Revised April 16, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41077
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LUCIO ARTURO GARCIA-FLORES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
March 27, 2001
Before GARWOOD, PARKER, and DENNIS, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Appellant Lucio Arturo Garcia-Flores contests his conviction
under 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2 for
possession with the intent to distribute over one hundred kilograms
of marijuana. Appellant argues that the record contains
insufficient evidence to support his conviction, that the jury
panel was prejudiced by the comments of a prospective juror, and
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that the prosecutor committed reversible error by commenting on
post-Miranda warning silence.
I.
On February 19, 1999, Garcia-Flores stopped his tractor-
trailer at a border patrol checkpoint on Interstate 35, north of
Laredo, Texas. After a canine alerted the border patrol officials
to the possibility of drugs in the trailer, the agents directed
Garcia-Flores to the secondary inspection area. The agents
searched the trailer. The trailer contained vehicle fuse boxes,
which were more than five years old and no longer sold by
dealerships. Amongst the electrical supplies, the agents found 343
pounds of marijuana. Garcia-Flores told the agents that his
destination was Dallas, and he did not know that he was
transporting the marijuana. The evidence suggests that Garcia-
Flores did not appear nervous during the search.
Gordon Jarrell, a Drug Enforcement Administration official,
took custody of Garcia-Flores along with several items found in the
tractor-trailer, including bills of lading and a driver’s log book.
A bill of lading dated February 18, 1999 showed that Garcia-Flores
was transporting cargo for A.M. Logistics Services of Laredo. The
bill of lading did not distinctly describe the amount or price of
the cargo and did not have the correct A.M. Logistics stamp. The
president of A.M. Logistics testified that there never was a
shipment of goods in connection with Garcia-Flores on February 18.
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Jarrell also discovered a bill of lading dated February 5, 1999
from Falcon Logistics of Houston. The owner of Falcon Logistics
testified that he had never done business with Garcia.
Fritz Company, a Laredo business, owned the trailer in which
the agents found the marijuana. The manager of Fritz Company
testified that Garcia-Flores worked as an independent transfer
carrier and had used Fritz Company’s trailers in the past. He
claimed that he did not authorize the use of the trailers on
February 18.
Garcia Flores’ wife claimed that she received a call the
evening prior to the arrest from a man named Ramon, who instructed
Garcia-Flores to pick up the trailer at A.M. Logistics Services in
Laredo. Garcia Flores told Agent Jarrell during his interrogation
that he retrieved the trailer from A.M. Logistics and was on his
way to Dallas when he stopped at the checkpoint.
Garcia-Flores was indicted in Laredo on March 9, 1999 and
charged with possession with intent to distribute marijuana. A
jury failed to reach a unanimous verdict in his first trial. On
July 13, 1999, a second jury found Garcia-Flores guilty. He was
sentenced to serve sixty-five months in prison, a five-year
supervised release term, and a special assessment of $100.
II. Sufficiency of the Evidence
Appellant argues that the record contains insufficient
evidence to support the jury’s verdict. We review the evidence in
the light most favorable to the prosecution, and determine whether
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any reasonable jury could have found the essential elements of the
crime beyond a reasonable doubt. See United States v. Jones, 185
F.3d 459, 463 (5th Cir. 1999) (citing Jackson v. Virginia, 443 U.S.
307, 317-18 (1979)). The jury is free to choose among reasonable
inferences, but, if the evidence gives “equal or nearly equal
circumstantial support to a theory of guilt and a theory of
innocence, we must reverse the conviction, as under these
circumstances a reasonable jury must necessarily entertain a
reasonable doubt.” United States v. Reveles, 190 F.3d 678, 686
(5th Cir. 1999) (quoting United States v. Lopez, 74 F.3d 575, 577
(5th Cir. 1996)) (citations omitted; emphasis in original).
To prove that Garcia-Flores was guilty of possessing marijuana
with the intent to distribute, the government was required to prove
beyond a reasonable doubt that Garcia-Flores (1) knowingly (2)
possessed the marijuana in his trailer (3) with the intent to
distribute it. See United States v. Ortega Reyna, 148 F.3d 540,
543-44 (5th Cir. 1998). Garcia-Flores contests the jury’s
determination concerning only the knowledge element of the crime.
