United States v. Martinez-Larraga

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 7, 2008

No. 06-40489 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee
v.

HUMBERTO MARTINEZ-LARRAGA; FRANCISCO JAVIER GARZA-
GUEVARRA; MANUEL GUEVARRA-RODARTE; AMADO ROMEO-ORTIZ

Defendants-Appellants

Appeal from the United States District Court
for the Southern District of Texas

Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
Appellants Humberto Martinez-Larraga (“Martinez-Larraga”), Francisco
Javier Garza-Guevarra (“Garza-Guevarra”), Manuel Guevarra-Rodarte
(“Guevarra-Rodarte”), and Amado Romeo-Ortiz (“Romeo-Ortiz”) (collectively,
“the defendants”) were convicted by a jury of conspiracy to possess with intent
to distribute more than 100 kilograms of marihuana in violation of 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(B), and of possession of more than 100 kilograms
of marihuana with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B). They were indicted following the United States Border Patrol
agents having caught them, on September 30, 2005, carrying bundles of
 No. 06-40489

marihuana north from the Mexican border near Brownsville, Texas. The four
defendants each primarily argue that their convictions should be reversed and
remanded for new trial because the prosecutor commented on their post-arrest,
pre-trial, silence during its rebuttal closing argument. Martinez-Larraga,
Romeo-Ortiz,1 and Guevarra-Rodarte2 also argue that their convictions should
be reversed and remanded for new trial because the government improperly
bolstered its witnesses’ testimony during closing argument. Finally,
Romeo-Ortiz additionally complains that the district court erred by denying him
a downward adjustment of his base offense level pursuant to United States
Sentencing Guidelines (U.S.S.G.) § 3B1.2.
FACTS AND PROCEEDINGS BELOW
On September 30, 2005, Border Patrol agents were observing an area
known as a “hot spot” for drug smuggling activity on the border between Texas
and Mexico near the Rio Grande river. Agent Jesus Sanchez saw a man stop at

1
Romeo-Ortiz adopts the arguments of his codefendants in his brief. See FED. R. APP.
P. 28(I).
2
In his reply brief, but not his original brief, Guevarra-Rodarte attempts to adopt
Martinez-Larraga’s argument, as set forth in both his original and reply briefs, that the
government improperly bolstered its witnesses’ testimony in closing argument. It is not
entirely clear whether he may do so. FED. R. APP. P. 28(I) indicates that a party may adopt by
reference a portion of another’s brief, and that “[p]arties may also join in reply briefs.” This
language could indicate that Guevarra-Rodarte may adopt the arguments made by his
codefendants in their reply briefs. It also could be interpreted to mean that in his reply brief,
Guevarra-Rodarte may adopt all of the arguments of his codefendants, even those made in
their original briefs. However, arguments not asserted in an original brief are generally
deemed to be abandoned. Haspel & Davis Milling & Planting Co. v. Board of Levee
Commissioners of the Orleans Levee District, 493 F.3d 570, 579 n.29 (5th Cir. 2007). In an
unpublished opinion, this court has held that one codefendant may not adopt the arguments
of another codefendant for the first time in a reply brief. See United States v. Cugno, No. 05-
51758, slip op. at 10 n.4 (5th Cir. Aug. 13, 2007); see also United States v. Bieganowski, 313
F.3d 264, 281 n.14 (5th Cir. 2002) (indicating that the law remains unclear on this issue, but
finding it unnecessary to resolve the issue in that case). Because we conclude that the district
court did not improperly allow the prosecutor to bolster the government witnesses’ testimony,
we need not and do not decide whether Guevarra-Rodarte’s appellate briefing adequately
preserves this contention for purposes of his appeal.

2
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the top of a levee, whistle, and wave his hands. Within seconds, four men
carrying large bundles walked to the top of the levee where this scout stood.
When Agent Sanchez saw the four men carrying the bundles, he alerted his
fellow Border Patrol agents. He watched the four men through his binoculars
as they moved north, but lost sight of them for approximately two minutes.
Agent Miguel Angel Rodriguez found and confronted the four men carrying the
bundles. He drew his gun and instructed them to stop. Three of these men,
Garza-Guevarra, Guevarra-Rodarte, and Romeo-Ortiz, stopped with their
bundles, but the fourth dropped the bundle he was carrying and ran from Agent
Rodriguez. Agent Rodriguez then informed a third agent, Agent Julio Tijerina,
that one of the men had run. Agent Tijerina captured Martinez-Larraga, who
fit Agent Rodriguez’s description, approximately forty-five yards from Agent
Rodriguez hiding beneath a shrub. All of the men were arrested. The four
bundles recovered from the scene contained in total approximately 107.77
kilograms of marihuana.
Border Patrol agents read the defendants their Miranda rights both at the
scene of the arrest and again at the Border Patrol station. Defendants invoked
their right to remain silent and made no statements. Counsel was later
appointed for each of them.
On October 18, 2005, the defendants were charged by indictment with
conspiracy to possess with intent to distribute approximately 107.77 kilograms
of marihuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B), and
with possession of the same quantity of marihuana with intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Their consolidated trial took
place from December 12-14, 2005, and a jury convicted each of the defendants
on both counts.
During trial, the government’s witnesses were the three Border Patrol
agents who patrolled the area where the defendants were arrested and the Drug

