United States v. Hernandez-Garcia

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51125
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FORTINO HERNANDEZ-GARCIA, also known
as FORTINO GARCIA-HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(EP-99-CR-789-ALL-H)
February 1, 2001
Before POLITZ, SMITH, and PARKER, Circuit Judges.
POLITZ, Circuit Judge:*
Fortino Hernandez-Garcia appeals his conviction of importing marihuana in
violation of 21 U.S.C. §§ 952 and 960, claiming insufficient evidence of his guilt,
improper jury instruction, and error in statements made by the prosecutor in closing
argument. Finding no reversible error, 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not be published and is not precedent except under the limited circumstances set forth in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.
Background
Hernandez sought to cross the border from Juarez, Mexico to El Paso.
During inspection of his pickup truck agents found 173 pounds of marihuana in the
ceiling of his camper. He told the agents that two men had paid him $100 to carry
the camper across the border. Although initially suspicious, he said he saw nothing
unusual about the camper and “thought nothing more about it.” The two men did
not simply put the camper in the bed of his pickup but bolted it to the truck. Agents
observed “ripples” in the top of the camper and found it appeared “thicker” than
usual.
Hernandez was indicted for importing marihuana and possessing it with intent
to distribute. At a pretrial hearing the prosecution asked for a deliberate ignorance
instruction. Defense counsel objected to the standard Fifth Circuit Pattern
Instruction and suggested alternative language. The judge agreed to alter the
language. Prior to closing arguments defense counsel secured a copy of the
proposed instructions and again attempted to object to the deliberate ignorance
instruction. The court rejected the objection as untimely.
During closing argument the prosecutor twice referred to the court’s
questioning of a witness, once asking why the defendant did not cross the Zaragoza
bridge, and again questioning defendant’s daughter. The prosecutor also noted that
2
three witnesses testified about the truck and camper in near identical words,
allegedly implying that defense counsel had told them what to say when shown a
picture of the pickup.
The jury returned a verdict of guilty of importation and Hernandez was
sentenced to 41 months imprisonment and three years supervised release. He timely
appealed.
ANALYSIS
I. Sufficiency of the Evidence
Hernandez moved for a judgment of acquittal after the verdict. We therefore
review his challenge to the sufficiency of evidence to determine whether any
reasonable trier of fact could have found that the evidence established guilt beyond a
reasonable doubt,1 construing all reasonable inferences in support of the verdict,2
and viewing the evidence in a light most favorable to the government.3
To establish defendant’s guilt, the government must show Hernandez
1
United States v. Martinez, 975 F.2d 159 (5th Cir. 1992); Jackson v. Virginia, 443
U.S. 307 (1979).
2
Id.
3
United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993).
3
knowingly played a role in bringing the marihuana into the country.4 He disputes
the sufficiency of evidence relating to the intent element, namely that he knowingly
imported marihuana. To prevent improper convictions when third parties place
contraband on unwitting defendants, whenever authorities locate drugs in secret
compartments the prosecution must establish control over the vehicle and present
“additional circumstantial evidence that is suspicious in nature or demonstrates
guilty knowledge.”5
Our review of the record persuades that there is sufficient evidence to support
Hernandez’ conviction. Customs Inspectors testified that the camper shell looked
abnormally thick, that it had ripples on the top, and that it was lower than it should
have been. Hernandez acknowledged that the two men who paid him struggled with
the shell because of its weight. The camper also fit the pick-up truck, the colors
matched, and Hernandez allowed the men to drill holes and bolt the shell onto his
truck instead of merely placing it in the truck’s bed. Finally, Hernandez gave
inconsistent statements regarding the time the men approached him, and there was
no luggage found in the truck despite the testimony of Hernandez and his witnesses
4
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996); United States v.
Diaz-Carreon, 915 F.2d 951(5th Cir.1990).
5
United States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998) (internal
citation and quotation marks omitted).
4
that he was returning to El Paso after spending anywhere from two weeks to a
month in Mexico.
II. The “Deliberate Ignorance” Instruction
During the pre-trial hearing, the prosecution asked the court to instruct the
jury on deliberate ignorance, requesting Fifth Circuit Pattern Jury Instruction 1.37.6
Defense counsel asked that the language be changed from “what would have
otherwise been obvious to him” to “what was obvious to him.” The court indicated
that the objection was sustained, but actually changed the language to “what should
have been obvious to him.” Upon reading the actual instruction before his closing
argument, counsel again attempted to object. The court informed counsel that the
objection was untimely. Counsel formally objected to the instruction after the jury
went to deliberate, stating “my objection to the word ‘should’ suggests a negligence
standard which is inappropriate.” The court overruled the objection.
“The correct standard of review to be applied to challenges to jury
instructions is whether the court's charge, as a whole, is a correct statement of the
law and whether it clearly instructs jurors as to the principles of law applicable to
6
In relevant part, the instruction provides that the jury “may find that a defendant
had knowledge of a fact if you find that the defendant deliberately closed his eyes to what
would otherwise have been obvious to him.” FIFTH CIR. PATTERN INST. 1.37 (1998)
(emphasis supplied).
