United States v. Delgado

672 F.3d 320, 2012 WL 579752, 2012 U.S. App. LEXIS 3503

Opinions

GRAVES, Circuit Judges.

*

EDITH BROWN CLEMENT, Circuit Judge, joined by EDITH H. JONES, Chief Judge, and KING, E. GRADY JOLLY, W. EUGENE DAVIS, JERRY E. SMITH, EMILIO M. GARZA, BENAVIDES, CARL E. STEWART, PRADO, OWEN, JENNIFER WALKER ELROD, LESLIE H. SOUTHWICK and GRAVES, Circuit Judges:

Defendant-Appellant Maria Aide Delgado was convicted of (1) possession of marijuana with the intent to distribute and (2) conspiracy to commit the same offense. 21 U.S.C. § 841(a)(1) & (b)(1)(B); 18 U.S.C. § 371. She was sentenced to a concurrent term of 100 months’ imprisonment for each conviction. Delgado appealed. A divided panel of this court vacated her convictions and sentences, dismissed the conspiracy charge, and remanded the case for further proceedings on the possession with intent to distribute charge. United States v. Delgado, 631 F.3d 685 (5th Cir.2011). The panel opinion was vacated by our decision to rehear the case en banc. United States v. Delgado, 646 F.3d 222 (5th Cir.2011). For the reasons stated below, we now affirm Delgado’s convictions and sentence.

I. FACTS AND PROCEEDINGS

Delgado was the sole owner-operator of TJ Trucking, a company that shipped Mexican produce from Laredo, Texas to destinations throughout the United States. Bartolomé Vasquez, a Mexican legal resident employed by a Laredo produce broker and shipper, had, at the time of Delgado’s trial, known and done business with Delgado for almost four years, during which time he assembled shipments of Mexican produce to be hauled by TJ Trucking. Vasquez dealt regularly with Delgado and estimated that they spoke approximately four times per month to arrange shipments. According to Vasquez’s testimony, he regarded Delgado as a legitimate trucking business operator until, on September 8, 2006, she offered to pay him $10,000 if he would commingle 500 pounds of marijuana in a TJ Trucking delivery of Mexican broccoli to North Carolina. He refused her offer and immediately reported the incident to Immigration and Customs Enforcement (ICE) officers in Laredo. He then secretly began working with ICE officers, withdrew his initial refusal of Delgado’s offer, and agreed to begin making arrangements for the concealed drug shipment. In cooperation with the ICE officers, Vasquez taped phone conversations he had with Delgado about the arrangements. These recordings confirmed that, in order to disguise the nature of the shipment, Delgado asked Vasquez to prepare two bills of lading— one for North Carolina, where the marijuana was bound, and one for New York, where the broccoli was bound. In the same taped conversation, Delgado and Vasquez discussed, in guarded language that Vasquez explicated on the stand, the number of boxes of broccoli that would have to be opened to hold the marijuana; that the truck’s interior would have to be heated to melt off some of the ice in which the broccoli was packed so that the increased weight of the marijuana would not arouse suspicion at a weigh station; and the possibility that the marijuana would be loaded at a different warehouse to avoid a run-in with Vasquez’s supervisor. The ICE officers had planned to have Delgado deliver the truck containing the marijuana to rendezvous with Vasquez on September 11, 2006, at a government-controlled warehouse in Laredo, where they would make arrests and seize the drugs. The shipment was canceled, however, after, as Vasquez explained, “the person who was going to work with [Delgado]” — that is, the intended recipient — was arrested. Delgado called Vasquez to tell him that the shipment was off, that the bundles of marijuana were still in the cab of her truck, and that she was waiting until night to unload them and return them to an unnamed supplier.

Acting on this information from Vasquez, government agents went to Delgado’s securely fenced and gated property, on which there were several buildings including Delgado’s residence, a barn, and multiple small storage sheds and dog kennels. The agents signaled their arrival with flashing lights, sirens, and bullhorns, but no one on the property responded. Approximately thirty minutes later, after being prompted by a phone call from a neighbor, Delgado came out of the house and spoke with the agents at the gate. She eventually allowed three agents onto the property to conduct a search. Before letting them enter her house, however, she left them on the doorstep without warning or explanation, went into the house, locked the door, and then emerged approximately ten minutes later, claiming that she had needed to use the bathroom.

Consistent with Vasquez’s report, the agents found a tractor-trailer parked in the yard. Delgado told the agents that she did not have the keys to its locked cab; she claimed they were with the driver.¹ Delgado also told the agents she could not contact the driver because she did not have his telephone number. The agents eventually were able to open the tractor-trailer cab without the key. In its sleeper berth, they found thirty-four bundles of marijuana, weighing 507 pounds. Delgado expressed no surprise at the discovery but denied knowing that the marijuana was in the cab. She blamed her “drivers,” whose “names” she claimed she could not recall. In fact, Delgado employed only one driver at that time, with whom she worked on nearly a weekly basis.

Around the time the cab was opened, another agent entered a room of Delgado’s house in which she kept approximately ten large, threatening dogs chained to the walls. Inside a cabinet, the agent found a garbage bag filled with wrapping material that smelled of marijuana and held what appeared to be marijuana seeds and residue. Delgado expressed no surprise at this discovery, either; she told the agent she thought the bags had been used to wrap potting soil. She also said they might have been placed in the house by a man named Peter, who worked for her. She told the agent she did not know Peter’s last name and did not have his contact information. In addition to the drugs, agents seized a substantial amount of ammunition and four firearms from Delgado’s residence, including a loaded TEC-9,² but they did not arrest Delgado. Vasquez testified that Delgado called him after the search and expressed her anger that the agents had seized the drugs and guns. A month later, on October 11, 2006, ICE agents returned to Delgado’s property with a search warrant, seized additional items, and arrested her.

Delgado was charged with possession of marijuana with the intent to distribute and conspiracy to commit the same offense, and following a two-day trial was convicted by a jury on both charges. The district court sentenced her to concurrent terms of 100 months’ imprisonment.

II. DISCUSSION

A. Sufficiency of the Evidence

1. Standard of Review

Delgado’s sole defense at trial was that she had no knowledge of the marijuana in her truck or of any plan to transport it.³ She did not move for a judgment of acquittal under Rule 29 on the grounds that the government had not presented adequate evidence of an agreement with co-conspirators, and she therefore failed to preserve this issue for appellate review. See United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir.1992). Delgado additionally failed to raise an insufficiency claim on appeal. In fact, in her opening brief before the panel, Delgado conceded that there was some evidence supporting her conspiracy conviction⁴ and requested a new trial on the conspiracy charge rather than a dismissal. Therefore, under this court’s well-established precedent, Delgado had clearly forfeited any challenge to the sufficiency of the evidence supporting her conviction. See, e.g., Bnnkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744 (5th Cir.1987). The panel majority, however, scrutinized the sufficiency of the evidence and dismissed the conspiracy charge sua sponte. Delgado, 631 F.3d at 689, 693. We granted rehearing en banc in part to consider whether this sua sponte dismissal was appropriate and now conclude that it was not.

