United States v. Reyes Vasquez

644 F. App'x 328

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 29, 2016
• Docket: 15-40327
• Status: Unpublished

Opinion

PER CURIAM: *

Juan Manuel Reyes Vasquez appeals his convictions for conspiracy and the substantive offense of possession with intent to distribute heroin for which he was sentenced to concurrent sentences of 121 months of imprisonment. He contends that the prosecutor’s comments during closing argument improperly commented on.his failure to testify in his own defense and improperly shifted the burden of proof to him.

Review is for plain error since Reyes Vasquez did not object in the district court. See United States v. Virgen-Moreno, 265 F.3d 276, 292 (5th Cir.2001). During closing argument, the prosecutor commented that the evidence that Reyes Vasquez’s voice was on the recorded conversations was unrefuted. These comments did not impermissibly comment on Reyes Vasquez’s silence or shift the burden of proof to Reyes Vasquez because they were responsive to defense counsel’s closing argument that the evidence of the phone calls and voice identification involved no specific training or scientific methods or a voice comparison. See Virgen-Moreno, 265 F.3d at 293-93. Viewing the prosecutor’s comments in context and in light of the jury instructions, the jury would not “naturally and necessarily” interpret the challenged remarks as a comment on the defendant’s failure to testify or an impermissible shifting of the burden of proof. See Virgen-Moreno, 265 F.3d at 292-93; see also United States v. Jefferson, 258 F.3d 405, 414 (5th Cir.2001).

The judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.