. Smith v. Sec’y of New Mexico

Dep’t of Corr., 50 F.3d 801, 825-26 (10th Cir. 1995). The Supreme Court has

held that “the suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or

to punishment . . . .” Brady, 373 U.S. at 87. With the holding of Giglio v. United

States, the Supreme Court further delineated the disclosure requirements

explaining that “[w]hen the ‘reliability of a given witness may well be

determinative of guilt or innocence,’ nondisclosure of evidence affecting

credibility falls within this general rule.” 405 U.S. 150, 154 (1972) (quoting

Napue v. Illinois, 360 U.S. 264, 269 (1959)).

In order to establish a Brady violation, the defendant has the burden of

demonstrating: “(1) the prosecution suppressed evidence; (2) the evidence was

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

Banks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (citation omitted); see
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also Smith, 50 F.3d at 825; United States v. Hughes, 33 F.3d 1248, 1251 (10th

Cir. 1994).

As to whether the prosecution suppressed evidence, Defendant maintains

that the government withheld evidence of the confidential informant’s

commission of various criminal acts. While the record plainly supports that the

confidential informant testified to having committed certain felonies, Defendant

was denied the opportunity to question the confidential informant about other acts

allegedly committed on or around January 13, 2004. Rec., Vol. VIII, at 259-66. 

The circumstances of these additional acts are vague, but what is clear is that the

confidential informant was not charged with these felonies and misdemeanors 

until June 11, 2004, more than three months after Defendant’s February trial. 

Rec., Vol. I, Add. D, 3d Dist. Docket Sheet at 2. These charges were later

dropped in September of 2004. There is nothing in the record which suggests

that, at the time of trial, any federal officer or any member of the Sandy City

Police Department involved in the case knew of the confidential informant’s

alleged pending state charges. Nor has Defendant met his burden by directing

this court to any record evidence supporting his proposition that the government

suppressed information. Aple. Br., at 34-38. Thus, we do not impute knowledge

by the prosecution of these January acts during or before the February 2004 trial,

given that no charges were filed until June 2004, months after the trial’s
2We note that in Brady claims “constructive knowledge” may be attributed

to the government in limited circumstances. See Smith, 50 F.3d at 824-25 (stating

that knowledge by police or investigators may potentially be imputed to the

prosecution). However, we do not hasten to impose such constructive knowledge

on the government. Indeed, in cases such as this, where no record evidence

supports any awareness by the local police or federal officers of the alleged

suppressed evidence, we refrain from conjuring up its existence.

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conclusion. We therefore determine that the government did not suppress

evidence of these felonies and misdemeanors.2

We refrain from addressing the second and third prongs of Defendant’s

Brady claim (whether the evidence was favorable or material) as we have

concluded that the government did not withhold evidence. See United States v.

Lopez, 372 F.3d 1207, 1211 (10th Cir. 2004) (stating that it was not clear error

for the trial court, after finding no suppression of evidence by the government, to

dispose of defendant’s Brady claim). 

Defendant also argues that his Sixth Amendment right to confrontation was

violated when the district court limited his cross-examination of the confidential

informant. We review de novo whether cross-examination restrictions violate a

defendant’s Sixth Amendment right to confrontation. United States v. Toles, 297

F.3d 959, 967 (10th Cir. 2002) (citing United States v. McGuire, 200 F.3d 668,

677 (10th Cir. 1999)). It is crucial that a defendant be afforded the opportunity to

confront and cross-examine his opponent witnesses, but it does not follow that

courts must allow any cross-examination “that is effective in whatever way, and
3

 Plaintiff’s Exhibit 27, which was admitted into evidence during trial,

listed “Motor Vehicle” as an agency with whom the confidential informant had

worked. In addition, Defendant’s counsel argued in closing that the confidential

informant had worked for other government agencies. Rec., Vol. IX, at 562.

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to whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475 U.S.

673, 679 (1986) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per

curiam)). 

