UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4897
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL VEGA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Richard D. Bennett, District Judge. (CR-
02-542-RDB)
Submitted: November 24, 2004 Decided: January 27, 2005
Before WILKINSON and WILLIAMS, Circuit Judges, and Norman K. MOON,
United States District Judge for the Western District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, Elkridge, Maryland, for Appellant. Thomas
M. DiBiagio, United States Attorney, James M. Trusty, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Daniel Vega was convicted by a jury of conspiring to
distribute drugs and drug trafficking, in violation of 21 U.S.C.A.
§§ 841 (a)(1) and 846 (West 1999), and sentenced to sixty-months
imprisonment. On appeal, Vega contends that the district court
erred by (1) refusing to disclose the confidential informant’s
identity, (2) allowing a jury to convict Vega without sufficient
evidence, (3) applying an upward adjustment for obstructing
justice, and (4) refusing to apply the safety-valve provision.
Because we find no reversible error, we affirm.
I.
During several telephone calls in November 2002, Jose Mancebo,
a New York resident, attempted to enter into an agreement to sell
and deliver two kilograms of cocaine to a Maryland resident.1
Unbeknownst to Mancebo, the Maryland resident with whom he was
negotiating was working as a confidential informant (“the C.I.”),
and law enforcement officers (“the Officers”) were recording the
telephone conversations and orchestrating a buy-bust operation.2
1
Eventually the drug amount was lowered to one kilogram.
2
A buy-bust operation is “where a quantity of a controlled
substance is ordered from a source of supply or a seller to bring
to a certain location for a buyer. . . . Normally an informant or
an undercover agent . . . make[s] a purchase. . . and then an
arrest team move[s] in.” (Trans. of Mot. Hr’g July 8, 2003 at 13.)
Two teams of officers orchestrated maintaining verbal contact with
the C.I. via cellular telephones, as well as visual contact.
2
On November 21, 2002, Mancebo and the C.I. finalized their
agreement. Because Mancebo did not have a valid driver’s license,
he enlisted Vega, an acquaintance of two years, to drive him from
New York to Maryland to deliver the cocaine.3
Near midnight on November 22, 2002, Vega and Mancebo arrived
in Maryland and picked up the C.I. in Oxon Hill, Maryland. Vega
and Mancebo then switched seats, so that Mancebo was driving and
Vega was in the passenger seat. The C.I., who was in the back
seat, directed Mancebo to drive to a nearby diner, where the
Officers were waiting, to complete the cocaine sale. While in
route to the diner, the Officers received a verbal signal from the
C.I. that he had observed cocaine. The Officers had selected the
diner as the location for the buy-bust operation because the
parking lot of the diner was well-lit and easily accessible. When
the three men arrived at the diner, the C.I. exited the car and
entered the diner, thus visually signaling that the cocaine was in
the car. When the Officers approached the parked car, they found
a 960 gram brick of cocaine at Vega’s feet.
The Government indicted Vega and Mancebo for conspiracy to
distribute and possession with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1) and 846.4
3
The trip from New York to Maryland takes approximately four
hours.
4
Mancebo pleaded guilty to both counts on March 11, 2003 and
was sentenced to forty-six months imprisonment.
3
While preparing his defense, Vega sought to obtain the C.I.’s
identity from the Government, but the district court denied the
motion after conducting an in camera review of the DEA-6's and the
grand jury testimony of the Officers regarding the arrest of
Mancebo and Vega and finding that neither contained any information
material and favorable to Vega. Prior to trial, Vega also moved to
suppress his post-arrest statements. At the suppression hearing,
Vega testified that he waived his Miranda rights during his post-
arrest interview, that he had an eleventh grade education, that he
worked as a taxi driver and dispatcher, and that he is basically
bilingual. The district court found that Vega, a native Spanish
speaker, “showed no difficulty in an ability” to respond to
questions, to read road signs, to read exhibits presented in court,
or to speak with the Officers using simple words. (Trans. of Mot.
Hr’g July 8, 2003 at 44-45.) The district court denied Vega’s
motion, and Vega has not pursued that ruling on appeal.
At trial, the Officers testified that, prior to November 22,
the C.I. had dealt only with Mancebo, and that as of that date,
neither the C.I. nor the Officers were aware of Vega’s existence or
role in the drug sale. They also testified that Vega stated he did
not know the buyer of the cocaine or its origin. The Officers
further testified that, during Vega’s post-arrest interview, Vega
waived his Miranda rights and confessed to driving Mancebo to
Maryland for the drug sale in exchange for being paid one thousand
4
dollars. The prosecution also provided evidence that Vega was aware
of the purpose of Mancebo’s trip and corroborated Vega’s story by
introducing evidence of Mancebo’s expired driver’s license,
containing Mancebo’s photograph, but a fictitious name. The
Officers testified that Vega did not express any difficulty in
understanding and responding to their questions.