3
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Enforcement Administration agent who inspected the bundles of marihuana.
The defendants did not testify or present any witnesses or other evidence. The
first witness to testify was Agent Sanchez. After several pages of testimony as
to his observations of the area and witnessing of defendants carrying the
bundles, and their apprehension, the prosecutor asked Agent Sanchez about
when the agents read the defendants their Miranda rights after their arrest.
That portion of the questioning was as follows:
“Q [prosecutor] After these four individuals were arrested – were
they apprehended? Were they arrested?

A [Agent Sanchez] Yes, sir.

Q Where were they taken?

A We usually read their rights out in the field, Mirandized them
with our card.

Q What are the Mir – can you tell us what Miranda rights are?

A The Miranda rights are – they can be read to them out in the
field. We have a card for them. Unfortunately, I don’t have that
with me. I usually carry it with my uniform. It was read by
Miguel A. Rodriguez to them.

Q At the scene?

A At the scene before we actually cleaned up, picked up
everything, and we moved out of there.

Q And did they invoke the right to remain silent, to your
knowledge?

A At that time we just asked them if they understood their
rights, and we put them in the vehicles. And we clear the area
because we don’t know how hot it is, if there’s any other individuals
out there.

Q So when you took them to the station, did you advise them

4
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of their rights?

A Once upon arriving at the station, we give them their 214,
which is a government form, and they read the rights again. And
we ask them again do they understand their rights or do they want
somebody to help them out, and they invoked their rights.

Q Okay. And were these rights given to them in Spanish?

A Yes.

Q So you didn’t ask them any questions?

A No, sir.”

During cross examination of Agent Sanchez, counsel for Garza-Guevarra
also elicited the following testimony:

“Q [counsel for Garza-Guevarra] Okay. And you didn’t take any
statements from any of the three individuals or the four individuals
that you apprehended, correct, because you said –

A [Agent Sanchez] They invoked their rights.

Q Excuse me?

A They invoked their rights.

Q Okay. And so you don’t have any statements from any of those
four individuals either?

A That’s correct.”

The second witness was Agent Tijerina, who testified to his apprehension
of Martinez-Larraga and return of him to where the other three defendants and
four bundles were. The prosecutor then elicited from Agent Tijerina testimony
on Miranda warnings:
Q [prosecutor] Now, were you the person that basically read the
Miranda warnings there at the scene to the individuals?

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A [Agent Tijerina] Not at the scene, sir. At the scene, it was
Officer Miguel Rodriguez.

Q And what about at the processing?

A At the processing area, yes, sir, I served them with a – it’s a
Form 214 rights, and we do that formally for the individuals. I read
all four of them their rights. They went ahead and signed it,
acknowledging that they did not want to answer any question.

Q And did you ask them any more questions?

A No, I didn’t, sir.”

At no time during any of the proceedings below was any character of
objection, complaint or request for relief made by or on behalf of any party

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respecting any of the above quoted testimony of Agents Sanchez and Tijerina.3
Nor has the admission of any such testimony been assigned as error on appeal.

3
These inquiries into the advice concerning and exercise of Miranda rights seem to
have had their genesis in the following circumstances. At a conference between the court and
counsel on December 12, 2005 (just after the jury had been selected and retired until the next
morning when opening statements would be made) the prosecutor advised that the agents’
report, copies of which had been furnished defense counsel, reflected that “all four [defendants]
were given their Miranda rights and nobody said anything” and that “all four individuals
invoked their rights, and they didn’t say anything except for biographical data.” However, the
prosecutor further stated that “[a]ccording to one of the agents while he was conducting
biographical data, one of them said the reason he did it was he was forced by someone in
Mexico;” however “they didn’t pursue it any further because they had already given him his
Miranda warnings.” The prosecutor said that counsel for Martinez-Larraga “brought it to my
attention someone had said that.” Counsel for Martinez-Larraga confirmed he had mentioned
this to the prosecutor and that his client had “indicated to me that he told the agents that
arrested him, he goes, ‘Hey, you know, somebody forced me to do this’ . . . .” The prosecutor
said that earlier that morning (December 12) “when the agent was coming in, I told him to go
and confirm who was the one that said it, and it was Mr. Troiani’s client [Garza-Guevarra],
according to the agent.” Two defense counsel expressed concern about this, noting that the
statement amounted to an admission and that it might implicate the other defendants, and
that it was unclear whether more than one defendant made such a statement. The court
directed that the prosecutor allow defense counsel to interview the agents. The next morning
(December 13), before the jury was brought in, at a conference with the court and counsel, the
prosecutor announced “I had the witnesses available for all defense counsel, but . . . my
understanding is that they’re going to not touch that question, and I’m not going to bring it out
through the witnesses, Your Honor.” Counsel for Garza-Guevarra argued that was correct,
and no counsel suggested otherwise. The following then transpired:

