U.S. v. Pando Franco

• Decision Date: 04 October 2007
• Docket Number: No. 06-51120.,06-51120.
• Citation: 503 F.3d 389
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Angel PANDO FRANCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

503 F.3d 389

UNITED STATES of America, Plaintiff-Appellee, v. Juan Angel PANDO FRANCO, Defendant-Appellant.

No. 06-51120.

United States Court of Appeals, Fifth Circuit.

October 4, 2007.

Joseph H. Gay, Jr., Asst. U.S. Atty., Dinae D. Kirstein (argued), San Antonio, TX, for U.S.

Mike Barclay (argued), Law Offices of Mike Barclay, Alpine, TX, for Pando Franco.

Appeal from the United States District Court for the Western District of Texas.

Before DENNIS and PRADO, Circuit Judges, and ENGELHARDT, District Judge.^*

DENNIS, Circuit Judge:

Juan Angel Pando Franco appeals his conviction for aiding and abetting the possession with intent to distribute and the importation of less than 50 kilograms of marijuana into the United States. He argues that there is insufficient evidence to support the jury's verdict, that the district court erred in denying a motion for a mistrial based on an alleged prejudicial prosecutorial question, and that his Fifth Amendment privilege against self-incrimination was violated when the Government referenced his post-arrest, pre-Miranda silence at trial. For the reasons stated herein, we affirm his conviction.

I. BACKGROUND FACTS

On March 26, 2006, Juan Angel Pando Franco ("Pando") attempted to enter the United States at the Presidio, Texas, Port of Entry from Mexico. He was driving a Ford passenger van. He was referred to a secondary inspection area for further inspection because he was transporting three additional passengers and pulling a trailer. While he and his passengers were undergoing passport examination and identification, Officers Alfredo Huerta and Ralph Gonzales inspected the van, the trailer, and their contents. Inside the trailer, they saw a wooden table, which they described as "being cheaply made out of plywood, with glue and nails coming out of it on the edge," and having edges that were "lumpier" than the rest of the table. They said that the table was shoddily made, "not the kind of table one would entertain guests on," with edges that appeared crooked, not flush, and overly heavy. A drug dog did not alert when walked around the table. Using a density meter, however, Officer Gonzales discovered that the table had an abnormally high reading around its edges. The officers drilled a hole into a corner of the table and discovered 17.4 kilograms of marijuana inside. After Pando claimed ownership of the table, he was handcuffed and taken to a holding area. He was described as being "calm, cooperative and quiet. He didn't say anything."

Two hours later, Pando was removed from the holding area and Mirandized. After signing a written waiver of his Miranda rights, Pando was interviewed. He told the officers that he and his son were in the business of transporting people and goods between Oklahoma and Julimes, Chihuahua, Mexico. Joining him on this particular trip were his nephew, Jose Ruiz, and two passengers. He stated that it cost him $200 to $250 to fuel up one way, but that Pando usually charges $100 per person and $50 per child. The officers pointed out that this particular trip was not cost-beneficial because Pando was only transporting two individuals. Pando explained, however, that he needed to return to Oklahoma regardless and that he usually makes up the difference by importing goods. Without any prompting from the officers, Pando then stated, "that's where my mistake is, specifically agreeing to transport that table." He told the officers that he was supposed to deliver the table to a young man in Oklahoma City, but that he did not know the man. In his wallet, he had a piece of paper that he removed from the table that contained the man's name, address, and phone number. When asked why he removed the paper from the table, he first explained that the paper would help him find the person for whom he was importing, but later retracted that statement and said he removed the paper "to facilitate its importation through the port of entry."

Pando explained that he was initially contacted via cell phone about shipping the table, that it was dropped off at his mother's house, and that he was paid $40 to transport it. He stated that he usually does not ship things for strangers, but he liked this man's voice and felt comfortable with him. The man told Pando that the table was a gift for a friend. Pando stated that although he always examines items before delivery, he did not examine the table. He noted, however, that he found the table overly heavy and that it took both him and his nephew to load it into the trailer.

