United States v. Ball

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31330
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LESTER TERRAZE BALL, also known as T-Ball,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CR-50025-ALL
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July 12, 2002
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Lester Terraze Ball appeals his conviction for
distribution of 50 grams or more of cocaine base. Finding no
error, we affirm.
Ball argues first that his conviction on Count 2, the
distribution of crack cocaine, should be reversed because the jury
rendered a not guilty verdict on Count 1, the distribution of
marijuana count. He contends that the same officer, Horton,

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testified as to both counts and, thus, if the jury found him not
guilty on Count 1, they should have found him not guilty on Count
2.
Inconsistent verdicts are not a bar to conviction if
there is sufficient evidence to support the jury’s determination of
guilt. United States v. Gieger, 190 F.3d 661, 664 (5th Cir. 1999).
The officer who dealt directly with Ball, Horton, testified about
the transaction in which Ball sold him cocaine base. Horton
testified that he met with Ball at Ball’s residence on November 8,
2000, and purchased two ounces of crack cocaine from Ball for
$1,600.00. He testified that he dealt directly with Ball, placing
the money directly in his hands. There was sufficient evidence to
support the conviction on Count 2.
Ball next argues that his conviction should be reversed
because the prosecution failed to provide him with the identity of
the confidential informant. He argues that he was denied the right
to confront the witness against him and was deprived of due
process. The denial of a request for disclosure of an informant is
reviewed for abuse of discretion. United States v. Sanchez, 98
F.2d 1384, 1391-92 (5th Cir. 1993). However, because Ball never
asked the court for disclosure of the informant, the failure of the
Government to provide this information is reviewed for plain error.
United States v. Olano, 507 U.S. 725, 730-37 (1993); United States
v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en banc).

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In Sanchez, 98 F.2d at 1391-92, disclosure of the
confidential informant’s identity was not required because the
informant was not involved in the heroin transaction. The
informant observed the transaction but did not set up the crime or
lead the police to the crime scene. Disclosure was not essential
to the fair determination of guilt or innocence because the
informant’s participation was limited, and the testimony would not
help the defense. Similarly in this case, the informant did not
participate in the transactions in question, he was merely present
in Ball’s residence and observed, and there is no indication that
his testimony would be helpful to Ball. There was no plain error
in the Government’s failure to disclose the identity of the
informant.
As a corollary to his argument concerning the
nondisclosure of the informant’s identity, Ball argues that the
district court abused its discretion in refusing to instruct the
jury concerning the adverse inference to be drawn from a missing
witness. “The propriety of giving a ‘missing witness’ instruction
is necessarily a matter committed to the discretion of the trial
judge.” Labit v. Santa Fe Marine, Inc., 526 F.2d 961, 963 (5th
Cir. 1976). A missing witness instruction is not justified if it
appears that the testimony of the witness would likely have been
merely cumulative or corroborative. United States v. Jennings, 724
F.3d 436, 446 (5th Cir. 1984). The testimony of the informant in
this case would merely have corroborated the testimony of Officer

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Horton that crack cocaine and money were on the table in Ball’s
residence. The district court did not abuse its discretion in
refusing to give the missing witness instruction to the jury.
Ball argues that the district court erred in denying his
motion for acquittal because no one specifically identified him as
the person who committed the crime. Because Ball failed to renew
his motion for judgment of acquittal at the close of all the
evidence, review is limited to whether his conviction resulted in
a manifest miscarriage of justice. United States v. Inocencio, 40
F.3d 716, 724 (5th Cir. 1994). Horton positively identified Ball
as the person from whom he purchased the drugs. Ball’s argument
that the evidence of his identity was insufficient is frivolous.
AFFIRMED.

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