United States v. Garcia

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

FILED
May 6, 2009

No. 05-41424 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SALVADOR GARCIA, JR.; JORGE ROLANDO GARCIA, SR.; TORIBIO
ARRIAGA-GUERRERO,

Defendants-Appellants

Appeals from the United States District Court
for the Southern District of Texas, McAllen Division

Before GARZA and ELROD, Circuit Judges, and HICKS,* District Judge.
JENNIFER W. ELROD, Circuit Judge:
A jury in the United States District Court for the Southern District of
Texas convicted Salvador Garcia, Jr., Jorge Rolando Garcia, Sr., and Toribio
Arriaga-Guerrero of multiple charges related to a drug-trafficking operation.
The defendants appeal their convictions by challenging various district court
rulings. We find no merit in the defendants’ appeals and affirm the convictions
on all counts.

*
District Judge of the Western District of Louisiana, sitting by designation.
 No. 05-41424

I. BACKGROUND
A. Facts
“We recite the facts in the light most favorable to the verdict.” United
States v. Olis, 429 F.3d 540, 541 n.1 (5th Cir. 2005). In Rio Grande City, Texas,
Salvador Garcia owned and controlled property on Midway Street that bordered
the Rio Grande River. Salvador Garcia directed a drug trafficking operation that
brought marijuana and cocaine across the Rio Grande river and into the United
States through vehicle paths on his Midway property. In a typical instance,
Salvador Garcia would approve a day’s trafficking operation and Juan Garcia,
Salvador Garcia’s nephew, would direct the operation’s specific conduct. Jorge
Garcia, Salvador Garcia’s brother and Juan Garcia’s father, participated in the
operation by providing an interim storage location for drugs at his home on Agua
Verde Road. Toribio Arriaga-Guerrero participated in several capacities,
sometimes assisting with the actual transportation of the drugs, and other times
serving as a lookout for law enforcement agents. Several other persons
participated in the operation at various times. Over the course of several
months in 2003, the operation trafficked large amounts of both marijuana and
cocaine on an almost daily basis.
On the morning of November 30, 2003, Salvador Garcia, Juan Garcia,
Arriaga-Guerrero, and other participants planned to acquire and transport a
large quantity of marijuana. Arriaga-Guerrero, who had left the operation some
time during the preceding few weeks, informed Juan Garcia of his desire to
return and asked for a role in that day’s operation. Although Salvador Garcia
opposed Arriaga-Guerrero’s continued participation, Juan Garcia allowed it, and
instructed Arriaga-Guerrero to serve as the operation’s lookout at a nearby gas

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station. Arriaga-Guerrero agreed. Juan Garcia and two other participants
drove a GMC Yukon to the river landing near the Midway property, loaded
several hundred pounds of marijuana into the vehicle, and headed back to the
Midway property where the group sometimes stored vehicles in sheds.
Meanwhile, ground sensors alerted United States Border Patrol agents to
activity near the river landing. Two agents went to the river landing, discovered
evidence of recent activity, and began following tire tracks towards the Midway
property. Juan Garcia received warning of the approaching government agents,
and left the other two members of the operation at the Midway property to tend
to the load of marijuana. As immigration agents neared the Midway property
compound and observed persons fleeing the vehicles, one of the agents saw two
bundles of what the agent believed to be marijuana fall out of the Yukon. The
agents’ search of the Yukon, the other vehicles on the property, and the
buildings there yielded 759 kilograms of marijuana, several firearms, and
accompanying ammunition.
On December 2, 2003, officers conducting an unrelated investigation came
upon Jorge Garcia’s Agua Verde property, which emanated a strong odor of
marijuana. After obtaining a warrant, the officers searched the home and seized
3,470 kilograms of marijuana, as well as another firearm and ammunition. One
person testified that he saw Jorge Garcia flee the Agua Verde property near the
time of the seizure.

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B. District Court Proceedings
In this case’s first trial, the government charged Salvador Garcia and
Arriaga-Guerrero with the following:
(1) Conspiracy to possess more than 1,000 kilograms of marijuana with
intent to distribute from October through December 2, 2003, see 21 U.S.C.
§§ 846, 841(a)(1), and
(2) Possession of approximately 759 kilograms of marijuana with intent to
distribute on November 30, 2003, see § 841(a)(1).
The government also charged Salvador Garcia with the following:
(3) Maintaining drug-involved premises, see 21 U.S.C. § 856,
(4) Possession of firearms in furtherance of a crime, see 18 U.S.C.
§ 924(c)(1)(A), and
(5)–(26) Twenty-two counts of violating financial reporting requirements,
see 31 U.S.C. § 5324(a).
Salvador Garcia and Arriaga-Guerrero presented motions for acquittal on all
counts at the end of the government’s case-in-chief, and again before the district
court charged the jury; the district court denied the motions. The jury failed to
return a verdict on Counts One through Four, and the district court declared a
mistrial as to those counts.1
For the second trial, the government’s superceding indictment charged
Salvador Garcia, Arriaga-Guerrero, and Jorge Garcia with identical versions of
the first trial’s Count One conspiracy and Count Two possession charge. The
indictment also charged Salvador Garcia with identical versions of the Count

1
The first jury found Salvador Garcia guilty on Counts Five through Twenty-Six, and
Salvador Garcia does not appeal that portion of the verdict.

