United States v. Porche

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 27, 1999
• Docket: 98-30006
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30006 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAPHAEL F. PORCHE, also known as Mutt Porche,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 97-CR-14-ALL-B - - - - - - - - - -

May 26, 1999

Before DAVIS, DUHE’, and PARKER, Circuit Judges.

PER CURIAM:*

Raphael F. Porche, III, challenges his conviction for

possession with intent to distribute and distribution of cocaine

base. Porche contends that the Government did not present

sufficient evidence to convict him. He asserts that the district

court abused its discretion by admitting evidence of extrinsic

offenses. Finally, he contends that the district court abused

its discretion by allowing the jury, during deliberations, to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-30006 -2-

have access to a transcript of a tape recording that was prepared

by the Government. Porche states that the transcript was not

authenticated properly, was not accurate, and was not admitted

into evidence.

Because Porche did not move for a judgment of acquittal, we

review the sufficiency of the evidence only for “a manifest

miscarriage of justice.” United States v. Laury, 49 F.3d 145,

151 (5th Cir. 1995)(citation omitted). The record is not devoid

of evidence of Porche’s guilt. See United States v. Pierre, 958

F.2d 1304, 1310 (5th Cir. 1992)(en banc)(miscarriage of justice

exists “only if the record is devoid of evidence pointing to

guilt”).

Porche does not sufficiently brief his challenge to the

district court’s admission of evidence of extrinsic offenses.

See Fed. R. App. P. 28(a)(9). Porche has not shown that the

district court abused its discretion by admitting the extrinsic-

offense evidence. See United States v. Gourley, 168 F.3d 165,

172 n.11 (5th Cir. 1999)(appellant cannot prevail in a challenge

to an evidentiary ruling without showing through argument that

the district court ruled erroneously and that the ruling

prejudiced the defense).

The transcript of the tape was sufficiently authenticated by

evidence presented at trial. See United States v. Singh, 922

F.2d 1169, 1174 (5th Cir. 1991)(Authentication requires only

“‘evidence sufficient to support a finding that the matter in

question is what its proponent claims.’”). Porche’s failure to No. 98-30006 -3-

identify specific inaccuracies in the transcript precludes a

meaningful review on appeal. See United States v. Navejar, 963

F.2d 732, 735 (5th Cir. 1992)(parties must identify specific

errors or defects for our review).

We review Porche’s challenge to the district court’s

decision to allow the jury to have the transcript during

deliberations for plain error only. See United States v. Larson,

722 F.2d 139, 145 (5th Cir. 1983); see United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). The

district court’s decision to allow the jury to use the transcript

was not plain error. See Larson, 722 F.2d at 145 (district

court’s instruction to jury and the fact that the jury had

already read the transcript precluded finding of reversible

error).

AFFIRMED.