(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide cases on the
basis of well-settled principles of law imposes needless expense
on the public and burdens the legal profession." Pursuant to
that rule, the Court has determined that this opinion should not
be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-7374
_____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
EARVIN PORTIS,
FRED HICKS,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
CR H 91 00015 (P) (07)
_________________________________________________________________
May 28, 1993
Before JOHNSON, SMITH and EMILIO M. GARZA, Circuit Judges.
JOHNSON, Circuit Judge:*
Earvin Portis and Fred Hicks were arrested when police broke
up a drug trafficking organization in Laurel, Mississippi.
Following a jury trial, both were convicted of possession of
cocaine with intent to distribute. Portis was also convicted of
using a firearm during and in relation to a drug trafficking

-- 1 of 14 --

2
crime. Both defendants now appeal. Finding no reversible error,
this Court affirms.
I. FACTS AND PROCEDURAL HISTORY
The defendants in this case, Earvin Portis and Fred Hicks,
got caught in the net when police broke up a drug trafficking
organization headed by Frederick Lampley. The indictment named
multiple defendants, but all defendants except Portis and Hicks
eventually pled guilty.
According to the evidence presented at trial, Hicks was not
a professional drug dealer. Instead, he was a cocaine addict who
sometimes did "special favors" for Lampley in return for cocaine.
Lampley testified at trial that these favors included holding the
cocaine during a sale and counting money. The proof presented by
the government against Hicks included tape recordings of Hicks
and Lampley selling crack cocaine to a confidential informant on
December 20 and 27, 1990. The confidential informant testified
that Hicks held the cocaine for Lampley and counted the money
after the sale.
In contrast, Portis was a drug dealer who worked directly
for Lampley. On November 1, 1990, Portis was "jumped" and robbed
by three men in a dispute over a drug sale. Afterward, Lampley
gave Portis a gun to protect himself and told Portis to
"straighten out his business." The next day Portis found one of
the three men, Melvin Naylor, in a bar and shot him twice in the

-- 2 of 14 --

3
head. Portis later confessed to the shooting but claimed that he
shot Naylor in self-defense.
On January 23, 1991, police officers executed a search
warrant at the residence of Portis's grandmother. When the
warrant was served, Portis answered the door. His seventy-seven
year old grandmother was asleep in the back of the house. Inside
the house, police found quantities of cocaine hidden in the
freezer and in a sugar bowl. Police also discovered a plastic
bag containing $486; Portis had another $140 in his pocket.
Portis told police that his grandmother had nothing to do with
the cocaine.
After a jury trial, both Hicks and Portis were found guilty
of possession of cocaine with intent to distribute. 21 U.S.C.
§ 841(a)(1). Additionally Portis was convicted of use of a
firearm during and in relation to a drug trafficking crime. 18
U.S.C. § 924(c). On this appeal, both defendants raise multiple
points of error, none of which have merit.
II. DISCUSSION
A. Issues Raised by Fred Hicks
1. Jail Docket Records
Much of the evidence against Hicks consisted of tape
recordings of Hicks and one of the co-defendants, Fred Lampley,
selling crack cocaine to a confidential informant. Hicks argued
at trial that it was not his voice on the tapes and that the
police had misidentified him as Lampley’s accomplice. In support

-- 3 of 14 --

4
of his theory, Hicks attempted to show that police had originally
identified him as a participant in other drug transactions that
took place earlier in December--even though Hicks was actually in
jail on those earlier dates. To prove his point, Hicks cross-
examined a police detective whose case report stated that taped
conversations from those earlier dates "included Fred Lampley,
Fred Hicks and others." Hicks also called the jail records
custodian to testify that he had been incarcerated during the
first half of December. However, the district court refused to
allow Hicks to introduce the actual jail docket records into
evidence. Hicks now argues that this was reversible error.
The exclusion of evidence by the district court is reviewed
under an abuse of discretion standard. United States v. Shaw,
920 F.2d 1225, 1229 (5th Cir.), cert. denied, 111 S. Ct. 2038
(1991). This Court will reverse only if the evidentiary ruling
affects a substantial right of the complaining party. FED. R.
CRIM. P. 52.
In this case, it is difficult to see how the exclusion of
the trial records could have affected a substantial right of
Hicks. The charges against Hicks were for drug transactions that
occurred after he was released from jail. Hicks was allowed to
make his arguments concerning the misidentification and to
introduce evidence that he was in jail in early December. The
government did not dispute the testimony of the jail records
clerk so there was no reason for Hicks to offer additional
evidence on this point. The exclusion of this type of cumulative

