USA v. Hidalgo

Filing

08-51162

USA v. Hidalgo

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 12, 2010 N o . 08-51161 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. J U A N JOSE HIDALGO; GERARDO ROMERO HIDALGO, also known as G e r a r d o A Reyes; ABRAHAM CARRILLO­MORONES, D e fe n d a n t s - Appellants

A p p e a ls from the United States District Court fo r the Western District of Texas U S D C No. 3:07-CR-1624

B e fo r e JONES, Chief Judge, and KING and HAYNES, Circuit Judges. P E R CURIAM:* Juan Jose Hidalgo, Gerardo Romero Hidalgo, and Abraham

C a r r illo ­ M o r o n e s were jointly tried and convicted, by a jury, on various charges s t e m m in g from their involvement in a drug trafficking conspiracy. Following t h e s e verdicts, each defendant was sentenced to, inter alia, 20­24 years of im p r is o n m e n t . All three defendants independently appeal their convictions and

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Nos. 08-51161, 08-51162, 08-51191 s e n te n c e s , raising several issues. For the following reasons, we AFFIRM the ju d g m e n t s of conviction and sentence for each defendant. I . BACKGROUND T h e three defendants--Juan Jose Hidalgo (Hidalgo), Gerardo Romero H id a lg o (Romero), and Abraham Carrillo­Morones (Carrillo)--were jointly tried, a s the Government alleged that they were co-conspirators in a large drug c o n s p ir a c y . The conspiracy involved the use of tractor­trailers to transport d r u g s from El Paso, Texas, to various points in the United States and to return w it h drug money. In all, the Government charged 21 individuals with

p a r tic ip a t in g in the conspiracy. The Government alleged that the defendants h e r e were truck drivers who drove and assisted on a number of these loads, c h a r g in g each with multiple counts related to drug trafficking.1 T h e three defendants pleaded not guilty and proceeded to trial. The G o v e r n m e n t entered into plea deals with several of the charged co-conspirators. At trial, several of these co-conspirators testified, detailing both the general o p e r a t io n of the drug trafficking conspiracy and the specifics of several drug and m o n e y deliveries undertaken by the three defendants. A f t e r the close of evidence, each defendant moved for acquittal on each c o u n t . The district court denied the motions fully for both Hidalgo and Romero

Based on these allegations, the Government charged Hidalgo with one count of conspiring to transport funds outside the United States for the purpose of carrying out drug trafficking in violation of 18 U.S.C. § 1956(a)(1)(A)(i)­(ii) and (h) and with two counts of conspiring to possess more than five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(ii). Romero was charged with two counts of conspiring to possess more than five kilograms of cocaine. Carrillo was charged with one count of conspiring to transport funds outside the United States for the purpose of carrying out drug trafficking, one count of conspiring to possess more than five kilograms of cocaine, one count of conspiring to possess more than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(vii), and one count of attempting to perform an act of violence in furtherance of drug trafficking in violation of 18 U.S.C. § 1952(a)(1). Hidalgo and Romero were both charged in the conspiracy to possess cocaine counts, and Hidalgo and Carrillo were both charged in the conspiracy to transport funds count.

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Nos. 08-51161, 08-51162, 08-51191 b u t granted the motion in part as to Carrillo.2 The remaining counts were s u b m it t e d to the jury, which returned guilty verdicts on each count. Following t h e s e verdicts, the district court sentenced each defendant to below or within recom m en d ed United States Sentencing Guidelines (the "Guidelines")

p u n is h m e n t ranges: 288 months' imprisonment for Hidalgo, 240 months' i m p r is o n m e n t for Romero, and 288 months' imprisonment for Carrillo.3 Each d e fe n d a n t timely appealed. I I . DISCUSSION A . Juan Jose Hidalgo H id a lg o presents six issues for review: (1) whether the district court erred in placing on Hidalgo the burden of proof in his motion to suppress evidence o b ta in e d from an Illinois traffic stop on October 12, 2006; (2) whether Hidalgo w a s illegally detained during the Illinois traffic stop; (3) whether the district c o u r t erred in failing to instruct the jury not to consider Carrillo's prior bad act in determining Hidalgo's guilt; (4) whether sufficient evidence supported the ju r y 's verdict that Hidalgo conspired to transmit money with the intent to p r o m o t e drug trafficking; (5) whether sufficient evidence supported the findings t h a t Hidalgo knew of the conspiracy's unlawful objective and joined the c o n s p ir a c y ; and (6) whether the district court erred at sentencing. We address e a c h in turn. 1. Whether the district court erroneously placed the burden on Hidalgo c o n c e r n in g his motion to suppress. In considering Hidalgo's motion to suppress evidence obtained during an O c t o b e r 12, 2006, stop of a tractor­trailer that he was driving, the district court

