## 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 Defenda nt-Appellant. Elizabethanne C. Stevens, Assistant United States Attorney (Paul M. Warner, United States Attorney, with her on the brief), Dis trict of Utah, Salt Lake City, Utah, for Plaintiff-Appellee.

Before McCONNELL , McKAY , and TYMKOVICH , Circuit Judges.

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

the jury to decide was whether he intended to distr ibute them. Rec., Vol. IX, at 569. -2- After a jury trial, Defendant was convicted of poss ession 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 vi olation of 21 U.S.C. § 844(a). Defendant was sentenced to serve a term of one-hund red-twenty-months’ imprisonment. 1 An investigation began when officers from the SandyCity Police Department received information that Defendant and his son were involved with narcotics. Subsequent collection and analysis of t he garbage (known as “trash covers”) outside Defendant’s home were conducted onMarch 7 and March 21, 2003. Both trash samples revealed the presence of methamphetamine. On March 28, 2003, after finding methamphetamine atDefendant’s home, Sandy City police officers executed a controlled buy of methamphetamine with Defendant’s son. The police relied on a confidenti al informant who posed as the buyer of methamphetamine. This confidential inform ant had previously agreed to cooperate with the Sandy City Police Department aft er methamphetamine was found in an unrelated police raid of his home on Ma rch 5, 2003. In return for not filing charges concerning the methamphetamine, the confidential informant promised to assist the police. Rec., Vol. VIII, at235-37.-3-

Sandy City police officers operated surveillance, f rom several locales, to monitor the controlled buy. The surveillance revea led the following: First, the confidential informant met Defendant’s son at a 7-E leven store. The two quickly departed for Defendant’s son’s trailer home where t he confidential informant gave $100 to Defendant’s son. Next, Defendant’s son dro ve 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 mee t the confidential informant. The confidential informant then entered Defendant’s son’s trailer home and, after several minutes, exited with a small bag of methamp hetamine which he subsequently turned over to the officers conducting the surveillance. Warrants were issued on April 2, 2003, to search th e homes of both Defendant and his son. At Defendant’s home, office rs found 16.1 grams of pure methamphetamine, 26.3 grams of cocaine, a digital s cale, small clear plastic baggies, various pipes, lighters, and syringes. De fendant stated that all of the drugs and paraphernalia in the house were for his p ersonal 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 fr om incarceration that evening. Rec., Vol. VIII, at 237-38. At Defendant’s trial ( February 25-27, 2004), the-4-

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 Offic e 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) th e government failed to disclose material exculpatory evidence for purposes of impeaching the confidential informant witness, (2) the court impro perly 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 c laim that the prosecution failed to disclose material ex culpatory 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 d enying his request to set aside the verdict on the ground that the governmentwithheld material exculpatory evidence. Specifically, Defendant states that the prosecution did not properly disclose evidence of additional criminal acts commi tted by the confidential-5-

informant who testified against Defendant at trial. Defendant argues that the disclosure of these additional charges would have s ignificantly assisted him in impeaching the credibility of the confidential info rmant and exposing the confidential informant’s motive to cooperate with t he government. In a criminal case, the prosecution has a duty to d isclose exculpatory evidence: evidence is exculpatory under Bradyif 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 Suprem e Court has held that “the suppression by the prosecution of ev idence favorable to an accused upon request violates due process where the evidenc e 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 disclosu re 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 Bradyviolation, the defendant has the burden of demonstrating: “(1) the prosecution suppressed evi dence; (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 omi tted); see-6-

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 confid ential informant’s commission of various criminal acts. While the rec ord plainly supports that the confidential informant testified to having committe d certain felonies, Defendant was denied the opportunity to question the confiden tial 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 vagu e, but what is clear is that the confidential informant was not charged with these f elonies and misdemeanors until June 11, 2004, more than three months after D efendant’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 m et his burden by directing this court to any record evidence supporting his pr oposition 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, m onths after the trial’s2 We note that in Bradyclaims “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 poten tially 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 feder al officers of the alleged suppressed evidence, we refrain from conjuring up i ts existence. -7- conclusion. We therefore determine that the govern ment did not suppress evidence of these felonies and misdemeanors. 2 We refrain from addressing the second and third pro ngs of Defendant’s Bradyclaim (whether the evidence was favorable or mater ial) as we have concluded that the government did not withhold evid ence. 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 o f evidence by the government, to dispose of defendant’s Bradyclaim). 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 defend ant 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 ef fective in whatever way, and3 Plaintiff’s Exhibit 27, which was admitted into ev idence during trial,

listed “Motor Vehicle” as an agency with whom the c onfidential 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. -8- 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 l imiting the scope of his cross-examination because he was not able to adequately reveal the confidential informant’s bias. However, while exposing a witnes s’ 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 questi on the confidential informant on the following issues: (1) an unrelated pending state felony charge; (2) several thousand dollars in unpaid child support; and (3) p revious work as an informant for the Utah Department of Motor Vehicles. 3 The court limited cross-examination to the confidential informant’s prior convictions a nd information relating to the agreement between the confidential informant and hi s cooperation with the Sandy City Police Department. When considering a defendant’s challenge to limitat ions on crossexamination, we “determine whether the jury had suf ficient information to make a-9-

discriminating appraisal of the witness’ motives an d 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 an d a reasonable jury might have received a significantly different impression of th e 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, amon g a host of other unsavory acts. In addition, the record is clear that the ju ry learned not only about the prior bad acts of the confidential informant but also abo ut his motivation to cooperate with the government. The confidential informant te stified that, after raiding his home, the Sandy City Police Department did not file charges against him for possession of methamphetamine in exchange for his c ooperation. 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 agre e 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?-10-

A. They did. Q. Do you know how much it was that they found on y ou? 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 us e of sufficient evidence to demonstrate possible bias. We do not determine that the jury would have formed a significantly different opinion of the confidenti al informant had Defendant been able to question him about the additional pending s tate felony charge, working as an informant for the Department of Motor Vehicles, or owing child support. We hold that his Sixth Amendment right to confrontatio n was not violated by the district court’s limitation of the cross-examinatio n. Defendant also argues that the district court erred when it applied the United States Sentencing Guidelines Manual (“Guidel ines”) in a mandatory fashion at sentencing. This, he argues, violated h is 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 Blakelyobjection at sentencing, Defendant preserved his Bookerargument for this appeal. See United-11-

States v. Labastida-Segura , 396 F.3d 1140, 1142-43 (10th Cir. 2005) (noting t hat

a Blakelyobjection is sufficient to preserve non-constituti onal Bookererror). Non-constitutional Bookererrors 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 l ow end of the sentencing guideline range, and the district court gave no ind ication of what the sentence would have been if the Guidelines had not been appl ied in a mandatory fashion. We therefore refrain from being placed in the “zone of speculation and conjecture” about what the district court would hav e done had it applied the Guidelines in an advisory capacity. Id . at 1143.
We AFFIRM the conviction and REMAND the case for resentencing.