Outrageous-Conduct Claims, Brady Duties on Confidential Informants, and No Confrontation Right to Compel Informant Testimony Absent Testimonial Statements — United States v. Marcus D. Flintroy (11th Cir. 2025)

Outrageous-Conduct Claims, Brady Duties on Confidential Informants, and No Confrontation Right to Compel Informant Testimony Absent Testimonial Statements — United States v. Marcus D. Flintroy (11th Cir. 2025)

Introduction

This unpublished per curiam decision from the Eleventh Circuit affirms the conviction and 420-month sentence of Marcus D. Flintroy for fentanyl distribution, possession with intent to distribute, and firearms offenses. The appeal presented a half-dozen issues that recur with some frequency in federal narcotics prosecutions that rely on confidential informants (CIs) and controlled buys:

  • whether the government’s use of a CI with an outstanding warrant and a suspended license amounted to “outrageous government conduct”;
  • whether the government violated Brady v. Maryland by withholding CI information;
  • whether the government’s decision not to call the CI at trial violated the Confrontation Clause;
  • whether an aiding-and-abetting jury instruction was erroneous or unfair;
  • whether the district court erred in denying an acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1; and
  • whether ineffective assistance of counsel could be adjudicated on direct appeal.

The panel’s opinion does not break new doctrinal ground but delivers clear applications of existing law that will guide trial and appellate practice. It underscores the narrowness of the outrageous-conduct defense, the elements and limits of Brady obligations regarding CIs when a defendant already knows the CI’s identity, the absence of a Confrontation right to compel CI testimony absent testimonial hearsay, the propriety of aiding-and-abetting instructions when charged and noticed, the high bar for § 3E1.1 reductions after trial, and the general inappropriateness of resolving ineffective-assistance claims on undeveloped records.

Summary of the Opinion

The Eleventh Circuit affirmed across the board:

  • Outrageous Government Conduct: Affirmed the denial of the motion to dismiss both because the motion was untimely (a ground appellant did not challenge and thus abandoned) and, alternatively, because using a CI with a warrant and allowing him to drive without a license, under close monitoring, was not “shocking to the universal sense of justice.”
  • Brady: No violation. The defendant already knew the CI’s identity and, with reasonable diligence, could have obtained the warrant and license information; moreover, those facts were revealed at trial, defeating materiality.
  • Confrontation Clause: No error—plain or otherwise—because the government introduced no testimonial statements from the CI, and the Clause does not require the government to call a witness at trial.
  • Aiding and Abetting Instruction: No abuse of discretion. The superseding indictment expressly alleged aiding and abetting for the possession-with-intent count, and the government noticed the instruction more than a month before trial.
  • Acceptance of Responsibility: No clear error. This was not one of the “rare situations” justifying a § 3E1.1 reduction after trial; the defendant contested factual guilt and did not express remorse at sentencing.
  • Ineffective Assistance: Declined on direct appeal due to an undeveloped record, without prejudice to a 28 U.S.C. § 2255 motion.

