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United States v. Hernandez ( 2000 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50064
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELICIANA HERNANDEZ,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-1051-2-DB
--------------------
July 24, 2000
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Feliciana Hernandez appeals the jury verdict finding her
guilty of (1) conspiracy to import marijuana; (2) importation of
marijuana; (3) conspiracy to possess marijuana with intent to
distribute; and (4) possession of marijuana with intent to
distribute, in violation of 21 U.S.C. §§ 841(a), 846, 952, 963.
We affirm.
Hernandez failed to renew her motion for judgment of
acquittal at the close of all the evidence, or within seven days
of the jury’s discharge.    FED. R. CRIM. P. 29(a), (c).   Therefore,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-50064
-2-
our review is limited to the “manifest miscarriage of justice”
standard, under which we determine whether the record is so
devoid of evidence of guilt or the evidence is so tenuous on an
essential element as to render the verdict shocking.    See United
States v. Galvan,
    949 F.2d 777
    , 783 (5th Cir. 1991).
We do not infer lightly a defendant’s knowing participation
in a drug conspiracy.    See United States v. Dean,
    59 F.3d 1479
    ,
1485 (5th Cir. 1995).   In addition, the marijuana was hidden in
the vehicle, and Hernandez was a passenger and did not exercise
control over the vehicle.   Thus additional evidence of guilt is
required.    See United States v. Reyna,
    148 F.3d 540
    , 544 (5th
Cir. 1998); United States v. Moreno-Hinojosa,
    804 F.2d 845
    , 847
(5th Cir. 1986).    However, Hernandez’ demeanor during her post-
arrest interview and her implausible story to the Customs agents
that she was going to purchase materials despite having no
currency or wallet with her, support an inference of guilty
knowledge.
Further, Adame’s testimony demonstrated that Hernandez was
familiar with the drug suppliers who paid her to accompany Adame,
and that she had made similar trips before.   Although Adame
admittedly hoped to receive leniency in sentencing as a result of
his testimony, and although his testimony does contain some
inconsistencies, these facts do not render his testimony as a
whole incredible.    See United States v. Westbrook,
    119 F.3d 1176
    ,
1190 (5th Cir. 1997).   When viewed through the prism of the
manifest miscarriage of justice standard, we cannot say that the
evidence is insufficient to support the jury’s verdict.
No. 00-50064
-3-
We also reject Hernandez’ claim that the district court
erred in admitting Adame’s plea agreement and in failing to give
a cautionary instruction.     Hernandez failed to object, and her
counsel concurred in the admission of the plea agreement,
limiting review to either the plain error standard or the invited
error doctrine.     See United States v. Lemaire,
    712 F.2d 944
    , 948-
49 (5th Cir. 1983); United States v. Mattoni,
    698 F.2d 691
    , 694-
95 (5th Cir. 1983).    Hernandez’ conclusional allegation that the
admission of the agreement prejudiced her is unsupported, and we
note that the government did not attempt to use the agreement as
substantive evidence of Hernandez’ guilt.     Further, Hernandez
herself was able to use the agreement to attack Hernandez’
credibility.     The admission does not rise to the level of plain
error, much less require reversal under the more stringent
invited error doctrine.     See
    Mattoni, 698 F.2d at 694-95
    ; United
States v. Gray,
    626 F.2d 494
    , 501 n.2 (5th Cir. 1980).
As for Hernandez’ contention that a limiting instruction
should have been given at the time the agreement was introduced,
Hernandez requested no such instruction, limiting our review
again to plain error.     See United States v. Waldrip,
    981 F.2d 799
    , 805 (5th Cir. 1993).     The district court charged the jury in
its general instructions that the plea agreement could not be
considered as evidence of Hernandez’ guilt, and the government
made no attempt to use the plea agreement to demonstrate that
Hernandez was guilty.     The district court did not plainly err.
See
    id. AFFIRMED. No. 
    00-50064
-4-