Revised March 8, 1999

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-41206

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

RANDALL ELWOOD GOURLEY,

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of Texas

February 19, 1999

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Randall Gourley raises numerous objections to his conviction

and sentences on three drug-related offenses. We affirm.

I.

Along with several other defendants, Randall Gourley was

charged and tried on three drug-related counts: conspiracy to-2-

import over five kilograms of cocaine (21 U.S.C. §§ 952(a),

960(b)(1), 963); conspiracy to possess cocaine with intent to

distribute over one thousand kilograms of cocaine (21 U.S.C.

§§ 841(a)(1) & (b)(1)(A), 846); and posses sion with intent to

distribute over one thousand kilograms of cocaine (18 U.S.C. § 2;

21 U.S.C. 841(a)(1) & (b)(1)(A)). The charges arose from a scheme

in which cocaine was transported from Mexico to Houston, Texas in

the roof of a large tractor trailer.

The prosecution introduced evidence at trial to establish the

following facts. The tractor trailer containing the drugs was

driven by Walter Mace. Mace testified that when he arrived in

Houston, he was led to his final destination, a warehouse, by two

men known to him as “Jose” and “Happy.” The warehouse was leased

by Gourley, who, along with others, was present at the time of the

truck’s arrival. Once the trailer was secured in Gourley’s

warehouse, the men involved stood together in a group. In

Gourley’s presence, Mace asked Jose where the cocaine was hidden in

the trailer. Jose responded that the roof itself would have to be

removed because the drugs were concealed in a secret compartment at

the top of the trailer. Gourley heard these remarks and expressed

no surprise.

Unbeknownst to this cas t of characters, the drugs had been

detected b y customs agents stationed at the border near Laredo,

Texas. The agents arranged to have the truck followed to its

destination. After Mace delivered his cargo under the agents’1 In his appellate brief, Gourley alleged that the

sur veillance videotape entered into evidence at trial by the

-3- surveillance, Gourley and his associates were observed leaving and

returning to the warehouse. Ultimately, Gourley locked the fence

around the warehouse, and everybody left in two trucks. Soon

thereafter, Gourley was apprehended by the agents.

Inside the warehouse, customs agents removed the roof from the

trailer and found approximately one ton of cocaine. Rivets similar

to those the agents removed from the roof of the trailer were found

strewn on the floor of the warehouse. Scales like those used to

measure cocaine were also found, as well as chisels and moving

boxes purchased on the day of the delivery.

Gourley was convicted by a jury on all counts. A presentence

report was pr epared, and Gourley entered three objections to it:

(1) he claimed entitlement to a reduction for being a minor

participant (U.S.S.G. § 3B1.2); (2) he objected to an increase for

obstruction of justice (U.S.S.G. § 3C1.1); and (3) based on the

previous two objections, he claimed that the appropriate to tal

offense level was 36. These objections were overruled. Based on

a stipulated amount of 907.3 kilograms of cocai ne, the district

court determined a total offense level of 40, with a criminal

history category of I. Within the prescribed range of 292 to 365

months of imprisonment, the district court sentenced Gourley to 300

months of imprisonment.

Gourley now timely appeals from his conviction and sentence. 1government had been altered at some point in time after his

conviction, and that th is circumstance prevented his appellate

counsel (who was not t rial counsel) from providing competent

representation. S ee, e.g.

, United States v. Silva

, 559 F.2d 1303,

1305 (5th Cir. 1977). The district court did permit the government

to withdraw the exhibit for use in another trial, conditioned on

the government providing an exact copy of the tape for the record

of Gourley’s trial, and there was some legitimate confusion about

whether the tape in the record was accurate. Gourley contended

that the tape now in the record had been edited to excise certain

exculpatory material. Pursuant to Fed. R. App. P. 10(e), we

remanded the matter to the district court for the limited purpose

of settling the dispute, and the district court has confirmed that

the videotape in the appellate record is identical to the videotape

that was shown at trial. We therefore consider the issue raised by

Gourley as to the accuracy of the record and his ability to prepare

an appeal to be conclusively resolved.

2 Gourley asserts, without specificity, that “the videotape

shows Walter Mace not to be telling the truth.” He also suggests

that various “facts” concerning Mace render his testimony suspect,

including: (1) he was cooperating with the government; (2) $47,000

was deposited into one of his bank accounts, yet he claimed not to

-4- II.

