District Judge of the Western District of Louisiana, sitting by designation. *

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41424

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SALVADOR GARCIA, JR.; JORGE ROLANDO GARCIA, SR.; TORIBIO

ARRIAGA-GUERRERO,

Defendants-Appellants

Appeals from the United States District Court 

for the Southern District of Texas, McAllen Division

Before GARZA and ELROD, Circuit Judges, and HICKS, District Judge. *

JENNIFER W. ELROD, Circuit Judge:

A jury in the United States District Court for the Southern District of

Texas convicted Salvador Garcia, Jr., Jorge Rolando Garcia, Sr., and Toribio

Arriaga-Guerrero of multiple charges related to a drug-trafficking operation.

The defendants appeal their convictions by challenging various district court

rulings. We find no merit in the defendants’ appeals and affirm the convictions

on all counts.

United States Court of Appeals

Fifth Circuit

F I L E D

May 6, 2009

Charles R. Fulbruge III

Clerk
No. 05-41424

2

I. BACKGROUND

A. Facts

“We recite the facts in the light most favorable to the verdict.” United

States v. Olis, 429 F.3d 540, 541 n.1 (5th Cir. 2005). In Rio Grande City, Texas,

Salvador Garcia owned and controlled property on Midway Street that bordered

the Rio Grande River. Salvador Garcia directed a drug trafficking operation that

brought marijuana and cocaine across the Rio Grande river and into the United

States through vehicle paths on his Midway property. In a typical instance,

Salvador Garcia would approve a day’s trafficking operation and Juan Garcia,

Salvador Garcia’s nephew, would direct the operation’s specific conduct. Jorge

Garcia, Salvador Garcia’s brother and Juan Garcia’s father, participated in the

operation by providing an interim storage location for drugs at his home on Agua

Verde Road. Toribio Arriaga-Guerrero participated in several capacities,

sometimes assisting with the actual transportation of the drugs, and other times

serving as a lookout for law enforcement agents. Several other persons

participated in the operation at various times. Over the course of several

months in 2003, the operation trafficked large amounts of both marijuana and

cocaine on an almost daily basis.

On the morning of November 30, 2003, Salvador Garcia, Juan Garcia,

Arriaga-Guerrero, and other participants planned to acquire and transport a

large quantity of marijuana. Arriaga-Guerrero, who had left the operation some

time during the preceding few weeks, informed Juan Garcia of his desire to

return and asked for a role in that day’s operation. Although Salvador Garcia

opposed Arriaga-Guerrero’s continued participation, Juan Garcia allowed it, and

instructed Arriaga-Guerrero to serve as the operation’s lookout at a nearby gas
No. 05-41424

3

station. Arriaga-Guerrero agreed. Juan Garcia and two other participants

drove a GMC Yukon to the river landing near the Midway property, loaded

several hundred pounds of marijuana into the vehicle, and headed back to the

Midway property where the group sometimes stored vehicles in sheds.

Meanwhile, ground sensors alerted United States Border Patrol agents to

activity near the river landing. Two agents went to the river landing, discovered

evidence of recent activity, and began following tire tracks towards the Midway

property. Juan Garcia received warning of the approaching government agents,

and left the other two members of the operation at the Midway property to tend

to the load of marijuana. As immigration agents neared the Midway property

compound and observed persons fleeing the vehicles, one of the agents saw two

bundles of what the agent believed to be marijuana fall out of the Yukon. The

agents’ search of the Yukon, the other vehicles on the property, and the

buildings there yielded 759 kilograms of marijuana, several firearms, and

accompanying ammunition. 

On December 2, 2003, officers conducting an unrelated investigation came

upon Jorge Garcia’s Agua Verde property, which emanated a strong odor of

marijuana. After obtaining a warrant, the officers searched the home and seized

3,470 kilograms of marijuana, as well as another firearm and ammunition. One

person testified that he saw Jorge Garcia flee the Agua Verde property near the

time of the seizure.
No. 05-41424

The first jury found Salvador Garcia guilty on Counts Five through Twenty-Six, and

1

Salvador Garcia does not appeal that portion of the verdict.

