UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-40537
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANA LUISA IBARRA,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
March 26, 2002
Before HIGGINBOTHAM, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:
Ana Luisa Ibarra was convicted, after a jury trial, of: (1)
conspiracy to possess less than 50 kilograms of marijuana with
intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(D), 846; (2) possession with intent to distribute less than
50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(D); and (3) possession of approximately 5 grams of cocaine
in violation of 21 U.S.C. § 844(a). Ibarra’s conviction was based
on evidence collected pursuant to a consent search of her domicile.
Ibarra was living in a condominium which she shared with her
brother, Orlando, and with her other brother, Andres’s, girlfriend
and son. The search was initiated to discover whether Andres
Ibarra, a fugitive, was hiding in the residence. While searching
for Andres, the officers discovered a sizable arsenal that
included: (1) a Remington 522 Viper .22 caliber semiautomatic rifle
with silencer; (2) a Mossberg Model 500A 12-gauge pump-action
shotgun with pistol grip; (3) a Norinco MHM 90 machine gun modified
for full auto function and with a shortened barrel; (4) a Norinco
SKS semiautomatic rifle with folding bayonet; (5) a Colt Sporter
Competition H-2 semiautomatic rifle; (6) a semiautomatic pistol;
(7) a Colt AR-15 nine millimeter carbine with shortened barrel and
muzzle attachment; (8) a Bushmaster Model XM-15E2S with a full auto
modification, found in the Appellant’s room between the box spring
and the mattress; (9) a magazine for this weapon, located in the
Appellant’s dresser; and (10) five or six banana clips, found in a
bandolier behind the Appellant’s dresser.
A canine unit (trained to detect humans as well as drugs)
revealed the following narcotics and related materials: (1)
marijuana stems or seeds in the toilet of the downstairs bathroom;
(2) a small plastic bag containing marijuana, found in the
Appellant’s dresser; (3) three half-smoked marijuana cigarettes;
(4) a plastic bag with a folded dollar bill coated with cocaine;
(5) a similar folded dollar bill coated with cocaine; (6) a plastic
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cup containing cocaine; (7) two large bundles of marijuana, found
in the garage; (8) rolls of plastic wrap, scales and grease
canisters; (9) over $5,000 cash found on the Appellant’s bed; and
(10) two stolen police radios. The Appellant gave different
stories as to where the money came from claiming it was from a
paycheck but later claiming it was from collecting on an insurance
policy. The Appellant also volunteered that the cocaine found was
for her personal use as a “recreational user.”
Further investigation indicated that the Appellant utilized
falsified temporary tags on a Camaro and Cadillac that were parked
at the condominium.1 At trial, auto dealers testified that the
information on these tags indicating that they had sold these cars
was incorrect.
On appeal, Ibarra contends that the evidence is insufficient
to support her conspiracy and possession convictions. She also
alleges that there was prosecutorial misconduct due to allegedly
improperly elicited testimony and because admissible firearms and
marijuana remained in the view of the jury after they had served
their purpose as evidence.
When reviewing a sufficiency of the evidence claim, this Court
considers “the evidence, all reasonable inferences drawn from it
and all credibility determinations in the light most favorable to
the Government, and affirm[s] if a reasonable jury could find the
1
The practice of illegally using temporary license tags is
apparently common in the drug trade.
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offense’s essential elements beyond a reasonable doubt.” United
States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998). “We recognize
that the jury was free to choose among all reasonable constructions
of the evidence, and we accept all credibility choices that tend to
support the jury’s verdict.” United States v. Dean, 59 F.3d 1479,
1484 (5th Cir. 1995). After carefully reviewing the evidence, we
conclude that there exists sufficient evidence to support Ibarra’s
conviction on the conspiracy and possession counts of her
indictment.
Ibarra also argues that various events, attributable to the
prosecution, were misconduct and require a reversal of her
conviction. These events pertain specifically to the testimony
elicited at trial from two officers and a former employer of the
Appellant’s. “For prosecutorial misconduct in the form of improper
comment or questioning to represent reversible error, it generally
‘must be so pronounced and persistent that it permeates the entire
atmosphere of the trial.’” United States v. Castillo, 77 F.3d
1480, 1497 (5th Cir. 1996) (quoting United States v. Iredia, 866
F.2d 114, 117 (5th Cir. 1989)). After reviewing the testimony of
these witnesses and the circumstances surrounding the testimony, we
find that there were no improper comments or questions that rise to
the level of being “pronounced” or “persistent” enough to permeate
the trial such that reversal is necessary. We therefore find no
reversible error in any of the district court’s rulings.
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Finally, Ibarra argues that the placement of the assorted
firearms and marijuana in direct view of the jury constituted
prosecutorial misconduct. The firearms, however, were placed at
the district court’s, not prosecution’s, direction and the
Appellant’s counsel was asked whether or not he wanted the weapons
put elsewhere. The Appellant’s counsel then waited until after the
first day of trial to object, at which point the firearms were
removed. As such, we find no misconduct present on the part of the
prosecution as to the firearms. As for the marijuana, this Court,
in United States v. Ramos Rodriguez, rejected a defendant’s
challenge to marijuana placed on counsel’s table in the view of the
jury for the entire trial. 926 F.2d 418, 420-21 (5th Cir. 1991).
Though that case was based on the marijuana being unduly
prejudicial and violative of due process rights, the Appellant is
essentially making the same claim here in the form of a
“prosecutorial misconduct” claim. As such, we find that the
prosecution did not commit prosecutorial misconduct.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and for the reasons set forth above,
we conclude that the jury was presented with sufficient evidence on
which to convict Ibarra and that no prosecutorial misconduct took
place during the trial and no reversible error exists with regards
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to the district court’s rulings. We therefore AFFIRM the
Appellant’s conviction.
AFFIRMED.
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