The district court acquitted Carrillo of conspiring to possess marijuana and attempting to perform an act of violence in furtherance of drug trafficking. The district court also required supervised release following incarceration and imposed special assessments and fines on each defendant.
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Nos. 08-51161, 08-51162, 08-51191 s t a t e d that "[t]he proponent of a motion to suppress evidence bears the burden o f proving . . . that the challenged evidence was obtained in violation of the C o n s t it u t io n ." Given this statement, Hidalgo argues that the district court e r r o n e o u s l y placed the burden of proof on him to show that the Illinois traffic s t o p was unconstitutional. This argument is meritless. " A defendant normally bears the burden of proving by a preponderance of t h e evidence that the challenged search or seizure was unconstitutional." United S ta te s v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005) (citing United States v. G u e r r e r o ­ B a r a ja s , 240 F.3d 428, 432 (5th Cir. 2001)). However, "[w]hen the g o v e r n m e n t searches or seizes a defendant without a warrant, the government b e a r s the burden of proving, by a preponderance of the evidence, that the search o r seizure was constitutional." Guerrero­Barajas, 240 F.3d at 432. "Therefore, in the instant case, since [the officer] conducted an investigatory stop without a warrant, the government bears the burden of proving, by a preponderance of t h e evidence, that the investigatory stop was constitutional." Id. Here, the district court made the above-referenced statement as part of its o u tlin e of "legal standards" in its ruling on the motion to suppress. Reading this s e c t io n completely, and not taking an isolated statement out of context, the d is t r i c t court properly stated that "warrantless searches and seizures are p r e s u m p t iv e ly unreasonable" and that "[a]ny evidence obtained in violation of t h e Fourth Amendment is inadmissible" before conducting an in-depth Fourth A m e n d m e n t analysis of the traffic stop and subsequent search. Then, in the b a la n c e of its ruling, the district court undertook a reasoned Fourth Amendment a n a ly s is that reveals that the burden was not placed on Hidalgo. As such, we fin d no error on this issue. 2 . Whether Hidalgo was illegally detained during the Illinois traffic stop.

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Nos. 08-51161, 08-51162, 08-51191 H id a lg o next argues that the Illinois state trooper illegally extended the O c t o b e r 12, 2006, traffic stop in violation of his Fourth Amendment rights so as t o require suppression of the evidence obtained at that stop. We disagree. Because the stop of the Hidalgo's truck was justified, we must ask " w h e t h e r the officer's subsequent actions after he legitimately stopped the [t r a c t o r ­ t r a ile r ] were reasonably related to the circumstances that justified the stop , or to dispelling his reasonable suspicion developed during the stop." United S ta te s v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc). "Reasonableness r e q u ir e s a balancing of the public interest with an individual's right to be free fr o m arbitrary intrusions by law enforcement." Id. "Reasonable suspicion exists w h e n the detaining officer can point to specific and articulable facts which, taken t o g e t h e r with rational inferences from those facts, reasonably warrant the s e a r c h and seizure." United States v. Grant, 349 F.3d 192, 196 (5th Cir. 2003) (a lt e r a t io n s and quotation marks omitted). Here, the Illinois trooper testified that "when he concluded the traffic stop, h e suspected th[at Hidalgo and Romero] were transporting drugs and, based on t h i s suspicion, continued to question [Hidalgo]," basing his suspicion on a n u m b e r of factors. While these observations may seem innocuous individually, t h e court "must allow law enforcement officers to draw on their own experience a n d specialized training to make inferences from and deductions about the c u m u la t iv e information available to them that might well elude an untrained p e r s o n ." Brigham, 382 F.3d at 507 (quotation marks omitted). Further, while Hidalgo and Romero were detained in order to complete the v e h ic le safety inspection and issue the warning ticket--the initial reason for m a k in g the stop--the trooper appropriately questioned them. See id. at 508 (" [W ]e reject any notion that a police officer's questioning, even on a subject u n r e la t e d to the purpose of a routine traffic stop, is itself a Fourth Amendment v io la t io n ." (emphasis and quotation marks omitted)). During this questioning, 5