Defendant claims that the district court erred in limiting the scope of his

cross-examination because he was not able to adequately reveal the confidential

informant’s bias. However, while exposing a witness’ motivation is important to

a defendant’s right of cross-examination, the trial judge may seek to place

reasonable boundaries on a bias inquiry. Van Arsdall, 475 U.S. at 678-79. Here,

the trial court denied Defendant’s motion to question the confidential informant

on the following issues: (1) an unrelated pending state felony charge; (2) several

thousand dollars in unpaid child support; and (3) previous work as an informant

for the Utah Department of Motor Vehicles.3

 The court limited cross-examination

to the confidential informant’s prior convictions and information relating to the

agreement between the confidential informant and his cooperation with the Sandy

City Police Department. 

When considering a defendant’s challenge to limitations on crossexamination, we “determine whether the jury had sufficient information to make a
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discriminating appraisal of the witness’ motives and bias.” United States v.

Bindley, 157 F.3d 1235, 1240 (10th Cir. 1998) (citing United States v. Gault, 141

F.3d 1399, 1403 (10th Cir. 1998)). “A defendant’s Confrontation Clause rights

are violated when he is prohibited from engaging in otherwise appropriate crossexamination designed to elicit the witness’ bias and a reasonable jury might have

received a significantly different impression of the witness’ credibility.” Toles,

297 F.3d at 967 (citing Van Arsdall, 475 U.S. at 680). Here, the jury learned that

the confidential informant was a two-time convicted felon, a regular user of

methamphetamine who would likely have failed a drug test on the day of trial

because he uses methamphetamine “all the time” (Rec., Vol. VIII, at 253-54), and

that he had a conviction for domestic assault, among a host of other unsavory

acts. In addition, the record is clear that the jury learned not only about the prior

bad acts of the confidential informant but also about his motivation to cooperate

with the government. The confidential informant testified that, after raiding his

home, the Sandy City Police Department did not file charges against him for

possession of methamphetamine in exchange for his cooperation. At trial, the

following exchange occurred between the prosecutor and the confidential

informant regarding his cooperation with the Sandy City Police Department:

Q. Okay. What, if anything, did Officer Carver agree to do for you if you

would work with him as a confidential informant?

A. Not file on a particular case.

Q. They found some drugs on you as a result of the raid?
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A. They did.

Q. Do you know how much it was that they found on you?

A. About an eight ball.

Q. Which was an eighth of an ounce?

A. Yes.

Q. What kind of drug was that?

A. Meth.

Q. And they agreed not to file that in court on you if you became a

confidential informant for Sandy City; correct?

A. Correct. 

Rec., Vol. VIII, at 236.

Defendant’s right to cross-examine the confidential informant was not

materially hindered. Defendant was able to make use of sufficient evidence to

demonstrate possible bias. We do not determine that the jury would have formed

a significantly different opinion of the confidential informant had Defendant been

able to question him about the additional pending state felony charge, working as

an informant for the Department of Motor Vehicles, or owing child support. We

hold that his Sixth Amendment right to confrontation was not violated by the

district court’s limitation of the cross-examination.

Defendant also argues that the district court erred when it applied the

United States Sentencing Guidelines Manual (“Guidelines”) in a mandatory

fashion at sentencing. This, he argues, violated his constitutional rights as

recently articulated by the Supreme Court in United States v. Booker, __ U.S. __,

125 S. Ct. 738 (2005). Because Defendant made a Blakely objection at

sentencing, Defendant preserved his Booker argument for this appeal. See United
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States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005) (noting that

a Blakely objection is sufficient to preserve non-constitutional Booker error).

Non-constitutional Booker errors which have been preserved for appeal are

reviewed for harmless error. Id. Here, we agree with the parties that the error

was not harmless. Defendant was sentenced at the low end of the sentencing

guideline range, and the district court gave no indication of what the sentence

would have been if the Guidelines had not been applied in a mandatory fashion. 

We therefore refrain from being placed in the “zone of speculation and

conjecture” about what the district court would have done had it applied the

Guidelines in an advisory capacity. Id. at 1143. 

We AFFIRM the conviction and REMAND the case for resentencing.