IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11212
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
ADRIAN VALDEZ GARCIA
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(4:95 CR 94-A-2)
September 29, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Adrian Valdez Garcia appeals his conviction for possession
with intent to distribute marijuana and methamphetamine,
maintaining a place for the purpose of distributing marijuana and
methamphetamine, and conspiracy to possess with intent to
distribute marijuana. Garcia argues that the district court abused
its discretion in preventing him from asking additional questions
of prospective jurors during voir dire, thereby denying him his
*
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this opinion should not be published and is not precedent except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.
right to a fair trial. He further contends that the evidence was
insufficient to sustain his conviction on all counts. Finally,
Garcia argues that the prosecutor engaged in misconduct through
improper jury argument and the eliciting of untrue testimony. We
affirm in all respects.
Garcia argues that the district court improperly cut off his
questioning of potential jurors Murphy and Harris. Our review of
the record, however, indicates that the court adequately inquired
into those jurors’ ability to be impartial, and it was justified in
relying upon their assurances that they could be. See United States
v. Quiroz-Hernandez, 48 F.3d 858, 868 (5th Cir. 1995). At best,
Garcia’s position amounts to a claim that he was forced to exercise
a peremptory challenge for juror Murphy, a claim which fails to
show any prejudice to Garcia’s rights. See United States v.
Mendoza-Burciaga, 981 F.2d 192, 197-98 (5th Cir. 1992), cert.
denied, 510 U.S. 936 (1993). Nor did the district court abuse its
discretion by dismissing prospective juror Sweeney for cause after
it became evident that Sweeney could not render an impartial
verdict. See United States v. Shannon, 21 F.3d 77, 82 (5th Cir.),
cert. denied, 513 U.S. 901 (1994).
Turning to Garcia’s next contention, we find the evidence
sufficient to sustain his conviction on all counts. Garcia’s
central argument is that the Ernest Vera, a co-conspirator and the
government’s chief witness against Garcia, gave conflicting
testimony about Garcia’s participation in the conspiracy, which
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cannot form the basis of a criminal conviction. Yet the mere “non-
credibility” of a witness is not a sound basis for alleging
insufficiency of the evidence. See United States v. Polk, 56 F.3d
613, 620 (5th Cir. 1995). The testimony of a co-conspirator will
not be ignored by this court unless it is incredible, factually
impossible, or insubstantial on its face. See United States v.
Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994); United States v. Jaras,
86 F.3d 383, 388 (5th Cir. 1996). Vera’s testimony was none of
these things.
Here, Vera’s testimony along with substantial corroborating
circumstantial evidence supported Garcia’s conviction. According to
the testimony at trial, Garcia had Vera rent the house where the
drugs were found, personal papers belonging to both Garcia and his
companion were found in the house, and Garcia was seen entering and
leaving the house before his arrest. Accordingly, because Garcia
was in control of the premises where the drugs were found, the jury
could conclude that he was in constructive possession of the
narcotics. See United States v. Cardenas, 9 F.3d 1139, 1158 (5th
Cir.), cert. denied, 511 U.S. 1134 (1994). Moreover, various
supplies used in drug trafficking, along with $2,900 in cash, were
also found in the house. These items would allow the jury to infer
that Garcia had the intent to distribute the drugs. See id. This
evidence taken together would support a conviction for maintaining
a place for the purpose of distributing marijuana. See United
States v. Onick, 889 F.2d 1425, 1431 (5th Cir. 1989). Sufficient
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evidence was also elicited to indicate that Garcia had entered into
a criminal conspiracy with the other defendants. Direct evidence of
Garcia’s knowledge of the conspiracy was not necessary; the
elements of a conspiracy can be proved circumstantially, as they
were here. See Cardenas, 9 F.3d at 1157.
Finally, we find no prosecutorial misconduct on this record.
Because Garcia objected to none of this at trial, we review for
plain error. Garcia argues that the prosecutor elicited various
perjured statements from Vera on direct examination, yet Garcia
does not demonstrate that these statements were actually false,
that the prosecutor knew they were false, and that the statements
were material. Accordingly, we find no plain error. See Faulder v.
Johnson, 81 F.3d 515, 519 (5th Cir.), cert. denied, 117 S. Ct. 487
(1996). Moreover, the prosecutor’s characterization of the facts
during closing argument does not amount to misconduct because it
simply consisted of inferences and conclusions that she wished the
jury to draw from the evidence. See United States v. Washington, 44
F.3d 1271, 1278 (5th Cir.), cert. denied, 115 S. Ct. 2011 (1995).
AFFIRMED.
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