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Nos. 08-51161, 08-51162, 08-51191 t h e trooper's suspicions were further raised by a number of observations. These o b s e r v a t io n s indicate that the trooper had reasonable suspicion to continue the d e t e n t io n . See id. at 507 ("Reasonableness, measured in objective terms by e x a m in in g the totality of the circumstances, eschews bright-line rules, instead e m p h a s iz in g the fact-specific nature of the inquiry." (alterations and quotation m a r k s omitted)). We find no error in the district court's ruling on Hidalgo's m o t io n to suppress. 3 . Whether the district court erred in failing to instruct the jury not to c o n s id e r Carrillo's prior bad act in determining Hidalgo's guilt. A t trial, testimony was presented about a "shoot-out" in Shreveport, L o u is ia n a , for which Carrillo had been arrested in 2005. Hidalgo argues that the d is t r ic t court "should have instructed the jury that the prior bad act against [C a r r illo ] should only be considered against [Carrillo]." Hidalgo failed to raise t h is issue below and acknowledges that the court should review for plain error. To show plain error, Hidalgo must show a forfeited error that is clear or obvious a n d that affects his substantial rights. See Puckett v. United States, 556 U.S. --, 1 2 9 S. Ct. 1423, 1429 (2009). If such a showing is made, the court has the d is c r e t io n to correct the error only if it seriously affects the fairness, integrity, o r public reputation of judicial proceedings. Id. H e r e , the jury was given multiple instructions to separately consider the c r im e s , conspiracies, and acts charged against each individual defendant. The ju r y is presumed to follow the charges it is given. See United States v. Harper, 5 2 7 F.3d 396, 402 (5th Cir. 2008). Further, we have recently considered

id e n tic a l jury charges and concluded that they protected against undue prejudice in a similar situation. See United States v. Garcia, 567 F.3d 721, 728­29 (5th C ir . 2009). Accordingly, we find no plain error on this issue. See also United S ta te s v. Cortinas, 142 F.3d 242, 248 (5th Cir. 1998) (finding no plain error in fa ilu r e to give further limiting instructions regarding co-conspirator conduct). 6

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Nos. 08-51161, 08-51162, 08-51191 4 . Whether sufficient evidence supported the jury's verdict that Hidalgo c o n s p ir e d to transmit money with the intent to promote drug trafficking. W e also reject Hidalgo's claim that there was insufficient evidence to s u p p o r t the jury's verdict on the conspiracy to transport money in furtherance o f drug trafficking charge. Hidalgo admits that testimony presented at trial in d ic a te s that he conspired to transmit money and drugs as part of the c o n s p ir a c y ; however, he attacks the credibility and reliability of this testimony. Hidalgo's attacks on the witnesses' credibility are unpersuasive at this stage. The sufficiency of the evidence standard gives "full play to the responsibility of t h e trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, a n d to draw reasonable inferences from basic facts to ultimate facts." Jackson v . Virginia, 443 U.S. 307, 319 (1979); accord United States v. Casillas, 20 F.3d 6 0 0 , 602 (5th Cir. 1994) ("The jury is solely responsible for determining the w e ig h t and credibility of the evidence; this court will not substitute its own d e t e r m in a t io n of credibility for that of the jury."). In short, viewing the evidence in the light most favorable to the verdict, see United States v. Valdez, 453 F.3d 2 5 2 , 256 (5th Cir. 2006), a rational jury could have credited the testimony that im p lic a t e d Hidalgo on this charge. We thus find no error on this issue. 5. Whether sufficient evidence supported the findings that Hidalgo knew of the c o n s p ir a c y 's unlawful objective and joined the conspiracy. H id a lg o also challenges whether there was sufficient evidence to d e t e r m in e that he knew of the conspiracy's objectives and joined the conspiracy, a g a in casting aspersions on the consistency and accuracy of the trial testimony p r e s e n t e d . After reviewing the testimony presented at trial, we conclude that t h e r e was sufficient evidence presented at trial to support the jury's findings. Accordingly, we discern no error on this issue. 6. Whether the District Court Erred at Sentencing.

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Nos. 08-51161, 08-51162, 08-51191 H id a lg o also challenges the length of his sentence of imprisonment, a r g u in g that it was disproportionate to the crime he committed and larger than t h e sentences received by cooperating co-conspirators who played a larger role in the conspiracy. We find no merit in these arguments. On Hidalgo's comparison with his co-conspirators, "[i]t is well settled that a n appellant cannot challenge his sentence based solely on the lesser sentence g iv e n to his co-defendants." United States v. McKinney, 53 F.3d 664, 678 (5th C ir . 1995). But beyond this, Hidalgo has not shown that his sentence was u n r e a s o n a b le . Hidalgo does not argue that the Guidelines punishment range w a s improperly calculated. The district court departed from this Guidelines r a n g e , finding it excessive, and imposed a sentence below the Guidelines range. We do not find this sentence unreasonable. See United States v. Carey, 589 F.3d 1 8 7 , 196 (5th Cir. 2009) ("In this circuit, a sentence within the Guidelines range is presumed reasonable on appeal." (quotation marks omitted)). Hidalgo has not s h o w n any error in sentencing.4 B . Gerardo Romero Hidalgo R o m e r o presents four issues on appeal which overlap, in substantial part, w it h those issues presented by Hidalgo: (1) whether the district court erred in p la c in g on Romero the burden of proof in his motion to suppress evidence o b ta in e d from the Illinois traffic stop; (2) whether Romero was illegally detained d u r in g the Illinois traffic stop; (3) whether sufficient evidence supported his c o n v ic t io n on various charges; and (4) whether the district court erred at