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Three drug-involved premises and Count Four firearm charges. New Count Five
charged Salvador Garcia and Jorge Garcia with possession of more than 1000
kilograms of marijuana with intent to distribute on December 2, 2003. See 21
U.S.C. §§ 846, 841(a)(1). The jury found Salvador Garcia guilty of all but the
firearms charge, and the district court sentenced him to a 365-month term of
imprisonment. The jury found Arriaga-Guerrero guilty of the conspiracy and
possession charges, and the district court sentenced him to a 240-month term of
imprisonment. The jury found Jorge Garcia guilty of the conspiracy and
possession charges, and the district court sentenced him to a 235-month term of
imprisonment.
All three defendants appealed. We have jurisdiction over these appeals
from final judgments. See 28 U.S.C. § 1291. We consolidated the appeals for
purposes of argument and we now consolidate them for disposition. See Fed. R.
App. P. 3(b)(2); United States v. Rabanal, 508 F.3d 741, 742 (5th Cir. 2007).
II. DISCUSSION
A. Salvador Garcia
1. Rule 404(b)
In his first issue, Salvador Garcia challenges his convictions on all counts
by arguing that the district court violated Federal Rule of Evidence 404(b) when
it admitted evidence of cocaine trafficking and cocaine use. During the course
of the four-day trial on the marijuana charges, the district court admitted
evidence showing that Salvador Garcia’s operation moved cocaine through the
Midway property using the same vehicles and the same passageway, that the
conspirators packaged the cocaine in bags of horse feed, and that Salvador
Garcia took cocaine to McAllen, Texas. The district court also admitted evidence

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showing that Salvador Garcia gave members of the operation cocaine as
payment for their work, and that the members consumed cocaine for the purpose
of staying awake during the marijuana and cocaine trafficking operations.
According to Salvador Garcia, the district court should have excluded the
evidence under Rule 404(b) because the government failed to give Salvador
Garcia notice of its introduction, and because the evidence’s probative value did
not outweigh its unfair prejudice.
Because Salvador Garcia failed to object when the government introduced
the evidence,2 we review the district court’s decisions for plain error only. See
United States v. Akpan, 407 F.3d 360, 373 (5th Cir. 2005); United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005).

An appellate court may not correct an error the defendant failed to
raise in the district court unless there is “(1) error, (2) that is plain,
and (3) that affects substantial rights.” “If all three conditions are
met an appellate court may then exercise its discretion to notice a
forfeited error but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”

Mares, 402 F.3d at 520 (citation omitted) (quoting United States v. Cotton, 535
U.S. 625, 631 (2002)). Salvador Garcia’s lack-of-notice argument fails because
even if the government provided insufficient notice of its intent to introduce the

2
Salvador Garcia concedes that he failed to object to the cocaine testimony, and also
that he failed to ask for a limiting instruction. His inclusion of the Rule 404(b) argument in
his motion for new trial does not change the standard of review. See United States v. Abroms,
947 F.2d 1241, 1249 n.6 (5th Cir. 1991) (applying plain error review to an evidentiary
argument raised only in a motion for new trial). Before Juan Garcia testified to the cocaine
trafficking and cocaine use, the government notified the court of its intention to introduce the
evidence, and the court accepted the evidence as proof of the defendants’ knowledge. Had
Salvador Garcia objected, the district court could have made an on-the-record ruling in
accordance with United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc). See United
States v. Greenwood, 974 F.2d 1449, 1462 & n.8 (5th Cir. 1992).

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cocaine evidence, Salvador Garcia failed to satisfy his burden of demonstrating
the requisite prejudice. See Mares, 402 F.3d at 520; United States v. Duffaut,
314 F.3d 203, 209 (5th Cir. 2002) (“To demonstrate plain error, an appellant
must show clear or obvious error that affects his substantial rights. . . .”
(emphasis added)); see also United States v. Olano, 507 U.S. 725, 734 (1993) (“It
is the defendant rather than the Government who bears the burden of
persuasion with respect to prejudice. In most cases, a court of appeals cannot
correct the forfeited error unless the defendant shows that the error was
prejudicial.”); Puckett v. United States, No. 07–9712, slip op. at 13 (U.S. Mar. 25,
2009) (“Eliminating the third plain-error prong through semantics makes a
nullity of Olano’s instruction that a defendant normally ‘must make a specific
showing of prejudice’ in order to obtain relief.”). Although Salvador Garcia’s
substantive 404(b) argument—that the cocaine evidence’s probative value did
not outweigh its unfair prejudice—is more complicated, it too fails to merit
reversal.
Rule 404(b) limits the admissibility of extrinsic evidence, but not intrinsic
evidence. E.g., United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007).
“Evidence of an act is intrinsic when it and evidence of the crime charged are
inextricably intertwined, or both acts are part of a single criminal episode, or it
was a necessary preliminary to the crime charged.” Id. If evidence is extrinsic,
Rule 404(b) and United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en
banc), require that courts first determine “that the extrinsic evidence is relevant
to an issue other than the defendant’s character, i.e., motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
United States v. Sanders, 343 F.3d 511, 518 (5th Cir. 2003). “Second ‘the

