United States v. Baggett ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60079
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALVALINE BAGGETT
Defendant - Appellant
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:00-CR-65-ALL-WN
- - - - - - - - - -
January 23, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and JONES, Circuit
Judges.
PER CURIAM:*
Alvaline Baggett appeals from her jury-verdict conviction
for conspiracy to commit extortion and theft or bribery
concerning programs receiving federal funds. She argues that the
Government improperly failed to disclose a recorded interview
that she underwent and allegedly exculpatory evidence from a
Government informant. This court reviews alleged discovery
errors for an abuse of discretion and alleged Brady1 errors de
novo. See United States v. Freeman, 164 F.3d 243, 248 (5th Cir.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
Brady v. Maryland, 373 U.S. 83 (1963).
No. 01-60079
-2-
1999); United States v. Doucette, 979 F.2d 1042, 1044-45 (5th
Cir. 1992). Even if it is assumed that the Government had a duty
to disclose such information and failed to do so, Baggett has
failed to make a sufficient showing either that she was
prejudiced by the nondisclosure of the interview or that the
allegedly exculpatory evidence was material. See Kyles v.
Whitley, 514 U.S. 419, 432-34 (1995); United States v.
Arcentales, 532 F.2d 1046, 1050 (5th Cir. 1976). She has
therefore failed to show reversible error as to the disclosure
issues.
She next argues that the district court violated her Sixth
Amendment right to compulsory process by denying her request for
a writ ad testificatum in order to obtain the in-court testimony
of a prison inmate. Although the trial court has wide discretion
regarding matters arising under FED. R. CRIM. P. 17, whether the
trial court’s refusal violated her constitutional rights is a
question of law that is reviewed de novo. See United States v.
Soape, 169 F.3d 257, 267 (5th Cir. 1999). Baggett again fails to
make the requisite showing of prejudice.
Baggett contends that the district court erred by admitting
transcripts of recorded telephone conversations between a
Government witness and herself. This court reviews the district
court’s decision to admit such evidence only for abuse of
discretion. See United States v. Thompson, 130 F.3d 676, 683
(5th Cir. 1997). The transcripts at issue were stricken after
the witness’ authentication of them was determined to be faulty
but were readmitted by stipulation. Baggett fails to show how
No. 01-60079
-3-
the district court abused its discretion by admitting the
transcripts initially and fails to show how she was prejudiced by
their initial admission.
Baggett also contends that the district court erred in
determining the amount of benefit received or to be received for
purposes of U.S.S.G. §§ 2C1.1(b)(2)(A) and 2F1.1(b)(1)(E). The
district court’s determination of such amount is a factual
finding that is reviewable only for clear error. See United
States v. Glinsey, 209 F.3d 386, 393 (5th Cir.), cert. denied,
531 U.S. 919 (2000). Because the amounts relied upon by the
district court in calculating the total amount of benefit
received or to be received were supported by the record, Baggett
has failed to show that the district court’s finding was clearly
erroneous.
Baggett challenges the district court’s denial of her motion
for a new trial and/or judgment of acquittal on the grounds that
the testimony of the Government’s witnesses was not credible and
that she lacked the requisite intent to extort or solicit money
because she was unable to perform the function for which the
money was received. This court will not review the credibility
of the witnesses in the instant context. See United States v.
Delgado, 256 F.3d 264, 273 (5th Cir. 2001); United States v.
Dula, 989 F.2d 772, 778 (5th Cir. 1993). Furthermore, her
inability to perform the bargained-for function does not negate
the requisite intent element. See United States v. Millet, 123
F.3d 268, 274 (5th Cir. 1997).
Accordingly, the judgment of the district court is AFFIRMED.