Hidalgo also argues that application of the mandatory minimum sentence to his crime is unconstitutional, but that argument is meritless. See generally Almendarez­Torres v. United States, 523 U.S. 224, 230 (1998); accord United States v. Robinson, 344 F. App'x 936, 940­41 (5th Cir. 2009) (per curiam) ("We hold that the application of the statutory mandatory minimum in 21 U.S.C. § 841(b)(1)(A) does not violate [the defendant's] Fifth and Fourteenth Amendment rights to substantive due process or to a judicial determination of the reasonableness of his sentence.").

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Nos. 08-51161, 08-51162, 08-51191 s e n te n c in g . We address each in turn, referencing our discussion of Hidalgo's is s u e s on appeal. 1 . Whether the district court erred in placing on Romero the burden of proof in h is motion to suppress evidence obtained from the Illinois traffic stop. Romero was riding along with Hidalgo when the tractor­trailer was s t o p p e d in Illinois on October 12, 2006. Romero joined Hidalgo's motion to s u p p r e s s the evidence obtained from this traffic stop, and the district court a d d r e s s e d both of their arguments in its ruling on this motion. Romero's

c h a l l e n g e to the district court's ruling on appeal, arguing that the court im p r o p e r ly placed upon him the burden of proving that the Illinois traffic stop w a s unconstitutional, is foreclosed for the reasons outlined in subsection IIA1 above. 2. Whether Romero was illegally detained during the Illinois traffic stop. L ik e Hidalgo, Romero argues that he was illegally detained during the I llin o is traffic stop. However, Romero raises no argument that suggests that the a n a ly s is of the stop with respect to Hidalgo does not equally apply to him. Thus, fo r the reasons outlined in subsection IIA2 above, we find no error in the district c o u r t's suppression decision. 3. Whether sufficient evidence supported Romero's convictions. L ik e Hidalgo, Romero contends that the evidence at trial was insufficient t o support his convictions, pointing to supposed inconsistencies and problems w it h the testimony presented. Romero's attacks on the testimony presented at t r i a l are unpersuasive. See Casillas, 20 F.3d at 602. Taken in the light most fa v o r a b le to the verdict, this testimony indicated that Romero participated in a n u m b e r of shipments of drugs and money. Further, this testimony was also s u p p o r t e d by the fact that Romero was arrested, along with Hidalgo, riding in a truck containing a large amount of cocaine. Sufficient evidence supports the ju r y 's verdict, and we find no error on this issue.

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Nos. 08-51161, 08-51162, 08-51191 4 . Whether the district court erred at sentencing. F in a lly , like Hidalgo, Romero challenges the sentence imposed following c o n v ic t io n , arguing that the application of the mandatory minimum sentence v io la t e d his rights and that his sentence was unreasonable. Romero was

s e n te n c e d to 240 months' imprisonment, a sentence within the recommended G u id e lin e s range. We find no error in Romero's sentence. See Carey, 589 F.3d a t 196. C. Abraham Carrillo­Morones C a r r illo presents eight issues for review: (1) whether the district court e r r e d by denying his motion to sever the trials; (2) whether the district court e r r e d by denying his motion to suppress certain evidence related to currency s e i z e d by the Government; (3) whether the prosecutor's improper question p r e ju d ic e d his right to a fair trial; (4) whether the district court erred by failing t o strike the testimony of Humberto Nunez­Padilla (Nunez) testimony without p r o p e r explanation to the jury; (5) whether the district court erred in admitting a n evidentiary summary and organizational chart as evidence; (6) whether the d is t r ic t court erred in dealing with a prosecutor's statement that may have im p r o p e r ly addressed his Fifth Amendment right to remain silent; (7) whether s u ffic ie n t evidence supported his jury conviction; and (8) whether the district c o u r t erred at sentencing. We address each in turn. 1 . Whether the district court erred by denying Carrillo's motion to sever the tr ia ls . Carrillo first argues that the district court erred in denying his motion to s e v e r his trial from Hidalgo and Romero's trial, contending that he did not p a r tic ip a t e in the same conspiracy and that he was prejudiced by the evidence p r e s e n t e d against Hidalgo and Romero. We find no error in the district court's d e n ia l of severance.