We therefore review the evidence to ascertain whether the jury
could conclude beyond a reasonable doubt that Garcia-Flores knew
the trailer contained the marijuana.
A jury may infer knowledge from the defendant’s control over
a vehicle containing contraband unless the drugs are hidden in
compartments, in which case proof of the defendant’s knowledge
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depends on inference and circumstantial evidence. See United
States v. Miller, 146 F.3d 274, 280-81 (5th Cir. 1998); United
States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995). Because
the border patrol agents found the drugs hidden underneath
electrical supplies in the trailer, there is a “fair assumption
that a third party might have concealed the [marijuana] in the
[trailer] with the intent to use [Garcia-Flores] as [a] carrier .
. ..” United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir.
1990). We therefore look to circumstantial evidence to determine
whether the record supports the jury’s verdict.
Garcia-Flores notes that the record fails to show he was
nervous during the initial search of the trailer. The government
suggests that Garcia-Flores’ immediate voluntary response and his
lack of nervousness is evidence of his guilt. This Court has held
that both nervousness and the absence of nervousness could lead the
jury to infer knowledge of the contraband when combined with other
facts. See Jones, 185 F.3d at 464; Resio-Trejo, 45 F.3d at 913.
Because under these facts Garcia-Flores’ demeanor during the search
could be as consistent with a finding of innocence as with guilt,
we will not place any weight on the defendant’s temperament during
the search. See Ortega Reyna, 148 F.3d at 545-46.
The government introduced evidence at trial to conclusively
show that the bills of lading found in the tractor-trailer were
fabricated. The bill of lading dated February 18 identified A.M.
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Logistic Services as the source of the cargo in the trailer. The
bill of lading did not correctly identify the company or reveal the
appropriate business stamp. The government also introduced a bill
of lading involving a shipment of goods to Houston dated February
5. The president of the Houston business testified that his
company never exchanged goods with Garcia-Flores and that this bill
of lading was also false.1
The government claims that Garcia-Flores lied about acquiring
the trailer at A.M. Logistics. Garcia-Flores told a Border Patrol
agent at approximately 12:30 a.m. that he had just procured the
trailer. The president of A.M. Logistics testified that the
business rarely loads trailers after 11:00 p.m. and that the gates
are shut and locked between 11:00 p.m. and 11:30 p.m. The U.S.
Customs records show that Garcia-Flores did not even enter the
United States until 10:11 p.m., after A.M. Logistics finished
loading trailers during the business day.
1
Appellant argues that the trial court erred by allowing the
admission of extrinsic acts pertaining to the February 5 bill of
lading. Rule 404(b) prohibits the admission of evidence of other
crimes, wrongs or acts to prove character and conformity therewith.
See FED. R. EVID. 404(b). Evidence of extrinsic acts may be
admitted to establish knowledge or absence of mistake. The
government’s evidence concerning the forged bill of lading suggests
that Garcia-Flores knew both bills of lading were contrived and
that he or someone else forged the documents to conceal the origin,
destination and description of the cargo. Because the evidence is
probative of the defendant’s knowledge of the drugs found in the
trailer and is not outweighed by undue prejudice, the trial court
did not err in allowing the government to admit evidence of the
extrinsic act. See United States v. Beechum, 582 F.2d 898, 911
(5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920 (1979).
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The government also points to the quantity of drugs found in
the trailer, asserting that drug dealers would not entrust over 300
pounds of marijuana with an unsuspecting driver. This Court has
recognized that a jury may infer a defendant’s guilty knowledge
based on the quantity of drugs, as long as other evidence supports
the inference. See United States v. Ramos-Garcia, 184 F.3d 463,
466 (5th Cir. 1999); United States v. Del Aguila-Reyes, 722 F.2d
155, 157 (5th Cir. 1983).
In response to the government’s evidence, Garcia-Flores argues
that he was simply following the instructions that his wife
received from a telephone conversation with a man named Ramon
around 8:00 p.m. on February 8. Garcia-Flores told Agent Jarrell
that he left his house in Nuevo Laredo, Mexico around 9:30 p.m. and
crossed the border into the United States, where he proceeded to
A.M. Logistics’ address. At A.M. Logistics, he attached the
trailer and began his journey to Dallas on Interstate 35. He notes
that the president of A.M. Logistics did not know how many people
had access to the property after business hours. He also presented
the testimony of a shipping business owner who claimed that most
drivers are not involved in loading cargo and many do not check
their cargo before leaving.