-- 4 of 14 --

5
evidence could not have affected the trial so as to require
reversal.
2. The Tape Recordings
Hicks also argues that the prosecution failed to meet its
obligation under Brady v. Maryland, 373 U.S. 83 (1963), by
failing to provide Hicks with the original tape recordings. In
Brady, the Supreme Court held that "the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution." Id. at 87. Although the full reach
of Brady is perhaps unclear at times, the doctrine has never been
stretched to the lengths requested by Hicks. There was
absolutely nothing to indicate that the original tape recordings
were exculpatory. Hicks was provided with copies of the tape
recordings, but he never made any request for the originals.
"[W]here the defendant's own lack of reasonable diligence is the
sole reason for not obtaining the pertinent material, there can
be no Brady claim." United States v. Brown, 628 F.2d 471, 473
(5th Cir. 1980).
Even in a case where Brady has some conceivable application,
a defendant is not entitled to a new trial unless this Court
determines that "there is a reasonable probability that the trial
result would have been different." United States v. Nixon, 881
F.2d 1305, 1308 (5th Cir. 1989). In this case, there is

-- 5 of 14 --

6
absolutely nothing to indicate any possibility that the trial
result would have been different had Hicks been given the
original tapes.
Hicks also claims that under Brady the prosecution was
somehow obligated to help him locate an expert to perform a
voice-print analysis on the tape recordings. It almost goes
without saying that this claim is meritless. Brady has no
application to Hicks's search for an expert witness. But even if
it did, Brady does not obligate the government to provide
defendants with evidence that they could obtain from other
sources by exercising reasonable diligence. United States v.
McKenzie, 768 F.2d 602, 608 (5th Cir. 1985), cert. denied, 474
U.S. 1086 (1986). It cannot be seriously argued that an expert
in voice-print analysis could only be obtained from the
prosecution.
Additionally, an indigent defendant requesting non-
psychiatric experts must demonstrate something more than a mere
possibility of assistance. Such experts should be provided only
if the evidence is both critical to the conviction and subject to
varying expert opinion. Yohey v. Collins, 985 F.2d 222, 227 (5th
Cir. 1993). In this case, not only did Hicks fail to demonstrate
that the identification of his voice would be subject to varying
expert opinion, Hicks never requested the expert to begin with.
Neither the district court nor the prosecution is required to
read Hicks's mind.

-- 6 of 14 --

1 The standard of review, however, can vary depending upon
the actual reason for the denial of the motion. For example,
whether a defendant has standing to challenge an allegedly
illegal search is a question of law that is reviewed de novo.
United States v. Ibarra, 948 F.2d 903, 905 (5th Cir. 1991). In
this case, lack of standing was one of the reasons given by the
district court for denying Portis's motion to suppress. Since we
conclude that Portis did not present any adequate justification
for suppressing the evidence, this Court does not have to reach
the issue of standing. Accordingly, for the purposes of this
appeal, we assume that Portis has standing to challenge the
government's seizure of the evidence in question.
2 The government bears the burden of proof when the
suppression motion concerns the voluntariness of a confession,
the voluntariness of consent to a warrantless search, the
inevitable discovery of evidence, or a waiver of Miranda rights.
United States v. Hurtado, 905 F.2d 74, 76 (5th Cir. 1990) (en
banc).
7
B. Issues Raised by Earvin Portis
1. Motion to Suppress
After the start of the trial, Portis made an oral motion to
suppress the evidence seized in the search of his grandmother's
residence. Portis argues that the district court erred in
denying that motion for two reasons. First, Portis contends that
the prosecution never disclosed the name of the confidential
informant used to obtain the search warrant. Second, Portis was
never provided with a copy of the search warrant or affidavit.
This Court reviews the district court's denial of a motion
to suppress for abuse of discretion. United States v. Knezek,
964 F.2d 394, 397 (5th Cir. 1992).1 In this type of a
suppression motion,2 Portis has the burden of proving, by a
preponderance of the evidence, that the material in question was