It is a long-standing rule that a defendant must make an appropriate objection at trial in order to preserve an issue for appeal. The Supreme Court, however, has long recognized the authority of the courts of appeals, as a limited exception to this general forfeiture rule, to correct particularly egregious forfeited errors. See United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936). In Atkinson, the Court articulated the “plain-error” standard to be applied to review of such unpreserved claims: “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Id. at 160, 56 S.Ct. 391. Federal Rule of Criminal Procedure 52(b), originally enacted in 1944, codified what was understood as the existing plain-error practice of the courts of appeals under Atkinson.5 See United States v. Young, 470 U.S. 1, 6-7, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).

Although plain-error review is most frequently applied to errors not preserved by objection at trial, the Supreme Court, at least as early as 1962, had applied the identical plain-error standard announced in Atkinson to control those exceptional instances in which an appellate court corrects an error objected to at trial but abandoned by the defendant on appeal.⁶ Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962) (quoting Atkinson, 297 U.S. at 160, 56 S.Ct. 391) (recognizing power to notice “plain error” if “the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of the judicial proceedings”). Thus, the plain-error test has long been applied to unpreserved and unpresented errors.⁷ Moreover, in very rare instances, we have applied the plain-error standard to errors neither preserved below nor argued on appeal. See, e.g., United States v. Pineda-Ortuno, 952 F.2d 98,105 (5th Cir.1992).

In United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Court clarified the plain-error standard and discussed the meaning of the language used in Atkinson and repeated in Silber. While maintaining that Rule 52(b) was a codification of its earlier precedents and emphasizing the relative continuity of its own plain-error practice, id. at 736,113 S.Ct. 1770, the Court explicitly took the case to standardize the plain-error test for the courts of appeals, id. at 731, 113 S.Ct. 1770. As summarized in a later case, Olano explained that plain-error review under Rule 52(b) proceeds in four steps or prongs:

First, there must be an error or defect. ... Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the district court proceedings.” Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Meeting all four prongs is difficult, “as it should be.”

Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (quoting Olano). This four-step test describes a single standard for plain-error review that applies equally to our review of unpreserved and unpresented errors.⁸ See Olano, 507 U.S. at 736, 113 S.Ct. 1770 (citing Silber as an example of the Court’s consistent plain-error practice).

Although these general principles are settled by controlling Supreme Court precedent, it still may be helpful to clarify Olano’s significance. Prior to Olano, although our plain-error practice was in accord with Rule 52(b) and the Supreme Court’s plain-error decisions, our cases used multiple formulations to describe the plain-error inquiry. In United States v. Montemayor, for example, we stated that we will consider points of error not raised on appeal only to “ ‘prevent a miscarriage of justice.’ ” 703 F.2d 109, 114 n. 7 (5th Cir.1983). Other cases cited the language used in Atkinson and repeated in Silber, and corrected errors that “seriously affected] the fairness, integrity, or public reputation of judicial proceedings.” See, e.g., United States v. Musquiz, 445 F.2d 963, 966 (5th Cir.1971).

Acknowledging the use of these and other formulations by the courts of appeals, Olano clarified that plain-error review proceeds in four discrete steps. Specifically, the Court emphasized that the “miscarriage of justice” standard quoted in our circuit and others, and the “fairness, integrity, public reputation” language used in Atkinson and Silber, are both formulations intended only to guide a reviewing court’s exercise of its discretion under the fourth prong of the test. Olano, 507 U.S. at 736, 113 S.Ct. 1770. These standards are therefore only applicable when the first three prongs of the test have been satisfied — they are not alternatives to the full four-prong test. Focusing only on the fourth prong of the analysis obscures the fact that the first three prongs of plain-error analysis are distinct requirements that must be satisfied before we have authority to correct an unpreserved error. Id. at 732-36,113 S.Ct. 1770.

The four-prong analysis is applicable to all forfeited claims of error and all errors not pressed on appeal, including Delgado’s claim that the evidence was insufficient to support her conspiracy conviction. We review properly preserved claims that a defendant was convicted on insufficient evidence with substantial deference to the jury verdict, asking only “whether a rational jury could have found each essential element of the offense beyond a reasonable doubt,” United States v. Pennington, 20 F.3d 593, 597 (5th Cir. 1994), and the plain-error test imposes an even stricter standard on unpreserved insufficiency claims. This is the natural result of the requirement of the second prong of the plain-error test that a defendant demonstrate not only error, but plain error. In this context, “plain” is synonymous with “clear” or “obvious.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “Plain” error is error so clear or obvious that “the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” United States v. Hope, 545 F.3d 293, 296 (5th Cir.2008) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)).

Applying this requirement of “obviousness,” we have described the standard of review for unpreserved insufficiency claims in the most exacting language, stating that such a claim “will be rejected unless the record is devoid of evidence pointing to guilt or if the evidence is so tenuous that a conviction is shocking.” United States v. Phillips, 477 F.3d 215, 219 (5th Cir.2007) (emphasis added) (internal quotation marks omitted). Similarly, we have summarized the plain-error test’s application to unpreserved insufficiency claims by stating that the court will reverse only if there is a “manifest miscarriage of justice.” See, e.g., United States v. Pierre, 958 F.2d 1304, 1311 (5th Cir.1992) (en banc).⁹ We reaffirm these standards as proper applications of the plain-error test to claims of evidentiary insufficiency. Put simply, to satisfy the second prong of the plain-error test, Delgado must demonstrate not just that the government’s evidence of conspiracy was insufficient, but that it was obviously insufficient.

In her en banc brief, Delgado attempts to lower this admittedly high bar by urging the court to reconsider our application of the plain-error test to insufficiency claims. Delgado contends that application of anything other than the general sufficiency standard, applicable in the district court on a motion for judgment of acquittal and in this court on properly preserved and presented claims, violates the Due Process Clause by allowing convictions to stand on insufficient evidence.

This constitutional argument is unpersuasive. Although due process requires the government to present evidence sufficient to prove each element of a criminal offense beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Constitution does not require that the sufficiency of the evidence be subject to de novo review in all cases. We routinely review constitutional claims under otherwise-applicable, deferential standards of review, and “[i]t is a truism that a ‘constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ” United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994) (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)). Moreover, even if we found merit in Delgado’s argument specific to the sufficiency standard, we are bound by the Supreme Court’s plain-error cases, which we do not read as allowing for any exceptions to the application of the plain-error test for forfeited claims. See Puckett v. United States, 556 U.S. 129,129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (rejecting “the creation of an unjustified exception” to Rule 52(b), which applies to “all” forfeitures).

We recognize that there is some support for the contention that application of the plain-error standard often bears little practical difference from application of the standard for reviewing preserved insufficiency claims. While all of the circuits agree that plain-error review applies to unpreserved insufficiency claims, three circuits have stated, at least at times, that application of the plain-error standard has little practical impact because a conviction on constitutionally insufficient evidence will almost always satisfy the third and fourth prongs of the test.¹⁰ Even assuming, however, that the final two prongs of the plain-error analysis are always satisfied when a defendant is convicted on insufficient evidence, prong two — the requirement that the error be plain, clear, or obvious — must be satisfied, and this requirement imposes a greater burden on forfeited claims.¹¹

It is worth reiterating that the limitations imposed by the plain-error test promote important judicial policies. With respect to unpreserved errors, these limitations serve “to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. That court is ordinarily in the best position to determine the relevant facts and adjudicate the dispute.” Id. at 1428. The contemporaneous-objection rule also “prevents a litigant from ‘sandbagging’ the court — remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.” Id. With respect to unpresented errors, plain-error review ensures that the court is not placed in the position of an advocate scouring the record in search of hidden errors detrimental to one party in the case. The duty to zealously promote a defendant’s interests falls to counsel, which preserves the court’s role as a neutral adjudicator. Noticing plain errors — errors which are obvious and which counsel and the trial court should have recognized¹² — does not compromise the court’s impartiality, because it does not require the court to take up the case with an eye particular to one party’s interests.

