1 Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular cases

on the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 94-30094

Summary Calendar

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERT RICH,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(CA-93-1884; CR-89-87-F)

______________________________________________________

(June 7, 1995)

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:1

Rich appeals the district court's dismissal of his § 2255

petition. We affirm.

I.

Following a jury trial, Rich was found guilty of all counts in

a sixteen-count indictment, including: 1) conducting a continuing

criminal enterprise; 2) conspiring to possess amphetamine with the

intent to distribute; 3) possession of amphetamine with the intent
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to distribute; and 4) twelve counts of using a telephone to

facilitate a drug felony. Rich was sentenced to approximately

forty years imprisonment, along with fifteen concurrent three-year

terms of supervised release. Rich's conviction and sentence were

affirmed on direct appeal. United States v. Rich, No. 90-3352 (5th

Cir. Nov. 18, 1991)(unpublished), cert. denied, 112 S. Ct. 2279

(1992).

Rich then filed this § 2255 petition in the district court,

alleging over thirty grounds for relief. On appeal, petitioner

raises only the following issues: 1) whether the government

withheld exculpatory evidence in violation of Brady; 2) whether

Rich was denied his right to be present in the courtroom during a

brief segment of the trial; 3) a number of claims concerning

whether he received ineffective assistance of trial counsel; and 4)

a number of claims concerning whether he received ineffective

assistance of appellate counsel.

A magistrate judge recommended denial of all of Rich's claims

without a hearing except for two of his contentions concerning

ineffective assistance of counsel: (1) whether he and his trial

counsel had such a conflict that they did not confer on the PSR;

and (2) whether Rich's appellate counsel was aware that the

government had targeted him personally as a possible participant in

the conspiracy such that it affected his performance as Rich's

counsel. After conducting an evidentiary hearing on these two

issues, the magistrate judge entered a dismissal of them as well.

The district court overruled Rich's objections to the magistrate's
3

recommendations and dismissed Rich's petition with prejudice. Rich

filed a timely appeal.

II.

A.

For his Brady claim, Rich contends that the government

withheld exculpatory statements made by a co-conspirator, Dennis

Young, that would have tended to refute the testimony of the

government's key witness, Margaret McCauley, that she obtained the

drugs sold to an undercover agent, Carl Park, from Rich, in the

presence of Young. In support of his § 2255 motion, Rich filed an

affidavit of Dennis Young in which Young avers that he told the

Government "during debriefing prior to sentencing" that McCauley

obtained the drugs in question not from Rich but from her exhusband, Bobby Chestnut. The affidavit also states that Young

never saw Rich give drugs to McCauley and that Young "was present

at all times when Margaret McCauley was in the company of Robert

Rich" and that "[a]t no time was Margaret McCauley in the company

of Robert Rich that [Young] was not present." 

We agree with the magistrate judge that Young's statements as

set forth in his affidavit are not Brady material because, by the

affidavits admission, Rich was already privy to any information

Young may have given the government. See United States v. Brown,

628 F.2d 471, 473 (5th Cir. 1980). By Young's admission, he was

present at all times when McCauley was in Rich's company. Thus,

any information provided by Young regarding Rich's contact with

McCauley was already known by Rich because he was present. Rich
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could have called Young as a defense witness without waiting to

learn that Young exculpated him in debriefing. The magistrate

correctly rejected this claim.

B.

Rich next contends that he was denied the right to be present

in the courtroom when the jury, during deliberations, sent a

message to the court which the district judge responded to without

affording defendant an opportunity to object. The record indicates

that the jury requested assistance from the district court

regarding an exhibit admitted at trial and that the district judge

responded that he could not give the jury "any assistance in

finding information that is in evidence.

Rich argues that his absence from the courtroom when the

jury's note was received and replied to violated Fed. R. Crim. P.

43. Rule 43 provides that the defendant shall be present at every

stage of the trial, with certain exceptions. This issue is not of

constitutional dimension and could have been raised on direct

appeal. It is not therefore cognizable under § 2255. See United

States v. Shaid, 937 F.2d 228, 232 n.7 (5th Cir. 1991) (en banc),

cert. denied, 502 U.S. 1076 (1992). The district court correctly

rejected this claim.

C.

As to the rest of Rich's arguments, we have carefully reviewed

the magistrate judge's findings and find them fully supported by

the record. We have also reviewed the magistrate judge's legal

conclusions and find no error. For reasons assigned in the
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thorough report and recommendation of the magistrate filed on

November 15, 1993, and supplemented on December 6, 1993, we

conclude that the district court correctly accepted the

magistrate's report and recommendation and correctly rejected these

claims.

AFFIRMED.