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evidence must possess probative value that is not substantially outweighed by
its undue prejudice and must meet the other requirements of Rule 403.’” Id.
(quoting United States v. Anderson, 933 F.2d 1261, 1269 (5th Cir. 1991)).
We need not decide whether the cocaine evidence triggered Rule 404(b)
because we can identify no plain error in the district court’s implied Beechum
analysis. See United States v. Nguyen, 504 F.3d 561, 574 (5th Cir. 2007). The
task of balancing probative value against unfair prejudice requires that courts
examine a number of highly fact-dependent circumstances, including the
similarity between the extrinsic acts and charged offenses, the violence involved,
the relative magnitude of the acts, the time devoted to the evidence, and the
extent to which the matter proved by the other-act evidence has already been
established. See, e.g., United States v. Hernandez-Guevara, 162 F.3d 863, 872
(5th Cir. 1998); United States v. Emery, 682 F.2d 493, 499–500 (5th Cir. 1982)
(“The application of Beechum to the facts of any case requires a commonsense
assessment of all the circumstances surrounding the extrinsic offense.”).
To be sure, the introduction of cocaine evidence into a marijuana trial
carries inherent prejudice, but the question Rule 403 poses is whether the
cocaine evidence’s unfair prejudice substantially outweighs its relevance. Here,
the cocaine evidence introduced at trial was relevant to issues of intent and
knowledge, among others. See Nguyen, 504 F.3d at 574; United States v.
Parziale, 947 F.2d 123, 128–29 (5th Cir. 1991). Juan Garcia’s testimony
occupied approximately 170 pages of the record, and the most significant
portions of the cocaine testimony occupied less than 10 pages. He explained that
the cocaine and marijuana trafficking occurred on Salvador Garcia’s Midway
property during the same period of time, engaged almost identical methods of

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acquisition, transport, storage, and distribution, and involved similar
participants. He also explained the method by which the operation packaged
cocaine on Salvador Garcia’s Midway property, and that the members of the
operation used cocaine to stay awake while participating in trafficking
operations. Two other members of the operation testified for a much shorter
total period, and provided a similarly detailed explanation of the cocaine
packaging and transportation activities. Because “Rule 404(b) evidence is
particularly probative where the government has charged conspiracy,” United
States v. Gordon, 780 F.2d 1165, 1174 (5th Cir. 1986), and because several
considerations militated in favor of admitting this cocaine evidence—namely, the
high degree of similarity and the dominance of non-cocaine evidence in this
case—we cannot conclude that the district court committed plain error when it
decided to admit the cocaine evidence in spite of its inherent prejudice. See
Emery, 682 F.2d at 500–01; Beechum, 582 F.2d at 910 (“Where . . . the extrinsic
offense evidence is relevant to an issue such as intent, it may well be that the
evidence has probative force that is not substantially outweighed by its inherent
prejudice.”).3
As an extension of his Rule 404(b) argument, Salvador Garcia argues that
despite his failure to object or tender any alternative, the district court erred
when it failed to sua sponte provide a specific instruction concerning the limits

3
For almost identical reasons, Salvador Garcia’s conclusory assertion that the district
court’s admission of the cocaine evidence violated the Fifth Amendment is without merit. See
Story v. Collins, 920 F.2d 1247, 1254 (5th Cir. 1991) (“An extraneous offense may be admitted
into evidence without violating the due process clause if the government makes a ‘strong
showing that the defendant committed the offense’ and if the extraneous offense is ‘rationally
connected with the offense charged.’” (quoting Enriquez v. Procunier, 752 F.2d 111, 115 (5th
Cir. 1984))).

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of the Rule 404(b) cocaine evidence. Because Salvador Garcia failed to object at
trial and request the instruction he now seeks, we review the content of the
district court’s jury instruction for plain error only. See United States v.
Delgado, 401 F.3d 290, 299 (5th Cir. 2005). “Plain error occurs only when the
instruction, considered as a whole, was so clearly erroneous as to result in the
likelihood of a grave miscarriage of justice.” United States v. Davis, 19 F.3d 166,
169 (5th Cir. 1994); see also Parziale, 947 F.2d at 129 (“Furthermore, ‘failure to
give limiting instructions is generally held not to be plain error.’” (quoting
United States v. Bermudez, 526 F.2d 89, 97 (2d Cir. 1975))). This standard of
review is predicated, in part, on our realization that district courts cannot be
expected to foresee all potential sources of evidentiary confusion and
controversy, and are not required to issue panoptic sets of preventive
instructions. For trials to function effectively, parties themselves must play an
active role in creating the jury charge; the inclusion of Rule 404(b) instructions
is no exception.
Salvador Garcia’s argument fails because the district court’s instructions
sufficiently mitigated the risk that prejudice resulting from the cocaine evidence
would affect the verdict. In addition to instructions on the elements of the
offenses, the district court’s instructions included the following admonishment
under the heading “CAUTION—CONSIDER ONLY CRIMES CHARGED”: “The
defendant is not on trial for any act, conduct, or offense not alleged in the
indictment.”4 In Parziale, 947 F.2d 123, the district court admitted Rule 404(b)
evidence and its charge gave the essential elements of each count with an almost