Analysis

Precedents Cited and Their Influence

  • Outrageous Government Conduct
    • United States v. Castaneda, 997 F.3d 1318 (11th Cir. 2021): Reiterates that neither the Supreme Court nor the Eleventh Circuit has ever applied the outrageous-conduct defense to bar a prosecution. This frames the defense as “rarity upon rarities.”
    • United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998); United States v. Cannon, 987 F.3d 924 (11th Cir. 2021); United States v. Ciszkowski, 492 F.3d 1264 (11th Cir. 2007); United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011); United States v. Haimowitz, 725 F.2d 1561 (11th Cir. 1984): These cases collectively set the high threshold—conduct must be “shocking” and fundamentally unfair, and must relate to the defendant’s charged acts, not merely represent a presented opportunity the defendant was predisposed to seize.
    • Sapuppo v. Allstate Floridian Insurance, 739 F.3d 678 (11th Cir. 2014): Controls appellate outcomes when a district court rests on multiple independent grounds. Failure to challenge all grounds on appeal results in affirmance. That principle drives the panel’s disposition because Flintroy did not challenge the timeliness basis.
  • Brady and Giglio
    • Brady v. Maryland, 373 U.S. 83 (1963): Prosecution must disclose material, favorable evidence.
    • United States v. Melgen, 967 F.3d 1250 (11th Cir. 2020); United States v. Stahlman, 934 F.3d 1199 (11th Cir. 2019): Eleventh Circuit articulation of the four Brady elements: favorable, not possessed or reasonably obtainable by the defense, suppressed, and material.
    • Giglio v. United States, 405 U.S. 150 (1972); United States v. Vallejo, 297 F.3d 1154 (11th Cir. 2002): For Giglio claims, the defendant must show the prosecution knowingly presented or failed to correct false testimony, and that the falsehood was material—standards not met here.
  • Confrontation Clause
    • Smith v. Arizona, 602 U.S. 779 (2024): Reemphasizes that the Confrontation Clause limits the use of out-of-court testimonial statements offered for their truth; it does not require calling all witnesses.
    • United States v. Moriarty, 429 F.3d 1012 (11th Cir. 2005); United States v. Wright, 607 F.3d 708 (11th Cir. 2010); United States v. Arbolaez, 450 F.3d 1283 (11th Cir. 2006): Plain-error framework when constitutional objections are not preserved.
    • United States v. Vereen, 920 F.3d 1300 (11th Cir. 2019): No plain error when an issue is unsettled by the Eleventh Circuit and the Supreme Court.
    • United States v. Chau, 426 F.3d 1318 (11th Cir. 2005); United States v. Luciano, 414 F.3d 174 (1st Cir. 2005): Hearsay objections do not preserve Confrontation challenges; specificity matters.
    • United States v. Kabbaby, 672 F.2d 857 (11th Cir. 1982); Shuler v. Wainwright, 491 F.2d 1213 (5th Cir. 1974): No duty for the government to call informers, and no right to confront a non-testifying “witness” who provides no evidence at trial.
    • Beach v. Blackburn, 631 F.2d 1168 (5th Cir. 1980); United States v. De La Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010): Framing of compulsory-process and due-process principles related to missing witnesses and bad faith—standards not met here.
  • Jury Instructions (Aiding and Abetting)
    • United States v. Rubinstein, 38 F.4th 982 (11th Cir. 2022); United States v. Anderson, 1 F.4th 1244 (11th Cir. 2021); United States v. Gbenedio, 95 F.4th 1319 (11th Cir. 2024): Abuse-of-discretion review is deferential; reversal only when the jury was improperly guided.
    • 18 U.S.C. § 2: Codifies aiding-and-abetting liability.
  • Acceptance of Responsibility
    • U.S.S.G. § 3E1.1 & cmt. n.2: Sets criteria and “rare cases” commentary where a defendant may receive the reduction despite going to trial.
    • United States v. Smith, 22 F.4th 1236 (11th Cir. 2022); United States v. Sawyer, 180 F.3d 1319 (11th Cir. 1999); United States v. Carroll, 6 F.3d 735 (11th Cir. 1993): Emphasize deference to district courts, the rarity of reductions post-trial, and the requirement of genuine remorse and acknowledgment of wrongdoing.
  • Ineffective Assistance
    • United States v. Bender, 290 F.3d 1279 (11th Cir. 2002); United States v. Patterson, 595 F.3d 1324 (11th Cir. 2010): Preferred route is a § 2255 motion due to the need for a developed factual record.

Legal Reasoning Applied

1) Outrageous Government Conduct

The district court denied dismissal on two independent grounds: untimeliness and lack of merit. On appeal, Flintroy challenged only the merits, not the timeliness ruling. Under Sapuppo, an appellant must knock out all independent grounds; failure to contest timeliness meant affirmance was required. The panel also addressed the merits: using a CI who had an active warrant and allowing him to drive without a valid license, while monitoring him and attempting to recall the warrant, did not violate “fundamental fairness,” did not affect the defendant’s predisposition to sell fentanyl, and was not “shocking to the universal sense of justice.” The defense remains cabined to the “rarest and most outrageous circumstances,” which this case did not approach.

