IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20499
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABSALON MURILLO-GAMBOA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-30-6
March 1, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Absalon Murillo-Gamboa appeals his jury conviction and
sentence for conspiracy to possess with intent to distribute five
kilograms or more of cocaine and 50 grams or more of cocaine base
and aiding and abetting possession with intent to distribute five
kilograms or more of cocaine.
Murillo-Gamboa argues that the district court erred in
admitting his in-court identification because the photograph array
*
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this opinion should not be published and is not precedent except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.
was impermissibly suggestive and because the witness saw Murillo-
Gamboa outside the courtroom during the trial. Where the police
have not preserved the photograph array used in a pretrial
photographic line-up, as occurred here, this court presumes that
the array is impermissibly suggestive.1 However, because the
totality of the circumstances demonstrates that the display did not
pose a very substantial likelihood of irreparable
misidentification, the admission of the identification was not
error.2 We also conclude that the fact that the witness saw
Murillo-Gamboa outside of the courtroom was not impermissibly
suggestive and did not create a substantial risk of
misidentification.3
Murillo-Gamboa also argues that the transcripts of wiretap
recordings with notes identifying the speakers should not have been
admitted. The district court did not abuse its discretion in
admitting these transcripts and the supporting testimony of an
agent because the government satisfied the requirements of Federal
Rule of Evidence 901(b)(5).4
1
United States v. Honer, 225 F.3d 549, 552 (5th Cir. 2000).
2
See United States v. Burbridge, 252 F.3d 775, 780 (5th Cir.
2001); Honer, 225 F.3d at 553-54.
3
See Thompson v. Miss., 914 F.2d 736, 739 (5th Cir. 1990).
4
See United States v. Lampton, 158 F.3d 251, 259 (5th Cir.
1998).
2
Finally, Murillo-Gamboa argues that the district court erred
in applying a three-level increase pursuant to U.S.S.G. § 3B1.1(b)
because of his role as a manager or supervisor. Where the district
court permissibly adopted the findings of the PSR in the absence of
any rebuttal evidence offered at sentencing by Murillo-Gamboa,5 we
conclude that the district court did not clearly err in light of
the evidence in the record that, inter alia, Murillo-Gamboa
directed others to transport the cocaine in a transaction involving
at least five participants.6
AFFIRMED.
5
See United States v. Davis, 226 F.3d 346, 360 (5th Cir.
2000), cert. denied, 531 U.S. 1181 (2001).
6
See United States v. Miranda, 248 F.3d 434, 447 (5th Cir.),
cert. denied, 122 S. Ct. 410 (2001), and cert. denied, 122 S. Ct.
823 (2002); United States v. Sylvester, 143 F.3d 923, 931 (5th Cir.
1998).
3