*

Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

July 19, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-40975

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEWIS P. GARCIA, JR.,

DefendantAppellant.

---------------------------------------------------------- Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:03-CR-1510-1

-----------------------------------------------------------

Before WIENER, DeMOSS and STEWART, Circuit Judges.

PER CURIAM: *

Lewis P. Garcia, Jr. (Garcia) appeals his jury conviction for importation and possession with

intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841, 952(a), and

960(b)(1).

Garcia contends that the district court e rred when it denied his motion for a judgment of

acquittal at the close of the Government’s case-in-chief and that t he evidence was insufficient to** Miranda v. Arizona , 384 U.S. 436 (1966).

support his conviction. Specifically, Garcia argues that the Government failed to prove that he knew

about the cocaine hidden in the vehicle’s gas tank.

Viewing the evidence in the light most favorable to the verdict, the evidence was sufficient

to establish that Garcia knowingly imported and possessed with intent to distribute cocaine. Alberto

Hernandez (Hernandez) testified that Garcia told him that he was going to get paid $20,000 fo r

bringing approximately 30 kilograms of cocaine int o t he United States from Mexico. Although

uncorroborated, Hernandez’s testimony was not factually insubstantial or incredible and, thus, it was

constitutionally sufficient to convict. S ee United States v. Westbrook

, 119 F.3d 1176, 1189 (5th Cir.

1997). Further, given the value of the cocaine found in Garcia’s vehicle, Garcia’s demeanor upon

learning of the cocaine, the admittedly large amount of money Garcia was being paid to bring the

money back to Chicago, Garcia’s implausible explanation of the eve nts surroundi ng hi s tri p to

Mexico, and Garcia’s inconsistent testimony, the jury could have rationally determined that Garcia’s

actions were consistent with guilty knowledge. S ee United States v. Villareal

, 324 F.3d 319, 324 (5th

Cir. 2003); United States v. Ortega-Reyna

, 148 F.3d 540, 544 (5th Cir. 1998). Garcia also contends

that the Government committed reversible error by elicit ing testimony from two G overnment

witnesses regarding Garcia’s post-arrest, post- Miranda ** silence. Although the remarks made by

U.S. Customs and Border Patrol Inspector David Gammon and U.S. Customs and Bo rder Patrol

Agent Keith Forest Kearley were improper comments on Garcia’s post-arrest, post- Miranda silence,

the errors were harmless beyond a reasonable doubt. S ee Chapman v. United States

, 547 F.2d 1240,

1247-50 (5th Cir. 1977). The Government’s quest ions were not an attempt to elicit testimony

regarding Garcia’s post-arrest silenc e, but , rather his demeanor and reaction upon learning thatcocaine had been found in his vehicle. The improper remarks were spontaneous and not prompted

by the Government. The Government did not refer to these remarks during its closing argument and

did not link Garcia’s silence to his exculpatory testimony. Finally, Garcia’s exculpatory testimony

was implausible and the evidence of guilt was overwhelming.

Accordingly, the district court’s judgment is AFFIRMED.