Vega attempted to rebut the prosecution’s evidence by
testifying that, because Vega’s native language is Spanish and the
Officers did not provide Vega with a Spanish interpreter during his
post-arrest interview, the Officers misinterpreted his statements
as a confession. Vega explained that although he did not know the
reason for the trip, he agreed to drive Mancebo to Maryland because
he needed to earn some money. Vega further testified that he first
learned of the drug deal when, just before his arrest, the C.I.
threw the cocaine into the front seat of the vehicle and it landed
under his feet.
The jury, discrediting Vega’s testimony, found Vega guilty of
both charges. The district court sentenced Vega to sixty-months
concurrent imprisonment on each count, four years of supervised
release, and a $200 special assessment. In reaching that sentence,
the district court decreased the offense level based on Vega’s
minimal participation, applied an upward adjustment for obstruction
of justice based on Vega’s perjury, and refused to apply the
safety-valve provision because of Vega’s perjury. We possess
5
jurisdiction over Vega’s appeal under 28 U.S.C.A. § 1291 (West
1999), and now affirm.
II.
Vega’s first contention is that the district court should have
ordered the Government to disclose the C.I.’s identity because the
C.I. could have testified to Vega’s lack of knowledge and
participation in the drug transaction. We review the district
court’s decision to preserve a confidential informant’s identity
for abuse of discretion. United States v. D’Anjou, 16 F.3d 604, 609
(4th Cir. 1994).
In determining whether to disclose the identity of a
confidential informant, the Supreme Court has called for a
“balancing [of] the public interest in protecting the flow of
information against the individual’s right to prepare his defense”
and “that no fixed rule with respect to disclosure is justifiable.”
Roviaro v. United States, 353 U.S. 53, 62-63 (1957). In applying
this balancing test, a court should consider “the crime charged,
the possible defenses, [and] the possible significance of the
informant’s testimony.” Id. Following Roviaro, we have held that
the informant’s role in the specific investigation is one factor
under the balancing test and “when the informant is an active
participant in the transactions at issue instead of just a mere
tipster, the failure to require disclosure of the informant’s
6
identity is more likely to amount to error.” United States v.
Blevins, 960 F.2d 1252, 1259 (4th Cir. 1992)(citing United States
v. Price, 783 F.2d 1132, 1138-39 (4th Cir. 1986)).
In its Roviaro balancing, the district court found that the
disclosure of the C.I.’s identity could not aid Vega’s defense
because the C.I. never actually dealt with Vega and thus would not
have any favorable information to disclose. In Vega’s pre- and
post-trial motions, he did not characterize the C.I. as a
“participant;” on appeal, however, Vega argues that the C.I. acted
as a participant in the buy-bust and that under Price the
identities of participants must be disclosed.
Even if we assume the district court abused its discretion in
failing to reveal the identity of the participating C.I., the error
would be harmless. On appeal, “[a]ny error, defect, irregularity,
or variance that does not affect substantial rights must be
disregarded.” Fed. R. Crim. P. 52(a). Vega’s defense to the crimes
charged was his recantation of his post-arrest statements. Due to
the C.I.’s brief interaction with Vega, the C.I. could have only
testified to Vega’s actions and statements while in the car with
Vega and Mancebo.
Prior to trial, the district court carefully conducted an in
camera review of the redacted portions of the Officers’ grand jury
testimonies and the DEA-6's and concluded that the reports were
thorough and the redactions did not contain any material relevant
7
to Vega’s defense. Post-trial, the district court reassessed the
redactions, again concluding the information was not favorable or
material to Vega. The district court found that the jury rendered
its verdict with full knowledge of Vega’s tangential involvement in
the buy-bust and that Vega interacted with the C.I. only during the
brief period when both were in the vehicle. In addition, nothing
in the record before us shows that Vega made an effort to call
either Mancebo or additional law enforcement personnel involved in
the buy-bust, who were fully aware of Vega’s role in the
transaction, to testify. Vega’s ability to call Mancebo and cross-
examine the testifying Officers regarding the dispute over who
possessed the cocaine, vitiated Vega’s need to know the identity of
the C.I. See Blevins, 960 F.2d at 1258 (noting failure to disclose
is more likely to be error when C.I. is the only person with first-
hand knowledge of the crime). Moreover, the Officers, who were
positioned to observe the drug transaction, did not see the C.I.
throw any object such as cocaine into the front seat of the car.