5
the factual issues confronting them.”7 The modified instruction given to the jury
read as follows:
You may find that a defendant had knowledge of a fact if
you find that the defendant deliberately closed his eyes to
what should have been obvious to him. While knowledge
on the part of the defendant cannot be established merely
by demonstrating that the defendant was negligent,
careless or foolish, knowledge can be inferred if the
defendant deliberately blinded himself to the existence of
a fact.
Hernandez asserts that by referencing what “should have been obvious to him,” the
instruction allowed the jury to convict based on an impermissible negligence
standard. While mindful of this danger, we find that when taken as a whole this
instruction accurately informed the jury of the applicable law. Immediately
following the portion cited by Hernandez, the instruction directly informs the jury
that (1) knowledge cannot be established merely by demonstrating defendant’s
negligence, and (2) that to infer knowledge, the defendant must have “deliberately
blinded himself to the existence of a fact.” Given the explicit direction regarding the
insufficiency of mere negligence, the jury was appropriately advised that to prove
knowledge the government needed to establish more than merely that the defendant
“should have known” about the marihuana in his camper.
7
United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990) (quoting United States
v. August, 835 F.2d 76, 77 (5th Cir.1987)).
6
III. The Prosecutor’s Remarks During Closing Argument
Hernandez claims that various remarks by the prosecutor during closing
arguments constituted prejudicial error. The prosecutor twice referred to the
questioning of defense witnesses by the judge, purportedly suggesting that the judge
did not believe those witnesses. The prosecutor also called attention to three
witnesses who responded almost identically when shown a picture of the truck by
defense counsel. Hernandez asserts that such remarks suggested to the jury that
defense counsel told witnesses what to say on the stand.
Counsel did not object to these statements during the prosecution’s closing
statement and we review for plain error.8 We will reverse “only if the government’s
closing arguments seriously affected the fairness or integrity of the proceedings and
resulted in a miscarriage of justice.”9 We conclude that Hernandez’ complaints are
insufficient to establish plain error.
Hernandez’ first complains of the prosecutor’s statement that “the judge
caught it” while discussing plaintiff’s testimony regarding his decision to cross the
Paso del Norte bridge rather than the Zaragoza bridge. Though somewhat
8
See United States v. Goff, 847 F.2d 149 (5th Cir. 1988).
9
United States v. Knezek, 964 F.2d 394, 400 (5th Cir. 1992) (quoting United
States v. Hatch, 926 F.2d 387, 394 (5th Cir. 1991)).
7
suggestive, the statement merely references the court’s inquiry as to why Hernandez
chose this alternate route. The prosecutor never told the jury that the judge did not
believe the witness. Hernandez also alleges error in the prosecutor’s argument
regarding the daughter’s testimony. In discussing her answers to questions about
the time frame in which another girl had stayed with Hernandez, the prosecutor
stated: “I think the judge even asked some questions at that particular point in time.”
These statements help the jury pinpoint when in the trial this testimony took place
and that the judge also asked some questions to clarify the child’s answers. A
federal judge sits as more than a mere moderator of proceedings; he may comment
on evidence, question witnesses, elicit facts yet to be adduced, and clarify those
facts already presented.10 It is important to note, however, that the court instructed
the jury that they were the “sole judges of the credibility or believability of each
witness and the weight to be given to his testimony.” The challenged statements fail
to reach the high threshold of plain error required for the relief appellant seeks.
Finally, Hernandez attacks the prosecutor’s statements regarding three
witnesses who testified that while they had seen Hernandez with the truck in
question, they had never before seen the camper shell. The prosecutor stated:
All three of them said it the exact same way. All three of
10
Moore v. United States, 598 F.2d 439 (5th Cir. 1979) (citations omitted).
8
them said it the exact same way. They said it without
being prompted. Remember the words, Yes, it’s his
truck. I have not seen that camper before. They knew
exactly what to say. And the key was, when I show you
the picture, okay, you say, I’ve seen the truck, but I’ve
never seen the camper.
This statement crowds the line of impermissible argument. “The prosecutor
may not challenge the integrity and ethical standards of defense counsel unless the
prosecutor has certain proof of an offense and the matter is relevant to the case
being tried.”11 The statement by the prosecutor intimates that defense counsel
prepared each witness to give the same response when shown the picture of the
truck. As offensive as this statement understandably might be, it does not directly
“challenge the integrity and ethical standards of defense counsel” because it
contains no allegation of falsity on the part of the witness or knowledge of falsity on
behalf of counsel. The prosecutor highlighted the similarity of the testimony in
hopes of undermining each witnesses’ credibility, specifically with respect to his or
her own perception and recollection about whether the truck had a camper. In this
particular setting, on the record before us, we must conclude that this statement fails
to impinge impermissibly on the fairness and integrity of the proceedings.
The conviction appealed is AFFIRMED.
11
United States v. Murrah, 888 F.2d 24, 26 (5th Cir. 1989).
9