### The Honorable Michael J. Davis, United States District 1 

### Judge for the District of Minnesota. ___________ No. 96-2053

___________ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the District Juan Francisco Flores-Mireles, * of Minnesota. * Appellant. *

___________ Submitted: October 25, 1996 Filed: April 24, 1997

___________ Before WOLLMAN, ROSS and MURPHY, Circuit Judges.

___________ ROSS, Circuit Judge.
Appellant Juan Francisco Flores-Mireles appeals from his conviction bya jury of two counts of possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), being a felon in possessi on of a firearm, 18 U.S.C. § 922(g)(1), and being an illegal alien in possession of a firearm, 1 8 U.S.C. § 922(g)(5). Following his conviction, appellant was sentenced to a term of 63 months i mprisonment. On appeal he argues that he was denied his constitutional right to due process and a fair trial because of variou s errors made by the prosecution including Brady violations and prosecutoria l misconduct. We affirm the conviction by the district court. 1

### -2- I.
In September 1994, Officer Bruce Fleury of the Clay County, Min nesota Sheriff's Department, assigned to the DEA task f orce, received information that appellant was distributing substantial quantities of cocaine in the Fargo/Moorhead area. Officer Fleury conducted f urther investigation which included four controlled buys of cocaine from ap pellant by a DEA informant named Gerardo Garza. Garza carried a wireless transmitter and recorded al l four bu ys. After the controlled buys, Officer Fleury obtained searc h warrants for appellant's trailer home and vehicl es, as well as the home of Mart in Perez, an uncle of the informant and a cooperating governmen t witness. Then, basedin part on information received from Perez, Officer Fleury obtained a search warrant for the appellant's farmhouse.
Appellan t was arrested on November 1, 1994, by the Moorhead Polic e Department following execution of the search war rants. As a result of the search, officers reco vered 27.9 grams of cocaine from appellant's vehicle parked outside his trailer home and 700.7 grams of cocaine from appellant' s farmhou se. Officers also recovered an electronic scale, dru g paraphernalia, packaging material, drug notes, more than $5,000 cash and
a firearm. Evidence at trial showed that appellant rented the trailer hom e in Moorhead, Minnesot a, and, using the name Ramon Santellanes, rented the farmhous e in Felton, Minnesota, where the 700 grams of cocaine wa s recovered.

II.
Appellant cites a litany of alleged discovery violations on the part of the gov ernment which he contends violated the dictates of Brady v

. Maryland , 373 U.S. 83 (1963), and collectively served to reduce th e effectiveness of defense counsel to try the case and undermined th e confidence in the outcome by the jury. Appellant

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presents many of these alleged discovery violati ons without any supporting arg ument and consequently they amount to nothing more than "cursory an d summary assertion[s]." United States v. Gonzale s , 90 F.3d 1363, 1369 (8th Cir. 1996). We consider only those contentions with sufficient supporting argument to allow us to review them on appeal. See id . at 1369-70.

In orde r to prove a Bradyviolation, the "defendant must show tha t the prosecution suppressed the evidence, the evi dence was favorable to the accused , and the evidence was material to the issue of guilt o r punishmen t." United States v. Duke , 50 F.3d 571, 577 (8th Cir.), cert
. denied , 116 S. Ct. 22 4 (1995). Evidence is material under Brady"only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id

. "Reas onable probability" is defined as a "probability sufficient t o undermine confidence in the outcome." Id . There is no duty to disclose evidence that is 1) neutral, speculative or inculpatory, 2) available to the defense from other sources, 3) not in the possession of the prosecutor , or 4) over which the prosecutor has no actual or constructive control.
Appellant first argues that a Bradyviolation occurred when th e government denied inf ormant Garza's material role in the case and ignored discovery requests to make Garza known and available prior to trial. The government explains it failed to produce evidenc e of the informant because
no decision was made to use the evidence of the controlled buys through th e testimony of Garza until May 12, 1995, just three days prior to trial

. Although we in no way condone the government's d elay in releasing evidence with regard to the informant, we do not agree with appellant that thi s delay amounted to a v iolation under Brady . The informant testified about his participation in the controlled buys from appellant and offered n o exculpatory evidence. Because no evidence associated

### -4-

with th e informant was favorable to the appellant, the Bradyanalysi s simply does not apply.
Appellant also argues a Brady violat ion occurred when the government failed to release the tape recordings of the controlled buys, which were discoverable under Rule 16(a)(1) of the Federal Rules of Criminal Procedur e
as a "recorded statement[] made by the defendant." On May 15, 1995, the first day of trial, the district court ordered t he tapes to be released to th e defense and further ordered the government to have the tape s transcribed and translated by the end of the following day. After th e second day of trial, the court recessed the trial testimony for six days at the request of defense counsel in order to complete transcription of th e tapes. The district court rejected appellant's request that the cour t exclude the tapes as a sanction against the government, and instead chose to allow a continuance to the defense in order to review the tapes.
Once agai n the appellant incorrectly characterizes the government's delay ed disclosure of the tape recordings as a Bradyviolation as thi s evidence was not favorable to the appellant. In fact, to the contrary, th e tapes were highly incriminating and probative of appellant's guilt. The district court has broad discretion in fashionin g sanctions for violations of Rule 16, and that decision will be overturnedonly upon a finding of an abuse of discretion. United States v. Manthei , 979 F.2d 124, 126 (8th Cir

. 1992). Here, the district court ordered the immediate release of the tape s once it became evident the government intended t o call Garza as a witness. Further, the court granted an extended continuance in order to provide tim e for the tapes to be transcribed and the defense an opportunity to review the transcript. Although delayed, the defense had an opportunity t o examine the transcripts of the tapes and to use them during trial.