4
The jury charge also included one instruction that outlined the purposes for which the
jury could use Rule 404(b) evidence, but that instruction addressed only evidence of
Arriaga-Guerrero’s acts.

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identical additional instruction: “[T]he defendant is not on trial for any act or
conduct or offense not alleged in the indictment.” Id. at 129. As we did in
Parziale, id., we conclude in this case that the district court’s instructions
sufficiently guarded against the risk of unfair prejudice to the defendant.
Accordingly, the district court’s decision to admit the evidence of cocaine
trafficking and cocaine use was not reversible error.
2. Ineffective Assistance of Counsel
In his second issue, Salvador Garcia argues that his attorney rendered
ineffective assistance of counsel by failing to object to the cocaine evidence, and
by failing to mitigate the effects of the cocaine evidence. Our standards for
evaluating claims of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984), are well established:

First, [a defendant] must demonstrate that his attorney’s
performance fell below an objective standard of reasonableness.
This court has described that standard as “requiring that counsel
research relevant facts and law, or make an informed decision that
certain avenues will not be fruitful.” Second, [a defendant] must
also prove that he was prejudiced by his attorney’s substandard
performance. “[T]o prove prejudice, [a defendant] must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.”

United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005) (footnotes omitted)
(quoting United States v. Conley, 349 F.3d 837,841 (5th Cir. 2003)). However,
we do not reach Salvador Garcia’s Strickland challenge because it is premature.

[T]he “general rule in this circuit is that a claim of ineffective
assistance of counsel cannot be resolved on direct appeal when the
claim has not been raised before the district court since no

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opportunity existed to develop the record on the merits of the
allegations.” Only in those rare occasions where the record is
sufficiently developed will the court undertake to consider claims of
inadequate representation on direct appeal. If we cannot fairly
evaluate the claim from the record, we must decline to consider the
issue without prejudice to a defendant’s right to raise it in a
subsequent proceeding.

United States v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (citations omitted)
(quoting United States v. Higdon, 832 F.2d 312, 313–14 (5th Cir. 1987)). This
case falls within that general rule because the record reveals neither the reasons
for Salvador Garcia’s attorney’s decisions nor the availability of alternative
strategies. See United States v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007)
(refusing to hear a Strickland claim because “the district court did not hold a
hearing and the record does not provide sufficient detail about trial counsel’s
conduct and motivations”); United States v. Garcia-Jasso, 472 F.3d 239, 245 (5th
Cir. 2006) (refusing to hear a Strickland claim because “the reasons for [the
attorney’s] decisions and any plausible alternative strategies available to him
are unclear”); United States v. Gordon, 346 F.3d 135, 137 (5th Cir. 2003)
(refusing to hear a Strickland claim because “[t]he record has not been developed
with regard to counsel’s motivation for his trial tactics”). While Salvador Garcia
may raise this argument in a later proceeding, see United States v.
Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (“Normally, the
appropriate mechanism for raising this claim would be a habeas corpus
proceeding pursuant to 28 U.S.C. § 2255.”), it is not a ground for reversal in this
appeal.

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B. Toribio Arriaga-Guerrero
1. Double Jeopardy
In his first issue, Arriaga-Guerrero challenges his convictions on both
counts by arguing that the district court erred when it denied his motion for a
judgment of acquittal in the second trial. Specifically, Arriaga-Guerrero argues
that the first trial’s evidence was insufficient to support a verdict on either
charge, and that the first trial’s insufficiencies triggered Double Jeopardy Clause
protections prohibiting his reprosecution in the second trial. Because
Arriaga-Guerrero did not raise this argument in the district court, we review
only for plain error. See, e.g., United States v. Odutayo, 406 F.3d 386, 392 (5th
Cir. 2005).
Arriaga-Guerrero’s Double Jeopardy Clause argument fails because the
government placed him in jeopardy only once. In the successive prosecution
context, the authorities hold that a defendant’s double jeopardy concerns arise
only after original jeopardy attaches and terminates. Richardson v. United
States, 468 U.S. 317, 325 (1984). No matter the sufficiency of the evidence, “the
failure of the jury to reach a verdict is not an event which terminates jeopardy.”
Id. at 325–26. Arriaga-Guerrero’s citation to Burks v. United States, 437 U.S.
1 (1978), is inapposite, for “Burks did not deal with the situation in which a trial
court declares a mistrial because of a jury’s inability to agree on a verdict.”
Richardson, 468 U.S. at 323. Rather, “Burks established only that an appellate
court’s finding of insufficient evidence to convict on appeal from a judgment of
conviction is for double jeopardy purposes, the equivalent of an acquittal.” Id.
at 325.

