US v. Mario Wair

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cr-00248-GLR-9 Copies to all parties and the district court/agency. [999972081].. [16-4046]

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UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

disregard

such

defense

testimony

and

(2)

during

its

instructing

the

deliberations.

jury

to

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

conviction.

a

reduction

in

his

sentence

from

a

prior

drug

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

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officer. 1

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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

Lettau

as

purchase

a
and

CI

August
on

and

three

providing

October

of

occasions,

information

on

2009,

Wair

making
two

worked

for

one

controlled

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

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contact with him.

On January 18, 2012, BPD deactivated Wair as

a CI due to inactivity.
evidence

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established

While Lettau tried to alert Wair, no

that

Wair

was

ever

than

two

informed

of

his

after

BPD

deactivation.
On

February

4,

2014--more

years

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

cocaine base and 261.6 grams of cocaine from him.

grams

of

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.
admitted

to

having

sold

50 occasions

during

the

cocaine
past

to

several

Moore
years.

on

as

He also
many

After

as

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

3

He testified that he

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

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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

after the fact.
payments

from

information

and

on

February

J.A. 243.
Hagee

but

intended

to

notify

him

Wair testified that he had received

on

making

4,

several

controlled

occasions
purchases,

evidence to substantiate this claim.

for
but

providing
offered

no

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

government

moved

during

the

time

of

the

alleged

conspiracy.
The
testimony

pertaining

to

to

his

strike
public

the

portion

authority

of

Wair’s

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

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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

admissibility
evidentiary

have

“broad

of

evidence,

ruling

absent

discretion

and

an

we

abuse

will
of

in

ruling

not

on

overturn

discretion.”

the
an

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

irrelevant or immaterial.”

court,

in

its

discretion,

deems

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.”

Fulcher, 250 F.3d 244, 253 (4th Cir. 2001).

United

States

v.

This affirmative

defense requires the defendant to establish that he reasonably
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relied upon the authority of a government official with actual-not

apparent--authority

actions.

to

authorize

his

otherwise

illegal

Id. at 253–54.

The

district

excluding

Wair’s

defense.

Wair

court

did

testimony
admitted

not

abuse

its

discretion

regarding

to

his

not

purchasing

only

public

in

authority
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

circumstances.”

by

J.A. 157.

a

CI

only

under

“very

strict

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

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adequately

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presented

in

the

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materials

before

the

court,

and

argument would not aid the decisional process.
AFFIRMED

8