United States v. Urbina

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 3, 2003
• Docket: 02-41046
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 3, 2003

Charles R. Fulbruge III Clerk No. 02-41046 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIA RACHEL URBINA,

Defendant-Appellant.

-------------------- Appeals from the United States District Court for the Southern District of Texas USDC No. C-02-CR-4-1 --------------------

Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Maria Rachel Urbina has appealed her conviction for possession

of more than five kilograms of methamphetamine with intent to

distribute. Urbina contends that the evidence was insufficient to

prove her guilt beyond a reasonable doubt.

The drugs for which Urbina was convicted were found concealed

in the dashboard of a car which Urbina drove into the Falfurrias

Border Patrol Checkpoint. Because the drugs were hidden, the

Government was required to present “circumstantial evidence that is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. suspicious in nature or [which] demonstrates guilty knowledge.”

United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995)

(internal quotations and citation omitted). Urbina contends that

the evidence was not sufficient to establish beyond a reasonable

doubt that she knew the drugs were concealed in the dashboard.

Urbina cried as the car was being searched. Urbina contends

that this evidence was equally indicative of guilt and innocence,

as she would naturally cry upon realizing that she had been duped.

See United States v. Ortega-Reyna, 148 F.3d 540, 547 (5th Cir.

1998). The fact that Urbina cried while the car was being searched

was not the only circumstantial evidence from which the jury could

have inferred guilty knowledge, as Urbina’s post-arrest statement

was incomplete and implausible. We hold that a reasonable juror

could have concluded that Urbina’s knowledge of the presence of the

drugs was established beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

Urbina contends that the Government commented improperly on

her post-arrest silence in violation of the rule in Doyle v. Ohio,

426 U.S. 610, 617–18 (1976). “A prosecutor’s or witness’s remarks

constitute comment on a defendant’s silence if the manifest intent

was to comment on the defendant’s silence, or if the character of

the remark was such that the jury would naturally and necessarily

so construe the remark.” United States v. Carter, 953 F.2d 1449,

1464 (5th Cir. 1992) (citation omitted). The reviewing court must

consider the remarks in the context in which they occurred. United

2 States v. Laury, 985 F.2d 1293, 1303 (5th Cir. 1993).

Urbina complains that the rule in Doyle was violated because

a Government witness testified that Urbina would not or could not

respond to his questions regarding inconsistencies in her story and

because the Government argued that Urbina’s story should not be

believed because she had omitted critical facts. Urbina concedes

that the issue should be reviewed for plain error. See United

States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc);

see also Laury, 985 F.2d at 1304. This court will find plain error

only if there was an error which was clear and obvious and which

affected the defendant’s substantial rights. United States v.

Olano, 507 U.S. 725, 732 (1993). When these elements are present,

this court may exercise its discretion to correct the error only if

it “seriously affects the fairness, integrity or public reputation

of judicial proceedings.” Id. (internal citations, quotation

marks, and brackets omitted).

Although the witness’ testimony and the Government’s reference

to the testimony in its closing argument did violate Doyle,

reversal is not required under the plain-error standard, because

the testimony was not significant in the context of the entire

trial and the record contains sufficient evidence of Urbina’s

guilt. See Laury, 985 F.2d at 1303-04. Other portions of the

Government’s argument complained of by Urbina did not violate

Doyle because they pertain to affirmative statements made by Urbina

in her post-arrest statement and were not manifestly designed to

3 cause the jury to infer guilt because Urbina exercised her Fifth

Amendment right to remain silent. See Pitts v. Anderson, 122 F.3d

275, 282 (5th Cir. 1997); see also Anderson v. Charles, 447 U.S.

404, 408 (1980). To the extent that the Government’s argument did

violate Doyle, the failure to correct the error will not result in

a manifest miscarriage of justice. See United States v. Garcia-

Flores, 246 F.3d 451, 455-57 (5th Cir. 2001).

Urbina contends that 21 U.S.C. § 841(a)&(b) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Urbina concedes that this court has rejected this

argument. See United States v. Slaughter, 238 F.3d 580, 582 (5th

Cir. 2000). She states that she wishes to preserve the issue for

further review. The conviction is

AFFIRMED.