     Case: 10-40866     Document: 00511573107         Page: 1     Date Filed: 08/16/2011




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

                                                                            FILED
                                                                          August 16, 2011
                                     No. 10-40866
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GERARDO GARCIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:09-CR-2437-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        A jury found Gerardo Garcia guilty of one count of conspiring to posses
with intent to distribute more than 50 grams of methamphetamine, one count
of possessing with intent to distribute more than 50 grams of methamphetamine,
and one count of importing more than 50 grams of methamphetamine. Because
he had previously been convicted of two qualifying drug crimes, he received a
mandatory prison sentence of life. See 21 U.S.C. § 841(b)(1)(A). On appeal, he
challenges the district court’s decision to deny his motion for a mistrial or, in 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40866   Document: 00511573107     Page: 2   Date Filed: 08/16/2011

                                 No. 10-40866

alternative, to exclude audio recordings of phone calls he made from prison that
undercut his defense of duress. He argues that the Government violated Federal
Rule of Criminal Procedure 16(a)(1)(B)(i) when it made the recordings available
to him only a few days before trial was set to begin.
      Under Rule 16 (a)(1)(B)(i), upon the defendant’s request, the Government
must disclose recorded statements made by the defendant if the statements are
in the Government’s possession, custody, or control and if the prosecutor knows
or could know that the statements exist. The record does not reveal, and Garcia
does not assert, that he requested that the Government disclose the recordings.
Moreover, the Government made the recordings available to the defense within
two days after it obtained them. Cf. United States v. Doucette, 979 F.2d 1042,
1045 (5th Cir. 1992) (suggesting that the Government did not withhold
fingerprint cards and Bureau of Alcohol, Tobacco and Firearms reports under
Rule 16 where the Government did not receive them until the day of trial).
Because Garcia has not established that the Government committed a discovery
violation, he has not shown that the district court abused its discretion in not
granting the relief he sought. See United States v. Garcia, 567 F.3d 721, 734
(5th Cir. 2009). Accordingly, the judgment of the district court is AFFIRMED.




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