Gourley contends that the evidence adduced by the government

is insufficient to support the three counts of conviction. He

contends that he di d not know that there was cocaine in the

trailer, and he suggests that his knowledge of the contraband was

not proved and cannot be inferred from the fact that he rented and

controlled the warehouse. He also compares his case to other cases

in which this Court reversed conspiracy convictions on the ground

that participation in a conspiracy cannot be proved by mere

association with persons involved with drug transactions. He

contends that Mace’s testimony cannot provide the evidence to

support his convictions because it is “patently unbelievable,” 2 andknow this; (3) drug conspirators paid for his legal representation;

(4) he failed to identify a “non-apprehended drug conspirator” with

w hom he spent two weeks; (5) he claimed that he was in Waco at a

time when he was not; (6) he falsely told the judge at his

detention hearing that he owned a trucking business; and (7) he

testified incompletely with respect to who was involved in

preparing him for his testimony.

3 The evidence identi fied by Gourley to support his

involvement in legitimate business includes testimony by a

prosecution witness that Gourley: (1) appeared to have a legitimate

business “there” (presumabl y at the warehouse); (2) talked about

office machines at the warehouse; and (3) wore a uniform and had

greasy hands. Gourley also points to record evidence of examples

of specific business transactions to prove that he was involved in

legitimate business.

-5- he asserts that evidence supports his c ontention that he was

renting the warehouse incident to his legitimate machine shop

business, 3 and he was unaware of drug activity.

We review the sufficiency of the evidence off ered against

Gourley to determine whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” J ackson v. Virginia

, 443 U.S. 307, 319, 99 S. Ct. 278 1

,

2789 (1979); see United States v. Stevenson

, 126 F.3d 662, 664 (5th

Cir. 1997). “All evidence and inferences from the evidence are to

be viewed in the light most favorable to the government.”

Stevenson , 126 F.3d at 664; see also Jackson , 443 U.S. at 319, 99

S. Ct. at 2789. “ The evidence need not exclude every reasonable

hypothesis of innocen ce or be wholly inconsistent with every

conclusion except that of guilt, and this court will accept all

credibility choices that tend to support the verdict.” S tevenson

,4 Among a number of facts corroborating Mace’s testimony,

perhaps the most compelling are the lack of evidence of any

l egitimate activity that Gourley was conducting at the war ehouse

and Gourley’s lack of a source of legitimate business that could

-6- 126 F.3d at 664

. W e are “required to acc ept all credibility

choices that tend to support the jury’s verdict.” U nited States v.

Johnston

, 127 F.3d 380, 401 (5th Cir. 1997) (inte rnal quotation

marks omitted), cert. denied , 118 S. Ct. 1173 (1998).

A.

With respect to Gourley’s conviction for possession of drugs

with in tent to distribute, the government must prove (1) knowing

(2) possession of the drugs (3) with intent to distribute. S ee 21

U.S.C. 841(a)(1) (“[I]t shall be unlawful for any person knowingly

or intentionally

. . . to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dispense, a

c ontrolled substance[.]”); s ee also United States v. DelagarzaVillarreal

, 141 F.3d 133, 140 (5th Cir. 1997); United States v.

Diaz-Carreon , 915 F.2d 951, 953 (5th Cir. 1990); United States v.

Johnson , 469 F.2d 973, 976 (5th Cir. 1972). Possession for these

purposes may be either actual or constructive. See United States

v. Pigrum

, 922 F.2d 249, 255 (5th Cir. 1991) ; U nited States v.

Felts , 497 F.2d 80, 82 (5th Cir. 1974).

Mace testified at trial that Gourley and the others were

present when Jose disclosed where the cocaine was hidden. 4 Basedsupport the $5,000 monthly warehouse rental obligation.

-7- on this evidence, the jury could conclude that Gourley and the

others heard the statement, and therefore knew about the drugs.

