United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 6, 2007
Charles R. Fulbruge III
Clerk
No. 06-40903
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD JOE MARQUEZ, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(4:05-CR-82)
Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Convicted of possessing methamphetamine with intent to
distribute (21 U.S.C. § 841(a)(1)), assaulting a federal employee
(18 U.S.C. § 111), and using a firearm in relation to a crime of
violence (18 U.S.C. § 924(c)(1)(A)), Edward Joe Marquez was
sentenced to, inter alia, 171 months imprisonment. He challenges:
the sufficiency of the evidence; and the exclusion of his wife’s
purportedly mitigating testimony. AFFIRMED.
*
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this opinion should not be published and is not precedent except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.
I.
On 5 April 2006, approximately 15 state and federal Officers,
wearing bullet-proof vests identifying them as law enforcement,
served a “no knock” search and arrest warrant at Marquez’
residence. Upon entering the house, shouting “Sheriff’s
Department, search warrant”, Officers were confronted by two pit-
bull dogs. When one lunged at the Officers, they shot and injured
it. Officers then heard Marquez moving furniture to barricade
himself in a back room. A protracted confrontation ensued.
Marquez testified he was unaware the Officers were law
enforcement, but feared they were a rival motorcycle gang. Others
present testified Officers inside and outside the house yelled they
were law enforcement. In response, Marquez threatened to shoot
them if they opened his barricaded door.
Following failed attempts to subdue Marquez, Officers fired
five rounds of tear gas into his room. After the fifth round,
Marquez fired his .45 caliber pistol toward an Officer within the
house, who had been communicating with him. That shot stopped in
an interior wall, approximately 22 feet from the Officer. Officers
discharged three additional tear-gas rounds. Marquez responded by
firing at an Officer outside the house, hitting the Officer’s
unmarked police car. Following negotiations, Marquez eventually
disassembled his firearm, placed it outside the room, and was
arrested.
2
After being read his Miranda rights, Marquez admitted firing
the two shots, but claimed he aimed at the ceiling; no bullet holes
were found there, however, and ballistics tests showed Marquez’
weapon fired the bullets that struck the interior wall and the
unmarked car.
The search of Marquez’ property produced: 5.5 grams of
methamphetamine in his car; and tools and ingredients to make
methamphetamine (e.g., muriatric acid, Coleman fuel, rubbing
alcohol, table salt, hydrogen peroxide, and iodine) in his barn.
One Officer present testified he has never seen those items
together when they were not involved in methamphetamine creation.
The Officers further reported a fresh chemical scent in the air, as
if methamphetamine had been cooked there recently.
II.
Marquez contends: the evidence was insufficient to prove he
intended to assault law enforcement Officers and possessed
methamphetamine; and the district court erred in excluding his
wife’s testimony, offered to show he was a Vietnam veteran
suffering from Post-traumatic Stress Disorder. Both claims lack
merit.
A.
Marquez moved for a judgment of acquittal at the close of the
Government’s case and renewed it at the close of all the evidence.
[Bl.Br. at 10] Accordingly, we review his sufficiency claims to
3
determine “whether the evidence, when reviewed in the light most
favorable to the government with all reasonable inferences and
credibility choices made in support of a conviction, allows a
rational fact finder to find every element of the offense[s] beyond
a reasonable doubt”. United States v. Redd, 355 F.3d 866, 872 (5th
Cir. 2003) (internal quotation marks omitted).
Concerning his assault and firearm-use convictions, Marquez
contends he lacked the requisite mens rea. Toward this end, he
testified: he believed the Officers were members of a rival
motorcycle gang, there to kill him; he later suspected they might
be law enforcement Officers; but, “[e]ven though they were cops, I
still thought they was there to kill me”. Contrary to his post-
arrest statement that his shots were aimed at the ceiling, Marquez
testified: he fired the first shot in a failed suicide attempt;
and the second resulted from his weapon’s jamming and then
chambering a round as his hand slid against the trigger due to an
incoming tear-gas canister.
Regarding his methamphetamine conviction, Marquez also
contends, inter alia, no physical evidence directly linked him to
the methamphetamine (e.g., his fingerprints were not found on the
methamphetamine’s container). He testified: he had no knowledge
of the substance hidden in his car; and the items in his barn were
for cleaning and cooking fish.
4
Ample evidence supports a rational juror’s finding Marquez
intentionally assaulted law enforcement Officers, used a firearm in
furtherance of this crime of violence, and possessed distributable
quantities of methamphetamine. The sufficiency challenges fail.
B.
Outside the presence of the jury, Mrs. Marquez testified her
husband had been treated for, among other things, Post-traumatic
Stress Disorder, stemming from his service in Vietnam. Marquez
proffered this testimony, not to support an expert opinion, but to
demonstrate his mental state during the events in question. In
evaluating, inter alia, the relevance of Mrs. Marquez’ testimony
under Federal Rule of Evidence 401, the district court stated:
“[Mrs. Marquez’] testimony ... doesn’t give the jury a basis to go
one way or the other ... without an expert to say what that means”.
An abuse-of-discretion standard of review applies. E.g.,
United States v. Parks, 68 F.3d 860, 867 (5th Cir. 1995). Along
this line, “a trial court has broad discretion in determining the
admissibility of evidence based on relevance ..., and that
determination will be overturned only when the abuse of that
discretion is clearly shown from the record”. United States v.
Collins, 690 F.2d 431, 438 (5th Cir. 1982). Collins upheld the
exclusion of the defendant’s wife’s testimony, proffered to
demonstrate the defendant’s mental state, because the testimony
“did not invoke specific observations, involved a professional
5
opinion as to mental competency, and related to a time period
distant from the events at issue”. Id.
As in Collins, if Marquez wished to place his mental health at
issue, or use it to negate intent, he should have utilized an
expert witness, such as the physician who, he claimed, prescribed
medication for his psychiatric problems. In the absence of such
professional accompaniment to explain Mrs. Marquez’ testimony’s
relevance to the jury, its exclusion was not an abuse of
discretion.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
6