IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 12, 2008
No. 07-51248
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE ANTONIO MUNIZ-BORRERO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-2621-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Antonio Muniz-Borrero (Muniz) appeals his conviction and sentence
for importation of 50 kilograms or more of marijuana and possession with intent
to distribute 50 kilograms or more of marijuana. Muniz’s first trial was declared
a mistrial after the jury deadlocked. Muniz contends that his second trial was
unfair because the district court allowed a “surprise” witness to testify on
rebuttal and denied Muniz a continuance to allow the defense to prepare to
counter the testimony. The district court did not abuse its discretion by allowing
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-51248
the witness, Kahled Farhat, to testify. Farhat’s testimony was relevant because,
although it was not incriminatory, it directly contradicted Muniz’s trial
testimony. See FED. R. EVID. 401, 402; United States v. Sanchez-Sotelo, 8 F.3d
202, 210 (5th Cir. 1993) (reviewing evidentiary rulings for an abuse of
discretion).
Although Farhat did not testify at Muniz’s first trial, Muniz was aware
from the evidence presented at trial that Farhat could potentially impeach
Muniz’s testimony; however, he chose not to interview Farhat prior to the second
trial. See United States v. Hopkins, 916 F.2d 207, 217-18 (5th Cir. 1990). Muniz
does not identify any specific prejudice from the denial of a continuance, such as
an inability to offer surrebuttal witnesses or to impeach Farhat’s testimony. See
United States v. Harbin, 601 F.2d 773, 778-79 (5th Cir. 1979). Thus, Muniz has
failed to show that the decision not to grant a continuance prior to Farhat’s
testimony was an abuse of the district court’s discretion. See United States v.
Alford, 999 F.2d 818, 821 (5th Cir. 1993).
AFFIRMED.
2