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Richardson and Burks’s boundaries are no longer an open question in this
Circuit. See United States v. Achobe, 560 F.3d 259 (5th Cir. 2008); Vanderbilt
v. Collins, 994 F.2d 189 (5th Cir. 1993); United States v. Miller, 952 F.2d 866
(5th Cir. 1992).

After [Justice of Boston Municipal Court v. Lydon, 466 U.S.294
(1984)] and Richardson, it appears that there are only three possible
jeopardy terminating events: (1) an acquittal, (2) a trial court
determination of insufficiency leading to a directed verdict of
acquittal, and (3) an unreversed determination on direct appeal that
there was insufficient evidence to support the conviction. In the
absence of one of these events, a later determination that there was
insufficient evidence apparently will not bar a retrial.

Vanderbilt, 994 F.2d at 195 (footnotes omitted). With respect to appeals from
first-trial sufficiency decisions, “Miller holds that after Richardson, the Burks
bar only prevents retrial when the appellate court in fact reverses for insufficient
evidence.” Id. Thus, when defendants raise first-trial insufficiency arguments
in a subsequent trial, Miller, Vanderbilt, and now Achobe dictate that our task
is not to determine whether original jeopardy should have ceased before retrial
because of the insufficiency argument; rather, we determine only the narrower
question of whether original jeopardy actually ceased before retrial. Achobe, 560
F.3d at 265–68; Vanderbilt, 994 F.2d at 195.5 The district court denied
Arriaga-Guerrero’s first-trial motions for acquittal, the first trial’s jury did not
acquit Arriaga-Guerrero, and Arriaga-Guerrero did not present a favorable
appellate ruling on the sufficiency issue to the district court. As a result,

5
While our holding in United States v. Wilkinson, 601 F.2d 791 (5th Cir. 1979),
supports Arriaga-Guerrero’s argument, Achobe decided that Richardson had effectively
overruled Wilkinson. See Achobe, 560 F.3d at 266–67.

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Arriaga-Guerrero’s first-trial insufficiency and Double Jeopardy Clause
arguments do not demonstrate plain error.
2. Sufficiency
In his second issue, Arriaga-Guerrero challenges his convictions on both
counts by arguing that the second trial’s evidence was insufficient to support a
verdict on either charge. Because Arriaga-Guerrero raised his sufficiency
argument in a motion for judgment of acquittal, we review the district court’s
denial of that motion by examining the evidence and all reasonable inferences
drawn therefrom in the light most favorable to the verdict, and asking whether
a rational trier of fact could have found guilt beyond a reasonable doubt. See,
e.g., United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006). Contrary to
Arriaga-Guerrero’s assertion, “[i]t is not necessary that the evidence exclude
every reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, provided a reasonable trier of fact could find that
the evidence establishes guilt beyond a reasonable doubt.” United States v. Bell,
678 F.2d 547, 549 & n.3 (5th Cir. Unit B 1982) (en banc). “A jury is free to
choose among reasonable constructions of the evidence.” Id. at 549.
Arriaga-Guerrero’s conviction on Count One—conspiracy to possess more
than 1,000 kilograms of marijuana with intent to distribute—required proof that
“(1) an agreement existed between the defendant and one or more persons to
violate the applicable narcotics laws; (2) each defendant knew of the conspiracy
and intended to join it; and (3) the defendant participated voluntarily in the
conspiracy.” United States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005); see
United States v. Aguirre Aguirre, 716 F.2d 293, 297 (5th Cir. 1983) (“In a drug
conspiracy case, however, under the provisions of the drug conspiracy statute,

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proof of an overt act in furtherance of the conspiracy is not necessary.”).
Arriaga-Guerrero’s conviction on Count Two—possession of approximately 759
kilograms of marijuana with intent to distribute—required proof of “(1)
possession, (2) knowledge, and (3) intent to distribute.” Valdez, 453 F.3d at 260
n.7. The government’s aiding and abetting theory on Count Two required proof
that “the defendant: (1) associated with a criminal venture; (2) participated in
the venture; and (3) sought by action to make the venture successful.” Infante,
404 F.3d at 385.
Initially, Arriaga-Guerrero argues that the jury could not have relied upon
Juan Garcia’s testimony because of Juan Garcia’s regular drug use. However,
it is now well established that “whether judges doubt the credibility of a witness,
even an accomplice cooperating with the Government, is beside the point in
reviewing a sufficiency claim such as this—with the exception of cases where a
witness’ testimony is so incredible or insubstantial that, as a matter of law, we
may discredit it.” United States v. Greenwood, 974 F.2d 1449, 1458 (5th Cir.
1992); accord United States v. Lopez, 74 F.3d 575, 578 (5th Cir. 1996). Such
cases “typically involve testimony about an event that could not have occurred
‘under the laws of nature,’” Greenwood, 974 F.2d at 1458 (quoting United States
v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991), and this is not that kind of case.
The question of Juan Garcia’s credibility was one for the jury.
Next, Arriaga-Guerrero argues that the government never established the
existence of an actual agreement between Arriaga-Guerrero and the persons who
conducted the November 30 marijuana trafficking operation. The evidence of
this fact was not insufficient because Juan Garcia testified that
Arriaga-Guerrero asked to participate in the November 30 operation, and that