See United Sta tes v. Gant , 119 F.3d 536, 540 (7th Cir. 1997)

(citing James Boswell, The Life of Johnson 333 (R.W. Chapman ed.,

Oxford Univ. Press 1980) (1791)). As in G ant

, there is no

suggestion that Gourley may not have heard the comment because of

other noise, because it was whispered, or because Gourley had some

hearing impairment, and therefore common sense dictates that the

jury rationally inferred Gourley’s knowledge about the presence of

drugs. The record contains evidence that Gourley controlled the

warehouse. The jury could infer from this fact that he provided

the warehouse to store drugs and therefore constructively possessed

the drugs stored therein. S ee, e.g.

, Pigrum

, 922 F.2d at 255

(“‘Constructive possession’ is ownership, dominion, or control over

illegal drugs or dominion over the premises where drugs are

found.”). Finally, the sheer quantity of drugs involved supports

an inference of intent to distribute, because one ton of cocaine is

much more than Gourley and his companions could have hoped to

personally use. See United States v. Inocencio , 40 F.3d 716, 724

(5th Cir. 1994); United States v. Pineda-Ortuno , 952 F.2d 98, 102

(5th Cir. 1992); United States v. Kaufman

, 858 F.2d 994, 1000 (5th

Cir. 1988). Thus, there is evidence to support each element of 21

U.S.C. 841(a)(1), and the jury’s verdict must be affirmed.5 See 21 U.S.C. § 963 (“An y person who attempts or

conspir es to commit any offense defined in this subchapter

[including 21 U.S.C. § 952(a)] shall be subject to the same

penalties as those prescribed for the offense, the commission of

which was the object of the attempt or conspiracy.”). The

substantive offense Gourley conspired to commit provides:

It shall be unlawful to import into the customs

t erritory of the United States from any place

outside thereof (but within the United States), or

to import into the United States from any pl ace

outside thereof, any controlled substance in

schedule I or II of subchapter I of this c hapter,

or any narcotic drug in schedule III, IV, or V of

subchapter I of this chapter . . . .

21 U.S.C. § 952(a).

6 See 21 U.S.C. § 84 6 (“Any person who attempts or

conspires to commit any offense d efined in this subchapter

[including 21 U.S.C. § 841(a)(1)] shall be subject to the same

penalties as those prescribed for the offense, th e commission of

which was t he object of the attempt or conspiracy.”). The

substantiv e offense Gourley conspired to commit provides: “[I]t

shall be unlawful for any person knowingly or intentionally . . .

to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance[.]”

21 U.S.C. § 841(a)(1).

-8- B

.

With respect to Gourley’s conviction on charges of conspiracy

to import cocaine in violation of 21 U.S.C. § 952(a), 5 and

conspiracy to possess with intent t o distribute cocaine in

violation of 21 U.S.C. § 841(a)(1), 6 the government must prove the

evidence establ ishes beyond a reasonable doubt that (1) an

agreement existed bet ween at least two non-government people to

import and possess the controlled substance with inte nt to

distribute, (2) the defendant knew of the conspiratorial agreement,7 Gourley has directed the Court’s attention to a number of

cases in which a convict ion hinged on a defendant’s single

tangential relation to drugs or a drug conspiracy which may have

been coincidental and which, stand ing alone, was objectively

innocuous. S ee, e.g.

, United States v. Blessing

, 727 F.2d 353 (5th

Cir. 1984). In that scenario, we agree that a single thin thread

of circumstantial evidence cannot uphold the prosecution’s burden

of proving guilt beyond a reasonable doubt. As explained in the

text, however, that was not the situation in this case.

-9- and (3) he intentionally participated in the conspiracy. S ee also

Inocencio

, 40 F.3d at 725; United States v. Toro

, 840 F.2d 1221,

1232 (5th Cir. 1988). A conspiracy may be proved by circumstantial

evidence, see, e.g.

, United States v. Cardenas , 9 F.3d 1139, 1157

(5th Cir. 1993), and “the government need not prove that the

defendant k new of all the details, only that he knew of the

conspiracy’s essential purpose.” U nited States v. Osgood

, 794 F.2d

1087, 1094 (5th Cir. 1986). “In addition, a conviction for

conspiracy to imp ort a controlled substance may be sustained

although the defendant engag ed only in the conspiracy’s

distribution or delivery aspects after the contraband entered the

country; importation is not complete until the drugs reach their

final destination.” I d. (citing United States v. Mitc hell , 777

F.2d 248, 261-62 (5th Cir. 1985)).