“MR. CASAS [counsel for Martinez-Larraga]: Your Honor, I did want to make
a motion on the record. In the event that it comes up, that defense comes up,
that is coercion or a justification or any type of duress defense by Defendant
Francisco Javier Garza-Guevara, we believe that it would be mutually exclusive
and antagonistic . . . to the defense posture and position of Mr. Martinez-
Larraga, and we’d be moving for a severance.

THE COURT: In the event it comes up? Okay.

MR. CASAS: Well, I mean, I’m being assured that it’s not going to come up. But
in the event that it, you know –

THE COURT: All right. I guess we’ll cross that road when we come to it.”

No motion to sever was ever made.

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During closing arguments, counsel for Guevarra-Rodarte argued that the
government had not proven that the defendants were guilty beyond a reasonable
doubt. In doing so, he indicated that the government had no testimony from the
defendants regarding the alleged conspiracy, and no testimony regarding
whether they knew that there was marihuana in the bundles:
“How did the government show that they [the Defendants] all had
a plan together? Were there any statements made between any of
these individuals? No, there were not. Was there any testimony
from the group here that said, ‘Oh, we all acted together’? No, there
was none of that testimony. . . .

Has the government presented any evidence where these
individuals knew what was in the bundles they were carrying, if
they were carrying them at all? Has the government come over here
and said, ‘Well, this person here admitted that it was marihuana’?
. . . Did the government provide you with any of that information?
Did the agents testify that these individuals knew that they were
carrying contraband?”
The prosecutor’s rebuttal closing argument, which appears as several
pages in the transcript, included the following brief response to the foregoing
argument concerning lack of proof of knowledge in that there was no showing
any defendant “admitted that it was marihuana.” The prosecutor stated:
“Another thing is you’ve heard the saying actions speak louder than
words. Well, here the actions speak louder than words. They were
caught with the marijuana. It was on their persons. And you heard
there’s no testimony that they knew. You heard the agents, that
they basically lawyered up. They didn’t make any statements. You
can surmise by their actions . . . ”
At that point, counsel for Romeo-Ortiz interrupted the prosecutor, and addressed
the court, stating, “Your Honor, I’m going to object to the prosecution trying to
switch the burden. There is no burden for a defendant, and there is no inference
made by silence.” The prosecutor responded: “Your Honor, they brought it up,
Your Honor. The defense counsel brought it up.” The court did not explicitly
sustain or overrule the objection, but instructed the jury, “The jury will

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remember my instructions. The burden of proof is on the government until the
very end of the case.” The prosecutor continued:
“We accept the burden, and actions speak louder than words. You
saw what they did. You saw the two agents. These are the agents
that are there every day. Every day they’re out there. And you saw
them. It’s a question of do you believe them or not? Do you believe
these agents or not? Why would they get up here and try to make
up lies or make up suggestions and so forth? They were there.
They’re telling you what they saw, so it’s a question whether you
believe these agents or not.”
At this point, counsel for Martinez-Larraga approached the bench and stated:
“I think Mr. Esquivel [the prosecutor] has crossed the line. We need to comment
on the defendants’ right to remain silent, and we move to . . . I want to put that
on the record that we move for a mistrial.”4 The court overruled the motion.
After closing arguments, the district court released the jury for the day.
The next morning, when court reconvened, the district court gave the jury this
admonishment before allowing it to retire for deliberations:
“Before you begin deliberations, though, I want to give you one
further instruction. Right before we adjourned at the very end of
the government’s argument, a reference was made that when the
defendants were arrested, they didn’t make any statements to the
officials, and I want to -- I reminded you at the time that the
government bears the burden of proof until the very end of the case.

And now before you begin your deliberations, I want to remind you
that as a part of the defendant’s right to remain silent under the 5th
Amendment, not only do they not have to testify or put on any
evidence, but they also don’t have to talk to law enforcement
officials. And so I’m instructing you that they’re -- the comment
that was made, the refusal to talk to agents and that they made a
request for counsel was a lawful exercise of their rights, and you

4
Counsel for Romeo-Ortiz and Garza-Guevarra joined in the motion immediately.
Counsel for Guevarra-Rodarte did not join the motion at that time. However, after the jury
was dismissed for the day, counsel for Romeo-Ortiz asked the court, “Just for the record, Your
Honor, the motion for mistrial was for all four defendants and was denied as to all four?” The
court responded that that was the case.