2. Analysis

The record before us is certainly not “devoid of evidence” that Delgado conspired to possess with intent to distribute marijuana. Indeed, viewing “the evidence in the light most favorable to the government, [and] drawing all reasonable inferences and credibility choices made in support of the verdict,” United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998) (internal quotation marks omitted), the evidence presented at trial was more than sufficient to support Delgado’s conspiracy conviction, as it shows that Delgado conspired with both her supplier and her intended purchaser in a large-scale drug distribution scheme.

Delgado, borrowing her arguments from the panel majority opinion, now contends that the evidence against her supports only a finding that she was in a mere “buyer-seller” relationship with both her supplier and her intended purchaser. This argument misunderstands the scope of the so-called “buyer-seller exception” in this circuit and ignores substantial evidence. The buyer-seller exception prevents a single buy-sell agreement, which is necessarily reached in every commercial drug transaction, from automatically becoming a conspiracy to distribute drugs. The rule shields mere acquirers and street-level users, who would otherwise be guilty of conspiracy to distribute, from the more severe penalties reserved for distributers. See United States v. Parker, 554 F.3d 230, 235-36 (2d Cir.2009). Thus, “[w]hile it is true that a buyer-seller relationship, without more, will not prove a conspiracy, ... [o]ne becomes a member of a drug conspiracy if he knowingly participates in a plan to distribute drugs, whether by buying, selling or otherwise.” United States v. Maseratti, 1 F.3d 330, 336 (5th Cir.1993) (emphasis added).

The evidence clearly supports the conclusion that Delgado knowingly participated in a plan to distribute drugs: Vasquez’s testimony, which we must credit, described in detail Delgado’s plan to transport and resell a quarter-ton of marijuana. Moreover, specific facts support the finding that, rather than acting alone, Delgado worked with a supplier and an intended buyer who shared her intent to distribute the drugs in her possession. With respect to her unnamed supplier, Vasquez testified that after Delgado’s intended recipient was arrested, Delgado was going to wait until nighttime to “take that marijuana back to her source of supply.” If Delgado had initially obtained the marijuana from her source in a one-time basic buy-sell transaction, she would not have thought she could return $100,000 worth of drugs so easily. The supplier’s anticipated willingness to take the drugs back merely because Delgado’s intended plan to resell had fallen through is evidence that Delgado and the supplier were working together with the shared goal of reselling the drugs. Delgado’s plan to return the drugs therefore strengthens the more general inference that a dealer in wholesale quantities of drugs, such as Delgado’s supplier, is likely to have an interest in his buyers’ ability successfully to resell the drugs.¹³

Delgado’s argument that return policies are a common feature of many types of retail transaction is beside the point because it fails to recognize that a return policy is a way of encouraging repeat business by providing support to a customer that extends beyond the initial sale. When a wholesaler attempts to cultivate a repeat customer by offering a return policy to a purchaser who he knows will resell the merchandise, the wholesaler takes an interest in the success of the customer’s resale business,¹⁴ whether return policies are common or not.¹⁵ Thus, the jury could reasonably conclude, as it did, that Delgado conspired with her supplier.

The government also presented significant evidence that Delgado conspired with her intended recipient in North Carolina. Vasquez testified that Delgado was waiting to be paid by her buyer for the marijuana in advance of shipment.¹⁶ Receiving fronted money in a drug deal is “ ‘strong evidence’ of membership in a conspiracy because it indicates a strong level of trust and an ongoing, mutually dependent relationship.” United States v. Posada-Rios, 158 F.3d 832, 860 (5th Cir.1998) (discussing fronting of drugs).

Delgado referred to her intended buyer as “the person who was going to work with her,” indicating that their relationship extended beyond one simple buy-sell transaction. Moreover, the quantity of drugs— over 500 pounds — is itself evidence that Delgado was involved in a conspiracy. Though possession of a large quantity of drugs is not, by itself, sufficient to support a conspiracy conviction, it is evidence that can help “justify the inference that more than one person must be involved in moving [the large quantity] toward its ultimate dispersal.” United States v. Barnard, 553 F.2d 389, 393 (5th Cir.1977).

For the reasons stated above, we conclude that Delgado’s conspiracy conviction was sufficiently supported by the evidence. The record, therefore, was far from “devoid of evidence” of Delgado’s guilt. Because the insufficiency argument is unmeritorious, it necessarily follows that the panel majority should not have addressed it, as a court obviously has no reason to raise an issue sua sponte only to conclude that it is meritless. The issue was properly subject to the general rule that arguments not raised on appeal are forfeited.

B. Alleged Trial Errors

In addition to her insufficiency claim, Delgado argues that several trial errors, considered either individually or in the aggregate, require reversal of her convictions. We consider each of her allegations of error individually before examining the applicability of the cumulative error doctrine.

1. Prosecutorial Misconduct

Delgado argues that the United States attorney committed reversible misconduct in his closing argument by stating to the jury that Delgado had lied to the ICE agents who discovered the marijuana on her property. In considering whether prosecutorial misconduct warrants reversal, the “determinative question is whether the prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.” United States v. Virgen-Moreno, 265 F.3d 276, 290 (5th Cir.2001) (quoting United States v. Iredia, 866 F.2d 114, 117 (5th Cir.1989)).

This is what the prosecutor said at the end of his closing rebuttal:

Talk about motive to lie, ladies and gentlemen. Who has the motive to lie here? The driver? No. He’s working all' around. Mr. Vasquez? No. He’s in Laredo. He’s not a permanent snitch. He’s not one of those individuals that makes his living off providing information. He’s provided it twice in the past. The agents? You’re going to blame the agents for all this? Whose [sic] got the motive to lie here? It’s the Defendant, and she’s done so. She did so to these agents.

Defense counsel objected to the statement, noting that Delgado “has not testified ... in this case.” The judge sustained the objection. No curative instruction was requested, and none was given sua sponte,17 although the judge had instructed the jury prior to the closing arguments that the lawyers’ statements did not constitute evidence.

The context is crucial to determining the effect of the statement. The defense rested without offering any witnesses. After the judge charged the jury, the prosecutor explained in his initial closing argument how Delgado’s conduct met each element of the charged offenses. There were no objections. Defense counsel began his closing by acknowledging that “[t]hings look real bad for Ms. Delgado,” but he attempted to paint Delgado as open and straightforward in her dealings with the government agents. He argued that the evidence indicated that Delgado’s “demeanor ... is, come on in. She unlocks everything. She shows them everything. So, nothing she’s holding back.” Delgado, he contended, “never had any reason not to let them see everything.... She didn’t hide anything.”¹⁸ Defense counsel then shifted to an attack on the credibility of the government’s other witnesses. He suggested the possibility that “Mr. Vasquez is controlling” and that Delgado was being set up. He pointed out inconsistencies in Aguilar’s statements and hinted that Aguilar should have been considered a suspect.