Gourley did not merely rent the wareh ouse or turn up in the

wrong place at the wrong time. 7 There was an agreement to import

and possess cocaine w ith intent to distribute. Numerous

individuals, including Gourley, his codefendant Roy Garza, Jose,

and Happy, gathered at the warehouse and were present and waiting-10-

when the drugs arrived. These individuals participated in the drug

transaction and acted in concert to recover hidden drugs from the

tractor trailer. This evidence, combined with the entirely

suspicious circumstances of the warehouse rental, see supra note 4,

establishes a b asis on which reasonable jurors could certainly

conclude that these individuals had a prior agreement to act in

concert to achieve the essential purpose of bringing drugs into the

country and possessing those drugs in order to sell them to others.

As previously noted, the great quantity of drugs involved supports

an inference of intent to distribute, see, e.g.

, Pineda-Ortuno

, 952

F.2d at 102, and participation in distribution or delivery can

support an inference of conspiracy to import, see Osgood

, 794 F.2d

at 1094. The jury’s inference of an agreement is therefore

supported by evidence.

Gourley’s knowledge of the agreement and participation in the

conspiracy are likewise supported by the evidence. The record

contains evidence that Gourley controlled the warehou se. He was

presen t at the time of delivery and was party to a conversation

discussin g the location of the drugs. The jury could infer from

this evidence that Gourley provided the warehouse to store drugs,

a fact which would support an inference of his participation in the

conspiracy

. See O sgood

, 794 F.2d at 1094; Mitchell

, 777 F.2d at

262. Moreover, Gourley was present while the other men worked to

remove the roof of t he trailer. The jury could infer Gourley’s-11-

participation in the conspiracy from this fact, as “criminals

rarely welcome innocent persons as witnesses to serious crimes and

rarely seek to perpetrate felonies before larger-than-necessary

audiences.” U

nited States v. Ortiz

, 966 F.2d 707, 712 (1st Cir.

1992). Finding that the elements of the conspiracy charges against

him were supported by evidence, we affirm Gourley’s conviction on

the charged conspiracy offenses.

III.

Gourley challenges the transfer of his case from the Houston

Division of the Southern District of Texas to the Laredo Division,

contending that defending the case in Laredo subje cted him to

unspecified “extreme disadvantage.” He notes that “[t]here was no

basis for the appellant to be tried outside of his home area by a

jury completely not of his race.” He also challenges the district

court’s refusal to transfer his case back to Houston. Gourley

concludes that his rights under the Fifth and Sixth Amendments to

the United States Constitution were violated.

The Court reviews the denial of a motion for intradistrict

transfer for abuse of discretion. United States v. Gonzalez , 163

F.3d 255, 259 (5th Cir. 1998); cf. Stewart Org., Inc. v. Ricoh

Corp.

, 487 U.S. 22 , 28, 108 S. Ct. 2239, 2243 (1988) (motions to

transfer venue are reviewed for abuse of discretion). A “strong

showing of prejudice” is required to justify an intradistrict8 “There is no con stitutional right to be tried in a

particular division within a district.” U nited States v. McKinney

,

53 F.3d 664, 673 (5th Cir. 1995) (citing United States v. Anderson

, 328 U.S. 699, 704-05, 66 S. Ct. 1213, 1216-17 (1946)).

-12- transfer. S ee United States v. Duncan

, 919 F.2d 981, 985 (5th Cir.

1990).

The denial of this motion did not constitute reversible error.

Gourley has alleged no prejudice, and he makes no serious argument

that the district court abu sed its discretion. The record

demonstrates that the transfer was originally sought because most

of Gourley’s witnesses resided in Houston. This circumstance does

not mandate an intradistr ict transfer, as the inconvenience to

Gourley of going to tri al in Laredo would be “minimal at best in

this age of convenient travel, communication, discovery, and trial

testimony preservation.” Smith v. Colonial Penn Ins. Co. , 943 F.

Supp. 782, 784 (S.D. Tex. 1996). Since Gourley called many

witnesses during the trial and failed to point to specific evidence

of prejudice, it stands to reason that he was not prejudiced.