After reviewing the record and placing all the evidence and
inferences in the light most favorable to the government’s case, we
are persuaded that there is sufficient evidence in the record for
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the jury to conclude beyond a reasonable doubt that Garcia-Flores
knew the trailer contained illegal drugs.
III. Comments Involving Defendant’s Post-Miranda Silence
In Doyle v. Ohio, the Supreme Court held that the Due Process
Clause prohibits the government from using a defendant’s post-
arrest, post-Miranda silence to create an inference of guilt. See
426 U.S. 610 (1976); Chapman v. United States, 547 F.2d 1240 (5th
Cir.), cert. denied, 431 U.S. 908 (1977); United States v. Carter,
933 F.2d 1449, 1462 (5th Cir. 1992). We review Doyle violations
under the doctrine of harmless error by determining whether the
error was harmless beyond a reasonable doubt. See United States v.
Moreno, 185 F.3d 465, 472 (5th Cir. 1999). “We also seek to
determine whether the remark was a spontaneous comment by the
witness or a comment prompted by the prosecutor.” Id. (citing
United States v. Smith, 635 F.2d 411, 413 (5th Cir. 1981). This
Court has set out three categories to help determine whether a
constitutional violation has occurred:
(1) When the prosecution uses defendant’s post arrest
silence to impeach an exculpatory story offered by
defendant at trial and the prosecution directly links the
implausibility of the exculpatory story to the
defendant’s ostensibly inconsistent act of remaining
silent, reversible error results even if the story is
transparently frivolous.
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(2) When the prosecutor does not directly tie the fact of
defendant’s silence to his exculpatory story, i.e., when
the prosecutor elicits that fact on direct examination
and refrains from commenting on it or adverting to it
again, and the jury is never told that such silence can
be used for impeachment purposes, reversible error
results if the exculpatory story is not totally
implausible or the indicia of guilt not overwhelming.
(3) When there is but a single reference at trial to the
fact of defendant’s silence, the reference is neither
repeated nor linked with defendant’s exculpatory story,
and the exculpatory story is transparently frivolous and
evidence of guilt is otherwise overwhelming, the
reference to defendant’s silence constitutes harmless
error.
Chapman, 547 F.2d at 1249-50 (citations and footnote omitted).
Garcia-Flores points to two instances, which taken together
allegedly constitute a Doyle violation. The first occurred during
the government’s direct examination of Gordon Jarrell, the DEA
agent who questioned Garcia-Flores during the morning of his
arrest.
Q: Okay. And did you ask him from whom he picked [the
trailer] up –-
A: I did.
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Q: –- at 502 Enterprise? You did?
A: I did.
Q: And what did he say?
A: From the man.
Q: Okay. And did you ask him, of course, the next
question would be what man did you ask him what?
A: I did.
Q: Okay. And what did he say?
A: That he wanted an attorney.
Q: Okay. Well as far as his statement that he made,
what was his statement as far as the man?
A: From the man.
Q: Okay. That was it?
A: The man that was there that’s –-
Q: Okay.
A: –- all that he would say.
Q: Okay. Now did you ask for a name?
A: I did.
Q: Okay. Did you ask for a description of this man?
A: I did.
Q: Were you given one?
A: No sir.
The second alleged error occurred during the government’s closing
statement.
. . . He says, I just picked it up. And who did you
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pick it up from? I just picked it up. And who did you
pick it up from? I just picked it up from the man that
was there. All right. Agent Jarrell being the good DEA
investigator that he is, says well, what man? The man
that was there. Can I have a description of the man?
The man that was there. That is another circumstance.
Because if you closely examine that, that doesn’t mean
much. Is it something that’s consistent with somebody
that really doesn’t know that he was carrying marijuana
in the trailer or is it something consistent with someone
that does know and doesn’t want to say anything about
where he picked it up.
* * *
Now the important thing about that is that Mr.
Garcia doesn’t mention any Ramon at the checkpoint. If
he really didn’t know about this marijuana being in the
trailer, that’s probably one of the first red flags that
would pop in the mind as an experienced truck driver.