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Nos. 08-51161, 08-51162, 08-51191 " W e review a grant or denial of severance for abuse of discretion." United S ta te s v. Lewis, 476 F.3d 369, 383 (5th Cir. 2007). "There is a preference in the fe d e r a l system for joint trials of defendants who are indicted together, p a r tic u la r ly in conspiracy cases." Id. (quotation marks omitted). "To prevail, the d e f e n d a n t must show that: (1) the joint trial prejudiced him to such an extent t h a t the district court could not provide adequate protection; and (2) the p r e ju d ic e outweighed the government's interest in economy of judicial a d m in is t r a t io n ." United States v. Peterson, 244 F.3d 385, 393 (5th Cir. 2001) (q u o ta t io n marks omitted). We find no error in the joinder of the defendants here. The Government a lle g e d that each defendant was part of a larger conspiracy, charging o v e r la p p in g activity in furtherance of that conspiracy. At trial, the Government p resen te d testimony from several witnesses showing that each defendant worked w it h the same individuals to transport drugs from El Paso and to return with d r u g money. "In this situation joinder of both offenses for trial fulfills the p u r p o s e underlying the rule because it avoids duplication of time and effort of b o th the prosecution and the courts and minimizes the prejudice to the d e fe n d a n t s ." United States v. Gentile, 495 F.2d 626, 630 (5th Cir. 1974). Further, we are not persuaded that Carrillo has shown the requisite "clear, s p e c ific , and compelling prejudice" so as to require severance. United States v. P o s a d a ­ R io s , 158 F.3d 832, 863 (5th Cir. 1998). "A spillover effect, by itself, is a n insufficient predicate for a motion to sever." United States v. Bieganowski, 3 1 3 F.3d 264, 287 (5th Cir. 2002). Moreover, the large quantity or drugs

d is c o v e r e d when Hidalgo and Romero was arrested, which Carrillo claims p r e ju d ic e d his trial, is not the type of evidence we have found to be prejudicial t o co-defendants. See, e.g., Posada­Rios, 158 F.3d at 863 (5th Cir. 1998)

(d e t e r m in in g that evidence of "gruesome murders" committed by co-conspirators d id not prejudice co-defendants so as to require severance and noting that "while 11

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Nos. 08-51161, 08-51162, 08-51191 t h e district court must guard against undue prejudice, it need not protect c o n s p ir a t o r s from evidence of their confederates' acts in furtherance of their c o m m o n illegal aim.") (alterations and quotation marks omitted). Additionally, t h e district court gave numerous instructions to the jury, which mitigated any p r e ju d ic e . See Harper, 527 F.3d at 402. In sum, we discern no error on this is s u e . 2. Whether the district court erred by denying Carrillo's motion to suppress c e r ta in evidence related to currency seized by the Government. C a r r illo argues that the district court should have suppressed evidence r e la t e d to currency seized on June 4, 2007. Carrillo filed a motion in limine to e x c lu d e this evidence, claiming that the Government averred that it would make t h e seized currency available to him for inspection, but instead disposed of the c u r r e n c y . Carrillo contends that the failure to produce this evidence deprived h im of the ability to present exculpatory evidence of a lack of fingerprints on this c u r r e n c y . We find no error in the district court's decision.5 T h e Government is required "to disclose to criminal defendants favorable e v id e n c e , material to guilt or punishment." United States v. Moore, 452 F.3d 3 8 2 , 387 (5th Cir. 2006) (per curiam). "[I]mpermissibly withheld evidence must b e either (1) material and exculpatory or (2) only potentially useful, in c o m b in a t io n with a showing of bad faith on the part of the government." Id. H e r e , we are unpersuaded that the currency evidence "destroyed" by the G o v e r n m e n t was material. Carrillo could have cross-examined the officers to

Generally, an evidentiary ruling is reviewed for abuse of discretion, but where an appellant fails to renew an objection made by motion in limine before the disputed evidence was introduced at trial, review is for plain error. See United States v. Duffaut, 314 F.3d 203, 209 (5th Cir. 2002). It is undisputed that Carrillo did not re-raise this motion when the currency evidence was introduced at trial, but the district court did state, at the hearing on the motion in limine, that the error was "preserved." Thus, we assume, arguendo, that Carrillo sufficiently preserved error on this issue, and we review the district court's suppression decision for abuse of discretion. Finding no abuse of discretion, we necessarily find that there was also no "plain error" in the district court's decision.

