United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 21, 2003 _______________________ Charles R. Fulbruge III No. 03-30119 Clerk _______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY F. HARRIS,
Defendant-Appellant. _________________________________________________________________ _________________________________________________________________
Appeal from the United States District Court for the Middle District of Louisiana 02-CR-60 _________________________________________________________________ _________________________________________________________________
Before REAVLEY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant Harry F. Harris appeals his conviction for
knowingly and intentionally possessing, with the intent to
distribute, 500 grams or more of a substance containing a
detectable amount of cocaine, in violation of 21 U.S.C. §
841(a)(1). Harris alleges the Government improperly withheld
exculpatory Brady evidence and violated its discovery obligations
under Federal Rule of Criminal Procedure 16. Harris also complains
that the district court erred in admitting drug evidence and
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. denying his motion for judgment of acquittal. Finally, Harris
argues that the cumulative effect of the errors below warrants
reversal of his conviction. Finding no error, we affirm.
Baton Rouge police detectives boarded a Greyhound bus
traveling from Houston, Texas, and, with the aid of a drug dog,
detected controlled substances in two bags. One bag belonged to
Harris, the other to one Winfield. After claiming his bag and
being given Miranda warnings, Harris agreed to speak with
detectives. He subsequently authorized the detectives to search
his bag, where they discovered two duct-taped blocks containing 3.8
kilograms of cocaine. Harris identified the blocks as cocaine, and
was arrested. A forensic chemist later analyzed the blocks and
confirmed their contents as cocaine.
Harris claims the Government improperly withheld two
pieces of exculpatory evidence in violation of Brady and Rule 16:
1) the identities of two other men arrested from the Greyhound bus,
and 2) the DEA Form 7 and forensic chemist’s bench notes, both
identifying the substance as cocaine.
This Court reviews Brady determinations de novo. United
States v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997). To establish
a due process violation under Brady v. Maryland, 373 U.S. 83
(1963), Harris must prove that “(1) evidence was suppressed by the
prosecution; (2) the evidence was favorable to the defense; and (3)
the evidence was material either to guilt or punishment.” United
2 States v. Aubin, 87 F.3d 141, 148 (5th Cir. 1996).
When the prosecution produces the allegedly exculpatory
evidence at trial, that evidence is no longer suppressed. United
States v. Neal, 27 F.3d 1035, 1050 (5th Cir. 1994). The question
then becomes whether the defendant was prejudiced by the tardy
disclosure. United States v. McKinney, 758 F.2d 1036, 1049-50 (5th
Cir. 1985). Harris learned the identities of the two arrested men
at trial. The Government even brought Winfield, the owner of the
other bag identified by the drug dog, to the courthouse for
questioning. Harris referred to these two men during his own
testimony, and his counsel questioned police detectives about the
two men to advance the defense theory that the drugs were planted
on Harris. Similarly, the Government presented Harris with the DEA
Form 7 and forensic chemist’s bench notes at trial, prior to the
chemist’s testimony. Neither the form nor the notes differed from
the chemist’s trial testimony. Thus, late disclosure of this
evidence did not prejudice Harris.
Harris also makes several passing references to the
Government’s violation of Federal Rule of Criminal Procedure 16 by
failing to timely produce the DEA Form 7 and bench notes. Harris
broadly asserts that the Government violated Rule 16, but provides
no law or argument to support his position. Therefore, Harris’s
failure to adequately brief this issue on appeal constitutes waiver
of the argument. See FED. R. APP. P. 28(a)(9)(A); United States v.
3 Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).
Harris also argues the cocaine admitted into evidence
lacked proper authentication because of a gap in the chain of
custody. The district court’s decision to admit evidence is
reviewed by this Court for an abuse of discretion. United States
v. Dixon, 132 F.3d 192, 196-97 (5th Cir. 1997). Federal Rule of
Evidence 901 governs the authentication of evidence, including
establishing a chain of custody. United States v. Jardinia, 747
F.2d 945, 951 (5th Cir. 1984). As long as a prima facie showing of
authenticity is made, evidence should be admitted. Id. Once the
evidence has been admitted, the jury ultimately determines the
evidence’s authenticity, as long as “substantial evidence has been
presented from which they could infer that the document is
authentic.” Id. Any break in the chain of custody goes only to
the weight of the evidence, and not its admissibility. Dixon, 132
F.3d at 197.
