United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT April 27, 2004
Charles R. Fulbruge III
Clerk
No. 03-40837
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR RUBIO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(C-02-CR-351-1)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Hector Rubio appeals his conviction, following a jury trial,
of possession with intent to distribute in excess of 1,000
kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A). Rubio was sentenced, inter alia, to a 135-month prison
term. He challenges the sufficiency of the evidence to support his
conviction (on two bases), the admission of drug courier profile
testimony, and the Government’s closing rebuttal remarks.
*
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this opinion should not be published and is not precedent except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.
No.
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Rubio’s first basis for the sufficiency challenge is that the
evidence was insufficient to support the knowledge element of his
conviction. Among other evidence, Rubio was stopped at a border
checkpoint driving a tractor-trailer that he owned; in the back of
the trailer, amid scattered produce, was more than 5000 pounds of
marijuana, worth approximately $4.3 million; when stopped, he
watched the drug-sniffing dog in a fashion which made the Border
Patrol Agent suspicious; he lied to the Agent about whether he had
observed his trailer being loaded; the bills of lading had an non-
existent address; and he was unable to produce a means of
contacting the person to whom he was delivering the produce. The
evidence, viewed in the requisite light most favorable to the
verdict, was sufficient for a jury to reasonably infer Rubio’s
guilty knowledge. See United States v. Chavez, 119 F.3d 342, 347
(5th Cir.), cert. denied sub nom. Rodriguez-Guerra v. United
States, 522 U.S. 1021 (1997); United States v. Richardson, 848 F.2d
509, 513 (5th Cir. 1988); United States v. Ramos-Garcia, 184 F.3d
463, 466 (5th Cir. 1999).
The second basis for the sufficiency challenge is the claim
that the Government did not prove beyond a reasonable doubt that
Rubio knowingly possessed the particular type (marijuana) and
quantity (more than 1000 kilograms) of controlled substance at
issue. Rubio concedes that this claim is foreclosed by United
States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir.), cert.
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No.
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denied, 123 S. Ct. 2241 (2003). He presents it only to preserve it
for further possible review.
Rubio maintains the district court abused its discretion in
allowing drug courier profile testimony from a Drug Enforcement
Agency (DEA) Agent. FED. R. EVID. 103; United States v. Jackson, 50
F.3d 1335, 1340 (5th Cir. 1995) (evidentiary rulings reviewed for
abuse of discretion). The Government theorized that Rubio could
not afford to pay cash for the tractor-trailer and a drug
organization gave him the money to purchase it for his use, with
the understanding that when called upon, he must transport drugs
for the organization. The DEA Agent testified in support of this
theory. He testified, in pertinent part:
I know of a couple of instances where the drug
organizations actually purchase 18 wheelers,
tractor and trailers, for the drivers to allow
them to drive the tractor-trailer when they
need it. But when the drug organizations call
them, they will actually run loads of drugs
for these organizations.
(Emphasis added). These two instances were in the 70 to 100 cases
the DEA Agent had worked.
An experienced Agent may testify as to the significance of
certain conduct or methods of operation that are unique to the drug
business, “as such testimony often is helpful in assisting the
trier of fact to understand the evidence”. United States v.
Washington, 44 F.3d 1271, 1283 (5th Cir.), cert. denied, 514 U.S.
1132 (1995); see also United States v. Ramirez-Velasquez, 322 F.3d
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No.
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868, 879 (5th Cir.), cert. denied, 124 S. Ct. 107 (2003). On the
other hand, the Government cannot use the Agent’s testimony in
order to prove guilty knowledge. See United States v. Mendoza-
Medina, 346 F.3d 121, 129 (5th Cir. 2003), cert. denied, 124 S. Ct.
1161 (2004); Ramirez-Velasquez, 322 F.3d at 879; United States v.
Gutierrez-Farias, 294 F.3d 657, 663 (5th Cir. 2002), cert. denied,
537 U.S. 1114 (2003). It does not appear that such an attempt was
made. But, even assuming arguendo that the DEA Agent’s testimony
indirectly inferred guilty knowledge of Rubio and, as a result, the
district court abused its discretion in admitting that testimony,
this error was harmless. See Washington, 44 F.3d at 1283; Mendoza-
Medina, 346 F.3d at 129; Ramirez-Velasquez, 322 F.3d at 879;
Gutierrez-Farias, 294 F.3d at 663.
Rubio’s final contention is that there was prosecutorial
misconduct as a result of certain comments made by the Government
in closing argument. As Rubio concedes, because he did not object
at trial, review is only for plain error. Based upon our review of
the record, there was no reversible plain error. United States v.
Gallardo-Trapero, 185 F.3d 307, 322 (5th Cir. 1999), cert. denied
sub nom. Hernandez v. United States, 528 U.S. 1127 (2000).
AFFIRMED
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