United States v. Donald Lee Dugan

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2719
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
Wes Davenport, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 9, 2001
Filed: January 19, 2001
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Before RICHARD S. ARNOLD, FAGG, and BOWMAN, Circuit Judges.
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PER CURIAM.
Wes Davenport was a confidential informant who occasionally purchased illegal
drugs from dealers for the North Little Rock police. On October 31, 1998, he was
stopped for speeding and, during a pat-down search, officers found a handgun and
crack cocaine. Davenport was arrested and charged with drug and weapons offenses.
Davenport was convicted on both counts and sentenced to 180 months' imprisonment.
On appeal, Davenport asserts the district court committed error in refusing to give a
jury instruction on his public authority defense. We disagree. The evidence showed
Davenport was acting on his own when he sold crack cocaine to an informant and

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undercover officer on October 27, 1998, and Davenport was not under the supervision
or control of the investigators when he was found in possession of crack cocaine and
a firearm on October 31, 1998. Because Davenport failed to prove he reasonably relied
on the representation of a government official in possessing the gun and drugs, the
district court properly refused to give the instruction. See United States v. Achter, 52
F.3d 753, 755 (8th Cir. 1995). Davenport also contends the district court committed
error in refusing to allow him to ask a police witness a hypothetical question about
whether it would be reasonable for a confidential informant to disarm someone during
a drug deal. Because Davenport was not acting in a controlled buy situation during the
events alleged in the indictment, the hypothetical question assumed facts different from
those presented and would have confused and misled the jury. See Iconco v. Jensen
Construction Co., 622 F.2d 1291, 1301 (8th Cir. 1980). The district court thus
properly refused the proposed hypothetical. Accordingly, we affirm Davenport's
conviction.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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