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he and Arriaga-Guerrero agreed that Arriaga-Guerrero would serve as a lookout.
In addition, a federal agent testified that Arriaga-Guerrero admitted that he
carried out the agreement. While Juan Garcia did not testify to reaching an
agreement as to payment for that day’s work, a conspiracy conviction does not
require proof of such details, see United States v. Dean, 59 F.3d 1479, 1488–89
(5th Cir. 1995); Aguirre Aguirre, 716 F.2d at 297 (“[P]roof of the defendant’s
knowledge of all the details of the drug conspiracy is not required, as long as
knowledge of the essential details is established, and the defendant need neither
have been present at the inception of the conspiracy, nor have played a major
role therein.”). Rather, the jury was entitled to infer the existence of an
agreement from Juan Garcia’s testimony and the other circumstantial evidence.
See Am. Tobacco Co. v. United States, 328 U.S. 781, 810 (1946); United States v.
Vergara, 687 F.2d 57, 61 (5th Cir. 1982) (“A conviction will not be reversed for
lack of evidence that a defendant was acquainted with or knew all of the
coconspirators, or lack of evidence that he knew each detail of the conspiracy, or
because he became a member of the conspiracy after its inception, or played only
a minor role in the overall scheme.” (citations omitted)).
Along similar lines, Arriaga-Guerrero argues that the government failed
to prove that Arriaga-Guerrero was acting as a lookout for Salvador Guerrero’s
marijuana operation, as opposed to Salvador Guerrero’s cocaine operation or an
operation directed by someone else. The evidence of this fact was not insufficient
for two reasons. First, the government provided direct evidence of this fact in
the form of Juan Garcia’s testimony that he saw Arriaga-Guerrero serving as a
lookout that day, as well as evidence of Arriaga-Guerrero’s admission of the
same. Second, the jury could have inferred that Arriaga-Guerrero was looking

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out for Salvador Garcia’s marijuana operation from the government’s
circumstantial evidence—namely, evidence that Arriaga-Guerrero volunteered
to work for Salvador Garcia’s operation that morning, that Juan Garcia ordered
him to serve as a lookout for Salvador Garcia’s marijuana operation by going to
that location, that Arriaga-Guerrero then went to the lookout location and
stayed until the completion of the operation, and that Arriaga-Guerrero
associated with the members of Salvador Garcia’s operation that same evening.
See United States v. Lopez, 979 F.2d 1024,1029 (5th Cir. 1992) (“Concert of
action can indicate agreement and voluntary participation.”).
Arriaga-Guerrero also argues that the government failed to prove the
intent element of the possession count, which required proof that
Arriaga-Guerrero knew that Salvador Garcia’s group intended to distribute the
marijuana and intended to aid the conspiracy in that respect. See United States
v. Longoria, 569 F.2d 422, 425 (5th Cir. 1978) (“Where a defendant is charged
with aiding and abetting a crime involving an element which enhances or
aggravates the offense, there must be proof that the defendant associated herself
with and participated in both elements of the crime.”). The evidence of these
facts was not insufficient because juries are entitled to infer a defendant’s intent
to distribute from evidence that the defendant knew that the transaction
involved a large amount of narcotics. See United States v. Prieto-Tejas, 779 F.2d
1098, 1103 (5th Cir. 1986) (“[T]he intent to distribute may be inferred from the
quantity and quality of the cocaine in their possession and from possession of a
scale of a type commonly used in the distribution of narcotics.”). The jury heard
testimony that Salvador Garcia’s trafficking operation regularly sold very large
quantities of marijuana, that Arriaga-Guerrero had participated in past

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operations, and that Arriaga-Guerrero was present during the coordination of
the November 30 operation. From this the jury could have inferred that
Arriaga-Guerrero intended to further the conspiracy’s goal of distributing the
759 kilograms of marijuana involved in that day’s operation.
3. Jury Instructions
In his third issue, Arriaga-Guerrero challenges the district court’s jury
instructions by arguing that the district court should have included a limiting
instruction concerning the cocaine evidence challenged by Salvador Garcia.
Specifically, Arriaga-Guerrero argues that the district court should have
instructed the jury as to the limited purposes for which the evidence of Salvador
Garcia’s acts of cocaine packaging and trafficking could be used, and that the
court should have instructed the jury not to use that evidence against
Arriaga-Guerrero. Arriaga-Guerrero raised this issue for the first time in his
reply brief; this despite our earlier order directing counsel to “file a brief
addressing whether the admission of [certain testimony regarding cocaine
transportation and packaging activities] was erroneous.” We often conclude that
an appellant’s failure to raise an issue in its brief on the merits results in waiver.
E.g., Stephens v. C.I.T. Group/Equip. Fin., Inc., 955 F.2d 1023, 1026 (5th Cir.
1992); see Fed. R. App. P. 28(a)(9)(A). However, we sometimes decide
inadequately briefed issues sua sponte in cases of plain error. United States v.
Gonzalez, 259 F.3d 355, 359 (5th Cir. 2001); United States v. Pineda-Ortuno, 952
F.2d 98, 104–05 (5th Cir. 1992).