In his rebuttal, the prosecutor addressed the defense’s arguments head-on. He first challenged the assertion that Delgado had been completely forthcoming with the federal agents and then used the majority of his rebuttal to summarize the evidence that Delgado must have had the keys, and therefore control over the tractor trailer, during the time the marijuana was stashed in its cab. His summary, in part, was as follows:

What do we know? We know this marijuana was found on her property, in her tractor. And yes, she’s being cooperative [with the initial search of her property], let them look through the house. There’s nothing in the house. She knows that____ But when it comes to the tractor trailer, don’t know where those keys are. Don’t know. Must be the driver’s.... Does it make any sense for the driver to have the key? If the driver had the key, how’s he going to get the tractor out of there? He doesn’t have a key to the gate [to Delgado’s property]. Does that make any sense for the driver to have the keys, that he can’t get in to the tractor, and if he does get in, he can’t get out because the gate. That makes no sense.... [The driver] took [the truck] to Donna[, Texas] to have it fixed, and that’s where he left it. That was on 9/9; 9/9 he dropped it off. They keys were in the truck.... He again sees it on 9/13 [when Delgado meets him at the mechanic’s shop]. Well, how in the world did that tractor get from the place in Donna on 9/9 back to her house on 9/11, when the agents found all the dope in it? Agents found all the dope on 9/11, and then somehow this tractor trader once again appears on 9/13 at the mechanic’s store. She had the keys. That’s how that happened. That’s the only way it could happen. There’s only one set of keys, and she had them.

It was after this explanation that he made the contested statement.

The remark that Delgado had lied was a straightforward comment on the evidence, not an improper assertion of the prosecutor’s personal opinion. The evidence showed that Delgado must have had the keys — the natural corollary being that she must have been lying to the federal agents about her access to the cab. In this context, the prosecutor’s statement was proper. Cf. United States v. Loney, 959 F.2d 1332, 1343 (5th Cir.1992) (“In his closing argument, the prosecutor ... told the jury that ‘[h]e’s not being truthful with you.’ ... The prosecutor ... drew the jury’s attention to the fact that [the defendant] had said one thing but his actions showed another.... [T]he comments of the prosecutor were entirely appropriate, given the evidence before the jury.”). “It is well established that an attorney may recite to the jury those inferences and conclusions he wishes them to draw from the evidence so long as they are based on the evidence.” United States v. Webb, 950 F.2d 226, 230 (5th Cir.1991). Moreover, “unflattering characterizations of a defendant will not provoke a reversal when such descriptions are supported by the evidence.” United States v. Windom, 510 F.2d 989, 994 (5th Cir.1975) (finding no error in a prosecutor’s reference to a defendant as a “con artist”).

A prosecutor may not go beyond the evidence and attack a defendant’s character or veracity. See United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237-38 (5th Cir.1990). But reciting the conclusion that the defendant lied on a particular occasion is not, as Delgado contends, equivalent to calling the defendant a liar. Here, the prosecutor’s statement was an inference drawn from specific evidence, not an attack on Delgado’s character.

The prohibition on giving personal opinions prevents a prosecutor from giving the jury the impression that he has superior knowledge of the facts based on private information not admitted into evidence. See United States v. Morris, 568 F.2d 396, 401 (5th Cir.1978). Thus, the Supreme Court has stated that “assertions of personal knowledge are [especially] apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Improper assertion of a prosecutor’s personal opinion “is easily recognized.” Bennett L. Gershman, Prosecutorial Misconduct § 11:24 (2d ed.2010). Unlike the statement at issue here, “[i]t includes personal expressions such as T think,’ T know,’ ‘I believe,’ or other expressions that either explicitly or implicitly convey the prosecutor’s personal impressions.” Id. Contrary to Delgado’s suggestion, the contested statement included no indication that the prosecutor was trying to sway the jury by stating his personal opinion, and it certainly did not imply that he was relying on information that was not admitted into evidence. While the prosecutor should have chosen his words more carefully, his argument differs from improper argument in that its meaning and effect would have been no different had he simply added the words “As I’ve explained, the evidence shows” before stating that Delgado had lied.

Moreover, even if the comment was inappropriate, it certainly does not merit reversal of Delgado’s convictions.¹⁹ A criminal defendant seeking a reversal of his conviction for prosecutorial misconduct “bears a substantial burden,” Virgen-Moreno, 265 F.3d at 290, which is why we have refused to reverse even when improper arguments were admittedly inflammatory. See, e.g., Anchondo-Sandoval, 910 F.2d at 1237 (affirming conviction despite prosecutor stating, “I am going to tell you my feelings in this case — the defendant in this case is one of the most artful liars I have ever met”); United States v. Fields, 483 F.3d 313, 360 (5th Cir.2007) (holding that defendant’s substantial rights were not affected when the prosecutor referred to him as a “psychopath” during closing argument); United States v. Iredia, 866 F.2d 114, 117 (5th Cir.1989) (no reversible error where “prosecutor accused [defendant] of intentionally disguising his handwriting while giving an exemplar”).

Overturning a jury verdict for prosecutorial misconduct is appropriate only when, “taken as a whole in the context of the entire case,” the prosecutor’s comments “prejudicially affect[ed the] substantial rights of the defendant.” United States v. Risi 603 F.2d 1193, 1196 (5th Cir.1979). In determining whether the defendant’s substantial rights were affected, we consider three factors: “(1) the magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction.” United States v. Wyly, 193 F.3d 289, 299 (5th Cir.1999) (internal quotation marks omitted). “If the evidence to support a conviction is strong, then it is unlikely that the defendant was prejudiced by improper arguments of the prosecutor and reversal is not required.” United States v. Casel, 995 F.2d 1299, 1308 (5th Cir.1993), vacated on other grounds as to one defendant sub nom. Reed v. United States, 510 U.S. 1188, 114 S.Ct. 1289, 127 L.Ed.2d 644 (1994).

The contested statement was weakly prejudicial, if at all. The statement was strongly supported by the evidence presented, making it unlikely that the jury relied on the prosecutor’s statement to reach the conclusion that Delgado had lied about her access to the tractor-trailer. Any prejudice is further limited because, as demonstrated above, the prosecutor’s comment neither attacked Delgado’s general character nor hinted that he was relating private information confirming Delgado’s guilt. Moreover, the alleged misconduct was limited to one brief statement. “A criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone,” United States v. Neal, 27 F.3d 1035, 1051 (5th Cir.1994), and a single statement at closing will rarely justify reversal:

We must view the prosecutor’s statement in light of [the] entire trial____

[W]hile the prosecutor may have accused [the defendant] of lying, these comments were neither persistent nor pronounced when considered within the context of the entire closing argument, and they did not violate his substantive rights.