2) Brady v. Maryland

Two elements doomed the Brady claim. First, suppression: the record showed the defendant knew the CI’s legal name months before trial and, through “quick computer research,” defense counsel confirmed the identity, the outstanding warrant, and the suspended license. Evidence reasonably obtainable through due diligence is not “suppressed.” Second, materiality: the same CI facts (warrant and driving without a license) were elicited at trial through government witnesses, yet the jury convicted—undercutting any reasonable probability of a different outcome with earlier disclosure. The panel also rejected any late-blooming Giglio theory because no knowing use of false testimony was alleged or shown.

3) Confrontation Clause

Reviewing for plain error (the Confrontation argument was not preserved), the court explained that the Clause is triggered by the introduction of testimonial statements offered for their truth from absent witnesses. Here, the government introduced no testimonial statements from the CI; thus, no confrontation problem arose. The Constitution does not obligate the prosecution to call the CI. Existing circuit precedent confirms that the government has no duty to present an informant as a witness, and a defendant has no right to confront someone who provides no evidence at trial. The court also noted the absence of any demonstrated compulsory-process violation (no subpoena attempt, no government bad faith, and no proffer that the testimony would be materially favorable).

4) Aiding-and-Abetting Instruction

The instruction was proper for two reasons. First, the superseding indictment expressly alleged aiding and abetting liability for the possession-with-intent count under 18 U.S.C. § 2. Second, there was ample notice: the government filed proposed instructions—including the aiding-and-abetting pattern charge—more than a month before trial, and the defense had the opportunity to object at the charge conference (and did). Under the deferential abuse-of-discretion standard, the inclusion of a noticed, pattern instruction tailored to a charged theory of liability presents no reversible error.

5) Acceptance of Responsibility (U.S.S.G. § 3E1.1)

The district court’s refusal to award a § 3E1.1 reduction was not clearly erroneous. The guideline commentary recognizes that, in “rare situations,” a defendant may receive the reduction after trial—typically where trial preserves purely legal issues unrelated to factual guilt. Flintroy’s case centered on factual guilt; he put the government to its proof on all counts, including those for which he never approached a guilty plea, and he expressed no remorse at sentencing. On this record, the “rare case” exception did not apply.

6) Ineffective Assistance

The panel declined to reach the ineffective-assistance claim on direct appeal because both parties agreed, and the court found, that the record was insufficiently developed. Such claims are “preferably” pursued via § 2255, where counsel performance and prejudice can be tested on an adequate factual record.

Impact and Practice Implications

  • Appellate Preservation and Sapuppo’s “independent grounds” rule: The most immediate lesson is procedural: when a district court denies relief on multiple independent grounds, appellants must challenge each one or face automatic affirmance. This is a recurring pitfall; counsel should explicitly brief all grounds.
  • Outrageous Government Conduct remains essentially unavailable: This decision joins the long line of cases declining to apply the defense—even where the government uses a compromised CI—unless tactics directly violate due process and are truly “shocking.” Defense counsel should reserve this argument for the extraordinary case and focus instead on entrapment or other targeted remedies where supported.
  • Brady as to CI identity and status is limited when the defense already knows: If the defendant knows the CI’s identity (or can obtain it with minimal diligence) and the salient impeachment facts emerge at trial, Brady claims will likely fail on both suppression and materiality. Prosecutors can mitigate risk by ensuring any CI credibility issues (warrants, benefits, license status, payments) are disclosed in time for effective use and, where appropriate, presented through law enforcement testimony even if the CI will not testify.
  • No Confrontation right to compel CI testimony absent testimonial hearsay: Where the CI’s out-of-court statements are not admitted for their truth, the Clause does not apply, and the government need not call the CI. Defendants must make specific Confrontation objections at trial; generic hearsay objections will not preserve the issue.
  • Aiding-and-abetting instructions are unproblematic when charged and noticed: This opinion reaffirms that a properly noticed § 2 instruction aligned with the indictment and the evidence is sound. Even beyond this case, courts routinely permit aiding-and-abetting instructions as a theory of liability.
  • Acceptance-of-responsibility after trial is rare: Defendants seeking § 3E1.1 reductions after a merits trial must show they went to trial solely to preserve issues unrelated to factual guilt and must express genuine remorse. Absent that, district courts act well within their discretion to deny the reduction.
  • Ineffective assistance belongs in § 2255 proceedings: Counsel and defendants should anticipate that performance-related claims will be deferred to collateral review unless the trial record is unusually complete.

