United States v. Hodges

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4002
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNEST FREDERICK HODGES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (CR-05-40)
Submitted: January 26, 2007 Decided: February 21, 2007
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William H. Lindsey, WILLIAM H. LINDSEY, P.C., Salem, Virginia, for
Appellant. Ronald Andrew Bassford, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Ernest Frederick Hodges, Jr., was
convicted on one count of possession of a firearm by a convicted
felon and one count of possession of ammunition by a convicted
felon, both in violation of 18 U.S.C.A. §§ 922(g)(1), 924(e) (West
2000 & Supp. 2006). The district court sentenced Hodges to
concurrent terms of 220 months’ imprisonment. Hodges timely
appealed.
Hodges’ counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal but contending that the district
court abused its discretion by failing to order the government to
divulge the identity of the confidential informant whose
information formed the basis for the search warrant of Hodges’
home. Hodges was informed of his right to file a pro se
supplemental brief but he has not filed one.
A defendant bears the burden of proving that he is
entitled to know the identity of a confidential informant.
Rugendorf v. United States, 376 U.S. 528, 534-35 (1964).
Disclosure of the identity of an informant is required when the
informant’s testimony is highly relevant “to the defense of an
accused, or essential to a fair determination of a cause.”
Roviaro v. United States, 353 U.S. 53, 60-61 (1957); United
States v. Smith, 780 F.2d 1102, 1108 (4th Cir. 1985). Where the
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informant is used only for the purpose of obtaining a search
warrant, and not in connection with the offense charged, the
informant’s identity need not be disclosed. United States v. Gray,
47 F.3d 1359, 1365 (4th Cir. 1995); United States v. Fisher, 440
F.2d 654, 656 (4th Cir. 1971). The district court’s decision
concerning whether to require the revelation of a confidential
informant’s identity is reviewed for abuse of discretion. United
States v. Hollis, 245 F.3d 671, 673 (8th Cir. 2001); Smith, 780
F.2d at 1108.
In this case, the informant was used only to obtain a
search warrant for Hodges’ residence to search for indicia of
heroin trafficking. The charges against Hodges were not based on
heroin trafficking but on firearms and ammunition found in Hodges’
home when it was searched pursuant to the warrant. We therefore
find that the district court did not abuse its discretion in
declining to compel the government to divulge the informant’s
identity.
Consistent with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
Accordingly, we affirm Hodges’ convictions and sentence. This
court requires that counsel inform Hodges, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Hodges requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
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move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Hodges. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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