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should not infer guilt or anything else from their exercise of those
rights.

The law prohibits you in arriving at your verdict from considering
the fact that a defendant may have exercised his or her 5th
Amendment rights, and so I’m instructing you that you should
ignore that comment in its entirety, all right?”
The jury then retired to begin its deliberations, after which counsel for Martinez-
Larraga, joined by the other defendants, stated “we would again renew our
motion for a mistrial. Despite the judge’s curative instructions, we believe that
the taint cannot be removed with any instruction, and we ask again for a
mistrial.” The district court responded that it did not “see the comment or the
argument as being that harmful to begin with, given the context in which it was
made.” It concluded, “Secondly, I didn’t think the motion made yesterday or the
motion made today was timely, but that’s not the only reason I overruled it. I
don’t think it merits a mistrial, so I’m overruling the motion.”5
Later that morning the jury returned its verdict finding each defendant
guilty on each count.
On March 31, 2006, the district court sentenced each of the defendants to
sixty-three months’ imprisonment and four years’ supervised release, on each
ount, with the sentences on each count to run concurrently. Each defendant
timely filed his notice of appeal.
DISCUSSION
We limit our discussion to the issues raised by the parties on appeal:
Whether the defendants’ convictions should be reversed because the prosecutor
improperly commented on their post-arrest, pre-trial, silence; whether the
defendants’ convictions should be reversed because the prosecutor improperly
bolstered the testimony of the Border Patrol agents; and whether the district

5
No objection was made below, or has been raised on appeal, as to anything stated in,
or omitted from, any of the district court’s instructions to the jury.

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court erred in failing to assess Romeo-Ortiz a minor role adjustment pursuant
to U.S.S.G. § 3B1.2. For the reasons stated below, we affirm the judgment of the
district court.
A. Prosecutor’s Comments About Defendants’ Post-Arrest Silence
The defendants argue that their convictions should be reversed because
the prosecutor deprived them of a fair trial by improperly referring to their
post-arrest silence during his rebuttal to the defendants’ closing argument. The
defendants timely objected to these statements by moving for a mistrial. They
argue that by making these statements, the prosecutor violated their Fifth
Amendment rights.
Two of the clauses of the Fifth Amendment are arguably relevant here, viz:
the self-incrimination clause providing that no person “shall be compelled in any
criminal case to be a witness against himself,” and the due process clause
providing that no person shall “be deprived of life, liberty, or property, without
due process of law.”
In Griffin v. California, 85 S.Ct. 1229, 1232 (1965), the Supreme Court
held that the Fifth Amendment’s self-incrimination clause (as applicable to the
states under the Fourteenth Amendment) precluded the prosecution from
arguing to the jury that the accused’s failure to testify at the trial was evidence
of his guilt. In Miranda v. Arizona, 86 S.Ct. 1602 (1966), the Court held that, in
order to effectuate the self-incrimination clause of the Fifth Amendment
(applicable to the states under the Fourteenth Amendment), evidence of
statements made by the defendant to law enforcement officers while under
custodial interrogation could not be admitted in the defendant’s criminal
prosecution unless preceded by the now familiar Miranda warnings. Id. at 1612-
13, 1621. See also id. at 1624-25 n.37 (“[I]t is impermissible to penalize an
individual for exercising his Fifth Amendment privilege when he is under police

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custodial interrogation. The prosecution may not, therefore, use at trial the fact
that he stood mute or claimed his privilege in the face of accusation.”).
The Court has held that the prosecution’s introduction at trial of evidence
of the accused’s silence after being given Miranda warnings following arrest
violates the due process clause. Doyle v. Ohio, 96 S.Ct. 2240 (1976). The
Supreme Court has explained that “Doyle rests on ‘the fundamental unfairness
of implicitly assuring a suspect that his silence will not be used against him and
then using his silence to impeach an explanation subsequently offered at trial’.”
Wainwright v. Greenfield, 106 S.Ct. 634, 638 (1986) (quoting South Dakota v.
Neville, 103 S.Ct. 916, 923 (1983)). In Wainwright the court applied Doyle even
though the defendant did not testify. Id. at 636. Wainwright further casts doubt
on the applicability of the self-incrimination clause in this setting, stating:
“Notably, the Court in Doyle did not rely on the contention that Ohio
had violated the defendants’ Fifth Amendment privilege against
self-incrimination by asking the jury to draw an inference of guilt
from the exercise of their constitutional right to remain silent. Cf.
Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106
(1965) (Fifth Amendment prohibits prosecutorial comment on
defendant’s refusal to testify).” 106 S.Ct. at 639 n.7.6
Defendants’ arguments on appeal somewhat differ from one another in
that Guevarra-Rodarte and Martinez-Larraga contend that the prosecutor’s
argument violated Doyle and their due process rights, while counsel for Garza-
Guevarra contends that the argument violated his Fifth Amendment right
against self-incrimination, citing Griffin, and counsel for Romeo-Ortiz simply
“adopts the arguments of all codefendant/appellants” (without any explanation,
elaboration or specification). The initial objection below was made by counsel for

6
We also note that this court has not resolved, and there is a circuit split as to, whether
the Fifth Amendment privilege against self-incrimination prohibits prosecution proof, as
substantive evidence of guilt, of a nontestifying defendant’s post-arrest, pre-Miranda warning
silence not in response to custodial interrogation. See United States v. Salinas, 480 F.3d 750,
758-59 (5th Cir. 2007); United States v. Frazier, 408 F.3d 1102, 1110-11 (8th Cir. 2005).