Bradford v. Whitley, 953 F.2d 1008, 1013 (5th Cir.1992) (internal quotation marks and citations omitted); see also Wyly, 193 F.3d at 299 (“For prosecutorial misconduct to warrant a new trial, it must be so pronounced and persistent that it permeates the entire atmosphere of the trial.”). Obviously the statement at issue here, a single line from a closing argument spanning fifteen transcript pages, was neither “persistent nor pronounced.”

Turning to the second factor, where no cautionary instruction is requested, the lack of a sua sponte instruction counts neither in favor of nor against reversal. See United States v. Sanchez, 961 F.2d 1169, 1176 (5th Cir.1992). The third factor — the strength of the evidence against Delgado — clearly weighs against reversal. Specifically as to the knowledge element of the charged offenses, the government presented overwhelming evidence: Vasquez’s testimony, which we must credit, provided extensive direct evidence of Delgado’s knowledge that was corroborated by virtually every type of circumstantial evidence, including the uncontradicted evidence that the truck was under Delgado’s exclusive control when it was loaded with more than 500 pounds of marijuana. Weighing each of the three factors, then, it is apparent that Delgado’s substantial rights were not affected; the prosecutor’s comment, which was closely supported by the evidence, did not “east serious doubt” on the jury’s guilty verdict. Virgen-Moreno, 265 F.3d at 290. The prosecutor’s statement did not constitute error, and certainly did not meet the high bar that would necessitate a reversal of Delgado’s convictions.

2. Failure to Declare Mistrial

Delgado also argues that her trial was rendered unfair by the testimony of the government’s case agent, Agent Spivey of ICE. On cross-examination, Delgado’s trial counsel inquired into the scope of the government’s investigation. Defense counsel first asked Spivey about the initial search of Delgado’s property on September 11, 2006, when the marijuana was discovered and seized. Counsel then began questioning Spivey about the government’s subsequent investigation, particularly the seizure of additional items from Delgado’s property a month later on October 11. After Spivey testified that these seized items yielded no useful evidence, the following exchange ensued:

Q Did you all try to investigate [Delgado’s] income to see, you know, how much money she makes ... or—

A No, sir.

Q Did you all investigate I believe it was TJ Trucking?²⁰

A We had prior knowledge of TJ Trucking being involved in narcotics trafficking, yes.

Defense counsel then moved to strike Spivey’s last response, and following a bench conference moved for a mistrial. The district court sustained the objection and thoroughly instructed the jury to disregard the statement.²¹ The district court concluded that the “prejudicial effect outweighs the probative value of that answer,” but he denied the defense’s motion for a mistrial because “[t]he question was asked by you [defense counsel]. I think it was fairly invited, that answer.”

On appeal, Delgado argues that Spivey’s answer was inadmissable under Federal Rule of Evidence 404(b) as evidence of an extraneous offense. This argument is unconvincing. Spivey’s statement did not refer to an extraneous offense. Delgado was the sole owner and operator of TJ Trucking. Thus, Spivey’s statement that TJ Trucking was involved in drug trafficking merely restates that Delgado was involved, so the statement was simply evidence of the charged offense. Delgado contends that Spivey’s reference to “prior knowledge” indicates that he was commenting on a separate investigation of a previous offense. But this is hardly clear from the context. Spivey’s comment came during a line of questions regarding his subsequent investigation of Delgado a month after the initial search of her property. In that context, the statement that Spivey had “prior knowledge” of TJ Trucking’s involvement in drug trafficking likely referred to the fact that during the initial search, agents had found a large shipment of marijuana in TJ Trucking’s truck. Delgado responds that she and her trucking company were implicated in a separate investigation and that Spivey’s comment was based on his knowledge of that separate offense. Even if Delgado’s interpretation of the testimony is correct, however, Spivey’s meaning would not have been appreciated by the jurors, who were unaware of the other investigation. The statement itself, without elaboration, gave no indication to the jury that it was about any crime other than those for which Delgado was being tried.

Moreover, as the district court correctly concluded, Agent Spivey’s testimony was invited by defense counsel’s question. We agree with the prosecutor’s observation, made during the bench conference, that defense counsel “asked the question open-ended and did not know the answer, and that was the answer.”²² “The doctrine of invited error applies to this situation; when injection of inadmissible evidence is attributable to the actions of the defense, the defense cannot later object to such ‘invited error.’ ” United States v. Raymer, 876 F.2d 383, 388 (5th Cir.1989); see also United States v. Lewis, 524 F.2d 991, 992 (5th Cir.1975) (“A defendant cannot complain on appeal of alleged errors invited or induced by himself, particularly where, as here, it is not clear that the defendant was prejudiced thereby.”). Thus, Delgado could not prevail on her appeal even if the district court had admitted the contested testimony. But crucially, the district court upheld defense counsel’s objection, and gave a strong curative instruction to the jury, so Delgado cannot claim evidentiary error. Thus, Delgado’s only argument on appeal is that the district court abused its discretion in denying her motion for a mistrial.

When denying a motion for a mistrial, the district court abuses its discretion, giving rise to reversible error, only “if the evidence, when viewed in the context of the whole trial, is so highly prejudicial that it would have had a substantial impact on the jurors’ verdict.” United States v. Baresh, 790 F.2d 392, 402 (5th Cir.1986). Spivey’s statement falls well short of the level of prejudice that would have necessitated a mistrial. As explained above, heard in context, his testimony did little more than repeat a fact of which the jury was already well aware: the government believed Delgado was involved in drug trafficking. Moreover, any prejudice was mitigated by the district court’s prompt and thorough curative instruction. See United States v. Kimble, 719 F.2d 1253, 1258 (5th Cir.1983) (“We are satisfied that the error inherent was mitigated and rendered harmless by the trial judge’s prompt curative instruction.”). The district court obviously did not abuse its discretion in refusing to declare a mistrial. We therefore reject Delgado’s allegation of error.

3. Deliberate Ignorance Instruction

Delgado next alleges that the district court erred by giving a deliberate ignorance jury instruction.²³ Proving “deliberate ignorance” is one way for the government to satisfy the knowledge requirement of 21 U.S.C. § 841(a)(1). See United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir.1990). “The term deliberate ignorance ‘denotes a conscious effort to avoid positive knowledge of a fact which is an element of an offense charged, the defendant choosing to remain ignorant so he can plead lack of positive knowledge in the event he should be caught.’ ” Id. (quoting United States v. Restrepo-Granda, 575 F.2d 524, 528 (5th Cir.1978)). In order to avoid the risk of confusing the jury as to the government’s burden on the knowledge element, a deliberate ignorance instruction should be given only when the government presents evidence of the defendant’s “(1) subjective awareness of a high probability of the existence of illegal conduct and (2) purposeful contrivance to avoid learning of the illegal conduct.” United States v. Threadgill, 172 F.3d 357, 368 (5th Cir.1999). Delgado made no objection to the instruction given below, so it must be reviewed for plain error.²⁴

Assuming arguendo that the instruction was not appropriate, Delgado cannot show that the error affected her substantial rights. Under well-established precedent, the error in giving a deliberate ignorance instruction in the absence of evidence of contrivance is “ ‘harmless where there is substantial evidence of actual knowledge.’ ” Id. at 369 (quoting United States v. Cartwright, 6 F.3d 294, 301 (5th Cir.1993)). As described above, the government put on substantial evidence of Delgado’s actual knowledge, so Delgado could not have been prejudiced by the challenged instruction. This alleged error provides no grounds for a reversal of Delgado’s convictions.

