     Case: 18-50548      Document: 00515103941         Page: 1    Date Filed: 09/04/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 18-50548                             FILED
                                  Summary Calendar                   September 4, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ARMANDO SALAZAR-PORRES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:17-CR-234-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Armando Salazar-Porras was convicted of one
count of aiding and abetting possession of marijuana with intent to distribute
and sentenced to serve a within-guidelines sentence of 60 months in prison and
a four-year term of supervised release. Now, he argues that his conviction
should be vacated due to the Government’s failure to timely disclose a
statement given by one of his codefendants. Insofar as he argues that the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-50548     Document: 00515103941      Page: 2    Date Filed: 09/04/2019


                                  No. 18-50548

district court erred by denying his motion for a mistrial, we decline to consider
this claim because it was neither presented in his opening brief nor raised in
the Government’s brief but rather is raised for the first time in his reply brief.
See United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009).
      When, as here, this court is presented with a claim that evidence was
disclosed too late, the pertinent query is whether the defendant was
prejudiced. United States v. Swenson, 894 F.3d 677, 683 (5th Cir. 683 (5th
Cir.), cert. denied, 139 S. Ct. 469 (2018). Prejudice is established through a
showing that the disputed “evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.” United
States v. Valas, 822 F.3d 228, 237 (5th Cir. 2016) (internal quotation marks
and citation omitted).      Speculation does not suffice to show prejudice.
Swenson, 894 F.3d at 683. When the disputed evidence is given to the defense
in time for it to be used at trial, the conviction will not be reversed just because
the evidence was not disclosed sooner. Id.
      Application of these principles to Salazar-Porras’s claim shows that it is
unavailing.   Although the record is unclear as to precisely when defense
counsel received the statement, the record nonetheless shows that she had this
item during trial and thus could have used it. Additionally, his claims as to
the potential effect of this statement amount to no more than speculation and
do not suffice to show that he should receive relief. See id.
      AFFIRMED.




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