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Romeo-Ortiz; both motions for mistrial were made by counsel for Martinez-
Larraga.
We think it clear that there was no comment on the failure of any
defendant to testify. The complained of argument by the prosecutor was
obviously in response to the argument of Guevarra-Rodarte’s counsel that: “Has
the government presented any evidence where these individuals knew what was
in the bundles they were carrying, if they were carrying them at all? Has the
government come over here and said, ‘Well, this person here admitted that it was
marihuana?” (emphasis added). In response, the prosecutor argued: “They were
caught with the marijuana. It was on their persons. And you heard there’s no
testimony that they knew. You heard the agents, that they basically lawyered
up. They didn’t make any statements.” The prosecutor’s reference is plainly and
unambiguously to the agents’ wholly unobjected to testimony that the
defendants made no statements to the agents. Absolutely nothing the prosecutor
stated could be construed as referring to the failure of the defendants to testify.7
What we clearly have here is a comment on the defendants’ silence
pretrial, post-arrest, post-Miranda warnings. So far as we are aware the
Supreme Court and this court have always addressed such a situation under
Doyle, and we will likewise do so here, although self-incrimination clause cases
may also inform the analysis.
Doyle succinctly describes its holding as follows:
“The question in these consolidated cases is whether a state
prosecutor may seek to impeach a defendant’s exculpatory story, told

7
Moreover, it is plain that the defendants and the district court understood the
prosecutor to be referring only to the defendants’ failure to make any statements to the agents.
Neither the objection by counsel for Romeo-Ortiz nor the motions for mistrial in any way
complain of any comment on the failure to testify, and the district court’s curative instruction
reflects the same understanding concerning the complained of “comment that was made, the
refusal to talk to agents and that they made a request for counsel was a lawful exercise of their
rights, and you should not infer guilt or anything else from their exercise of those rights.”

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for the first time at trial, by cross-examining the defendant about his
failure to have told the story after receiving Miranda warnings at
the time of his arrest. We conclude that use of the defendant’s post-
arrest silence in this manner violates due process. . . .” 96 S.Ct. at
2241 (footnote omitted; emphasis added).
However, Doyle also expressly recognizes that a prosecutor’s reference to a
defendant’s post-Miranda silence may properly be made where it is not “used to
impeach” the defendant’s “exculpatory story”, or as substantive evidence of guilt,
but rather to respond to some contention of the defendant concerning his post-
arrest behavior. See 96 S.Ct. at 2245 n.11 (citing United States v. Fairchild, 505
F.2d 1378, 1383 (5th Cir. 1975). In Fairchild we stated that where the
defendant had “opened the door” respecting his post-arrest interaction with the
authorities “he discarded the shield which the law had created to protect him”
from comment on his post-arrest silence, although the prosecution still could not
go beyond a proper response so as to use the silence “as direct evidence” of guilt.
Id., 505 F.2d at 1383. We, and other circuits, have continued to recognize this
“open the door” or “reply” exception to Doyle, see, e.g., United States v. Allston,
613 F.2d 609, 611 (5th Cir. 1980); United States v. Shue, 766 F.2d 1122, 1129
(7th Cir. 1985), while likewise recognizing that it does not permit the
prosecution to argue “that the jury should infer . . . [the defendant’s] guilt
directly from his post-arrest silence,” United States v. Rodriguez, 260 F.3d 416,
421 (5th Cir. 2001).
The same basic rationale of this Doyle exception has likewise been applied
in cases dealing with prosecutorial comment on the defendant’s failure to testify.
Thus, where defense counsel argued that the government had not given the
defendant a chance to explain his actions and the prosecutor responded by
stating that he “could have taken the stand and explained,” the Supreme Court
held that the response did not infringe on the defendant’s Fifth Amendment
rights or violate Griffin. United States v. Robinson, 108 S.Ct. 864 (1988). The

