U.S. v. Garcia-Flores

• Decision Date: 27 March 2001
• Docket Number: No. 99-41077,GARCIA-FLORE,D,99-41077
• Citation: 246 F.3d 451
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LUCIO ARTUROefendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 451

246 F.3d 451 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LUCIO ARTURO GARCIA-FLORES, Defendant-Appellant.

No. 99-41077

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

March 27, 2001

Appeal from the United States District Court For the Southern District of Texas, Laredo Division

Before GARWOOD, PARKER, and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellant Lucio Arturo Garcia-Flores contests his conviction under 21 U.S.C. 841(a)(1), (b)(1)(B) and 18 U.S.C. 2 for possession with the intent to distribute over one hundred kilograms of marijuana. Appellant argues that the record contains insufficient evidence to support his conviction, that the jury panel was prejudiced by the comments of a prospective juror, and that the prosecutor committed reversible error by commenting on post-Miranda warning silence.

I.

On February 19, 1999, Garcia-Flores stopped his tractor-trailer at a border patrol checkpoint on Interstate 35, north of Laredo, Texas. After a canine alerted the border patrol officials to the possibility of drugs in the trailer, the agents directed Garcia-Flores to the secondary inspection area. The agents searched the trailer. The trailer contained vehicle fuse boxes, which were more than five years old and no longer sold by dealerships. Amongst the electrical supplies, the agents found 343 pounds of marijuana. Garcia-Flores told the agents that his destination was Dallas, and he did not know that he was transporting the marijuana. The evidence suggests that Garcia-Flores did not appear nervous during the search.

Gordon Jarrell, a Drug Enforcement Administration official, took custody of Garcia-Flores along with several items found in the tractor-trailer, including bills of lading and a driver's log book. A bill of lading dated February 18, 1999 showed that Garcia-Flores was transporting cargo for A.M. Logistics Services of Laredo. The bill of lading did not distinctly describe the amount or price of the cargo and did not have the correct A.M. Logistics stamp. The president of A.M. Logistics testified that there never was a shipment of goods in connection with Garcia-Flores on February 18. Jarrell also discovered a bill of lading dated February 5, 1999 from Falcon Logistics of Houston. The owner of Falcon Logistics testified that he had never done business with Garcia.

Fritz Company, a Laredo business, owned the trailer in which the agents found the marijuana. The manager of Fritz Company testified that Garcia-Flores worked as an independent transfer carrier and had used Fritz Company's trailers in the past. He claimed that he did not authorize the use of the trailers on February 18.

Garcia Flores' wife claimed that she received a call the evening prior to the arrest from a man named Ramon, who instructed Garcia-Flores to pick up the trailer at A.M. Logistics Services in Laredo. Garcia Flores told Agent Jarrell during his interrogation that he retrieved the trailer from A.M. Logistics and was on his way to Dallas when he stopped at the checkpoint.

Garcia-Flores was indicted in Laredo on March 9, 1999 and charged with possession with intent to distribute marijuana. A jury failed to reach a unanimous verdict in his first trial. On July 13, 1999, a second jury found Garcia-Flores guilty. He was sentenced to serve sixty-five months in prison, a five-year supervised release term, and a special assessment of $100.

II. Sufficiency of the Evidence

Appellant argues that the record contains insufficient evidence to support the jury's verdict. We review the evidence in the light most favorable to the prosecution, and determine whether any reasonable jury could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Jones, 185 F.3d 459, 463 (5th Cir. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 317-18 (1979)). The jury is free to choose among reasonable inferences, but, if the evidence gives "equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, we must reverse the conviction, as under these circumstances a reasonable jury must necessarily entertain a reasonable doubt." United States v. Reveles, 190 F.3d 678, 686 (5th Cir. 1999) (quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)) (citations omitted; emphasis in original).

To prove that Garcia-Flores was guilty of possessing marijuana with the intent to distribute, the government was required to prove beyond a reasonable doubt that Garcia-Flores (1) knowingly (2) possessed the marijuana in his trailer (3) with the intent to distribute it. See United States v. Ortega Reyna, 148 F.3d 540, 543-44 (5th Cir. 1998). Garcia-Flores contests the jury's determination concerning only the knowledge element of the crime. We therefore review the evidence to ascertain whether the jury could conclude beyond a reasonable doubt that Garcia-Flores knew the trailer contained the marijuana.

