United States v. Chavez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-40193 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PAUL BENITEZ CHAVEZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. V-96-CR-9-1 - - - - - - - - - - June 15, 1998 Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Appellant Paul Benitez Chavez (Chavez) argues that the

district court erred in admitting the December 7, 1995, tape-

recording of a drug transaction into evidence at trial because it

was not properly authenticated. Chavez’s argument that the

Government used the confidential informant to authenticate the

recording is factually inaccurate. Sergeant Dubose was the

authenticating witness. Because the Government offered testimony

with regard to the competency of the person operating the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-40193 -2-

recording equipment, the fidelity of the recording equipment, and

identification of Chavez as one of the relevant speakers, the

Government met its burden of establishing authenticity.

Therefore, the district court did not abuse its discretion by

admitting the tape. See United States V. Polk, 56 F.3d 613, 631

(5th Cir. 1995); see also United States v. Stone, 960 F.2d 426,

436 (5th Cir. 1992).

Chavez also argues that the tape is inadmissible because it

is substantially inaudible. Chavez did not raise this argument

in the district court; therefore, we review for plain error.

United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.

1995)(en banc)(citing United States v. Olano, 507 U.S. 725, 731-

37 (1993)). We have reviewed the tape and conclude that the

district court did not commit error, plain or otherwise, in

admitting the tape. See Polk, 56 F.3d at 632.

Last, Chavez contends that the second transcript of the tape

is also inadmissible because it was given to him the day before

his trial. We have reviewed the record and conclude that any

error was harmless inasmuch as the error did not influence the

jury. See United States v. Rodriguez, 43 F.3d 117, 123 (5th Cir.

1995).

AFFIRMED.