United States v. Dillard

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 12, 2003
• Docket: 02-41200
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 12, 2003

Charles R. Fulbruge III Clerk No. 02-41200 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KELVIN RAY DILLARD,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CR-232-1 --------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Kelvin Ray Dillard appeals his jury-trial convictions

for possession of crack cocaine with intent to distribute and

possession of cocaine with intent to distribute.

Dillard argues that evidence was seized from his ex-

girlfriend’s apartment in violation of the Fourth Amendment. We

review for plain error only, because Dillard did not object to

the magistrate judge’s Report and Recommendation. See Douglass

v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41200 -2-

1996) (en banc). Because Dillard’s brief fails to challenge the

determination that he lacked standing, he has failed to

demonstrate any error, plain or otherwise. See also Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (issues not briefed

are deemed abandoned).

Dillard next argues that the evidence was insufficient to

support his convictions. Based on the discovery of Dillard’s

fingerprints on glassware used to “cook” crack cocaine, the

multiple items in the house that belonged to Dillard, the

discovery of cocaine in plain sight, and the quantity involved,

we conclude that a jury could have found that the evidence

established his guilt beyond a reasonable doubt. See United

States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).

Finally, Dillard argues that the district court erred in

allowing expert testimony and reports that were not disclosed

until the morning of trial. These chemical analysis reports, one

of which was completed only shortly before trial, merely

confirmed that the substances were cocaine and crack cocaine, and

their belated disclosure was not prejudicial. See United States

v. Katz, 178 F.3d 368, 372 (5th Cir. 1999) (factors considered in

evaluating discovery violations include why disclosure was not

previously made and prejudice). We conclude that the district

court did not abuse its discretion. See United States v. Solis,

299 F.3d 420, 442 (5th Cir. 2002), cert. denied 123 S. Ct. 640

(2002).

AFFIRMED.