United States v. Garcia

530 F.3d 348, 2008 WL 2300132
Court of Appeals for the Fifth Circuit·Decided June 5, 2008·No. 07-50455·Published·Cited by 30 cases

Opinions

OWEN, Circuit Judge:

Richard Bailey. Garcia was indicted on four counts of importing and possessing with intent to distribute more than 500 grams of cocaine and marijuana in violation in violation of 21 U.S.C. §§ 841(a)(1), 952(a), and 960(a)(1). A jury convicted him on all four counts. The district court denied his motion for a new trial and sentenced him to four concurrent terms of 70 months’ imprisonment. He now appeals his conviction and we affirm.

I

Early one morning in April 2006, Garcia attempted to re-enter the United States from Mexico at the Del Rio, Texas Port of Entry. Accompanied by Brenda Menchaca, Garcia was driving a pick-up truck with a secret compartment containing marijuana and cocaine. Garcia claimed he was returning to his home in Del Rio after an evening at a nightclub in Ciudad Acuna, Mexico. Ramon Vasquez, a Customs and Border Protection (CBP) officer, inspected the undercarriage of Garcia’s truck and saw shiny bolts indicating someone recently had worked on the truck.

Vasquez asked Garcia whether he owned the truck and had worked on it recently; Garcia said he had owned the truck for “a long time,” but had not worked on it. Suspicious, Vasquez called for a canine, which alerted to the presence of narcotics in the truck’s bed. Vasquez then ordered Garcia to a secondary inspection station where CBP officers Leonard Rodriguez and Julian Fonseca met Garcia and Menchaca. Rodriguez asked Garcia whether the truck was his; Garcia now responded that his uncle, “Jarrod Lang,” owned the truck.1

Fonseca inspected the truck’s bed and testified that it appeared less sturdy than a typical truck bed. He began jumping up and down on the truck’s bed both to test it and gauge Menchaca’s and Garcia’s reaction, both of whom sat a few feet away. Fonseca testified he was suspicious that neither Menchaca nor Garcia turned to observe Fonseca, and that he believed most people would be naturally curious as to his actions. Fonseca then asked Garcia whether anyone recently had worked on [350] the truck. Garcia now claimed his uncle had worked on the truck a month before.

Rodriguez escorted Menchaca and Garcia inside a building at the checkpoint and noted that Garcia’s behavior “just didn’t seem normal” and that Garcia avoided eye contact and looked away when questioned. Rodriguez then returned to assist Fonseca with the vehicle investigation. Using a density meter, Rodriguez determined an object was concealed within the truck’s bed. Fonseca drilled a hole into the bed and uncovered a green leafy substance later identified as marijuana. Fonseca then discovered a trap door to a secret compartment located in a freshly painted portion of the rear tire well. Inside, Fonseca found fifty-five bundles of marijuana and one bundle of cocaine.

After the bundles were discovered, Bureau of Immigration and Customs Enforcement (ICE) Special Agents Frank Ayoub, Jr., and Gabriel Villanueva interviewed Menchaca and Garcia. Ayoub testified that Garcia claimed his childhood friend Roy Mendez asked Garcia to drive his truck from the nightclub into the United States. Garcia admitted that Mendez told Garcia to state that the truck belonged to Garcia or to his “uncle,” Jarrod Lang if questioned about its ownership. After the interview, the agents arrested Garcia.

At trial, Agent Ayoub testified from his “independent recollection” about statements Garcia made during the interview. The government never attempted to introduce an audiotape or transcript of the interview. On cross-examination, defense counsel asked Ayoub whether the interview was recorded. After Ayoub answered that the interview was audiotaped, defense counsel requested that Ayoub read aloud a portion of the transcript, which she provided. The government objected, arguing that the transcript was not in evidence. During a series of bench conferences, defense counsel argued the transcript was admissible under Fed.R.Evid. 106 and the common law rule of completeness. The district court ruled that both were inapplicable since the government did not place any portion of the transcript into evidence. After the jury found Garcia guilty, he moved for a new trial based, in part, on the district court’s exclusion of the transcript.

Garcia now appeals his conviction and argues that the district court’s exclusion of the transcript was error and requires a new trial. He cites five of his statements Ayoub relayed that Garcia argues were taken out of context and which he was unable to explain since the transcript was excluded. First, Ayoub testified that “Mr. Garcia also told us he was very suspicious that the vehicle was loaded.” Garcia argues that he only answered affirmatively to an agent’s question that “you had to have been pretty suspicious.” Additionally, Garcia says he did not use the term “loaded,” which implied he was familiar with drug smuggling terminology. Second, Ayoub testified that Garcia was unemployed and “further in his discussion with us after that question said ‘As a matter of fact, I have a child at home ... and I’m trying to do anything I can do right now to help support this child.’ ” Garcia argues that this implied a level of desperation that the transcript does not indicate because he also told the agents he was waiting to hear about a prospective job. Third, Ayoub testified that “Mr. Garcia claimed that Brenda Menchaca had no involvement in this,” which Garcia argues implied he was guilty and was protecting her. Nonetheless, the interrogation transcript includes an agent’s statement “if she has something to do with it, I need to know,” and Garcia’s reply “No sir.” Fourth, Ayoub testified that Garcia said [351] “How am I going to help myself when I’m going to jail already?” Garcia also argues this was prejudicial, because it implied he knew he had broken the law. Garcia argues he only said this in response to the agent’s statement that Garcia was likely facing prison time and needed to answer honestly. Finally, Ayoub testified that Garcia changed his story three times regarding where he was to meet Roy Mendez and return the pick-up truck. Garcia argues that during the interrogation he mentioned the same location twice and once stated it was possible he would meet at Mendez’s home.

II

We review a district court’s evidentiary ruling for abuse of discretion.2 “A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.”3 This court heightens our review of evidentiary rulings in criminal trials.4 An abuse of discretion in excluding evidence, however, is subject to harmless error review.5

A

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