Well I don’t know - I don’t know it - I didn’t know that
there was 345 pounds of marijuana. Ramon called me at
home. Did he say that? No, he doesn’t say that, but now
they want this - officer . . ..
In both instances, counsel for the defendant failed to object or
move for a mistrial.
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When a defendant fails to object to a prosecutor’s alleged
unconstitutional comment on a defendant’s silence, we review the
record for plain error. See Carter, 953 F.2d 1449, 1463; Cardenas
Alvarado, 806 F.2d at 573. “Plain error occurs when the error is
so obvious and substantial that failure to notice and correct it
would affect the fairness, integrity, or public reputation of
judicial proceedings and would result in manifest injustice.”
United States v. Mizell, 88 F.3d 288, 297 (5th Cir.), cert. denied,
519 U.S. 1046 (1996). “[A] conviction can be reversed only if
there was a ‘manifest miscarriage of justice,’ which would occur if
there is no evidence of the defendant’s guilt or ‘the evidence on
a key element of the offense was so tenuous that a conviction would
be shocking.’” United States v. Villasenor, 236 F.3d 220, 222 (5th
Cir. 2000) (quoting United States v. McCarty, 36 F.3d 1349, 1358
(5th Cir. 1994)).
The gravamen of Garcia-Flores’ alleged Doyle violation focuses
on a portion of the government’s closing statement, which fits into
the first category set out in Chapman. The government alluded to
Agent Jarrell’s testimony concerning Garcia-Flores’ refusal to
describe the man from whom he received the cargo. The comment by
the government in its closing statement pertaining to Garcia-
Flores’ failure to describe the man from whom he obtained the cargo
fits into the first category set out in Chapman. The reason
Garcia-Flores did not describe the man in detail was because,
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according to the testimony of Agent Jarrell, he asserted his right
to counsel. A Doyle violation occurs when the government comments
on the defendant’s silence to rebut the defendant’s exculpatory
story. Clearly the intent of the government in its closing
statement was to create an inference from Garcia-Flores’ refusal to
accurately describe the man. See United States v. Shaw, 701 F.2d
367, 381 (5th Cir. 1983), cert. denied, 465 U.S. 1067 (1984).
However, in light of the strength of the government’s remaining
evidence and the limited context in which the violation occurred,
we do not think that failure to correct the error will result in a
manifest miscarriage of justice or will affect the fairness,
integrity, or public reputation of judicial proceedings. We
therefore choose not to correct the error on appeal.
IV. Prejudicial Comments in Voir Dire
Appellant’s final point of error raises the issue of whether
comments by a prospective juror had a prejudicial affect on the
jury panel that could not be cured by a judge’s instruction.
Garcia-Flores complains that a prospective juror declared that he
was a truck driver and could not believe that another driver would
fail to check his cargo or notice such a large amount of marijuana.
The record shows that there was laughter among members of the jury
panel in response. When the judge excused the prospective juror,
several members of the panel applauded. Defense counsel moved for
a mistrial.
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The judge then issued a lengthy curative instruction in which
he assured the jurors that cases involving knowledge of drugs
within vehicles often result in differing verdicts. He asked the
jury panel whether any of them believed that a truck driver should
know exactly what he is hauling at all times. The prospective
jurors gave no response. The judge reminded the prospective jurors
that they were under oath and asked the question again. No one
responded. The judge proceeded to explain how it is possible that
a driver could not know the character of his cargo. After asking
the prospective jurors once more and receiving no response, the
judge continued with the jury selection process. At the end of
voir dire, counsel for the defendant resubmitted his motion for
mistrial, which the court denied.
We have recognized that a district court has broad discretion
to conduct the voir dire examination of a jury panel. See United
States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998).
“[A]bsent an abuse of discretion and showing that the rights of the
accused have been prejudiced thereby, the scope and content of voir
dire will not be disturbed on appeal.” United States v. Black, 685
F.2d 132, 134 (5th Cir. 1982). The district judge was in the best
position to evaluate the reaction of the jury panel to the
prospective juror’s comments and the affect of his curative
instruction. We find that the district judge’s thorough curative
instruction adequately ensured the integrity of the jury pool. We
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therefore deny Garcia-Flores’ relief sought on appeal and affirm
his conviction.
AFFIRMED
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