The Ho norable Dean Whipple, United States District Judge for the Wester n 1 District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-3703

_____________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Daryn E. Stewart, * * Appellant. *

_____________ Submitted: April 18, 1997 Filed: August 20, 1997

_____________ Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

_____________ JOHN R. GIBSON, Circuit Judge.
Daryn Ste wart appeals his convictions for distribution of cocaine base i n violat ionof 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and (b)(1)(B). He argues that th e district court erred in refusing to grant immunity to a witness that Stewart believe d

1 would establish his innocence and in refusing to allow him to cross-examine a police-2-

i nformant on the informant's involvement in a homicide. Stewart also argues that the district court erred in sentencing him for selling crack cocaine. We affirm.
At Stewart's trial the government called Kansas City Police Detective Ra y Staley, who testified that while undercover he bought crack cocaine from Stewart on three occas ions. Staley also testified that Mark Robinson helped him buy crack from Stewart by calling Stewart and setting up each purchase.
On c ross-examination of Staley, Stewart attempted to show that Robinson had killed another drug dealer in a drug related shooting before he began cooperating with the poli ce. Stewart argued to the district court that Robinson faced possible murde r charges for his role in this shooting and w as cooperating with the police to avoid those cha rges, and that the jury should hear this evidence so they could understan d Rob inson's motive to cooperate with the police. The district court excluded al l evidence of Rob inson's involvement in the shooting because it was a collateral matter and because it was inadmissible under Rule 403 of the Federal Rules of Evidence.
After the government rested its case against Stewart without calling Robinson as a witness, Stewart attempted to call Robinson t o testify about his involvement in the shootin g. The district court, however, refused to allow Stewart to ask Robinson i n front of the jury about the shooting.
Stewart also attempted to call Eli Strother as a witness. Strother invoked hi s Fifth Amendment privilege against self-incrimination, and stated that he would assert the Fifth Amendment to questions about the case. Stewart asked the district court to grant immunity to Strother so he could testify for Stewart. The district court refused to grant Strother immunity, and he did not testify.-3-

Th e jury found Stewart guilty of three counts of distribution of cocaine base

. The district court found that Stewart had sold cocaine base in the form of crack cocaine and sen tenced Stewart accordingly. Stewart appeals his conviction and his sentence.
I.
Stewart a rgues that the district court violated his Sixth Amendment right t o confront witnesses against him by preventing him from questioning Staley an d Robinson about Robinson's role in the shooting.
The Confrontation Clause of the Sixth Amendment guarantees to Stewart th e opportunity for effective cross-examinati on of witnesses against him, including inquiry into the witnesses' motivations and biases. See United States v. Warfield , 97 F.3 d 1014, 1024 (8th Cir. 1996), cert. denied , 117 S. Ct. 1119 (1997). The right to examine witnesses under the Confrontation Clause is not without limitation. District court s retain wid e latitude under the Confrontation Clause to impose reasonable limits o n cross-examination when they have concern s about harassment, prejudice, confusion of the iss ues, a witness's safety, or interrogation that is repetitive or only marginall y relevant. See id. Absent a clear abuse of discretion and a showing of prejudice, w e will not reverse a district court's ruling limiting cross-examination of a prosecutio n witness on the basis that it impermissibly infringed Stewart's right of con frontation. See id. We reject Stewart's argument that the district court erred in preventing him from cross-examining Staley about Robinson's involveme nt in the shooting. Stewart wanted to bring out Robinson's involvement in the shooti ng to show his bias and strong motive to coo perate with the police to avoid possible murder charges. Stewart's right t o confront witnesses gives him a right to cross-examine Staley about Staley's motivation or bias, not Robinson's bias. Cf. Delaware v. Van Arsdall , 475 U.S. 673, 678-8 0 (1986) ("[T]he focus of the Confrontation Clause is on individual witnesses.").-4-

Robinson's bias is irrelevant to Staley's testimony. Staley testified that he met with St ewart on three occasions to buy crack cocaine. Staley stated that at eac h meeting Stewart gave him crack cocaine in exchange for money . While Staley testified that R obinson set up the crack sales and was present at all three sales, Staley' s testimony stands on its own and is unaffected by Robinson's bias. The district court did not ab use its discretion in preventing Stewart from cross-examining Staley abou t Robinson's bias, and there was no violation of the Confrontation Clause.
We also conclude that the district court did not violate the Confrontation Clause when it p revented Stewart from calling Robinson to the stand to testify abou t Robins on's involvement in the shooting. The Confrontation Clause gives Stewart the right to cros s-examine witnesses against him. The government, however, did not call Robinson a s a witness against Stewart. Therefore, the Confrontation Clause ha s nothin g to do with the district court's limitation of Stewart's questioning of Robinson. See Davis v. Alaska , 415 U.S. 308, 320 (1974) (stating that the government can avoid the introduction of bias evidence under the Confrontation Clause by not calling th e witness for whom that evidence is relevant).
II.
Stewart ar gues that the district court should have granted Strother immunity so that St rother could testify in Stewart's defense. Stewart contends that Strother' s testi mony was essential to his defense, and that the district court's failure to gran t Strother immunity deprived him of a fair trial. The district court did not have th e aut hority to grant Strother immunity because this court has consistently refused t o recogni ze the concept of judicial immunity. See Warfield , 97 F.3d at 1020. Us e im munity can be granted only when formally requested by the Attorney General, and the district court is without power to force the government to grant a witness immunity. See id. Thus, the district court was completely without power to grant Strothe r immunity and correctly refused to do so.-5- III.
Stewart argues that the district court erred in sentencing him to the enhance d penalties fo r selling crack cocaine because there is no evidence to support the district court's factual finding that he sold crack cocaine.
Stewart should receive the enhanced penalties contained in the Sentencin g Guidelines only if the district c ourt properly found that Stewart distributed the "crack" fo rm of cocaine base. See U.S.S.G. § 2D1.1(c), Note (D); United States v. Munoz

Realpe , 21 F.3d 375, 377 (11th Cir. 1994). The sentencing judge also presided a t Stewart's trial. See Uni ted States v. Wiggins , 104 F.3d 174, 178 (8th Cir. 1997). We can reverse the district court's factual finding only if it is clearly erroneous. See United States v. Williams , 97 F.3d 240, 243 (8th Cir. 1996).
There i s evidence in the record to support the district court's factual finding

. Staley testified at trial that he bought crack cocaine from Stewart on three occasions. Staley also identi fied the crack cocaine he bought from Stewart when the government introd ucedit into evidence. The government had the cocaine analyzed by a chemis t and entered the chemist's reports into eviden ce at Stewart's trial. The reports state that the coc aine base was "rock-like." We conclude that the district court's finding tha t Stewart sold crack cocaine is not clearly erroneous.
Stewart ar gues that there must be evidence that the cocaine base that he sol d contained cocaine hydrochlori de and sodium bicarbonate before the district court may find that the cocaine base i s crack cocaine. We reject Stewart's argument because the Sentencing Guidelines only state that cr ack cocaine is "usually prepared by processing cocaine hydrochloride and sodium bicarbonate." U.S. S.G. § 2D1.1(c), Note (D). This language does not require such evidence before the district court can conclude that a substance is crack cocaine, and such evidence was not required in this case.-6-

We affirm Stewart's conviction and sentence. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.