In exceptional circumstances, especially in criminal cases,
appellate courts, in the public interest, may, of their own motion,
notice errors to which no exception has been taken, if the errors are

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obvious, or if they otherwise seriously affect the fairness, integrity,
or public reputation of judicial proceedings.

United States v. Atkinson, 297 U.S. 157, 160 (1936); accord Silber v. United
States, 370 U.S. 717, 717–18 (1962) (per curiam) (collecting cases); Gonzales, 259
F.3d at 359; Pineda-Ortuno, 952 F.2d at 104–05; United States v. Adams, 634
F.2d 830, 836 (5th Cir. Unit A Jan. 1981). We choose to consider
Arriaga-Guerrero’s argument that the trial court failed to provide a limiting
instruction addressing the cocaine evidence because Salvador Garcia and the
government briefed the issue, and because the error is likely to arise in a
subsequent habeas proceeding. See Gonzales, 259 F.3d at 359; Pineda-Ortuno,
952 F.2d at 105. Nonetheless, Arriaga-Guerrero’s argument fails.
We again review the content of the district court’s jury instruction for
plain error because Arriaga-Guerrero failed to object at trial and request either
of the instructions he now seeks. See United States v. Delgado, 401 F.3d 290,
299 (5th Cir. 2005). Arriaga-Guerrero’s challenge to the instruction fails to
demonstrate plain error for the same reasons that Salvador Garcia’s challenge
to the jury instruction fails: the district court did not commit plain error when
it admitted the cocaine evidence, and the jury convicting Arriaga-Guerrero heard
the same instruction that prevented reversible prejudice with respect to
Salvador Garcia. By instructing the jury that “[t]he defendant is not on trial for
any act, conduct, or offense not alleged in the indictment,” the district court
mitigated the prejudice resulting from the cocaine evidence in this case. See
Parziale, 947 F.2d at 129; see also United States v. Peterson, 244 F.3d 385, 394
(5th Cir. 2001). Arriaga-Guerrero has failed to demonstrate that the district

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court’s instructions “seriously affect[ed] the fairness, integrity, or public
reputation of [the] judicial proceedings.” Atkinson, 297 U.S. at 160.
C. Jorge Garcia
1. Sufficiency
In his first issue, Jorge Garcia challenges his convictions on both counts
by arguing that the government presented insufficient evidence of his presence
at the Aqua Verde property on the day of the seizure. According to Jorge Garcia,
the testimony of law enforcement officials conflicted with that of the other
witness, a convicted felon who testified to Jorge Garcia’s presence that day.
Because Jorge Garcia raised his sufficiency argument in a motion for judgment
of acquittal, we review the district court’s denial of that motion de novo, applying
the same standard as the district court. See supra Part II.B.2; United States v.
Valdez, 453 F.3d 252, 256 (5th Cir. 2006).
This argument does not undermine the Count One conspiracy conviction
because that conviction did not require Jorge Garcia’s presence at the Aqua
Verde property on the day of the seizure. See Valdez, 453 F.3d at 256–57
(conspiracy elements). Nor did the Count Five possession conviction. See United
States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008) (“Possession may
be actual or constructive, may be joint among several defendants, and may be
proven by direct or circumstantial evidence.”); United States v. Salinas-Salinas,
555 F.2d 470, 473 (5th Cir. 1977) (“Constructive possession may be shown by
ownership, dominion or control over the contraband itself, or dominion or control
over the premises or the vehicle in which the contraband was concealed.”).
Instead, the jury was entitled to rely on the testimonial evidence from multiple
witnesses that Jorge Garcia owned the Aqua Verde property, that Jorge Garcia