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Court held that the prosecutor was entitled to make “a fair response” to defense
counsel’s argument and, quoting from Justice Steven’s concurring opinion in
United States v. Hastings, 103 S.Ct. 1974, 1984 (1983), observed that “‘the
protective shield of the Fifth Amendment should [not] be converted into a
sword.” Robinson goes on to say that “it is important that both the defendant
and the prosecutor have the opportunity to meet fairly the evidence and
arguments of one another,” 108 S.Ct. at 869, and rejected the notion that the
prosecutor’s response should be considered the equivalent of treating “a
defendant’s exercise of his right to silence at trial as substantive evidence of
guilt.” Id. at 870.
We conclude that the prosecutor’s rebuttal argument’s brief reference to
the jury having “heard the agents” (who had testified that defendants were
warned under Miranda and invoked their rights) and that “they [defendants]
didn’t make any statements” was a fair response to defense counsel’s argument
that there was no evidence defendants knew what was in the bundles because
there was no evidence “this person here admitted it was marihuana.” The
prosecutor’s said argument in this respect was simply an explanation of why
there were no statements, the absence of which defense counsel had alluded to,
thus invoking silence as a sword rather than a shield and opening the door to a
response. The referenced response was not an assertion that the jury should
infer defendants’ guilt directly from their post-arrest silence.8

8
The other three defendants argue that Guevarra-Rodarte’s counsel cannot have
“opened the door” as to them. In the present context, this contention is unavailing. We note
that no such argument was made below, nor was any instruction ever requested that the
prosecution’s now complained of response be disregarded as to the other defendants or the like.
Nor was any severance ever requested. Moreover, the remarks in question of Guevarra-
Rodarte’s counsel was not made in reference to that particular defendant but rather in respect
to all the defendants collectively and without differentiation. No defendant objected to that
or did anything to disavow those remarks or that aspect of them. Further, counsel for Garza-
Guevarra had, on cross examination of Agent Sanchez, brought out the fact all the defendants
had invoked their rights and made no statements; as noted above there was never any
objection or motion whatever in respect to any of that testimony or similar testimony in the

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There is, however, one rather troubling aspect of the prosecutor’s response,
namely the statement that “they [defendants] basically lawyered up.” It is, at
best, highly questionable that this brief, unrepeated comment qualifies as a fair
response. The appropriate response to the defense criticism that the prosecution
had not presented any statements by any of the defendants, is that such was not
due to the disinterest of the agents or the prosecution in what the defendants
had to say, or to their holding back any denial or explanation which had been
offered by any defendant, but rather to the defendants’ own choice to exercise
their Miranda right to silence of which the agents had advised them. That they
did so because “they basically lawyered up” is essentially irrelevant to the
prosecution’s otherwise legitimate response.9
However, even assuming that the prosecutor violated the defendants’
1 constitutional rights, any error committed by the prosecutor was harmless
2 beyond a reasonable doubt. When faced with a Doyle violation, this court must
3 determine if, absent the prosecutor’s improper statements, it is clear beyond a
4 reasonable doubt that the jury would have found the defendant guilty in any
5 event. Brecht v. Abrahamson, 113 S.Ct. 1710, 1717 (1993). If this is clear, the
error is harmless, and the defendant’s conviction should not be reversed.
The typical Doyle case – indeed Doyle itself – involves the prosecution’s use
of the defendant’s post-Miranda silence “to impeach a defendant’s exculpatory
story, told for the first time at trial.” Doyle, 96 S.Ct. at 2241. For purposes of
determining whether a Doyle error requires reversal we have categorized Doyle
cases according to how directly or expressly the prosecution “links the

prosecutor’s direct examination of Agent Sanchez and Agent Tijerina. See also note 3 supra.
9
Moreover, there is really no adequate support in the evidence for any “lawyering up”
at that time. The only evidence in that respect is Agent Sanchez’s brief unexplained and
unrepeated statement that “we ask them again do they understand their rights or do they want
somebody to help them out, and they invoked their rights” (emphasis added).

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implausibility of the exculpatory story to the defendant’s ostensibly inconsistent
act of remaining silent.” See Chapman v. United States, 547 F.2d 1240, 1249-50
(5th Cir. 1977); see also Rodriguez, 260 F.3d at 422.10 Here, however, there is no
exculpatory story whatever, either through testimony of any defendant or
through any other evidence, whether from the defense or the prosecution.
Further, the district court, clearly and fully instructed the jury, just before
it retired, that the defendants had the Fifth Amendment right not only not to
testify or put on any evidence, but also the right not to talk to law enforcement
and to request counsel and that the jury should not infer guilt, or anything else,
from defendants’ exercise of those rights and should disregard the prosecutor’s
challenged comment “in its entirety.”
Moreover, the prosecutor’s brief and unrepeated “lawyered up” statement
was, in context, part of response to the defense argument about the absence of
statements and was not explicitly or clearly an attempt to use the lawyering up
as direct evidence of defendants’ guilt to or directly link it to rebutting any
exculpatory story or defense advanced.
Finally, there is “overwhelming evidence” of the defendants’ guilt. United
States v. Hasting, 103 S. Ct. 1974, 1982 (1983) (holding that the prosecution’s
Griffin error was harmless beyond a reasonable doubt in light of “overwhelming
evidence of guilt”). They were caught by Border Patrol agents with bundles of
marihuana. Although one of the four men stopped by Agent Rodriguez ran from
him, he was caught by another agent only a few minutes later, and there is
absolutely nothing to suggest that the agents caught the wrong man. The
defendants presented no evidence or witnesses at trial, nor did they present any

