IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11481
Summary Calendar
United States of America,
Plaintiff-Appellee,
versus
Michael F. Dixon, a/k/a Tricky;
Baron Elder, a/k/a Beno,
Defendant-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
No. 4:96-CR-025-Y-13)
October 23, 1997
Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Michael F. Dixon was convicted of conspiracy to possess with
intent to distribute cocaine base and use of a communication device
to commit a felony in violation of 21 U.S.C. §§ 843 (b) and 846.
Dixon appeals the district court’s denial of his motion for new
trial and the denial of his motion to suppress, and also argues
that the evidence presented at trial was insufficient to support
his conviction.
*
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this opinion should not be published and is not precedent except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.
Dixon’s co-defendant, Baron Elder, was convicted of conspiracy
to possess with intent to distribute cocaine base. Elder appeals
the district court’s denial of his motion for new trial and also
argues that the district court erred in failing to grant in its
entirety his motion for a bill of particulars.
We review district court rulings on motions for new trial for
abuse of discretion. United States v. Jaramillo, 42 F.3d 920, 924
(5th Cir.), cert. denied, 514 U.S. 1134 (1995). Defendants Dixon
and Elder based their motions for new trial on newly discovered
evidence. Motions based on such evidence are “disfavored by the
courts and therefore are viewed with great caution.” Id.; United
States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996). After
carefully reviewing the arguments of both defendants and the record
in this case, we are not convinced that the evidence that forms the
basis of the defendants’ motions for new trial is so material that
its absence from trial “undermines confidence in the outcome of the
trial.” Kyles v. Whitley, 115 S.Ct. 1555, 1566 (1995).
Accordingly, we hold that the trial court did not abuse its
discretion in denying the defendants’ motions for new trial.
Dixon asserts that the district court erred by failing to hold
an evidentiary hearing on his motion for new trial. The decision
to hold an evidentiary hearing on a motion for new trial is subject
to the district court’s sound discretion, and is reviewed only for
abuse of discretion. United States v. Johnson, 596 F.2d 147, 148
(5th Cir. 1979). For the same reasons we agree with the district
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court’s decision on the merits of the motion, we hold that the
district court did not abuse its discretion in choosing not to hold
an evidentiary hearing on Dixon’s motion for new trial.
The district court did not abuse its discretion in denying
Dixon’s motion to suppress the evidence produced by wiretaps. The
heart of Dixon’s argument on the motion to suppress centers on the
sufficiency of the Government’s affidavit in support of the its
application for the wiretaps. Dixon has failed to provide this
court with a copy of this affidavit. No copy of the affidavit is
in the record or the record excerpts. Because Dixon has not met
his burden of providing this court with a complete record on
appeal, we need not reach this issue. See Alizadeh v. Safeway
Stores, 910 F.2d 234, 237 (5th Cir. 1990).
Dixon argues that the evidence presented at trial was
insufficient to support his conviction for conspiracy to possess
with intent to distribute cocaine base. Because Dixon failed to
make a motion for acquittal at the close of the evidence at trial,
his claim can be reviewed only to determine whether it was a
manifest miscarriage of justice to convict him.1 See United States
v. Laury, 49 F.3d 145, 151 n.15 (5th Cir.), cert. denied, 166 S.Ct.
1
In United States v. Pennington, 20 F.3d 593, 597 n.2 (5th
Cir. 1994), the Court questioned whether the miscarriage of justice
standard is distinguishable from the sufficiency of evidence
standard. But because only the court sitting en banc can reverse
precedent, Dixon’s insufficient evidence claim must be reviewed
under the miscarriage of justice standard. United States v. Laury,
49 F.3d 145, 151 n.15 (5th Cir.), cert. denied, 166 S.Ct. 162
(1995).
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162 (1995); United States v. Vaquero, 997 F.2d 78, 82 (5th Cir.),
cert. denied, 510 U.S. 1016 (1993). “Such a miscarriage of justice
would exist only if the record is devoid of evidence pointing to
guilt, or... because the evidence on a key element of the offense
was so tenuous that a conviction would be shocking.” United States
v. Pierre, 958 F.2d 1304, 1310 (5th Cir.)(en banc), cert. denied,
114 S. Ct. 1410 (1994)(internal quotations and citations omitted).
After carefully reviewing the record, we find that the evidence
presented at trial was sufficient to support Dixon’s conviction.
The district court did not abuse its discretion in failing to
grant in its entirety Elder’s motion for a bill of particulars.
The denial of a motion for a bill of particulars will lead to
reversal of judgment “only if the ruling was a clear abuse of
discretion.” United States v. McKinney, 53 F.3d 664, 674 (5th
Cir.), cert. denied, 116 S.Ct. 261 (1995). The accused must show
“that he was actually surprised at trial and that his rights were
substantially prejudiced by the denial.” United States v. Lindell,
881 F.2d 1313, 1326 (5th Cir. 1989), cert. denied, 496 U.S. 926
(1990). After a careful review of the record, we find that Elder
has failed to meet this burden. Accordingly, we hold that the
district court’s decision not to grant Elder’s motion for a bill of
particulars in its entirety was not an abuse of discretion.
Therefore, for the foregoing reasons, the district court’s
judgment is AFFIRMED.
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