4

B. District Court Proceedings

In this case’s first trial, the government charged Salvador Garcia and

Arriaga-Guerrero with the following:

(1) Conspiracy to possess more than 1,000 kilograms of marijuana with

intent to distribute from October through December 2, 2003, see 21 U.S.C.

§§ 846, 841(a)(1), and 

(2) Possession of approximately 759 kilograms of marijuana with intent to

distribute on November 30, 2003, see § 841(a)(1). 

The government also charged Salvador Garcia with the following:

(3) Maintaining drug-involved premises, see 21 U.S.C. § 856, 

(4) Possession of firearms in furtherance of a crime, see 18 U.S.C.

§ 924(c)(1)(A), and

(5)–(26) Twenty-two counts of violating financial reporting requirements,

see 31 U.S.C. § 5324(a). 

Salvador Garcia and Arriaga-Guerrero presented motions for acquittal on all

counts at the end of the government’s case-in-chief, and again before the district

court charged the jury; the district court denied the motions. The jury failed to

return a verdict on Counts One through Four, and the district court declared a

mistrial as to those counts.1

For the second trial, the government’s superceding indictment charged

Salvador Garcia, Arriaga-Guerrero, and Jorge Garcia with identical versions of

the first trial’s Count One conspiracy and Count Two possession charge. The

indictment also charged Salvador Garcia with identical versions of the Count
No. 05-41424

5

Three drug-involved premises and Count Four firearm charges. New Count Five

charged Salvador Garcia and Jorge Garcia with possession of more than 1000

kilograms of marijuana with intent to distribute on December 2, 2003. See 21

U.S.C. §§ 846, 841(a)(1). The jury found Salvador Garcia guilty of all but the

firearms charge, and the district court sentenced him to a 365-month term of

imprisonment. The jury found Arriaga-Guerrero guilty of the conspiracy and

possession charges, and the district court sentenced him to a 240-month term of

imprisonment. The jury found Jorge Garcia guilty of the conspiracy and

possession charges, and the district court sentenced him to a 235-month term of

imprisonment.

All three defendants appealed. We have jurisdiction over these appeals

from final judgments. See 28 U.S.C. § 1291. We consolidated the appeals for

purposes of argument and we now consolidate them for disposition. See Fed. R.

App. P. 3(b)(2); United States v. Rabanal, 508 F.3d 741, 742 (5th Cir. 2007).

II. DISCUSSION

A. Salvador Garcia

1. Rule 404(b)

In his first issue, Salvador Garcia challenges his convictions on all counts

by arguing that the district court violated Federal Rule of Evidence 404(b) when

it admitted evidence of cocaine trafficking and cocaine use. During the course

of the four-day trial on the marijuana charges, the district court admitted

evidence showing that Salvador Garcia’s operation moved cocaine through the

Midway property using the same vehicles and the same passageway, that the

conspirators packaged the cocaine in bags of horse feed, and that Salvador

Garcia took cocaine to McAllen, Texas. The district court also admitted evidence
No. 05-41424

 Salvador Garcia concedes that he failed to object to the cocaine testimony, and also

2

that he failed to ask for a limiting instruction. His inclusion of the Rule 404(b) argument in

his motion for new trial does not change the standard of review. See United States v. Abroms,

947 F.2d 1241, 1249 n.6 (5th Cir. 1991) (applying plain error review to an evidentiary

argument raised only in a motion for new trial). Before Juan Garcia testified to the cocaine

trafficking and cocaine use, the government notified the court of its intention to introduce the

evidence, and the court accepted the evidence as proof of the defendants’ knowledge. Had

Salvador Garcia objected, the district court could have made an on-the-record ruling in

accordance with United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc). See United

States v. Greenwood, 974 F.2d 1449, 1462 & n.8 (5th Cir. 1992).