-- 7 of 14 --

8
obtained in violation of his constitutional rights. United
States v. Castaneda, 951 F.2d 44, 48 (5th Cir. 1992).
As an initial matter, we note that one of the reasons given
by the district court for the denial of Portis's motion was that
it was not timely. Under Rule 12 of the Federal Rules of
Criminal Procedure, motions to suppress must be raised prior to
trial. FED. R. CRIM. PROC. 12(b)(3). Failure to do so constitutes
a waiver, although the trial court may grant relief from the
waiver for cause. FED. R. CRIM. PROC. 12(f). A district court
does not abuse its discretion in denying a motion to suppress
solely on the ground that it was not filed prior to trial.
Knezek, 964 F.2d at 397. This Court could therefore affirm on
this ground alone. However, since the district court also
considered the merits of Portis's motion, we will also.
Portis's first argument is that the evidence should have
been suppressed because of the prosecution's failure to disclose
the name of the confidential informant used in the affidavit
supporting the search warrant. Despite the fact that a
magistrate judge's discovery order instructed the government to
disclose the identity of all confidential informants, the
prosecution only disclosed those informants that the government
intended to call as witnesses. The Supreme Court has held that
the government must disclose an informant's identity in cases in
which the informant actively participated and/or was a witness to

-- 8 of 14 --

3 In this case, the prosecution had intended to introduce
evidence that the confidential informant actually purchased crack
cocaine from Portis on the day the search warrant was served.
The district court suppressed that evidence because of the
prosecution's failure to disclose the informant.
9
the underlying act or transaction.3 Roviaro v. United States,
353 U.S. 53 (1957). Where the informant's involvement has been
limited to providing evidence relevant to probable cause--as is
the case here--disclosure is not required. McCray v. Illinois,
386 U.S. 300 (1967). Here, the confidential informant only
provided information used to establish probable cause for the
search warrant, so disclosure was not required under McCray.
Since the disclosure of this informant was not required
under McCray, Portis is simply alleging an error in the discovery
process. As such, this Court reviews only for abuse of
discretion and will reverse only if a defendant can show
prejudice to his substantial rights. United States v. Ellender,
947 F.2d 748, 756 (5th Cir. 1991). The district court concluded
that the magistrate judge's discovery order was ambiguous and
that the prosecution acted in good faith. Both at trial and
before this Court, Portis has failed to suggest any way that the
failure to disclose caused prejudice to his substantial rights.
Next, Portis argues that suppression was warranted because
the prosecution failed to provide him with copies of the search
warrant and the affidavit. Without question, Portis was entitled
to copies if he had requested them. However, Portis admitted
before the district court that he never requested copies of the
search warrant and affidavit. In his brief before this Court,

-- 9 of 14 --

4 This claim is somewhat incredible since Portis was
present when his grandmother was served with the warrant; in fact
it was Portis who opened the door for the police. Also, five
days before trial, Portis was given copies of the police incident
report indicating that the search warrant was served on Portis's
grandmother.
10
Portis contends that he had no knowledge of the existence of the
warrant until the trial had started.4 While that might be
considered cause for failing to file the suppression motion
before the start of the trial, it certainly does not warrant
excluding the evidence in question. The burden was still on
Portis to prove, by a preponderance of the evidence, that the
material in question was obtained in violation of his
constitutional rights; and Portis made no attempt to introduce
any evidence at all that could show a constitutional violation.
It was therefore not error for the district court to deny
Portis's motion to suppress.
2. Sufficiency of Evidence
Portis also argues that the district court erred in not
granting Portis's motion for judgment on the drug possession
charge. Portis was convicted under 21 U.S.C. § 841(a)(1) which
requires (1) possession of a controlled substance, (2) knowingly
and (3) with the intent to distribute it. United States v.
Garcia, 917 F.2d 1370, 1374 (5th Cir. 1990). Portis argues that
there was no evidence that he had "dominion and control" over the
cocaine discovered in his grandmother's house.

