United States v. Porche ( 1999 )

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.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 97-CR-14-ALL-B
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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that this opinion should not be published and is not precedent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.
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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
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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.