The United States presented evidence from the seizing
officer supporting the chain of custody from the initial seizure
of the drugs through their transfer to the Baton Rouge DEA office.
The DEA officer also testified that he was in control of the drugs
until their transfer to Dallas, Texas, for analysis by the forensic
chemist. The DEA officer further testified that the same drugs
remained in his possession after their return from Dallas until
trial. Based on this evidence, the trial judge correctly
4 determined that the Government made a prima facie showing of
authenticity, and admitted the drug evidence subject to the
forensic chemist’s identification. Subsequently, the forensic
chemist testified that, based on the seals present on the bags,
they were the same drugs he tested in Dallas. The testimony of the
seizing officer, DEA officer, and forensic chemist amounts to
substantial evidence of authenticity justifying the district
judge’s admission of the drug evidence.
Harris further argues that the district court erred in
denying his motion for judgment of acquittal. This Court reviews
denials of motions for acquittal de novo, applying the same
standard as general sufficiency of the evidence review. United
States v.
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United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 21, 2003 _______________________ Charles R. Fulbruge III No. 03-30119 Clerk _______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY F. HARRIS,
Defendant-Appellant. _________________________________________________________________ _________________________________________________________________
Appeal from the United States District Court for the Middle District of Louisiana 02-CR-60 _________________________________________________________________ _________________________________________________________________
Before REAVLEY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant Harry F. Harris appeals his conviction for
knowingly and intentionally possessing, with the intent to
distribute, 500 grams or more of a substance containing a
detectable amount of cocaine, in violation of 21 U.S.C. §
841(a)(1). Harris alleges the Government improperly withheld
exculpatory Brady evidence and violated its discovery obligations
under Federal Rule of Criminal Procedure 16. Harris also complains
that the district court erred in admitting drug evidence and
* 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. denying his motion for judgment of acquittal. Finally, Harris
argues that the cumulative effect of the errors below warrants
reversal of his conviction. Finding no error, we affirm.
Baton Rouge police detectives boarded a Greyhound bus
traveling from Houston, Texas, and, with the aid of a drug dog,
detected controlled substances in two bags. One bag belonged to
Harris, the other to one Winfield. After claiming his bag and
being given Miranda warnings, Harris agreed to speak with
detectives. He subsequently authorized the detectives to search
his bag, where they discovered two duct-taped blocks containing 3.8
kilograms of cocaine. Harris identified the blocks as cocaine, and
was arrested. A forensic chemist later analyzed the blocks and
confirmed their contents as cocaine.
Harris claims the Government improperly withheld two
pieces of exculpatory evidence in violation of Brady and Rule 16:
1) the identities of two other men arrested from the Greyhound bus,
and 2) the DEA Form 7 and forensic chemist’s bench notes, both
identifying the substance as cocaine.
This Court reviews Brady determinations de novo. United
States v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997). To establish
a due process violation under Brady v. Maryland, 373 U.S. 83
(1963), Harris must prove that “(1) evidence was suppressed by the
prosecution; (2) the evidence was favorable to the defense; and (3)
the evidence was material either to guilt or punishment.” United
2 States v. Aubin, 87 F.3d 141, 148 (5th Cir. 1996).
When the prosecution produces the allegedly exculpatory
evidence at trial, that evidence is no longer suppressed. United
States v. Neal, 27 F.3d 1035, 1050 (5th Cir. 1994). The question
then becomes whether the defendant was prejudiced by the tardy
disclosure. United States v. McKinney, 758 F.2d 1036, 1049-50 (5th
Cir. 1985). Harris learned the identities of the two arrested men
at trial. The Government even brought Winfield, the owner of the
other bag identified by the drug dog, to the courthouse for
questioning. Harris referred to these two men during his own
testimony, and his counsel questioned police detectives about the
two men to advance the defense theory that the drugs were planted
on Harris. Similarly, the Government presented Harris with the DEA
Form 7 and forensic chemist’s bench notes at trial, prior to the
chemist’s testimony. Neither the form nor the notes differed from
the chemist’s trial testimony. Thus, late disclosure of this
evidence did not prejudice Harris.
