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United States v. Lopez , 133 F. App'x 969 ( 2005 )


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  •                                                              United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                        June 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-50441
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIZABETH LOPEZ; FELIX VARGAS,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:03-CR-86-1-AML
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Elizabeth Lopez and Felix Vargas appeal their convictions
for possession of five or more kilograms of cocaine with intent to
distribute and importation of five or more kilograms of cocaine
into the United States.       Lopez and Vargas were arrested after a
checkpoint inspection uncovered 8.81 kilograms of cocaine hidden in
the van in which Lopez and Vargas were traveling.         Finding no error
as to either defendant, we AFFIRM.
*
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opinion should not be published and is not precedent except under the limited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.
Lopez   contends     that       the   testimony   of   Jacky   Gomez
concerning conversations that he had with Vargas during which
Vargas admitted facts surrounding the offense violated her Sixth
Amendment right to confront witnesses pursuant to Bruton v. United
States,
    391 U.S. 123
     (1968).            As Lopez did not object to the
admission of the allegedly improper testimony, review is for plain
error.   See United States v. Cartwright,
    6 F.3d 294
    , 300 (5th Cir.
1993).   The statements made by Gomez did not facially implicate
Lopez. Thus, Bruton is inapplicable. See United States v. Walker,
    148 F.3d 518
    , 522 (5th Cir. 1998).
Moreover, there was significant evidence from which the
jury could infer that Lopez was an active participant in the
operation, including her admitted use of false addresses to obtain
a Georgia driver’s license and to register and insure two different
vehicles,   which   she   then    drove      from   Georgia   to   Mexico;   her
implausible explanation regarding the circumstances of both trips
to Mexico; the inconsistent statements she gave to agents at Eagle
Pass; her demeanor during the inspection; and the large quantity of
drugs found in the van.        See, e.g., United States v. Villarreal,
    324 F.3d 319
    , 325 (5th Cir. 2003).                  Given the ample evidence
supporting the verdict, any Bruton violation would have been at
most harmless error.      See United States v. Nutall,
    180 F.3d 182
    ,
188 (5th Cir. 1999).
Vargas argues first that the district court violated his
Sixth Amendment right of confrontation by not allowing him to ask
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Gomez what his attorney told him he could expect his punishment to
be without an agreement to cooperate.             We review the district
court’s    limits   on   cross-examination      for   abuse   of   discretion.
United States v. Restivo,
    8 F.3d 274
    , 278 (5th Cir. 1993).                Vargas
was able to elicit from Gomez that he had entered into a plea
agreement with the Government and that, under the agreement, he
could receive a reduced sentence in exchange for testifying.                 The
jury heard ample testimony to allow it to infer that Gomez was
biased.    Accordingly, there was no Sixth Amendment violation or
abuse of discretion.       See
    id.
    Finally,     Vargas   complains   that    the   district    court’s
deliberate    ignorance    instruction    was    improper     because   it   was
appropriate only as to Lopez but did not exclude the possibility
that the jury would apply it to him.          The parties dispute whether
Vargas preserved this objection.          However, even under a harmless
error standard, Vargas’s claim is without merit.
The district court’s charge was a correct statement of
the law.   See United States v. Reissig,
    186 F.3d 617
    , 619 (5th Cir.
1999).    Further, there was substantial evidence of Vargas’s actual
knowledge, including the testimony of Gomez as well as the evidence
of Vargas’s demeanor and actions during the inspection.                 Even if
the charge was incorrect, any error was harmless.                  See United
States v. Mendoz-Mendina,
    346 F.3d 121
    , 134-35 (5th Cir. 2003).
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For the foregoing reasons, the judgment of the district
court is AFFIRMED.
4