10
Fifth Circuit cases subsequent to Chapman have substantially modified its apparent
rigidity, have recognized that many cases fall somewhat between its categories, and have
declined to reverse even where the exculpatory story is not totally implausible but the evidence
of guilt is substantial or overwhelming. See Alderman v. Austin, 695 F.2d 124, 125-26 n.7 (5th
Cir. Unit B 1983) (en banc); United States v. Rodriguez, 43 F.3d 117, 121-22 (5th Cir. 1995).

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defense or theory of the case. At trial and on appeal, defendants stressed that,
among other things, the bushes and grass were four to five feet tall where the
defendants were arrested and that Agent Sanchez lost sight of the four men
(whom he identified at trial) carrying bundles for two minutes just before the
defendants were arrested. They suggest that with this evidence, “the jury could
infer that the men fell down to the ground at a point where someone left hidden
bundles.” However, no evidence suggests that Agent Rodriguez, who caught and
arrested the men, could not clearly see them, as he testified he had, carrying the
bundles of marihuana. The Border Patrol agents caught the defendants red-
handed with illegal drugs.
In light of the overwhelming evidence of the defendants’ guilt and the
cautionary instructions given to the jury, it is clear beyond a reasonable doubt
that the jury would have found the defendants guilty in the absence of the
prosecutor’s challenged comments during closing argument. See, e.g., Cotton v.
Cockrell, 343 F.3d 746, 752 (5th Cir. 2003) (holding that “[g]iven the
overwhelming evidence of guilt and the court’s cautionary instruction to the jury
. . . the prosecution’s statement had no substantial and injurious effect or
influence in the determination of [the defendant’s] guilt”). Because any
improper comment made by the prosecutor was harmless beyond a reasonable
doubt, we affirm the decision of the district court denying the defendants’
motions for a mistrial.
B. Bolstering Witnesses’ Testimony
Defendants also argue that the prosecutor impermissibly bolstered the
witnesses’ testimony.11 In his closing argument, the prosecutor stated:

11
Martinez-Larraga asserts this argument in his brief, while Romeo-Ortiz adopted all
of the arguments of his codefendants in his. Garza-Guevarra does not assert this argument.
In his reply brief, Guevarra-Rodarte attempted to adopt the argument from the brief of
Martinez-Larraga. As discussed supra, note 2, it is not clear whether he may adopt a new
argument in his reply brief, but it is not necessary to decide that issue in this case.

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“These are the agents that are there every day. Every day they're
out there. And you saw them. It’s a question of do you believe them
or not? Do you believe these agents or not? Why would they get up
here and try to make up lies or make up suggestions and so forth?
They were there. They’re telling you what they saw, so it’s a
question whether you believe these agents or not.”
A prosecutor should not invoke the sanction of the government as a basis
for convicting a defendant. United States v. Ramirez-Velasquez, 322 F.3d 868,
874 (5th Cir. 2003) (quoting United States v. Gallardo-Trapero, 185 F.3d 307,320
(5th Cir. 1999)). When a prosecutor vouches for government witnesses, it
provides the witnesses with “the imprimatur of the Government, and may induce
the jury to trust the Government’s judgment rather than its own view of the
evidence.” Id. (quoting United States v. Young, 105 S. Ct. 1038, 1048 (1985)).
However, the government may argue that the jury can or should infer from the
relevant facts that a witness does not have a reason to lie. Gallardo-Trapero,
185 F.3d at 320. To determine whether to reverse a conviction based on a
prosecutor’s statements, this court reviews the statements in two steps. Id.
First, it must determine whether the prosecutor made an improper remark. Id.
If the remark was improper, it decides whether it substantially affected the
defendant’s right to a fair trial. Id.; Ramirez-Velasquez, 322 F.3d at 874 (quoting
United States v. Murrah, 888 F.2d 24, 27 (5th Cir. 1989).
Because the defendants did not object to the prosecutor’s above quoted
comments about the Border Patrol agents’ testimony, this court’s review is for
plain error only. United States v. Mares, 402 F.3d 511, 515 (5th Cir. 2005).
Thus, defendants must establish that “(1) there was an error; (2) the error was
clear and obvious; and (3) the error affected the defendant’s substantial rights.”
United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).
In Gallardo-Trapero, a majority of a panel of this court agreed that a
prosecutor improperly bolstered a Drug Enforcement Administration agent’s