Furt hermore, the Constitution does not require, 8 and, indeed,9 See U.S. Const. amend. V (“No person

. . . shall be

. . .

deprived of life, liberty, or property, without due process of

law . . . .”); J.E.B. v. Alabama ex rel. T.B. , 511 U.S. 127, 128,

114 S. Ct. 1419, 1421 (1994) (“[W]hether the trial is criminal or

civil, potential j urors , as well as litigants, have an equal

protection right to jury selection procedures that are free from

s tate-sponsored group stereotypes rooted in, and reflective of,

historical prejudice.” (emphasis supplied)) (citing, inter alia,

Edmonson v. Leesville Concrete Co. , 500 U.S. 614, 111 S. Ct. 2077

(1991)); United States v. Leslie

, 813 F.2d 658, 659 (5th Cir. 1987)

(“[T]he Fifth Amendment’s due pr ocess clause, applicable to the

United States, has been construed to impl icitly include an equal

protection guaranty generally as broad as that of the Fourteenth

Amendment.”) (citing B uckley v. Valeo , 424 U.S. 1, 93, 96 S. Ct.

612, 670 (1976)); see also McKinney

, 53 F.3d at 673 (“An attempt to

influence the racial balance of the jury by setting a case in a

particular division would not have been appropriate or

acceptable . . . .”).

-13- forbids, 9 an intrad istrict transfer based on the anachronistic

racial justification offered by counsel.

IV.

Gourley claims that the district court erred when it increased

his offense level for obstruction of justice pursuant to U.S.S.G.

§ 3C1.1. Because Mace was the only witness who directly

contradicted Gourley’s testimony, Gourley c ontends that Mace was

“auditioning for a lenient plea bargain,” and the videotape

supports his version of the facts and contradicts Mace’s rendition.

Gourley thus contends that it was clear error for the district

court to conclude that he must have lied. Moreover, he notes that

much of his testimony was not contradicted in any way. He should10 Gourley invites us to reconsider the holding in United

States v. Storm

, 36 F.3d 1289 (5th Cir. 1994), in which this Court

rejected the suggestion that a district court must determine that

“no reasonable trier of fact could have found the defendant’s

testimony true” to enhance a defendant’s sentence pursuant to

U.S.S.G. § 3C1.1. Under this Court’s established practice that one

panel may not overrule the precedents established by previous

panels, this option is not available to us. See, e.g.

, Earles v.

State Bd. of Certified Pub. Acc’ts

, 1 39 F.3d 1033, 1036 n.6 (5th

Cir.), cert. denied , 119 S. Ct. 444 (1998).

Gourley also sets his sights higher and argues that applying

this sentencing enhancement based on a preponderance-of-theevidence standard rather than the beyond-a-reasonable-doubt

standard impede s his constitutional right to testify in his own

defense. Gourley did not object to the sentence enhancement on

constitutional grounds in the court below, and he does not develop

what would be a complex argument on appeal. Thus, that point can

only be considered for plain error. S ee, e.g.

, United States ex

rel. Wallace v. Flintco Inc.

, 143 F.3d 955, 971 (5th Ci r. 1998).

Regardless, the Supreme Court has expressly rejected this argument,

noting that “a defendant’s right to testify does not include a

right to commit perjury,” and “[o]ur authorities do not impose a

categorical ban on every governmental action affecting the

strategic decisions of an accused, including decisions whether or

not to exercise constitutional rights.” U nited States v. Dunnigan

, 507 U.S. 87, 96, 113 S. Ct. 1111, 1117 (1993).

-14- not be punished, he reasons, for simply exercising his right

against self-incrimination. 10

“A district court’s findings of fact for purposes of applying

the Sentencing Guidelines are reviewed under the ‘clearly

erroneous’ standard of review.” U nited States v. Powell

, 124 F.3d

655, 663 (5th Cir. 1997) (internal citation omitted). The district

court did not clearly err in its determination that Gourley

obstructed justice by lying on the stand. The district court made

specific factual findings regarding the truthfulness of Gourley’s

testimony, concluding that Gourley lied about his knowledge of the-15-

criminal activity

-- specifically, Gourley knew about the cocaine,

and knew when, where, and how the cocaine was being delivered. The

court also concluded that Gourley committed perjury when he

testified tha t the warehouse had been leased for legitimate

business purposes. These determinations were supported by evidence

in the record and thus were not clear error.

