United States v. Potwin

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 3, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40413
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY DAVID POTWIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:03-CR-44)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Henry David Potwin, a federal inmate
formerly incarcerated at the Federal Correctional Institution-
Medium, Beaumont (“Beaumont”), appeals his jury-trial conviction
for possession of heroin by an inmate at a federal prison. Potwin
argues that the government’s refusal to reveal the identity of its
confidential informant and failure to call him as a witness
violated his Confrontation Clause rights under Crawford v.
Washington, 541 U.S. 36 (2004). Potwin asserts that the district

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court abused its discretion by excluding the testimony of four of
his witnesses: Damon Fisher; William Digilio; J. Brent Liedtke; and
Randall Mark Manuel. He contends that the district court abused
its discretion by finding that their proffered testimony was
hearsay and irrelevant, and that its probative value was outweighed
by its prejudicial effect.
Potwin briefly complains that the government never gave him a
proper address for J.J. Cantu, the former Beaumont inmate who,
according to Potwin, planted the heroin in his tobacco pouch. To
the extent that Potwin seeks relief for this reason, he has waived
the issue by failing to brief it properly. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993); FED. R. APP. P. 28.
We review alleged Confrontation Clause violations de novo.
United States v. Bell, 367 F.2d 452, 465 (5th Cir. 2004). We
review the district court’s evidentiary rulings for an abuse of
discretion. See United States v. Speer, 30 F.3d 605, 609 (5th Cir.
1994). “[I]n a criminal case, however, review of the trial court’s
evidentiary rulings is necessarily heightened.” United States v.
Carrillo, 20 F.3d 617, 619 (5th Cir. 1994). Even if we find an
abuse of discretion in the admission or exclusion of evidence, we
review this issue under the harmless error doctrine. United States
v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996).
As the government did not use any statements of the
confidential informant against Potwin, his reliance on Crawford is
misplaced. See Crawford, 541 U.S. at 68. As the confidential

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informant was merely a tipster, the government was not required to
disclose his identity. See United States v. Cooper, 949 F.2d 737,
749 (5th Cir. 1991). Furthermore, “the Government is under no duty
to call witnesses even if they are informers.” United States v.
Frascone, 747 F.2d 953, 956 (5th Cir. 1984) (quoting United States
v. Tatum, 496 F.2d 1282, 1284 (5th Cir. 1974)). Potwin has not
shown that his Confrontation Clause rights were violated.
All of the following proffered testimony was based on out-of-
court statements made by someone other than the witness and was
offered to prove the matters contained therein: (1) the testimony
of Fisher, Digilio, and Liedtke regarding Cantu’s alleged attempt
to have his gang kill Potwin; (2) Digilio’s testimony regarding the
argument between Cantu and Potwin, Cantu’s alleged tacit admission
that he set up Potwin, and an inmate’s ability to set up another
inmate; and (3) Liedtke’s testimony regarding the alleged threat
made by Cantu, Potwin’s fear of being transferred, and the results
of Potwin’s drug tests. All this testimony was hearsay, see FED.
R. EVID. 801(c); and Potwin has failed to show that any of it was
admissible pursuant to any exception to the hearsay rule. See FED.
R. EVID. 803, 804, and 807. Accordingly, the district court did not
abuse its discretion by excluding this testimony. See FED. R. EVID.
802.
Liedtke’s proffered testimony that he believed that Cantu set
up Potwin was opinion testimony from a lay witness. As this
testimony was not helpful to clearly understand Liedtke’s testimony

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or to determine a fact in issue, the district court did not abuse
its discretion in excluding this testimony. See FED. R. EVID. 701.
Officer Manuel’s proffered testimony that he observed tension
between Cantu and Potwin was based on his personal observations,
not an out-of-court statement. Officer Manuel’s testimony that
Cantu called Potwin a rat was not offered to prove the content of
Cantu’s out-of-court statement, i.e., that Potwin was, in fact, a
rat. Contrary to the district court’s finding, this testimony was
not hearsay. See FED. R. EVID. 801(c). Additionally, the following
proffered testimony was based on the witnesses’ personal knowledge
and observations and was not hearsay: (1) Fisher’s testimony
regarding the argument between Cantu and Potwin, Potwin’s habit of
leaving his tobacco pouch on the art room table, and an inmate’s
ability to set up another inmate; (2) Digilio’s testimony regarding
never having seen Potwin possess or use heroin, Potwin’s habit of
leaving his tobacco pouch on the art room table, and the
questionable safety of inmates deemed to be rats; (3) Liedtke’s
testimony regarding an inmate’s ability to set up another inmate,
Cantu’s marijuana smoking and access to drugs, Cantu’s possible
financial motivation for setting up Potwin, and Potwin’s habit of
leaving his tobacco pouch on the art room table; and (4) Officer
Manuel’s testimony regarding the seriousness of being deemed a rat
in prison, the seriousness of an inmate accusing another inmate of
theft, and Potwin’s habit of leaving his tobacco pouch on the art
room table. See id.

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At trial, Potwin’s theory of the case was that he did not
knowingly possess the heroin found in his tobacco pouch because
Cantu planted it there. Potwin was entitled to present evidence to
support this theory. See Truman v. Wainwright, 514 F.2d 150, 152
(5th Cir. 1975). The non-hearsay proffered testimony of Fisher,
Digilio, Liedtke, and Officer Manuel was relevant because it tended
to make Potwin’s theory of the case more probable —— and tended to
make the contention that Potwin knowingly possessed the heroin less
probable —— by showing Cantu’s motive and opportunity to plant the
heroin in Potwin’s tobacco pouch. See FED. R. EVID. 401; United
States v. Causey, 185 F.3d 407, 419 (5th Cir. 1999) (motive and
opportunity evidence is relevant).
The district court additionally ruled that the proffered
testimony of Potwin’s witnesses was inadmissible under FED. R. EVID.
403 because its probative value was outweighed by it prejudicial
effect and potential to confuse the jury. Neither the district
court nor the government, however, has provided any reason as to
why the proffered testimony would unfairly prejudice or confuse the
jury and no such reason is apparent from the record. The proffered
testimony was directly related to whether Potwin knowingly
possessed the heroin, the core issue in dispute at the trial. As
relevant evidence should be excluded pursuant to FED. R. EVID. 403
sparingly, we conclude that the district court abused its
discretion by excluding the non-hearsay testimony proffered by

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Fisher, Digilio, Liedtke, and Officer Manuel. See United States v.
Powers, 168 F.3d 741, 749 (5th Cir. 1999).
The district court’s abuse of discretion in excluding Potwin’s
witnesses directly affected his compulsory process rights and thus
was an error of constitutional dimension. See United States v.
Davis, 639 F.2d 239, 244 (5th Cir. Unit B Mar. 1981). Accordingly,
the abuse of discretion was harmless only if “it is clear beyond a
reasonable doubt that the error did not contribute to the verdict
obtained.” United States v. Alexius, 76 F.3d 642, 646 (5th Cir.
1996). Other than Potwin himself, the excluded witnesses were
Potwin’s only witnesses who could testify to facts supporting the
heart of the theory of his case. Potwin was left with “little more
than the ability to make unsubstantiated and . . . unprovable
claims on the witness stand.” See United States v. Lowery, 135
F.3d 957, 960 (5th Cir. 1998). As it is not clear that the
district court’s abuse of discretion did not contribute to the
verdict beyond a reasonable doubt, it was not harmless error. See
Alexius, 76 F.3d at 646.
The judgment of the district court is VACATED and this matter
is REMANDED to the district court for a new trial consistent with
this opinion.

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