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Nos. 08-51161, 08-51162, 08-51191 a s k if they removed any latent prints related to him. Admission by the agents t h a t no fingerprints were present would likely have mirrored the exculpatory v a lu e of Carrillo's having actually tested the money for prints himself. See C a lifo r n ia v. Trombetta, 467 U.S. 479, 490 (1984) (noting that defendant could c r o s s -e x a m in e officer administering breathalyzer to suss out exculpatory e v id e n c e ). Indeed, it is not clear that not finding fingerprints on money is e x c u lp a t o r y evidence itself: money, by its nature, is touched by numerous p erson s in transactions and the savvy criminal knows to conceal his fingerprints. Cf. id. (noting the low probability of finding exculpatory evidence). Moreover, as o p p o s e d to other failure to preserve cases, the Government sought to introduce t h e currency evidence to show generally that currency of a certain amount was t r a n s p o r t e d , not that Carrillo himself touched the dollars: the Government did n o t introduce evidence of the attributes of this currency. Cf. United States v. D e la Espriella, 781 F.2d 1432, 1437­38 (9th Cir. 1986) (following Trombetta, fa ilu r e to preserve currency that canine detected cocaine on did not require s u p p r e s s io n of evidence of canine cocaine detection). F u r t h e r , even if the evidence was "potentially useful," Carrillo has not s h o w n any bad faith on the Government's behalf. See Moore, 452 F.3d at 387. Carrillo does not contend that the Government followed improper procedures in t r a n s fo r m in g the seized funds into a cashiers check. As such, there is no bad fa it h here. See id. at 388­89 ("[E]vidence . . . destroyed pursuant to standard p r o c e d u r e . . . did not constitute a constitutional violation . . . . [The Government] d id not destroy the [evidence] in bad faith."). The district court did not abuse its d is c r e t io n in denying Carrillo's motion to exclude evidence of the seized cu rren cy . 3. Whether the prosecutor's improper question prejudiced Carrillo's right to a fa ir trial.

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Nos. 08-51161, 08-51162, 08-51191 C a r r illo next argues that the Government asked an improper question w h ile examining an agent at trial. Specifically, the Government asked a federal a g e n t whether "there are ongoing investigations still that relate to this case." Carillo's counsel objected to this question, and the district court sustained the o b je c t io n before the agent could answer. However, the court denied Carillo's s u b s e q u e n t motion to strike the question. Carillo contends on appeal that the q u e s t io n was unduly prejudicial to his right to a fair trial. We are unpersuaded. " I n evaluating the extent to which prosecutorial comments have affected t h e defendant's right to a fair trial, three factors are probative: the magnitude o f the prejudicial effect of the remarks, the efficacy of any cautionary instruction, a n d the strength of the evidence of the defendant's guilt." United States v. D ia z ­ C a r r e o n , 915 F.2d 951, 956 (5th Cir. 1990). Here, the prejudicial effect of t h e prosecutor's remark is small because it does not necessarily suggest that C a r r i l l o or his co-defendants were facing further charges. See id. at 956­57 (" W h e n the prosecutor's argument is considered in context, however, it is a p p a r e n t that the prejudicial effect of the questionable comments is limited."). Second, the defense counsel's timely objection mitigated any prejudice from the p r o s e c u t o r 's statement. See id. at 958. Finally, the prosecutor's question, within t h e volumes of transcript and evidence in the case, hardly suggests unfairness. Cf. id. at 959 (finding no reversible error even where the prosecutor " r e p e a te d [ly ]" reli[ed] on sarcasm, innuendo or misstatement."). We find no r e v e r s ib le error on this issue. 4. Whether the district court erred in its decisions concerning Nunez's te s tim o n y . C a r r illo next urges that the district court improperly dealt with Nunez's t e s t im o n y . Nunez testified concerning both a March 2007 and a May 2007 drug a n d money load, indicating that Carrillo participated in these shipments. Specifically at issue here, Nunez testified about a drug transaction occurring on 14