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had agreed to assist the operation by making the property available as a storage
location, and that the group had agreed to store the drugs from the November
30 operation at Jorge Garcia’s property. See United States v. Vergara, 687 F.2d
57, 61–62 (5th Cir. 1982) (affirming a jury’s inference of constructive possession
from evidence of control of the property and repeated engagements with
coconspirators).
2. Rule 16
In his second issue, Jorge Garcia challenges his conviction by arguing that
the government violated Federal Rule of Criminal Procedure 16(a)(1)(E) by
introducing photographs of the Aqua Verde home into evidence without first
disclosing those photographs to Jorge Garcia. Upon a defendant’s request, Rule
16 requires the government disclose to the defendant certain items “within the
government’s possession, custody, or control.” Fed. R. Crim. P. 16(a)(1)(E).
According to Jorge Garcia, the government’s failure to disclose undermined his
strategy of arguing that he did not live at the Aqua Verde home. “We review
alleged discovery errors for abuse of discretion and will order a new trial only
where a defendant demonstrates prejudice to his substantial rights.” United
States v. Doucette, 979 F.2d 1042, 1044–45 (5th Cir. 1992); accord United States
v. Cuellar, 478 F.3d 282, 293 (5th Cir. 2007) (en banc), rev’d on other grounds,
128 S.Ct. 1994 (2008). Jorge Garcia’s argument fails for at least two reasons.
Initially, Jorge Garcia fails to demonstrate that the district court abused
its discretion when it refused to punish the government for a failure to disclose.
The district court determined that the photographs in question were made
available to the public, and that Jorge Garcia’s inability to acquire the photos
resulted from his attorney’s confusion about how to ask the clerk’s office for

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access. In light of the rule that “there can be no violation of Rule 16
where . . . the defendant’s lack of diligence is the sole cause of his failure to
obtain evidence made available by the government,” Doucette, 979 F.2d at 1045,
the district court did not abuse its discretion when it refused to find a violation
of Rule 16 here. Moreover, Jorge Garcia failed to demonstrate that the district
court’s admission of the photographs prejudiced his substantial rights. The
district court found that the photographs created no surprise, and the other
evidence at trial was sufficient to establish Jorge Garcia’s participation in the
conspiracy and his possession of the marijuana. That is, the evidence of
conspiracy and possession that defeats Jorge Garcia’s sufficiency argument also
defeats the prejudice component of his Rule 16 argument.
Jorge Garcia also argues that the government’s failure to disclose the
photographs violated the government’s duty to disclose evidence under Brady v.
Maryland, 373 U.S. 83 (1963).

To make out a Brady violation, “a defendant must show that (1)
evidence was suppressed; (2) the suppressed evidence was favorable
to the defense; and (3) the suppressed evidence was material to
either guilt or punishment.” “Evidence is material under Brady
when there is a ‘reasonable probability’ that the outcome of the trial
would have been different if the suppressed evidence had been
disclosed to the defendant.”

United States v. Miller, 520 F.3d 504, 514 (5th Cir. 2008) (footnote omitted)
(quoting United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002)). This
argument fails for multiple reasons, the simplest of which is that the
photographs Jorge Garcia challenges do not trigger Brady protections because
they are inculpatory, not exculpatory. See United States v. Johnson, 872 F.2d
612, 619 (5th Cir. 1989).

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3. Sentencing
Finally, Jorge Garcia challenges his sentence by arguing that the district
court added two levels to the original offense level when it actually intended to
subtract two levels to account for Jorge Garcia’s role in the offenses. Jorge
Garcia does not challenge the district court’s calculation of the base offense level,
and does not challenge the substance of the district court’s sentencing decisions.
Instead, Jorge Garcia argues only that the district court “inadvertently added
two points to the offense level after stating its intention to subtract out two
levels for [Jorge Garcia’s] role.” Because Jorge Garcia objected to the omission
of a role reduction in the district court, we review the district court’s application
of the United States Sentencing Guidelines de novo and its factual findings for
clear error. See, e.g., United States v. Barrera-Saucedo, 385 F.3d 533, 535 (5th
Cir. 2004); United States v. Garcia, 242 F.3d 593, 599 (5th Cir. 2001).
Jorge Garcia’s argument fails because the district court made no
inadvertent calculation. After calculating a base offense level of thirty-four, see
United States Sentencing Guidelines Manual § 2D1.1(a)(3) (2004), the district
court enhanced the base offense by two levels for possession of a dangerous
weapon, see id. § 2D1.1(b)(1). Although the presentence investigation report
recommended another two level enhancement for organizing, leading, managing,
or supervising the activity, see id. § 3B1.1(c), the district court rejected that
recommendation. The district court also rejected Jorge Garcia’s request for a
minor participant reduction, see id. § 3B1.2(b), and concluded that Jorge Garcia’s
involvement was “pervasive and over a long period of time.” Contrary to Jorge
Garcia’s suggestion, when the district court said that “[a]fter making the two-
point adjustment, he’s at a Level 36 when I subtract out his role,” the court was

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referring to its rejection of the § 3B1.1(c) role enhancement, not an acceptance
of the § 3B1.2(b) reduction. The district court made its conclusion clear:

The Court adopts the factual findings contained within the
Presentence Report. However, the Court concludes that [Jorge
Garcia] should not have been assessed with an enhanced role, that
he was just a regular participant. After making this modification,
this would result in an offense level of 36, which is a guideline range
of 188 to 235 months.

Thus, as a matter of fact, the record defeats Jorge Garcia’s contention that the
district court intended to reduce the sentence to something less than level
thirty-six.6
III. CONCLUSION
For the foregoing reasons, the district court judgments are AFFIRMED in
all respects.

6
Jorge Garcia does not challenge the substance of the district court’s rejection of the
§ 3B1.2 reduction argument.

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