Given the minimal interaction between the C.I. and Vega, the
availability of alternate sources of information, and the
contradiction of Vega’s factual contentions by the Officers’
testimonies5, we do not believe that there is any possibility that
disclosure of the C.I.’s identity could have affected Vega’s
5
Our finding here that the evidence of Vega’s guilt was
overwhelming necessarily rejects Vega’s contention that there was
insufficient evidence to convict.
8
substantial rights. Accordingly, any error in the district court’s
refusal to order the disclosure of the C.I.’s identity was harmless
beyond a reasonable doubt. See United States v. Mackins, 315 F.3d
399, 405 (4th Cir. 2003) (“[W]e must reverse unless we find . . .
constitutional error harmless beyond a reasonable doubt”).
In summary, we need not decide whether the district court
abused its discretion because by viewing the evidence of guilt and
role in the offense in its entirety, the failure to disclose the
identity of the confidential informant to Vega could be no more
than harmless error. See Delaware v. Van Arsdall, 475 U.S. 673,
681 (1986) (finding that “an otherwise valid conviction should not
be set aside if the reviewing court may confidently say, on the
whole record, that the constitutional error was harmless beyond a
reasonable doubt”).
III.
Finally, Vega contends that the district court erred by
applying an upward adjustment for obstructing justice and by
refusing to apply the safety valve exception to his sentence. We
review the application of the obstruction of justice enhancement
and the safety-valve provision for clear error. United States v.
Wilson, 114 F.3d 429, 432 (4th Cir. 1997).
The prosecution sought to enhance Vega’s sentence under United
States Sentencing Guidelines Manual § 3C1.1 (2003), because he
9
obstructed justice by willfully perjuring himself. During Vega’s
post-arrest interview with law enforcement, he stated that he drove
Mancebo to Maryland for the drug transaction in exchange for a fee.
At trial, however, Vega testified that Mancebo did not inform him
of the reason for the trip to Maryland, and that the C.I. possessed
the cocaine prior to the arrest. These statements directly
contradict the statements Vega made to law enforcement during the
post-arrest interview.
“[I]f a defendant objects to a sentence enhancement resulting
from her trial testimony, a district court must review the evidence
and make independent findings necessary to establish a willful
impediment to or obstruction of justice.” United States v.
Dunnigan, 507 U.S. 87, 95 (1993). The three elements of perjury are
“(1) false testimony (2) concerning a material matter (3) given
with the willful intent to deceive (rather than as a result of,
say, confusion, mistake, or faulty memory).” United States v.
Smith, 62 F.3d 641, 646 (4th Cir. 1995).
The district court found that Vega’s trial testimony met the
elements of perjury. Specifically, it found
[f]irst, that the defendant took an oath to testify truthfully
before this Court and the Court finds clearly he did take such
an oath. Second, that he made false statements as to matters
about which the defendant testified under oath . . . . Third,
that the matters as to which he is charged, the defendant made
false statements . . . and this Court’s finding that they
were material. Fourth, that such statements were willfully
made.
10
(J.A. 306.) Based on a review of the record and the district
court’s thorough examination of the facts, we find that the
district court correctly interpreted the obstruction of justice
provision and that the application of the two-level adjustment for
obstruction of justice was not clearly erroneous.
Vega also contends he was eligible for the safety valve set
forth at U.S.S.G. § 5C1.2. “The safety valve permits shorter
sentences for a first-time offender who would otherwise face a
mandatory minimum, provided that he meets five statutory
requirements.” United States v. Fletcher, 74 F.3d 49, 56 (4th Cir.
1996). Relevant here, the safety valve provision requires the
defendant “not later than the time of the sentencing hearing . . .
[to truthfully provide] the Government all information and evidence
the defendant has concerning the offense.” U.S.S.G. § 5C1.2. We
have interpreted that provision to require “defendants to
demonstrate, through affirmative conduct, that they have supplied
truthful information to the Government.” United States v. Ivester,
75 F.3d 182, 185 (4th Cir. 1996)(interpreting identical statutory
provision, 18 U.S.C.A. § 3553 (f)(5)). Here, the district court
correctly refused to apply the safety valve provision because Vega
did not truthfully testify at court.
11
IV.
After careful review, we find the district court did not err
in preserving the C.I.’s identity, properly found sufficient
evidence existed to convict, and correctly applied the sentencing
guidelines. Accordingly, we affirm Vega’s conviction and sentence.
AFFIRMED
12