United States v. Reyes Vasquez , 644 F. App'x 328 ( 2016 )

Case: 15-40327 Document: 00513442881 Page: 1 Date Filed: 03/29/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40327 FILED
Summary Calendar March 29, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN MANUEL REYES VASQUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:13-CR-634
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Juan Manuel Reyes Vasquez appeals his convictions for conspiracy and
the substantive offense of possession with intent to distribute heroin for which
he was sentenced to concurrent sentences of 121 months of imprisonment. He
contends that the prosecutor’s comments during closing argument improperly
commented on his failure to testify in his own defense and improperly shifted
the burden of proof to him.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-40327 Document: 00513442881 Page: 2 Date Filed: 03/29/2016
No. 15-40327
Review is for plain error since Reyes Vasquez did not object in the district
court. See United States v. Virgen-Moreno, 265 F.3d 276, 292 (5th Cir. 2001).
During closing argument, the prosecutor commented that the evidence that
Reyes Vasquez’s voice was on the recorded conversations was unrefuted. These
comments did not impermissibly comment on Reyes Vasquez’s silence or shift
the burden of proof to Reyes Vasquez because they were responsive to defense
counsel’s closing argument that the evidence of the phone calls and voice
identification involved no specific training or scientific methods or a voice
comparison. See Virgen-Moreno, 265 F.3d at 293-93. Viewing the prosecutor’s
comments in context and in light of the jury instructions, the jury would not
“naturally and necessarily” interpret the challenged remarks as a comment on
the defendant’s failure to testify or an impermissible shifting of the burden of
proof. See Virgen-Moreno, 265 F.3d at 292-93; see also United States v.
Jefferson, 258 F.3d 405, 414 (5th Cir. 2001).
The judgment of the district court is AFFIRMED.
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