United States v. Ibarra

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 01-40537

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ANA LUISA IBARRA,

Defendant-Appellant.

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

March 26, 2002
Before HIGGINBOTHAM, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:

Ana Luisa Ibarra was convicted, after a jury trial, of: (1)

conspiracy to possess less than 50 kilograms of marijuana with

intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(D), 846; (2) possession with intent to distribute less than

50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(D); and (3) possession of approximately 5 grams of cocaine

in violation of 21 U.S.C. § 844(a). Ibarra’s conviction was based

on evidence collected pursuant to a consent search of her domicile.
Ibarra was living in a condominium which she shared with her

brother, Orlando, and with her other brother, Andres’s, girlfriend

and son. The search was initiated to discover whether Andres

Ibarra, a fugitive, was hiding in the residence. While searching

for Andres, the officers discovered a sizable arsenal that

included: (1) a Remington 522 Viper .22 caliber semiautomatic rifle

with silencer; (2) a Mossberg Model 500A 12-gauge pump-action

shotgun with pistol grip; (3) a Norinco MHM 90 machine gun modified

for full auto function and with a shortened barrel; (4) a Norinco

SKS semiautomatic rifle with folding bayonet; (5) a Colt Sporter

Competition H-2 semiautomatic rifle; (6) a semiautomatic pistol;

(7) a Colt AR-15 nine millimeter carbine with shortened barrel and

muzzle attachment; (8) a Bushmaster Model XM-15E2S with a full auto

modification, found in the Appellant’s room between the box spring

and the mattress; (9) a magazine for this weapon, located in the

Appellant’s dresser; and (10) five or six banana clips, found in a

bandolier behind the Appellant’s dresser.

A canine unit (trained to detect humans as well as drugs)

revealed the following narcotics and related materials: (1)

marijuana stems or seeds in the toilet of the downstairs bathroom;

(2) a small plastic bag containing marijuana, found in the

Appellant’s dresser; (3) three half-smoked marijuana cigarettes;

(4) a plastic bag with a folded dollar bill coated with cocaine;

(5) a similar folded dollar bill coated with cocaine; (6) a plastic

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cup containing cocaine; (7) two large bundles of marijuana, found

in the garage; (8) rolls of plastic wrap, scales and grease

canisters; (9) over $5,000 cash found on the Appellant’s bed; and

(10) two stolen police radios. The Appellant gave different

stories as to where the money came from claiming it was from a

paycheck but later claiming it was from collecting on an insurance

policy. The Appellant also volunteered that the cocaine found was

for her personal use as a “recreational user.”

Further investigation indicated that the Appellant utilized

falsified temporary tags on a Camaro and Cadillac that were parked

at the condominium.1 At trial, auto dealers testified that the

information on these tags indicating that they had sold these cars

was incorrect.

On appeal, Ibarra contends that the evidence is insufficient

to support her conspiracy and possession convictions. She also

alleges that there was prosecutorial misconduct due to allegedly

improperly elicited testimony and because admissible firearms and

marijuana remained in the view of the jury after they had served

their purpose as evidence.

When reviewing a sufficiency of the evidence claim, this Court

considers “the evidence, all reasonable inferences drawn from it

and all credibility determinations in the light most favorable to

the Government, and affirm[s] if a reasonable jury could find the

1
The practice of illegally using temporary license tags is
apparently common in the drug trade.

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offense’s essential elements beyond a reasonable doubt.” United

States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998). “We recognize

that the jury was free to choose among all reasonable constructions

of the evidence, and we accept all credibility choices that tend to

support the jury’s verdict.” United States v. Dean, 59 F.3d 1479,

1484 (5th Cir. 1995). After carefully reviewing the evidence, we

conclude that there exists sufficient evidence to support Ibarra’s

conviction on the conspiracy and possession counts of her

indictment.

Ibarra also argues that various events, attributable to the

prosecution, were misconduct and require a reversal of her

conviction. These events pertain specifically to the testimony

elicited at trial from two officers and a former employer of the

Appellant’s. “For prosecutorial misconduct in the form of improper

comment or questioning to represent reversible error, it generally

‘must be so pronounced and persistent that it permeates the entire

atmosphere of the trial.’” United States v. Castillo, 77 F.3d

1480, 1497 (5th Cir. 1996) (quoting United States v. Iredia, 866

F.2d 114, 117 (5th Cir. 1989)). After reviewing the testimony of

these witnesses and the circumstances surrounding the testimony, we

find that there were no improper comments or questions that rise to

the level of being “pronounced” or “persistent” enough to permeate

the trial such that reversal is necessary. We therefore find no

reversible error in any of the district court’s rulings.

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Finally, Ibarra argues that the placement of the assorted

firearms and marijuana in direct view of the jury constituted

prosecutorial misconduct. The firearms, however, were placed at

the district court’s, not prosecution’s, direction and the

Appellant’s counsel was asked whether or not he wanted the weapons

put elsewhere. The Appellant’s counsel then waited until after the

first day of trial to object, at which point the firearms were

removed. As such, we find no misconduct present on the part of the

prosecution as to the firearms. As for the marijuana, this Court,

in United States v. Ramos Rodriguez, rejected a defendant’s

challenge to marijuana placed on counsel’s table in the view of the

jury for the entire trial. 926 F.2d 418, 420-21 (5th Cir. 1991).

Though that case was based on the marijuana being unduly

prejudicial and violative of due process rights, the Appellant is

essentially making the same claim here in the form of a

“prosecutorial misconduct” claim. As such, we find that the

prosecution did not commit prosecutorial misconduct.

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the jury was presented with sufficient evidence on

which to convict Ibarra and that no prosecutorial misconduct took

place during the trial and no reversible error exists with regards

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to the district court’s rulings. We therefore AFFIRM the

Appellant’s conviction.

AFFIRMED.