Case: 16-40147 Document: 00513915283 Page: 1 Date Filed: 03/16/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40147 FILED
Summary Calendar March 16, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL VASQUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:15-CR-554-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Daniel Vasquez appeals his jury conviction for one count of conspiring to
transport undocumented aliens within the United States in violation of 8
U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I), and (a)(1)(B)(i) and two counts of
transporting undocumented aliens within the United States in violation of
§ 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II), and (a)(1)(B)(ii). He contends that the
prosecutor engaged in multiple instances of misconduct during her rebuttal
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-40147
closing argument. Specifically, he argues that the prosecutor (1) repeatedly
attacked defense counsel’s integrity, (2) materially misstated the evidence by
mischaracterizing defense counsel’s arguments and injecting prejudicial facts
not in evidence, and (3) improperly bolstered his co-defendant’s credibility.
According to Vasquez, the prosecutor’s misconduct warrants reversal because
her remarks affected his substantial rights and the fairness, integrity, and
reputation of judicial proceedings.
The district court sustained Vasquez’s objection to the first instance of
alleged misconduct. Although the district court did not instruct the jury to
disregard the prosecutor’s remark, Vasquez did not request a curative
instruction. Thus, Vasquez “effectively received all of the relief that he
requested from the district court,” and the prosecutor’s first remark is reviewed
for plain error. United States v. Anderson, 755 F.3d 782, 797 (5th Cir. 2014)
(internal quotation marks and citation omitted). Because Vasquez did not
object to the other instances of alleged misconduct, those remarks are likewise
reviewed for plain error. United States v. Vargas, 580 F.3d 274, 278 (5th Cir.
2009).
Vasquez cannot show that the prosecutor’s remarks were clearly
improper. See id. at 278-79. When viewed in the context in which they were
made, the remarks did not clearly amount to personal attacks on defense
counsel’s integrity. See United States v. Tomblin, 46 F.3d 1369, 1390 & n.56
(5th Cir. 1995); United States v. Livingston, 816 F.2d 184, 195 (5th Cir. 1987).
Further, the prosecutor’s remarks did not clearly misstate the evidence; rather,
they could be understood as seeking to inform the jury of the inferences and
conclusions the Government wanted it to draw from the evidence and to
challenge the plausibility of the inferences suggested by defense counsel in her
closing argument. See United States v. Delgado, 672 F.3d 320, 336 (5th Cir.
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No. 16-40147
2012) (en banc); Vargas, 580 F.3d at 278. Finally, the prosecutor’s remarks did
not clearly improperly bolster the co-defendant’s credibility. The relevant
remarks could be seen as a permissible rebuttal to defense counsel’s closing
argument by reiterating the district court’s instructions regarding the use of
accomplice testimony and the lawful and accepted plea bargaining practice.
See United States v. Washington, 44 F.3d 1271, 1278-79 (5th Cir. 1995).
Even if we were to conclude that the prosecutor’s remarks were clearly
improper, Vasquez cannot show that the remarks, either individually or
cumulatively, affected his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009); Vargas, 580 F.3d at 278-79. The district court repeatedly
informed the jury that the lawyers’ statements, arguments, and questions were
not evidence and could not be considered as such during the jury’s
deliberations. These instructions, although generalized, were adequate to
mitigate any prejudice resulting from the prosecutor’s remarks. See United
States v. Thompson, 482 F.3d 781, 786-87 (5th Cir. 2007); see also United States
v. Gracia, 522 F.3d 597, 604 (5th Cir. 2008) (rejecting the defendant’s
contention that it was “impossible to purge the taint of a prosecutor’s
prejudicial comments with merely generic cautionary instructions”). The jury
is presumed to have followed the district court’s instructions, and Vasquez has
not shown that the jury was unable to heed them. See Tomblin, 46 F.3d at
1390-91.
Moreover, aside from the co-defendant’s testimony directly implicating
Vasquez in the alien transportation offenses, the Government introduced
ample circumstantial evidence to support Vasquez’s conviction. Border Patrol
agents testified that several undocumented aliens were found hidden in
tractor-trailers driven by Vasquez on April 17, 2015, and May 26, 2015. As
Vasquez notes, the only contested elements at trial were whether he knew the
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No. 16-40147
aliens were in the tractor-trailers and whether he knowingly entered into a
conspiracy to transport the aliens. Given the similarities and close temporal
proximity of the two incidents, Vasquez’s degree of control over the tractor-
trailers, Vasquez’s inconsistent and contradicted statements to Border Patrol
agents, and the implausibility that Vasquez would have been entrusted with
such a valuable cargo if he had not been involved in the alien-smuggling
scheme, Vasquez cannot show that the prosecutor’s remarks cast serious doubt
on the correctness of the jury’s verdict. See Vargas, 580 F.3d at 278-79.
Accordingly, the district court’s judgment is AFFIRMED.
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