-- 10 of 14 --

11
When evaluating the sufficiency of evidence on appeal, this
Court considers the evidence in the light most favorable to the
verdict. Glasser v. United States, 315 U.S. 60, 80 (1942). The
standard is whether, given the evidence presented at trial, any
rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. United States v. Ivy, 929 F.2d 147
(5th Cir.), cert. denied, 112 S. Ct. 234 (1991).
Under this very deferential standard of review, it appears
that there was more than enough evidence for a jury to conclude
that it was Portis's cocaine in the sugar bowl and in the
freezer. Under section 841(a)(1), possession may be either
actual or constructive and may be proven by either direct or
circumstantial evidence. Garcia, 917 F.2d at 1376. Although
there is some question as to whether Portis actually resided at
the house, he gave that address to police as his residence after
his arrest. Also, Portis told police that the cocaine did not
belong to his grandmother, and he had a large amount of cash
actually in his pockets. Finally, Lampley testified during the
trial that Portis sold cocaine for him. The district court did
not err in denying Portis's motion for judgment on the drug
possession charge.
In a similar vein, Portis argues that there was insufficient
evidence on the firearms charge. However, Portis never moved for
judgment on this charge. As a result, this Court reviews for
plain error and will reverse only if affirmance would result in a
"manifest miscarriage of justice." United States v. Singer, 970

-- 11 of 14 --

12
F.2d 1414, 1418 (5th Cir. 1992). Portis was convicted under 18
U.S.C. § 924(c) which makes it a crime to use or carry a firearm
during and in relation to a drug trafficking crime. We find that
there is sufficient evidence in the record to support the jury's
verdict.
3. The Jury Charge
Next, Portis argues that the district court erred in failing
to give a jury charge on Portis's claim of self-defense. Yet
Portis never requested a charge on self-defense, and he did not
object to the district court's proposed jury instructions.
"[T]he failure of the district court to afford an instruction to
the jury cannot be complained of on appeal in the absence of
request or objection by counsel in the trial court." United
States v. Barnett, 945 F.2d 1296, 1300 (5th Cir. 1991).
4. Prosecutorial Misconduct
Portis argues that the district court erred in failing to
grant a mistrial based upon the prosecutor's improper remarks
during closing argument. The standard of review for a denial of
a motion for mistrial is abuse of discretion. United States v.
Rocha, 916 F.2d 219, 234 (5th Cir. 1990). This Court will only
reverse a conviction for prosecutorial misconduct if the
misconduct was so pronounced and persistent that it casts serious
doubts upon the correctness of the jury's verdict. United States
v. Carter, 953 F.2d 1449, 1457 (5th Cir. 1992). In this case the

-- 12 of 14 --

13
allegedly improper statements by the prosecution were not
sufficient to cast any doubts at all upon the jury verdict.
5. Application of the Sentencing Guidelines
Finally, Portis argues that the district court erred in its
application of the sentencing guidelines to his conviction for
drug possession. In sentencing Portis, the district court
applied the base offense level for crack or cocaine base. For
the amount of cocaine involved (16.9 grams), possession of free
base cocaine results in a base offense level of 26. See U.S.S.G.
§ 2D1.1(c). An equal amount of cocaine in a powder form would
result in base offense level of 12. This Court applies a clearly
erroneous standard to the district court's factual determination
that the substance involved was cocaine base. United States v.
Young, 981 F.2d 180 (5th Cir. 1992).
Portis argues that the determination of the district court
was error because the crime laboratory chemist only testified
that the substance found in the apartment with Portis was
cocaine. The chemist did not specify whether the drug was in a
powder or a free base form. However, the chemist's written
report stated that the cocaine was in free base form, and a copy
of that report was included in the presentence report. The
presentence report generally bears sufficient indicia of
reliability to be considered as evidence by the trial court in
making factual determinations. United States v. Robins, 978 F.2d
881 (5th Cir. 1992). The district court was therefore justified

-- 13 of 14 --

14
in relying on the presentence report, and the court's
determination that the controlled substance was cocaine base was
not clearly erroneous.
III. CONCLUSION
For the reasons stated, we find that none of the issues
raised by the defendants have merit. Accordingly, the judgment
of the district court is AFFIRMED.

-- 14 of 14 --