A Buyer-Seller Instruction

In connection with her argument, addressed above, that the evidence was insufficient to support her conspiracy conviction, Delgado argues that the district court erred in failing to instruct the jury that a buyer-seller relationship alone does not constitute a conspiracy. Again, this objection was not raised below and must therefore be reviewed only for plain error.²⁵ But Delgado concedes that it is not error, at least in this circuit, to forego a buyer-seller instruction if the jury is otherwise correctly instructed on the law of conspiracy. United States v. Mata, 491 F.3d 237, 241 (5th Cir.2007).²⁶ The district court’s conspiracy instructions were more than adequate. Additionally, and most importantly, a buyer-seller instruction would not have been appropriate here because, as explained above, the evidence went well beyond a buyer-seller relationship.

5. Sears Instruction

Delgado also contends that the district court erred by failing to give a Sears instruction on the conspiracy charge. In Sears v. United States, a panel of this court held that in appropriate circumstances the district court should instruct the jury that an “agreement” with a government agent cannot be the basis for a conspiracy conviction because a government agent does not share the accused’s criminal purpose. 343 F.2d 139, 142 (5th Cir.1965) (“[A]s it takes two to conspire, there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy.”). On appeal, Delgado argues that the evidence showed that she had attempted to conspire only with Yasquez, the informant, and that a Sears instruction was therefore required.

We first note that Delgado neither requested, nor objected to the absence of, a Sears instruction at trial.²⁷ “[T]he usual rule is that the failure of the district court to afford an instruction to the jury cannot be complained of on appeal in the absence of request or objection by counsel in the trial court.” United States v. Jones, 673 F.2d 115, 118 (5th Cir.1982). Our review is only for plain error, so Delgado must demonstrate a plain error that affected her substantial rights before we even have discretion to reverse her conviction. On plain-error review, unpreserved challenges to omitted jury instructions are reversible “only in egregious instances.” United States v. Arky, 938 F.2d 579, 582 (5th Cir.1991).

Although a Sears instruction would have been appropriate because Delgado’s co-conspirators were unnamed, and a substantial amount of the testimony against Delgado came from a government informant, several considerations make it clear that the instruction’s omission was not reversible error.²⁸ First, the evidence of true co-conspirators is more substantial here than in Sears. The need for a Sears instruction is inversely related to the strength of the evidence that the defendant entered an agreement with actual co-conspirators, not just government agents. Where the evidence clearly establishes that the defendant conspired with nongovernmental participants, the mere fact a government agent was also involved in the scheme does not necessitate a Sears instruction. See United States v. Slaughter, 238 F.3d 580, 585 (5th Cir.2000). In Sears, “[t]here was no evidence that [the defendant] ever had any contact with [his alleged co-conspirators] or that he even knew they were assisting [the government agent] in the [illegal] operation.” 343 F.2d at 141. Moreover, it was undisputed that the government agent approached the defendant to propose an illegal scheme and that the government agent, acting alone, enlisted the help of the defendant’s alleged co-conspirators. Thus, “[i]n view of the posture of the evidence,” we concluded that a specific cautionary instruction was required. Delgado, on the other hand, was already involved in a conspiracy to transport drugs when she approached Vasquez for assistance, making this case more analogous to Slaughter than to Sears. In Slaughter, we held that the trial court had not erred by failing to give an unrequested Sears instruction because the government had “presented evidence at trial to establish a conspiracy existed which included [the defendant] and five others who were not government agents or informants.” 238 F.3d at 585. Similarly, as discussed above, the evidence against Delgado established the existence of two co-conspirators apart from the informant.

Second, the government never asserted that Delgado had conspired with Vasquez. “[W]e review claimed deficiencies in a jury charge by looking to the entire charge as well as the arguments made to the jury.” United States v. Tovias-Marroquin, 218 F.3d 455, 457 (5th Cir. 2000) (quoting United States v. Chagra, 807 F.2d 398, 402 (5th Cir.1986)). The government argued at closing that Delgado had conspired with her supplier and her intended purchaser.²⁹

Third, although the district court did not explicitly instruct the jury that an apparent agreement with a government informant cannot constitute a conspiracy, the instructions given by the court effectively minimized the risk that the jury would confusedly consider Vasquez a co-conspirator. In addition to other accurate instructions on the law of conspiracy, the written jury charge included the instruction that a conspiracy “is a kind of ‘partnership in crime’ in which each member becomes the agent of every other member.” It was abundantly clear from the evidence that Yasquez, who never had the requisite intent to further the conspiracy, was not Delgado’s “partner in crime.” In light of the significant evidence of proper co-conspirators, the government’s closing argument, and the particular instructions given by the district court, we conclude that the district court did not err by failing to give a Sears instruction sua sponte.

It is worth noting that even on the assumption the district court erred, Delgado could not come close to demonstrating reversible plain error. The “failure to give an ... instruction [sua sponte] is not plain error simply because, if requested, the district court’s failure to do so would have been reversible.” Jones, 673 F.2d at 119. Importantly, Delgado never advanced the defense that she conspired only with a government agent; presumably as a strategic trial decision, she based her defense solely on the knowledge element. Thus, the lack of a Sears instruction did not impede her defense. As the Ninth Circuit has held in similar cases, “[w]here a defendant does not offer a particular instruction, and does not rely on the theory of defense embodied in that instruction at trial, the district court’s failure to offer an instruction on that theory sua sponte is not plain error.” United States v. Montgomery, 150 F.3d 983, 996 (9th Cir.1998); accord United States v. Romero, 282 F.3d 683, 689 (9th Cir.2002). Now that her chosen defense strategy has failed, Delgado should not be afforded an opportunity to advance alternative, forgone defenses. The argument that she was entitled to a Sears instruction is unpersuasive, and in any event it is forfeited and she cannot demonstrate plain error. This alleged point of error provides no grounds for reversal.

6. Transcript Omissions

Delgado finally argues that omissions in the trial transcript violate the Court Reporter Act, 28 U.S.C. § 753(b), and necessitate a new trial. There is little need to address this argument at length. To be entitled to a reversal of her convictions, Delgado must demonstrate that a “substantial and significant portion of the record” is missing. United States v. Selva, 559 F.2d 1303, 1306 (5th Cir.1977). Although Delgado points to numerous ellipses in the trial transcript, her appellate counsel admitted at argument that the omissions include only those brief interludes during which the speakers’ voices were inaudible or otherwise unintelligible.³⁰

Our cases make clear that a gapless transcription of a trial is not required. We have not found reversible error even when a transcript was missing seventy-two bench conferences. United States v. Gieger, 190 F.3d 661, 667 (5th Cir.1999); see also United States v. Aubin, 87 F.3d 141, 149-50 (5th Cir.1996) (holding that failure to transcribe nine bench conferences did not constitute reversible error). All of Delgado’s objections and all of the district court’s rulings are on the record. Delgado has not demonstrated that any of the short omissions in the transcript were “significant” or “substantial” as required by our precedents.

