United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 3, 2003
Charles R. Fulbruge III
Clerk
No. 02-41046
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA RACHEL URBINA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-4-1
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Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Maria Rachel Urbina has appealed her conviction for possession
of more than five kilograms of methamphetamine with intent to
distribute. Urbina contends that the evidence was insufficient to
prove her guilt beyond a reasonable doubt.
The drugs for which Urbina was convicted were found concealed
in the dashboard of a car which Urbina drove into the Falfurrias
Border Patrol Checkpoint. Because the drugs were hidden, the
Government was required to present “circumstantial evidence that is
*
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this opinion should not be published and is not precedent except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.
suspicious in nature or [which] demonstrates guilty knowledge.”
United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995)
(internal quotations and citation omitted). Urbina contends that
the evidence was not sufficient to establish beyond a reasonable
doubt that she knew the drugs were concealed in the dashboard.
Urbina cried as the car was being searched. Urbina contends
that this evidence was equally indicative of guilt and innocence,
as she would naturally cry upon realizing that she had been duped.
See United States v. Ortega-Reyna, 148 F.3d 540, 547 (5th Cir.
1998). The fact that Urbina cried while the car was being searched
was not the only circumstantial evidence from which the jury could
have inferred guilty knowledge, as Urbina’s post-arrest statement
was incomplete and implausible. We hold that a reasonable juror
could have concluded that Urbina’s knowledge of the presence of the
drugs was established beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
Urbina contends that the Government commented improperly on
her post-arrest silence in violation of the rule in Doyle v. Ohio,
426 U.S. 610, 617–18 (1976). “A prosecutor’s or witness’s remarks
constitute comment on a defendant’s silence if the manifest intent
was to comment on the defendant’s silence, or if the character of
the remark was such that the jury would naturally and necessarily
so construe the remark.” United States v. Carter, 953 F.2d 1449,
1464 (5th Cir. 1992) (citation omitted). The reviewing court must
consider the remarks in the context in which they occurred. United
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States v. Laury, 985 F.2d 1293, 1303 (5th Cir. 1993).
Urbina complains that the rule in Doyle was violated because
a Government witness testified that Urbina would not or could not
respond to his questions regarding inconsistencies in her story and
because the Government argued that Urbina’s story should not be
believed because she had omitted critical facts. Urbina concedes
that the issue should be reviewed for plain error. See United
States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc);
see also Laury, 985 F.2d at 1304. This court will find plain error
only if there was an error which was clear and obvious and which
affected the defendant’s substantial rights. United States v.
Olano, 507 U.S. 725, 732 (1993). When these elements are present,
this court may exercise its discretion to correct the error only if
it “seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal citations, quotation
marks, and brackets omitted).
Although the witness’ testimony and the Government’s reference
to the testimony in its closing argument did violate Doyle,
reversal is not required under the plain-error standard, because
the testimony was not significant in the context of the entire
trial and the record contains sufficient evidence of Urbina’s
guilt. See Laury, 985 F.2d at 1303-04. Other portions of the
Government’s argument complained of by Urbina did not violate
Doyle because they pertain to affirmative statements made by Urbina
in her post-arrest statement and were not manifestly designed to
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cause the jury to infer guilt because Urbina exercised her Fifth
Amendment right to remain silent. See Pitts v. Anderson, 122 F.3d
275, 282 (5th Cir. 1997); see also Anderson v. Charles, 447 U.S.
404, 408 (1980). To the extent that the Government’s argument did
violate Doyle, the failure to correct the error will not result in
a manifest miscarriage of justice. See United States v. Garcia-
Flores, 246 F.3d 451, 455-57 (5th Cir. 2001).
Urbina contends that 21 U.S.C. § 841(a)&(b) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Urbina concedes that this court has rejected this
argument. See United States v. Slaughter, 238 F.3d 580, 582 (5th
Cir. 2000). She states that she wishes to preserve the issue for
further review. The conviction is
AFFIRMED.
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