V.

Gourley contends that even in the worst-cas e scenario, his

participation in the scheme was minor

-- he was a mere link in the

chain

-- and therefore he should have received a reduction pursuant

to U.S.S.G. § 3B1.2(b). He offers no case authority or analysis of

the Guidelines to support this position.

The district court’s decision not to give Gourley an

adjustment for his “minor” role was not clearly erroneous. The

commentary to the Guidelines notes that the adjustment is intended

for the “defendant who plays a part in committing the offense that

makes him substan t ially less culpable than the average

participant.” U.S.S.G. § 3B1.2 comment. (backg’d). Given the

district court’s factual finding that Gourley was a “vital link” in

the conspiracy, a decreased sentence was not justified. Precedent

supports declining to permit the “minor participant” reduction in

a case such as this. See United States v. Martinez-Moncivais, 14

F.3d 1030, 1039 (5th Cir. 1994) (reduction not warranted because a11 With respect to Gourley’s contentions that the district

court made erroneous evidentiary rulings and wrongly denied a

motion for continuance, we simply observe that the conclusory

presentation of thes e assignments of error renders these points

insusceptible to serious appellate review. Under our procedural

rules,

g:\opin\96-41206.opn guilty verdict on drug conspiracy charges “by definition entailed

the jury’s fi nding that [the defendant] had knowledge of, and

voluntarily participated in, the ongoing transportation of entire

truckloads of narcotics”).

VI.

Gourley asserts that “[t]he prosecution of fered no evidence

actuall y showing actual possession, and it is clear the same

evidence convicted him on both conspiracy and possession charges.”

To the extent that this is a sufficiency of the evidence argument,

that contention has been addressed supra

. To the extent that this

argument suggests that the same evidence cannot support the various

convictions in this case, it is simply wrong. S ee United States v.

Singh

, 922 F.2d 1169, 1173 (5th Cir. 1991) (“Typically, the same

evidence will support both a conspiracy and an aiding and abetting

conviction.”)).

VII.

For the aforementioned reasons, the judgment of the district

court is AFFIRMED. 11The argumen t must contain the contentions of the

appellant on the issues presented, and the reasons

therefor, with citations to the authorities,

statut es, and parts of the record relied on. The

argument must also include for each issue a concise

statement of the applicable standard of review;

this statement may appear in the discussion of each

issue or under a separate heading placed before the

discussion of the issues.

Fed. R. App. P. 28(a)(6).

Gourley pro vides absolutely no authority for assignment of

error on the district court’s evidentiary rulings

-- no Rules of

Evidence, no case law, not anything. Our usual practice is not to

entertain such points on appeal. Moreover, given the highly

deferential st a ndard of review for evidentiary rulings ( i.e.

, abuse-of-discretion review of preserved objections on evidentiary

rulings which affect the defendant’s substantial rights, see Fed.

R. Evid. 103(a)), there is no chance that Gourley could prevail on

these points without showing through ar gument that the district

court ruled erroneously, and that the effect of those rulings was

serious prejudice to Gourley’s defense. Gourley has made no effort

to satisfy these standards, and therefore his evidentiary points do

not merit consideration.

Likewise, no ar gument has been provided concerning the

district court’s denial of Gourley’s motion for a contin uance of

his trial. The only justification for this request was that

“counsel had a conflicting setting.” Gourley contends that the

denial of his motion fo r continuance “[c]learly . . . affected a

number of factors during trial.” Our Court reviews a district

court’s denial of a motion for continuance for “abuse of discretion

resulting in serious prejudice.” U nit ed States v. Pollani , 146

F.3d 269, 272 (5th Cir. 1998) (citing Avery v. Ala bama , 308 U.S.

444, 446, 60 S. Ct. 321, 322 (1940); United States v. Dupre , 117

F.3d 810, 823 (5th Cir. 1997), cert . denied , 118 S. Ct. 857

(1998)). Gourley’s utter failure to satisfy the requirements of

Rule 28(a)(6) and to demonstrate abuse of discretion and prejudice

therefore require affirmance on this point.

g:\opin\96-41206.opn