UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4046
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARIO LAMAR WAIR, a/k/a Unda,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:14-cr-00248-GLR-9)
Submitted: August 11, 2016 Decided: November 21, 2016
Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Floyd and Senior Judge Hamilton joined.
Harry D. McKnett, LAW OFFICE OF HARRY D. MCKNETT, LLC, Columbia,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Seema Mittal, Assistant United States Attorney, Leo J.
Wise, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Mario Wair was indicted on two drug-related offenses for
conspiring to distribute and possess with intent to distribute
500 or more grams of cocaine and 280 grams or more of cocaine
base between June 2013 and June 2014, in violation of 21 U.S.C.
§§ 841, 846 (Count One), and distributing and possessing with
intent to distribute more than 28 grams of cocaine or cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (Count Two). A jury
convicted him on both counts, and the district court sentenced
him to 180 months in prison. On appeal, Wair argues that the
district court erred in (1) striking his testimony regarding his
public authority defense and (2) instructing the jury to
disregard such testimony during its deliberations. For the
following reasons, we affirm.
I.
In March of 2008, Wair agreed to serve as a confidential
informant (“CI”) for the Baltimore Police Department (“BPD”) in
exchange for a reduction in his sentence from a prior drug
conviction. As part of his agreement with BPD, Wair agreed to
refrain from engaging in criminal activities or undertaking any
investigation without the express approval of his supervising
2
officer. 1 Under BPD’s CI program, a supervising officer could
authorize a CI to make a controlled purchase of illegal drugs
under “very strict circumstances.” J.A. 157. BPD required
supervising officers to maintain control and supervision over a
CI before, during, and after any controlled purchase. 2 BPD never
permitted supervising officers to approve the sale of illegal
drugs under any circumstances.
Wair was initially assigned to Detective Hagee, but he
began working under the direction of Officer Lettau beginning in
2009. Between August and October of 2009, Wair worked for
Lettau as a CI on three occasions, making one controlled
purchase and providing information on two other occasions.
After Wair assisted BPD on those three occasions, Lettau lost
1
The registration form Wair signed to become a CI contained
clear conditions and directives regarding the permissible scope
of his activities, including:
You shall not initiate a plan to commit criminal
activities.
You shall not become involved in criminal activities.
You shall not undertake any investigation of any kind
without the expressed approval and direction of your
control agent.
Supp. J.A. 11.
2
According to Officer Lettau, a BPD officer would typically
meet with a CI to provide instructions and funds to complete the
drug transaction, surveil them as they engage in the
transaction, and then meet them at a predetermined location to
recover the drugs that had been purchased.
3
contact with him. On January 18, 2012, BPD deactivated Wair as
a CI due to inactivity. While Lettau tried to alert Wair, no
evidence established that Wair was ever informed of his
deactivation.
On February 4, 2014--more than two years after BPD
deactivated Wair and over four years since Wair last provided
formal assistance to BPD--FBI agents stopped Wair as he left the
home of codefendant Kareem Moore and seized 140.9 grams of
cocaine base and 261.6 grams of cocaine from him. Wair provided
the names of his supervising officers to the agents and claimed
that he was working as a CI. He admitted to purchasing cocaine
earlier that day and selling some of it to Moore. He also
admitted to having sold cocaine to Moore on as many as
50 occasions during the past several years. After being
released by FBI agents on February 4, he was arrested on July 8,
2014. Wair was indicted for the relevant crimes in connection
with the criminal prosecution of four other codefendants.
At trial, Wair attempted to invoke the public authority
defense, which provides an affirmative defense for a defendant
who reasonably relied on the authority of a government official
in committing otherwise illegal acts. 3 He testified that he
3
Wair failed to provide adequate notice of his intention to
raise a public authority defense as required by Rule 12.3 of the
Federal Rules of Criminal Procedure. The district court
(Continued)
4
believed he was acting as a CI under the direction of Hagee
during the alleged drug conspiracy between June 2013 and June
2014. He claimed that he continued to remain in communication
with Hagee and provided him with information from 2008 up until
February 2014 “and beyond.” J.A. 238. Wair stated that he had
not spoken to Hagee for “at least” a week before engaging in the
drug transactions on February 4, but intended to notify him
after the fact. J.A. 243. Wair testified that he had received
payments from Hagee on several occasions for providing
information and making controlled purchases, but offered no
evidence to substantiate this claim. While Hagee acknowledged
having infrequent contact with Wair over the years, he denied
ever providing Wair with any payments, or having directed him to
engage in covert activity during the time of the alleged
conspiracy.
The government moved to strike the portion of Wair’s
testimony pertaining to his public authority defense. Over
Wair’s objection, the district court granted the government’s
motion, and instructed the jury to disregard any testimony that
conditionally admitted his testimony regarding this defense, but
reserved the right to strike all such testimony and admonish the
jury if he failed to present evidence that Hagee possessed
actual authority to authorize his actions. See Fed. R. Evid.
104(b), 401.
5
Wair believed he was acting on behalf of law enforcement during
the time of the alleged drug conspiracy. In support of its
ruling, the district court noted “[t]here is no evidence in the
record, in fact, there’s evidence to the contrary that Detective
Hagee possessed any actual authority to be able to authorize the
defendant Wair to engage in the behavior that he engaged in
during the course of the conspiracy between June of 2013 and
June of 2014.” Supp. J.A. 14.
II.
Trial courts have “broad discretion in ruling on the
admissibility of evidence, and we will not overturn an
evidentiary ruling absent an abuse of discretion.” United
States v. Hedgepeth, 418 F.3d 411, 418–19 (4th Cir. 2005). We
have held that “a defendant's right to present a defense is not
absolute: criminal defendants do not have a right to present
evidence that the district court, in its discretion, deems
irrelevant or immaterial.” United States v. Malloy, 568 F.3d
166, 177 (4th Cir. 2009).
The public authority defense “allows a defendant to seek
exoneration based upon his objectively reasonable reliance on
the authority of a government official.” United States v.
Fulcher, 250 F.3d 244, 253 (4th Cir. 2001). This affirmative
defense requires the defendant to establish that he reasonably
6
relied upon the authority of a government official with actual--
not apparent--authority to authorize his otherwise illegal
actions. Id. at 253–54.
The district court did not abuse its discretion in
excluding Wair’s testimony regarding his public authority
defense. Wair admitted to not only purchasing cocaine on
February 4, but also selling cocaine to Moore on that day and as
many as 50 prior occasions. Hagee had the authority to permit
controlled purchases by a CI only under “very strict
circumstances.” J.A. 157. Moreover, he lacked any authority to
approve the sale of illegal drugs. Even assuming that Hagee’s
authority extended beyond Wair’s termination as a CI in 2012,
Wair failed to present any evidence that Hagee possessed the
actual authority to authorize these illegal transactions. 4
III.
For the foregoing reasons, we affirm the district court’s
ruling. We dispense with oral argument because the facts are
4 Because we affirm the district court’s ruling that Wair
failed to establish that Hagee possessed actual authority to
authorize his actions, we need not address whether Wair
presented sufficient evidence that he was “objectively
reasonable” in relying on Hagee’s authority. Fulcher, 250 F.3d
at 253.
7
adequately presented in the materials before the court, and
argument would not aid the decisional process.
AFFIRMED
8