The officers found it unusual that not once during the course of his detention did Pando ever ask why he was being handcuffed, detained, and interviewed. Also, he never once asked if there was a problem with the table. Upon inquiring about his silence, Pando responded that the "table must contain drugs." When asked by the officers what type of drugs, he responded, "cocaine."

At trial, during its case in chief, the Government made several references to and elicited testimony regarding Pando's post-arrest, pre- and post-Miranda silence. Pando objected to the admission of this testimony, but after a brief sidebar, the district court overruled the objection.

Pando's nephew, son, and daughter each testified in his defense. His nephew, who rode with Pando on this particular trip, testified that although the table appeared exotic and heavy, it was not otherwise strange and appeared to be made from heavy wood. He further testified that, although he and his uncle usually examine items prior to transportation, they did not examine the table because it looked plain and they did not want to break it. Pando's son and co-owner of their transportation company testified that he was aware that there were two other companies in Oklahoma offering to transport goods and passengers to and from Mexico. When asked by the Government if he was "aware that some of these companies, in the same business, have also been charged with transporting drugs," an objection was sustained and the jury was instructed to disregard the question. A motion for mistrial based on this question was overruled. Finally, Pando's daughter testified that Pando has a good reputation in the community for being a peaceful, law-abiding citizen and for truth-telling. She further testified that Pando had never been arrested before and has been married for 34 years.

Pando testified in his own defense. He said that he was surprised when the officers found marijuana in the table, but that he suspected that there was a problem with the table because he knew what was in the other items in the trailer. When asked why he did not inquire about why he was being handcuffed, he replied that he did ask and was told that he was being "arrested." He denied ever telling the officers that the table was overly heavy, but he admitted telling them that it took two people to load it into the trailer. He also denied ever telling the officers that he had taken the piece of paper off the table in order to facilitate its entry into the United States.

During closing argument, the prosecuting attorney again referenced Pando's post-arrest, pre- and post-Miranda silence:

If somebody goes to handcuff you, what is going to be your reaction? If you've got guilty knowledge, if you know you're committing an offense that's illegal, maybe it wouldn't bother you at all . . . . Why do you think he sat there very calmly and stayed quiet? Ladies and gentlemen, he knew exactly why he was being detained. He knew, whether it was marijuana or cocaine or heroin or stolen jewelry, whatever it was, it was in that table.

Pando objected to this line of argument, but the objection was overruled. He was ultimately found guilty of aiding and abetting the importation of less than 50 kilograms of marijuana into the United States and aiding and abetting the possession with intent to distribute less than 50 kilograms of marijuana. He was sentenced to 27 months imprisonment and three years of supervised release. This appeal followed.

II. STANDARD OF REVIEW

Because Pando moved for judgment of acquittal at the close of the Government's case and at the close of the evidence, he properly preserved his sufficiency of the evidence challenge, which this court reviews de novo. See United States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999). This court reviews the district court's refusal to grant a mistrial by for an abuse of discretion. See United States v. Moreno, 185 F.3d 465, 472 (5th Cir.1999). Finally, the issue of whether the references to Pando's post-arrest, pre- and postMiranda silence violated his Fifth Amendment privilege against self-incrimination is a constitutional question of law, which this court reviews de novo. See United States v. Valles, 484 F.3d 745, 758 (5th Cir.2007). If a constitutional violation occurred, the next question is whether the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

III. ANALYSIS

A. Sufficiency of the Evidence

This court must affirm a conviction if the evidence, viewed in the light most favorable to the verdict, with all reasonable inferences and credibility choices made in support of it, is such that a trier of fact reasonably could have found the essential elements of the crime beyond a reasonable doubt. United States v. Ramirez, 954 F.2d 1035, 1039 (5th Cir.1992). Our inquiry is whether the jury reasonably could have made that decision based upon the evidence of record, not whether we believe that the verdict was correct. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.1995).

To prove possession of marijuana with the intent to distribute, the Government must establish: (1) knowing; (2) possession of marijuana; (3) with the intent to distribute it. United States v. Lopez, 74 F.3d 575, 577 (5th Cir.1996). To prove importation of marijuana, "the Government must establish that the defendant knowingly played a role in bringing the...