               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 00-41491



UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,

                                versus

ELI ALBERT THOMAS,
                                            Defendant-Appellant.




          Appeal from the United States District Court
               for the Southern District of Texas
                          C-00-CR-278-1


                            April 4, 2002


Before KING, Chief Judge, and GARWOOD and HIGGINBOTHAM, Circuit
Judges.

PER CURIAM:*

     Eli Albert Thomas appeals his conviction for possession with

intent to distribute more than 100 kilograms of marijuana,

specifically 941 kilograms.   After a jury found him guilty, he

was sentenced to 97 months imprisonment, with 5 years of

supervised release to follow.



     *
        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that this opinion should not be published and is not precedent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.
                                 I

     Thomas argues there was insufficient evidence to prove that

he possessed 100 kilograms or more of marijuana.    We are

persuaded that under all the facts at trial a reasonable juror

could conclude that the truck contained the amount of marijuana

charged in the indictment.   Moreover, at trial there was no

dispute over the amount of marijuana.    Indeed, defense counsel

suggested in closing that the large quantity of marijuana would

not have been handled as it was by his client if he had known

that it was marijuana.   That is, the main defense at trial was

that Thomas did not know he was hauling marijuana.

                                II

     Brown also argues that the quantity was insufficient to

support the imposed sentence.   This case presents no Apprendi

issue for the reason that the represented amount was alleged in

the indictment and proved beyond a reasonable doubt at trial.

                                III

     One remaining incident at trial bears mention.    Immediately

on the return of the jury verdict, defense counsel retrieved from

the exhibits admitted into evidence a lab report reflecting a

seizure of drugs from a different defendant on a different

occasion at the Falfurrias checkpoint.    No mention was made of

this document at trial, and it was never referred to in closing

argument.   It was also plain from the sequence of events at trial



                                 2
that defense counsel knew of the document.   It is not clear when

he learned of the exhibit, but it is clear that he knew before

the verdict was returned.

     Unfortunately, the lab report had nothing to do with the

case and found its way into the government’s exhibits by mistake.

On appeal the defendant understandably makes no argument based on

the stray document.   And given the circumstance that the

government’s proof of the quantity of possessed drugs was both

sufficient to support the verdict and was not challenged at

trial, we are not persuaded that the stray lab report had an

injurious impact.   The conviction and sentence are affirmed.

     AFFIRMED.




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