A jury may infer knowledge from the defendant's control over a vehicle containing contraband unless the drugs are hidden in compartments, in which case proof of the defendant's knowledge depends on inference and circumstantial evidence. See United States v. Miller, 146 F.3d 274, 280-81 (5th Cir. 1998); United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995). Because the border patrol agents found the drugs hidden underneath electrical supplies in the trailer, there is a "fair assumption that a third party might have concealed the [marijuana] in the [trailer] with the intent to use [Garcia-Flores] as [a] carrier . . .." United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990). We therefore look to circumstantial evidence to determine whether the record supports the jury's verdict.

Garcia-Flores notes that the record fails to show he was nervous during the initial search of the trailer. The government suggests that Garcia-Flores' immediate voluntary response and his lack of nervousness is evidence of his guilt. This Court has held that both nervousness and the absence of nervousness could lead the jury to infer knowledge of the contraband when combined with other facts. See Jones, 185 F.3d at 464; Resio-Trejo, 45 F.3d at 913. Because under these facts Garcia-Flores' demeanor during the search could be as consistent with a finding of innocence as with guilt, we will not place any weight on the defendant's temperament during the search. See Ortega Reyna, 148 F.3d at 545-46.

The government introduced evidence at trial to conclusively show that the bills of lading found in the tractor-trailer were fabricated. The bill of lading dated February 18 identified A.M. Logistic Services as the source of the cargo in the trailer. The bill of lading did not correctly identify the company or reveal the appropriate business stamp. The government also introduced a bill of lading involving a shipment of goods to Houston dated February 5. The president of the Houston business testified that his company never exchanged goods with Garcia-Flores and that this bill of lading was also false.¹

The government claims that Garcia-Flores lied about acquiring the trailer at A.M. Logistics. Garcia-Flores told a Border Patrol agent at approximately 12:30 a.m. that he had just procured the trailer. The president of A.M. Logistics testified that the business rarely loads trailers after 11:00 p.m. and that the gates are shut and locked between 11:00 p.m. and 11:30 p.m. The U.S. Customs records show that Garcia-Flores did not even enter the United States until 10:11 p.m., after A.M. Logistics finished loading trailers during the business day.

The government also points to the quantity of drugs found in the trailer, asserting that drug dealers would not entrust over 300 pounds of marijuana with an unsuspecting driver. This Court has recognized that a jury may infer a defendant's guilty knowledge based on the quantity of drugs, as long as other evidence supports the inference. See United States v. Ramos-Garcia, 184 F.3d 463, 466 (5th Cir. 1999); United States v. Del Aguila-Reyes, 722 F.2d 155, 157 (5th Cir. 1983).

In response to the government's evidence, Garcia-Flores argues that he was simply following the instructions that his wife received from a telephone conversation with a man named Ramon around 8:00 p.m. on February 8. Garcia-Flores told Agent Jarrell that he left his house in Nuevo Laredo, Mexico around 9:30 p.m. and crossed the border into the United States, where he proceeded to A.M. Logistics' address. At A.M. Logistics, he attached the trailer and began his journey to Dallas on Interstate 35. He notes that the president of A.M. Logistics did not know how many people had access to the property after business hours. He also presented the testimony of a shipping business owner who claimed that most drivers are not involved in loading cargo and many do not check their cargo before leaving.

After reviewing the record and placing all the evidence and inferences in the light most favorable to the government's case, we are persuaded that there is sufficient evidence in the record for the jury to conclude beyond a reasonable doubt that Garcia-Flores knew the trailer contained illegal drugs.

III. Comments Involving Defendant's Post-Miranda Silence

In Doyle v. Ohio, the Supreme Court held that the Due Process Clause prohibits the government from using a defendant's post-arrest, post-Miranda silence to create an inference of guilt. See 426 U.S. 610 (1976); Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908 (1977); United States v. Carter, 933 F.2d 1449, 1462 (5th Cir. 1992). We review Doyle violations under the doctrine of harmless error by determining whether the error was harmless beyond a reasonable doubt. See United States v. Moreno, 185 F.3d 465, 472 (5th Cir. 1999). "We also seek to determine whether the remark was a spontaneous comment by the witness or a comment prompted by the prosecutor." Id. (citing United States v. Smith,...