United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 31, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 01-51118
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IGNACIO GUERRA-GARZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-75-5
Before GARWOOD, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ignacio Guerra-Garza was convicted by a jury of possession
with intent to distribute less than one hundred kilograms of
marihuana. The district court sentenced Guerra-Garza to thirty-
three months’ imprisonment and three years’ supervised release.
Guerra-Garza challenges as improper and prejudicial comments
*
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opinion should not be published and is not precedent except under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.
made by the Assistant United States Attorney (AUSA) during his
opening closing argument. The comments, as appellant characterizes
them, implored the jury to take part in the war on drugs and
proposed that in order to acquit Guerra-Garza, the jury would have
to find that the Government’s witnesses committed perjury and
engaged in a conspiracy. Guerra-Garza contends that the comments
improperly bolstered the credibility of government witnesses,
distracted the jury’s attention from the evidence, and
impermissibly interjected broader issues into the case. He
contends that the Government’s evidence on the issue of his
knowledge of the marihuana was weak and inconsistent. He argues
that the AUSA’s comments interfered with the jury’s assessment of
the evidence, and he asserts that the improper comments were not
cured by instruction. He argues that the comments affected the
verdict and the fairness and integrity of the proceedings, amounted
to plain error, and require reversal.
We must decide whether the disputed remarks were improper and
whether the remarks “prejudiced the defendant’s substantive
rights.” United States v. Munoz, 150 F.3d 401, 414, 415 (5th Cir.
1998). Guerra-Garza concedes that review is for plain error as no
objection whatever was made below. Under plain error review, we
will reverse a conviction “‘only if the government’s closing
arguments seriously affected the fairness or integrity of the
proceedings and resulted in a miscarriage of justice.’” United
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States v. Knezek, 964 F.2d 394, 399 (5th Cir. 1992). The
“prosecutor’s comments must be considered in the context of the
entire trial.” Id. at 400.
If we assume for the purpose of argument that the challenged
comments, separately or in combination, were improper, we must
decide if “the jury would have found [Guerra-Garza] guilty had it
not been for the prosecutor’s improper argument.” United States v.
Goff, 847 F.2d 149, 165 (5th Cir. 1988). To do so, we consider the
magnitude of the statements’ prejudice, the curative effect of any
“cautionary instructions,” and the strength of the evidence on
guilt. United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir.
1995).
Defense counsel did not object to the AUSA’s closing comments,
and thus, the district court did not give specific curative
instructions when the challenged comments were made. Prior to the
presentation of evidence and in the charge, the district court
directed the jury to consider only the evidence, namely the
testimony given under oath and the exhibits that were admitted.
The district court instructed the jury that statements and argument
made by the district court and the lawyers were not evidence. See
United States v. Wyly, 193 F.3d 289, 299-300 (5th Cir. 1999);
Tomblin, 46 F.3d at 1390-91; United States v. Parekh, 926 F.2d 402,
408-09 (5th Cir. 1991). The jury is presumed to follow its
instructions. Wyly, 193 F.3d at 299.
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Guerra-Garza was indicted for conspiracy to distribute
marihuana and for possession with intent to distribute less than
one hundred kilograms of marihuana. The jury, which acquitted
Guerra-Garza on the conspiracy charge, did not allow the AUSA’s
closing comments to influence its decision on the issue of Guerra-
Garza’s involvement in a drug conspiracy. The jury determines the
credibility of the witnesses and was free to discredit Guerra’s
testimony on knowledge. See United States v. Martinez, 975 F.2d
159, 161 (5th Cir. 1992).
In light of the evidence presented, which was significantly
stronger than that minimally necessary to sustain a conviction, and
the district court’s instructions, Guerra-Garza has not shown that
the prejudicial effect of the AUSA’s comments “‘affected the
fairness or integrity of the proceedings and resulted in a
miscarriage of justice.’” Knezek, 964 F.2d at 400. Accordingly,
the judgment of the district court is
AFFIRMED.
4