* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 21, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 03-30119

_______________________

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 con viction for

knowingly and intentionally possessing, with the intent to

distribute, 500 grams or more of a sub stance 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 c ourt erred in admitting drug evidence and2

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.

Bat on Rouge police detectives boarded a Greyhound bus

traveling from Houston, Texas, and, with the aid of a d rug 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 chemis t’s bench notes, both

identifying the substance as cocaine.

This Court reviews Brady determinations de novo. U nited

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.” United3

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. U nited 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 ben ch 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. S ee F ED

. R. A PP

. P. 28(a)(9)(A); United States v.4

Thames , 214 F.3d 608, 611 n.3 (5th Cir. 2000).

Har ris 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.3 d 192, 196-97 (5th Cir. 1997). Federal Rule of

Evidence 901 governs the authentica tion of evidence, including

establishing a chain of custody. U nited 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 admitte d, the jury ultimately determines the

evidence’s authenticity, as long as “substantial evidence has been

p resented from which they could infer that the document is

authentic.” I d

. Any break in the chain of custody goes only to

the weight of the evidence, and not its admissibility. D ixon

, 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 i n his possession after their return from Dallas until

trial. Based on this evidence, the trial judge correctly5

determined that the Government made a p rima facie showing of

authenticity, and admitted the drug e vidence 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 th e 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. U nited

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. U nited 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.” U nited States v. Bu rton , 324 F.3d 768, 770 (5th Cir.

2003).

To co nvict a defendant for violating 21 U.S.C. §6

841(a)(1), the Government must prove (1) knowing (2) possession of

a controlled substance (3) with the intent to distribute. United

S tates v. Carreon-Palacio

, 267 F.3d 381, 389 (5th Cir. 200 1).

Intent to distribute may be inferred from possession of a quantity

of controlled substance too large for personal consumption. U nited

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

w hen questioned, he admitted that the bag contained cocaine.

Harris summarily assumes that this confession w as 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. U nited States v. Thibodeaux

,

211 F.3d 910, 912 (5th Cir. 2000). In light of Harris’s confession

and the 3.8 kilograms of cocaine foun d 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

, 32 4 F.3d 319, 328 (5th Cir. 2003). Having

fai led to establish any error, however, Harris cannot establish

cumulative error. U nited States v. McIntosh

, 280 F.3d 479, 484

(5th Cir. 2002).

For these reasons, the judgment of the district court is7

AFFIRMED

.