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testimony. 185 F.3d at 320. In that case, the prosecutor stated to the jury in
closing argument:
“[D]o you think that agents for the federal government and a
prosecutor for the federal government, for the United States of
America, are going to risk their career and get on the stand and
commit * * * would get on the witness stand and commit perjury
and risk their career. It's not going to happen, ladies and
gentlemen.” Id. at 319.
A majority of the panel concluded that the remarks were improper because they
“invoked the aegis of a governmental imprimatur.” Id. at 320. However, the
court found that the statements did not “prejudicially affect the substantive
rights of the defendants,” so it did not reverse the conviction. Id.
In Ramirez-Velasquez, 322 F.3d at 873-76, this court again addressed
allegations that a prosecutor improperly commented on the credibility of
government witnesses. In response to defense counsel’s suggestion that the
government was prosecuting the defendant despite the fact that it knew he was
innocent, the prosecutor stated:
“Do the agents have any reason? Do they have a reason to throw
away their career, to say, oh this load is just too much for me, I'm
going to give up my twenty-year law enforcement career, because I
really care that two people get convicted. They’re there to testify to
the truth. They enforce the laws and they’re going to honor it. And
they’re going to say, these are the facts.
***
I guess they want you to think that you we [sic] made this whole
thing up, that Agent Perez after twenty years in law enforcement,
seven years as a special agent with the Border Patrol working out
of DEA just—” Id. at 873.
The court found that these statements were inappropriate, despite the fact that
they were a response to the defense counsel’s allegations, because the prosecutor
“went too far in arguing that, as a rule, federal law enforcement agents appear
in court and tell the truth.” Id. at 875. However, it held that the statements did
not affect the defendant’s substantial rights, and so did not reverse. Id. at 876.

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In this case, the prosecutor’s statements concerning the agents’ testimony
do not warrant a reversal. The prosecutor asked the jury why the government
agents “would . . . get up here and try to make up lies or make up suggestions,”
and reminded the jurors that the agents “were there,” and were “telling you
what they saw.” He also told the jury three times that the case turned on
whether the jury believed the agents’ testimony. Unlike the remarks at issue in
Gallardo-Trapero, the prosecutor’s remarks did not imply that because they are
government agents, the witnesses would not lie. They also do not imply that as
a general rule, federal law enforcement agents tell the truth in court. See id. at
875. Thus, the prosecutor’s remarks did not improperly “invoke[] the aegis of a
governmental imprimatur.” Gallardo-Trapero, 185 F.3d at 320. Instead, they
accurately stated that whether the defendants should be convicted depended
upon whether the jury believed the testimony of the Border Patrol agents. The
prosecutor simply suggested that the jury should infer from the facts that the
agents did not have a reason to lie. See id. That was not improper argument,
and certainly not plainly improper argument.
Therefore, we hold that the prosecutor’s statements did not improperly
bolster the testimony of government witnesses, and that the district court did
not err, and certainly did not plainly err, in failing to take sua sponte action in
respect to that argument.
C. Minor Role Adjustment
Romeo-Ortiz is the only appellant who challenges his sentence. He argues
that the district court erred by failing to apply a two-point downward adjustment
to his offense level pursuant to U.S.S.G. § 3B1.2(b) because he was a “minor
participant” in the drug trafficking enterprise in which he took part. Under
section 3B1.2, a district court may decrease a defendant’s offense level by two
points if he is considered a minor participant. Under note 4 of section 3B1.2, a
“minimal participant” is one who is plainly among the least culpable of those

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involved in the conduct of a group. Note 5 indicates that a minor participant is
“less culpable than most other participants,” but his role is not minimal. A
minor participant must be peripheral to the advancement of the criminal
activity. United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001).
Romeo-Ortiz did not object in the district court to the failure to reduce his
base offense as a minor participant so the plain error rule applies. United States
v. Washington, 480 F.3d 309, 313 (5th Cir. 2007). A person convicted of merely
transporting drugs, a mere “mule,” is not necessarily a minor participant in the
illicit activity. United States v. Pofahl, 990 F.2d 1456, 1485 (5th Cir. 1993).
Thus, the district court did not commit plain error by failing to give Romeo-Ortiz
a minor role adjustment of two points despite the fact that he may have played
only a small role in the drug trafficking activity in which he participated. United
States v. Jenkins, 487 F.3d 279, 282 (5th Cir. 2007) (holding that a district court
did not clearly err by failing to award a defendant a downward adjustment for
being a mere drug courier because a courier is not necessarily a minor
participant).12
CONCLUSION
For the foregoing reasons, the respective convictions and sentences of each
of the appellants are in all things
AFFIRMED.

12
When a defendant timely objects to a district court’s failure to make a downward
adjustment based on section 3B1.2, this court reviews his sentence for clear error. Jenkins,
487 F.3d at 282.

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