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Nos. 08-51161, 08-51162, 08-51191 M a y 29, 2007, at a carwash. At trial, Carrillo raised numerous objections to N u n e z 's testimony. Ultimately, the court struck Nunez's testimony "[a]s it r e la t e s to the exchange that took place at the carwash on May 29 . . . which the w it n e s s did not have personal knowledge and did not view." Carrillo now argues t h a t the district court's strike of this testimony "was too little too late," claiming t h a t initially allowing this testimony substantially prejudiced his trial. We find n o merit in this argument. Admission of testimony is an "evidentiary ruling [which we review] for a b u s e of discretion . . . subject to the harmless error rule." United States v. D u n ig a n , 555 F.3d 501, 507 (5th Cir. 2009). Here, we find no effect on Carrillo's s u b s t a n t ia l rights both because other witnesses later testified to the same events a s Nunez, suggesting that Nunez's testimony was not prejudicial, and because t h e district court did strike the questionable portions of Nunez's testimony, with in s t r u c t io n s to the jury to disregard it. As stated above, the jury is presumed to fo llo w such instructions. See Harper, 527 F.3d at 402. In short, Carrillo does not s h o w reversible error on this issue. 5. Whether the district court erred in admitting a "phone chart" into evidence. A t trial, the Government sought to introduce a "phone chart" indicating c e r t a in facts about the conspiracy. After a federal agent laid the foundation for in t r o d u c in g this evidence, Carrillo objected, arguing that the evidence was not a d m is s ib le , though admitting that the chart might be proper as a "demonstrative e x h ib it ." The district court overruled the objection, admitting the chart under R u le 611 of the Federal Rules of Evidence. Carrillo claims that the admission o f the chart into evidence was error, given that it summarized information a lr e a d y admitted, and that the chart's portrayal of him at the "center" of the c o n s p ir a c y prejudiced his rights. We find no reversible error. T h e district court's admission of a summary chart is reviewed for an abuse o f discretion. United States v. Winn, 948 F.2d 145, 157 (5th Cir. 1991). "If the 15

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Nos. 08-51161, 08-51162, 08-51191 c o u r t errs in its evidentiary ruling, the error can be excused if it was harmless. I n applying this rule, we have stated: A nonconstitutional trial error is harmless u n le s s it had substantial and injurious effect or influence in determining the ju r y 's verdict." United States v. Buck, 324 F.3d 786, 790 (5th Cir. 2003)

(q u o ta t io n marks omitted). W e assume, arguendo, that admission of the chart into evidence was error b e c a u s e the Government admits the chart summarized information previously a d m it t e d into evidence. See id. at 790­91 (detailing the interplay of Rules 611 a n d 1006 and discussing the proper admission of charts and exhibits under each r u le ). However, we think any error harmless. The chart accurately summarized r e c o r d s previously admitted, and the claimed "implication" of the chart is not s u ffic ie n t to warrant reversal. See id. at 791 ("Despite the fact that it was an e r r o r of law, and therefore an abuse of discretion, to admit the diagram, it was h a r m le s s , because the diagram accurately summarized testimony and other e v id e n c e that had been properly admitted and therefore was already before the ju r y ." ); id. (determining that even though defendant "rest[ed] on the argument t h a t [the chart wa]s misleading because it implie[d a greater role in the crime]" t h e defendant's ability to cross-examine witnesses and examine evidence s u p p o r t in g the chart was sufficient to protect against any improper implications o f the chart). We find no reversible error on this issue. 6. Whether the district court erred regarding the prosecutor's statement which m a y have improperly addressed the defendants' Fifth Amendment rights. C a r r illo also points to error concerning the following statement during the G o v e r n m e n t 's closing statement rebuttal: "And you know something that

n e ith e r of these guys can explain to you, and they haven't explained to you, is w h a t happens when they get to . . ." Defense counsel for Hidalgo and Romero o b je c t e d to this statement and the court sustained the objection and struck the s t a t e m e n t , ordering the jury to disregard it. Defense counsel then moved for a 16

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Nos. 08-51161, 08-51162, 08-51191 m is t r ia l, but the court denied that motion, without giving further curative in s t r u c t io n s or admonitions. Carrillo now argues that the character of the r e m a r k was such that the jury would construe it as a comment on his silence, a n d that the statement "had substantial impact on the jury verdict." d is a g re e . " T h e Fifth Amendment prohibits a prosecutor from commenting directly o r indirectly on a defendant's failure to testify." United States v. Mackay, 33 F .3 d 489, 495 (5th Cir. 1994). "This protection extends to oblique comments on a defendant's failure to testify, if sufficiently suggestive." Id. (quotation marks o m it t e d ). "The test for determining whether a prosecutor's remarks constitute a comment on a defendant's silence is a twofold alternative one: (1) whether the p r o s e c u t o r 's manifest intent was to comment on the defendant's silence or (2) w h e t h e r the character of the remark was such that the jury would naturally and n e c e s s a r ily construe it as a comment on the defendant's silence." Id. (quotation m a r k s omitted). "Both the intent of the prosecutor and the character of the r e m a r k s are to be determined by reviewing the context in which they occurred." Id. H e r e , we are not persuaded that the prosecutor's statement was a c o m m e n t on the defendants' silence. First, the prosecutor discussed two We