### -5- Appellant also argues that a Bradyviolation occurred when th e gov ernment failed to disclose that it had obtained a latent fingerprin t that had been unident ified and unexamined. During direct examination, a DEA chemist revealed that the missing print cardhad been found in the DEA lab file . At this time the government had the print examined. Again , following some delay, the government made the test results available to th e defense for use during trial. The results were neither inculpatory no r exculpatory, as they simply showed the print belonged to neither appellant , Garza nor Perez. There was no indication to whom the print belonged.

The district court made clear throughout the proceedings, and w e agree, that the gover nment was remiss in failing to comply with discovery orders. While we in no way condone this dereliction of duty, we conclude that under the circumstances of this case there simply is no cause shown for reversal of appellant's conviction. Because none of the allegedl y withhe ld or delayed release of information was favorable to appellant , Brady is not implicated. The court did not abuse its discretion i n choosing appropriate sanctions for the government's actions.

III.

As his ne xt point for reversal, appellant argues that he was denied his righ t to due process and a fair trial as a result of prosecutoria l miscon duct. To reverse a conviction for prosecutorial misconduct, thi s court must find both that the prosecutor's conduct was improper and that it was so offensive as to deprive the defendant of a fair trial. United States v. Hale , 1 F.3 d 691, 694 (8th Cir. 1993). To determine the effect of alleged prosecutorial misconduct, this court will examine the cumulativ e effect o f the misconduct, the strength of the evidence against th e defendant, and the curative actions taken. Id

.

### -6- Ap pellant contends the government's conduct denied him due proces s and a fair trial by ( 1) failing to disclose the identity of the informant and to provide discov ery related to the informant; (2) failing to correct false testimony; and (3) arguments made by the prosecutor during closing argument. We disagree.

Disclosure of a confidential informa nt will not be ordered unless it is vital to a fair trial. United States v. Curt is , 965 F.2d 610, 614 (8th Cir. 1992). Until the eve of trial, the government chose not to call Garz a
as a witn ess as the controlled buys were not charged conduct in th e indictm ent. When the decision was made to call Garza as a witness, th e identityof the informant was disclosed to the defense and a continuance
was granted to allow the defense sufficient opportunity to prepare an d ultimately to fully cross-examine Garza.
Appellant next asserts two instances where the government allegedly faile d to correct false testimony. First, he claims the informant wa s allowed to testify falsely that there was no wri tten agreement between the DEA and himself in ex change for his cooperation, and second, that Special Agent Jose ph Jovonovich falsely testified that the case was in fact a conspiracy case, although the crime of conspiracy was not charged in the indictment. Again, a ppellant contends the prosecutor joined in the false testimony by failing to correct the errors.
First, Ga rza did not testify falsely. Appellant challenges Garza's testimonythat there was no written agreement from the government tha t Garza w ould not be charged in his own case, but that the government ha d discussed a possible sentence reduction. Appellant points to nothing in the record that refutes this testimony. There is discussion regardin g payment vouchers deta iling money that Garza may have received in exchange for hi s testimony, but nothing discredits Garza's testimony brought t o issue by appellant that Garza had not received a written agreement

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from the government that he would not be charged for his own crime. Second, during his cross-examination by defense counsel, Agen t Jovonovich stated tha t this "is a conspiracy case." A sidebar conference
was immediately called at which the district court denied defense counsel' s motion for a mistrial. The court instructed the jury, however, that there
was no conspiracy charge in this case. The obscure reference to a "conspiracy," while i naccurate, did not deprive appellant of his right to due process or a fair trial sufficient to reverse the conviction in this
case. Agent Jovonovich's testimony was subsequently corrected both b y imp eachment of the witness and a cautionary instruction by the distric t court. Further, the prosecution did not "join in" this inaccurat e testimony as appellant argues, as the challengedtestimony was elicited by defense counsel and immediately corrected by the court and the defense.
Finally, appellant claims prosecutorial misconduct occurred durin g closin g arguments when the prosecutor improperly vouched for th e truthfulness of Officer Fleury, suggested that defense counsel had lied, and stated that Perez and Garza had nothing to gain by their testimony.
We have reviewed the record for instances of prosecutorial misc onduct that w ould individually or collectively require a reversal of th e convictio n, and we find none. Further, even if we were to assume th e pros ecution committed misconduct, there is no basis in the record t o
reverse the conviction considering the overwhelming evidence of guil t presented at trial.

IV.

Nor do we agree with appellant that the cumulative effect of tria l court errors constituted a denial of appellant's right to due process or a fair trial. Specifically, appellant claims the court

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erred in failing to sequester Officer Fleury, in admitting Rule 404(b ) evidence and in failing to review files in camera . Again, we have reviewe d those claims and find them to be without merit. The district court did no t abuse its discretion in choosing not to sequester Officer Fleury during th e trial. The court did not abuse its discretion in ruling that the Rul e 404(b) evi dence was offered to show intent and common scheme or plan

. Finally, the district court reviewed in camera a substantial amount o f material. The fact that the court did not read the entire government file was not an abuse of discretion.

V.

Bas ed on the foregoing, the judgment of the district court i s affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.