7. Cumulative Error Analysis

Delgado additionally argues that several alleged trial errors, discussed individually above, when considered cumulatively, require reversal of her convictions. “[T]he cumulative error doctrine ... provides that an aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield a denial of the constitutional right to a fair trial, which calls for reversal.” Munoz, 150 F.3d at 418. The cumulative error doctrine has no applicability to Delgado’s trial.

“Cumulative error” justifies reversal only when errors “so fatally infect the trial that they violated the trial’s fundamental fairness.” Fields, 483 F.3d at 362.³¹ We have repeatedly emphasized that the cumulative error doctrine necessitates reversal only in rare instances³² and have previously stated en banc that “the possibility of cumulative error is often acknowledged but practically never found persuasive.” Derden v. McNeel, 978 F.2d 1453, 1456 (5th Cir.1992) (en banc). Its application is especially uncommon where, as here, the government presents substantial evidence of guilt.³³ The doctrine justifies reversal only in the unusual case in which synergistic or repetitive error violates the defendant’s constitutional right to a fair trial. That did not happen here.

Delgado has, at most, demonstrated one possible harmless error — the deliberate ignorance instruction. As discussed above, this error clearly does not merit the reversal of Delgado’s convictions. Because we have rejected her other allegations of error, and non-errors have no weight in a cumulative error analysis, there is nothing to accumulate.³⁴ Thus, the cumulative error doctrine has no applicability to Delgado’s allegations of error.

C. Sentence Enhancement

The district court applied a two-level enhancement to Delgado’s sentence for her role in the offense pursuant to section 3B1.1(c) of the United States Sentencing Guidelines, which increased her sentencing range from 78-97 to 97-121 months. Delgado was sentenced to 100 months of imprisonment. She challenges the district court’s determination that she played a leadership or managerial role in the drug ring. The district court’s factual findings at sentencing are reviewed for clear error. United States v. Zuniga-Peralta, 442 F.3d 345,347 (5th Cir.2006).

Section 3B1.1(c) provides that the enhancement is appropriate where “the defendant was an organizer, leader, manager, or supervisor in any criminal activity.” The application notes to section 3B1.1 require that the defendant either (1) exercised control over another participant in the offense, or (2) “exercised management responsibility over the property, assets, or activities of a criminal organization.” U.S.S.G. § 3B1.1, cmt. n.2. The district court adopted the PSR’s enhancement recommendation over Delgado’s objection, stating that “she seemed to have a pretty organizational type role, kind of managing this transportation ring.”

The district court’s factual finding that Delgado exercised management responsibility over the property and activities of a drug trafficking ring is not clearly erroneous. She exercised control over a large quantity of drugs and the truck used to transport them. The evidence also shows that she made arrangements for their transportation and delivery.

III. CONCLUSION

For the reasons stated above, Delgado’s convictions and sentence are

AFFIRMED.

HAYNES, Circuit Judge, concurs in the judgment only.

Judge Higginson was not a member of the court when this case was submitted to the court en banc and did not participate in this decision.

1 . Albert Aguilar, Delgado’s only driver at the time, consistently testified that the keys to the tractor-trailer were either kept in the truck or given directly to Delgado, that he knew of only one set of keys, and that he did not have them at the time the agents searched the truck.

2 . Agent Spivey of ICE testified that the TEC-9 is a weapon of choice for many drug traffickers.

3 . Both her motion for a judgment of acquittal at the close of the government's evidence and her counsel's closing argument relied solely on her claimed lack of knowledge.

4 . Specifically, Delgado’s opening brief refers to "the almost non-existent evidence of coconspirators." Even this view of the evidence against her, which the remainder of our discussion shows to be plainly inaccurate, admits the existence of some evidence, which is all that is needed to affirm the conviction under the applicable standard of review.

5 . Rule 52(b) provides: "A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”

6 . The Silber Court therefore acknowledged a very limited and discretionary exception to the long-standing rule that appellate courts will not address non-jurisdictional errors not briefed by an appellant. See, e.g., Clements v. Macheboeuf, 92 U.S. 418, 425, 23 L.Ed. 504 (1876) ("Matters not assigned for error will not be examined.”). We have no obligation to address — much less ferret out — errors not presented in an appellant's opening brief, and as a general matter, such matters are forfeited. See, e.g., United States v. Banks, 624 F.3d 261, 264 (5th Cir.2010); United States v. Avants, 367 F.3d 433, 449 (5th Cir.2004); United States v. Barksdale-Contreras, 972 F.2d 111, 115 (5th Cir.1992); United States v. Mejia, 844 F.2d 209, 214 n. 1 (5th Cir.1988).

7 . Even on the assumption, which we reject, that a more flexible standard of review applies to unpresented points of error than to unpreserved errors, Delgado could not benefit from the more flexible standard because her insufficiency claim was both unpreserved and unpresented on appeal. A litigant who would otherwise face plain-error review on an unpreserved issue clearly cannot gain a more favorable standard of review by also failing to raise the alleged error on appeal.

8 . This acknowledgment that the same standard of review applies to both unpreserved and unpresented errors does not imply that these types of errors stand on equal footing before the courts of appeals. In the overwhelming majority of cases, we — along with every other circuit — simply do not review or address potential errors, plain or otherwise, not presented in the appellant's opening brief. We do, on the other hand, frequently address alleged errors pressed in this court that were not preserved by an appropriate objection below.

The present discussion merely clarifies that in those exceptional instances in which we sua sponte address an unpresented error, the applicable standard of review is the plain-error test, rather than a more flexible or subjective standard.

9 . Our cases citing the "manifest miscarriage of justice” standard have not always explicitly recognized that they were applying the four-prong plain-error test. In Pierre, however, we expressly acknowledged, en banc, that the "manifest miscarriage” language was simply a formulation of the plain-error test’s application to insufficiency claims. Following Otario, it is clear that the full four-prong analysis is applicable to forfeited insufficiency claims. Although the plain-error test should always be cited, we recognize that the "manifest miscarriage of justice” formulation is itself a reasonable restatement of the four-prong test. The word "manifest” means clear or obvious, satisfying prong two, while "miscarriage of justice” satisfies prongs three and four in the case of a defendant being convicted on less than sufficient evidence.

10 . United States v. Flyer, 633 F.3d 911, 917 (9th Cir.2011) (“When a conviction is predicated on insufficient evidence, the last two prongs of the [plain-error] test will necessarily be satisfied.”) (brackets in original); United States v. Duran, 133 F.3d 1324, 1335 n. 9 (10th Cir.1998) ("[R]eview under the plain error standard ... and a review of sufficiency of the evidence usually amount to largely the same exercise.”); United States v. Gaydos, 108 F.3d 505, 509 (3d Cir.1997) (noting that the last two prongs of plain-error review are always met when the government "fail[s] to prove one of the essential elements of a crime”).

11 . It may be that when no reasonable juror could find an element of a crime proved beyond reasonable doubt, it will often be plain or obvious that the evidence was insufficient. In other words, because the normal standard of review is already deferential to the jury verdict, the practical effect of applying a more deferential standard may often be minimal. Still, there will necessarily be some "close calls” on the issue of sufficiency, and the second prong of plain-error review means that close calls must be resolved in favor of the jury verdict. As we explain below, the question of the sufficiency of the evidence against Delgado is not close.