Harris also makes several passing references to the
Government’s violation of Federal Rule of Criminal Procedure 16 by
failing to timely produce the DEA Form 7 and bench notes. Harris
broadly asserts that the Government violated Rule 16, but provides
no law or argument to support his position. Therefore, Harris’s
failure to adequately brief this issue on appeal constitutes waiver
of the argument. See FED. R. APP. P. 28(a)(9)(A); United States v.
3 Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).
Harris also argues the cocaine admitted into evidence
lacked proper authentication because of a gap in the chain of
custody. The district court’s decision to admit evidence is
reviewed by this Court for an abuse of discretion. United States
v. Dixon, 132 F.3d 192, 196-97 (5th Cir. 1997). Federal Rule of
Evidence 901 governs the authentication of evidence, including
establishing a chain of custody. United States v. Jardinia, 747
F.2d 945, 951 (5th Cir. 1984). As long as a prima facie showing of
authenticity is made, evidence should be admitted. Id. Once the
evidence has been admitted, the jury ultimately determines the
evidence’s authenticity, as long as “substantial evidence has been
presented from which they could infer that the document is
authentic.” Id. Any break in the chain of custody goes only to
the weight of the evidence, and not its admissibility. Dixon, 132
F.3d at 197.
The United States presented evidence from the seizing
officer supporting the chain of custody from the initial seizure
of the drugs through their transfer to the Baton Rouge DEA office.
The DEA officer also testified that he was in control of the drugs
until their transfer to Dallas, Texas, for analysis by the forensic
chemist. The DEA officer further testified that the same drugs
remained in his possession after their return from Dallas until
trial. Based on this evidence, the trial judge correctly
4 determined that the Government made a prima facie showing of
authenticity, and admitted the drug evidence subject to the
forensic chemist’s identification. Subsequently, the forensic
chemist testified that, based on the seals present on the bags,
they were the same drugs he tested in Dallas. The testimony of the
seizing officer, DEA officer, and forensic chemist amounts to
substantial evidence of authenticity justifying the district
judge’s admission of the drug evidence.
Harris further argues that the district court erred in
denying his motion for judgment of acquittal. This Court reviews
denials of motions for acquittal de novo, applying the same
standard as general sufficiency of the evidence review. United
States v. Payne, 99 F.3d 1273, 1278 (5th Cir. 1996). Evidence is
sufficient if “a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt based
upon the evidence presented at trial.” United States v. Gray, 96
F.3d 769, 772 (5th Cir. 1996). However, because Harris failed to
renew his motion at the close of evidence, he waived his objection
to the denial of the motion. United States v. Siegel, 587 F.2d
721, 724-25 (5th Cir. 1979). Thus, we review his claim to
determine only “whether there was a manifest miscarriage of
justice.” United States v. Burton, 324 F.3d 768, 770 (5th Cir.
2003).
To convict a defendant for violating 21 U.S.C. §
5 841(a)(1), the Government must prove (1) knowing (2) possession of
a controlled substance (3) with the intent to distribute. United
States v. Carreon-Palacio, 267 F.3d 381, 389 (5th Cir. 2001).
Intent to distribute may be inferred from possession of a quantity
of controlled substance too large for personal consumption. United
States v. Hunt, 129 F.3d 739, 742 (5th Cir. 1997). Harris admitted
packing his own bag and having exclusive control over the bag, and
when questioned, he admitted that the bag contained cocaine.
Harris summarily assumes that this confession was improperly
admitted, without raising any argument on appeal as to why the
confession was inadmissible. Failure to raise an issue on appeal
constitutes waiver of that argument. United States v. Thibodeaux,
211 F.3d 910, 912 (5th Cir. 2000). In light of Harris’s confession
and the 3.8 kilograms of cocaine found in his bag, there was
sufficient evidence to sustain his conviction.
Finally, Harris argues his conviction should be vacated
due to cumulative error. “[T]he cumulative effect of a series of
errors may require reversal, even though a single one of those
errors, standing alone, would not require such a result.” United
States v. Villareal, 324 F.3d 319, 328 (5th Cir. 2003). Having
failed to establish any error, however, Harris cannot establish
cumulative error. United States v. McIntosh, 280 F.3d 479, 484
(5th Cir. 2002).
For these reasons, the judgment of the district court is
6 AFFIRMED.