Note: The opinion is labeled “NOT FOR PUBLICATION.” Under Eleventh Circuit practice, unpublished decisions are not binding precedent but may be cited as persuasive authority. Still, the court’s applications of settled doctrine are instructive for similar prosecutions.

Complex Concepts Simplified

  • Outrageous Government Conduct: A due-process defense arguing that police tactics were so extreme and unfair that prosecuting the case would violate fundamental justice. It almost never succeeds; courts look for truly shocking conduct that bears on the charged crime and the defendant’s predisposition.
  • Brady Violation: The prosecution must disclose evidence favorable to the defense if it is material (reasonably likely to change the outcome) and not otherwise available through reasonable effort by the defense. If the defense already knows the key facts or can easily discover them, there is no “suppression.”
  • Giglio Claim: A subset of Brady involving knowing use of false testimony or a failure to correct it. Requires proof of knowing falsity and materiality.
  • Confrontation Clause: Protects a defendant’s right to cross-examine witnesses whose testimonial statements are introduced for their truth at trial. If no such statements are admitted, the Clause is not implicated; it does not force the government to call all possible witnesses, including informants.
  • Plain Error Review: When an issue was not properly raised in the trial court, the appellate court asks if there was an obvious (plain) error that affected substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings. This is a very demanding standard.
  • Aiding and Abetting (18 U.S.C. § 2): A theory of liability making one who knowingly assists a crime punishable as a principal. It is not a separate offense; it is a way of holding someone liable for the substantive crime.
  • Acceptance of Responsibility (U.S.S.G. § 3E1.1): A reduction in offense level for defendants who clearly demonstrate genuine acceptance of their wrongdoing. It is rarely granted after trial unless the defendant contested only legal issues unrelated to factual guilt and expressed remorse.
  • Ineffective Assistance of Counsel: Claims that trial counsel’s performance was deficient and prejudiced the defense. These claims typically require evidence beyond the trial record and are therefore resolved via post-conviction motions (28 U.S.C. § 2255), not on direct appeal.

Conclusion

United States v. Marcus D. Flintroy is a comprehensive reaffirmation of several core criminal-procedure principles within the Eleventh Circuit:

  • Outrageous-conduct claims remain exceptionally narrow, and the use of a CI with legal issues—without more—does not cross the due-process line, especially where the CI’s conduct did not induce crime beyond a defendant’s predisposition.
  • Brady imposes no duty to disclose what the defense already knows or can readily discover; and immaterial impeachment evidence, particularly when presented to the jury, will not sustain a Brady claim.
  • The Confrontation Clause does not compel the government to call a CI when no testimonial statements from the CI are admitted; specificity is required to preserve confrontation objections.
  • A properly noticed aiding-and-abetting instruction that tracks a charged theory is appropriate.
  • Acceptance-of-responsibility reductions after a contested trial are rare and demand unequivocal acknowledgment of guilt and remorse on issues not tied to factual guilt.
  • Ineffective-assistance claims generally await § 2255 proceedings absent a developed record.

Procedurally, the case also highlights a critical appellate practice rule: when a district court denies relief on multiple independent grounds, an appellant must challenge each one. Failure to do so—as with the untimeliness ruling here—will independently sustain affirmance. While unpublished, the decision offers practical guidance for litigants navigating CI-driven prosecutions and the evidentiary and constitutional issues they present.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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