12 . We note that an alleged error going unnoticed by the district court, trial counsel, and appellate counsel is typically a good indication that it is not plain.

13 . See Parker, 554 F.3d at 236 ("[I]f we consider a hypothetical seller who is running a profit-motivated business of selling drugs in wholesale amounts, this seller may well realize that his buyers’ ability to buy and pay for substantial amounts of drugs, and hence, his profit, will depend on the buyers’ ability to resell. The business of selling wholesale quantities depends on the ability of the customers to resell.”).

14 . Id. at 238-39 ("The more the wholesale seller hopes, in the interest of the success and profitability of his own business, to have a purchaser of wholesale quantities as a regular, repeat customer, the more the seller has an interest and a stake in that purchaser’s ability to resell successfully, and consequently the more basis there may be for finding that the seller’s supplying of drugs to the buyer to enable the buyer to resell to others may be a conspiracy between the seller and the buyer to bring about those resales.”).

15 . We also note our skepticism that drug dealers typically offer return policies to buyers with whom they have no prior relationship.

16 . The following exchange occurred during the government's direct examination of Vasquez:

Q And she said that she was supposed to be paid money. Tell us about this. What money?

A The money she was going to be paid, which, in turn, she was going to use to pay us off once the marijuana had been loaded inside the boxes.

Q So, she hadn't been paid for her part of the marijuana.

A According to her information, she had not been paid.

Viewing this testimony in the light most favorable to the verdict, as we must, Vasquez confirmed that Delgado was expecting advance payment for the marijuana.

17 . See United States v. Salinas, 480 F.3d 750, 756 (5th Cir.2007) (“Salinas never requested that the district court declare a mistrial. Thus, Salinas effectively received all of the relief that he requested from the district court. When a defendant asks this court to reverse a conviction under these circumstances, the defendant essentially asks us 'to go against the implicit judgment of both the trial court and the defendant's trial counsel that the trial court’s corrective action was adequate and appropriate.’ ”).

18 . In fact, Delgado made the agents wait a considerable amount of time before meeting them at the gate. She then insisted that only three agents be allowed onto the property and locked herself in the house for ten minutes before allowing them to search it. Several government agents testified that her behavior led to concerns about officer safety.

19 . The conclusion that the prosecutor’s statement was harmless is bolstered by the fact that Delgado’s trial counsel did not request a curative instruction.

20 . This exchange occurred after the jury had already heard testimony that Delgado was the sole owner-operator of TJ Trucking.

21 . ‘ 'Members of the jury, I’m going to ask you to strike and disregard that last answer that was given. It's to have no role in your deliberations whatsoever. You’re to pretend as though you didn’t hear that. Disregard it completely.”

22 . Defense counsel was aware that Delgado’s company was implicated in a separate drug-trafficking investigation, which was the subject of a pretrial motion in limine. If anything, this fact reinforces our conclusion that Spivey's testimony was invited. Counsel should have been aware that he risked opening the door to a prejudicial answer, yet he posed a somewhat vague and open-ended question to a prosecution witness.

23 . The district court instructed the jury as follows:

You may find that the Defendant had knowledge of a fact if you find that the Defendant deliberately closed her eyes to what would otherwise have been obvious to her. 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 herself to the existence of a fact.

24 . The panel majority failed to apply the plain-error test, despite Delgado’s concession that plain error was the appropriate standard of review. Delgado, 631 F.3d at 706-09. This failure was significant because unpreserved errors that are not plain have no place in a cumulative error analysis. Although we have recognized that, at least in theory, obvious unpreserved errors which do not individually require reversal may contribute to a cumulative error holding, see United States v. Munoz, 150 F.3d 401, 418 (5th Cir.1998), plain-error analysis under Rule 52(b) prohibits us from basing a reversal on unpreserved errors that are not "plain” under the second prong of plain-error review. All four prongs of the test must be satisfied in order for us to correct an error. It is logical that certain errors may affect substantial rights or threaten "the fairness, integrity or public reputation of judicial proceedings” — prongs three and four — only when considered together with other errors, but cumulation can never satisfy Rule 52(b)’s further requirement that an error must be "plain” before it may be "noticed.” Thus, at the very least, errors subject to plain-error review must be plain or obvious before they may form the basis of a plain-error reversal.

25 . The panel majority’s discussion failed to mention the applicable standard of review. Delgado, 631 F.3d at 709-10.

26 . In her en banc brief, Delgado invites us to reconsider circuit precedent and impose the requirement that a buyer-seller instruction be given when the evidence provides an appropriate factual basis. We decline this invitation.

27 . Delgado’s failure to request the special instruction at trial is one of several significant facts that distinguish her case from Sears.

28 . The omission of an appropriate jury instruction is not necessarily error. See Jones, 673 F.2d at 119 (“better practice” is to caution juries against relying too heavily on accomplice testimony, but failure to warn is not necessarily error).

29 . In describing how the elements of conspiracy were satisfied, the prosecutor stated, "[T]he Defendant got the marijuana from somebody, and she was supposed to deliver it to her person in North Carolina. That's three people right there.”

30 . A full audio recording of her trial was available to Delgado on appeal, but Delgado contends that it too was inadequate.

31 . United States v. Riddle, 103 F.3d 423 (5th Cir.1997), one of our most recent cumulative-error reversals, is illustrative of the height of the bar for reversing a conviction on cumulative error grounds. In that case, the district court improperly admitted two and a half days of expert prosecution testimony, erroneously prevented the defense expert from testifying, admitted six documents containing hearsay, and allowed testimony about other crimes for which the defendant was not on trial.

32 . See, e.g., United States v. Villarreal, 324 F.3d 319, 328 (5th Cir.2003) ("We have stressed, however, that a reversal based on the cumulative effect of several alleged errors is a rarity.”); United States v. Reedy, 304 F.3d 358, 373 (5th Cir.2002) (same); United States v. Wicker, 933 F.2d 284, 292 (5th Cir.1991) (same); United States v. Lindell, 881 F.2d 1313, 1327 (5th Cir.1989) (same); Iredia, 866 F.2d at 118 (same). In the past 35 years, this court has reversed a conviction for cumulative error in only four published opinions. United States v. Johnston, 127 F.3d 380 (5th Cir.1997); Riddle, 103 F.3d at 435 (5th Cir. 1997); United States v. Labarbera, 581 F.2d 107, 110 (5th Cir.1978); United States v. Diharce-Estrada, 526 F.2d 637, 642 (5th Cir. 1976).

33 . See Neal, 27 F.3d at 1052 ("[W]e are not persuaded, in light of the substantial evidence of guilt adduced at trial, that the Defendants are entitled to reversal on the basis of cumulative error.”).

34 . See Fields, 483 F.3d at 362 ("Many of Fields's claims do not amount to error at all.”); see also United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir.1990) ("[W]e therefore hold that a cumulative-error analysis should evaluate only the effect of matters determined to be error, not the cumulative effect of non-errors.”).