t e s t ify in g witnesses statements right before he made the challenged statement. As such, the "these guys" in the challenged statement could also have referred t o the testifying witnesses, not the defendants. See id. at 495 ("Placed in

c o n t e x t , the prosecutor's comments do not manifest an intent to comment on [the d e fe n d a n t ]'s failure to testify . . . . The sentences immediately preceding the h ig h lig h t e d comments clarify the antecedent of `that' and `that testimony.'"). Further, as the statement came in a closing statement rebuttal, we do not think t h e jury would necessarily construe the comment as concerning the defendants' s ile n c e , instead seeing the statement as commenting on the unpersuasiveness 17

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Nos. 08-51161, 08-51162, 08-51191 o f the defendant's closing argument. Cf. id. at 496 ("Read in context, the

p r o s e c u t o r 's remarks simply argue to the jury that the defense failed to produce e v id e n c e [supporting its theory]. It is not error to comment on the defendant's fa ilu r e to produce evidence on a phase of the defense upon which he seeks to r e ly ." (quotation marks omitted)); accord United States v. Green, 324 F.3d 375, 3 8 2 (5th Cir. 2003) (prosecutor did not reference the defendant's failure to testify w h e r e the statement was made in response to a comment made by the defense). We find no reversible error on this issue. 7. Whether sufficient evidence supported Carrillo's conviction. Like Hidalgo and Romero, Carrillo argues that the evidence presented at t r ia l was insufficient to support his conviction, claiming a number of deficiencies. We disagree. W e ask "whether the evidence is sufficient by viewing the evidence and the in fe r e n c e s that may be drawn from it in the light most favorable to the verdict a n d determining whether a rational jury could have found the essential elements o f the offenses beyond a reasonable doubt." Valdez, 453 F.3d at 256 (quotation m a r k s omitted). "It is not necessary that the evidence exclude every rational h y p o t h e s is of innocence or be wholly inconsistent with every conclusion except g u ilt , provided a reasonable trier of fact could find the evidence establishes guilt b e y o n d a reasonable doubt." Id. (quotation marks omitted). Carrillo's arguments challenging the credibility of witnesses and the w e ig h t of their testimony are unpersuasive. See Casillas, 20 F.3d at 602. Carrillo's arguments concerning spillover are likewise unpersuasive. See Lewis, 4 7 6 F.3d at 384. Further, Carrillo's argument that little direct evidence shows h is knowledge of drugs or the other elements charged in the conspiracy also fails t o persuade. See United States v. Garcia Abrego, 141 F.3d 142, 155 (5th Cir. 1 9 9 8 ). The testimony presented showed that Carrillo participated in several d r u g transactions by both transporting contraband and aiding in the logistical 18

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Nos. 08-51161, 08-51162, 08-51191 a s p e c t s of several drug and money runs. This evidence, viewed in the light most fa v o r a b le to the verdict, could lead a rational jury to conclude that the G o v e r n m e n t sufficiently proved all elements of the charged crimes. See Valdez, 4 5 3 F.3d at 256. In sum, sufficient evidence supports Carrillo's conviction. 8. Whether the district court erred at sentencing. Finally, Carrillo challenges his sentence, arguing that his Sixth A m e n d m e n t rights were violated by the district court's determination of facts at s e n te n c in g and that his sentence was generally unreasonable. Carrillo's Sixth A m e n d m e n t arguments concerning the court's determination of drug quantities fo r sentencing are foreclosed. See United States v. Mares, 402 F.3d 511, 519 (5th C ir . 2005) ("The sentencing judge is entitled to find by a preponderance of the e v id e n c e all the facts relevant to the determination of a Guidelines sentencing r a n g e . . . ."); accord United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006) (e x te n d in g Mares to drug quantities). Further, because Carrillo was sentenced w it h in the Guidelines, we cannot say that his sentence was "unreasonable." See M a r e s , 402 F.3d at 519 ("If the sentencing judge exercises her discretion to im p o s e a sentence within a properly calculated Guideline range, in our r e a s o n a b le n e s s review we will infer that the judge has considered all the factors fo r a fair sentence set forth in the Guidelines."). Carrillo's arguments do not c o n v in c e us that the district court's factual findings were erroneous or that his w it h in guidelines sentence was unreasonable. We find no error in Carrillo's s e n te n ce . III. CONCLUSION F o r the foregoing reasons, we AFFIRM the judgments of conviction and s e n te n c e for each defendant. A F F IR M E D .

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