6

showing that Salvador Garcia gave members of the operation cocaine as

payment for their work, and that the members consumed cocaine for the purpose

of staying awake during the marijuana and cocaine trafficking operations.

According to Salvador Garcia, the district court should have excluded the

evidence under Rule 404(b) because the government failed to give Salvador

Garcia notice of its introduction, and because the evidence’s probative value did

not outweigh its unfair prejudice.

Because Salvador Garcia failed to object when the government introduced

the evidence, we review the district court’s decisions for plain error only. See 2

United States v. Akpan, 407 F.3d 360, 373 (5th Cir. 2005); United States v.

Mares, 402 F.3d 511, 520 (5th Cir. 2005).

An appellate court may not correct an error the defendant failed to

raise in the district court unless there is “(1) error, (2) that is plain,

and (3) that affects substantial rights.” “If all three conditions are

met an appellate court may then exercise its discretion to notice a

forfeited error but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.”

Mares, 402 F.3d at 520 (citation omitted) (quoting United States v. Cotton, 535

U.S. 625, 631 (2002)). Salvador Garcia’s lack-of-notice argument fails because

even if the government provided insufficient notice of its intent to introduce the
No. 05-41424

7

cocaine evidence, Salvador Garcia failed to satisfy his burden of demonstrating

the requisite prejudice. See Mares, 402 F.3d at 520; United States v. Duffaut,

314 F.3d 203, 209 (5th Cir. 2002) (“To demonstrate plain error, an appellant

must show clear or obvious error that affects his substantial rights. . . .”

(emphasis added)); see also United States v. Olano, 507 U.S. 725, 734 (1993) (“It

is the defendant rather than the Government who bears the burden of

persuasion with respect to prejudice. In most cases, a court of appeals cannot

correct the forfeited error unless the defendant shows that the error was

prejudicial.”); Puckett v. United States, No. 07–9712, slip op. at 13 (U.S. Mar. 25,

2009) (“Eliminating the third plain-error prong through semantics makes a

nullity of Olano’s instruction that a defendant normally ‘must make a specific

showing of prejudice’ in order to obtain relief.”). Although Salvador Garcia’s

substantive 404(b) argument—that the cocaine evidence’s probative value did

not outweigh its unfair prejudice—is more complicated, it too fails to merit

reversal.

Rule 404(b) limits the admissibility of extrinsic evidence, but not intrinsic

evidence. E.g., United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007).

“Evidence of an act is intrinsic when it and evidence of the crime charged are

inextricably intertwined, or both acts are part of a single criminal episode, or it

was a necessary preliminary to the crime charged.” Id. If evidence is extrinsic,

Rule 404(b) and United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en

banc), require that courts first determine “that the extrinsic evidence is relevant

to an issue other than the defendant’s character, i.e., motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.”

United States v. Sanders, 343 F.3d 511, 518 (5th Cir. 2003). “Second ‘the
No. 05-41424

8

evidence must possess probative value that is not substantially outweighed by

its undue prejudice and must meet the other requirements of Rule 403.’” Id.

(quoting United States v. Anderson, 933 F.2d 1261, 1269 (5th Cir. 1991)).

We need not decide whether the cocaine evidence triggered Rule 404(b)

because we can identify no plain error in the district court’s implied Beechum

analysis. See United States v. Nguyen, 504 F.3d 561, 574 (5th Cir. 2007). The

task of balancing probative value against unfair prejudice requires that courts

examine a number of highly fact-dependent circumstances, including the

similarity between the extrinsic acts and charged offenses, the violence involved,

the relative magnitude of the acts, the time devoted to the evidence, and the

extent to which the matter proved by the other-act evidence has already been

established. See, e.g., United States v. Hernandez-Guevara, 162 F.3d 863, 872

(5th Cir. 1998); United States v. Emery, 682 F.2d 493, 499–500 (5th Cir. 1982)

(“The application of Beechum to the facts of any case requires a commonsense

assessment of all the circumstances surrounding the extrinsic offense.”).

To be sure, the introduction of cocaine evidence into a marijuana trial

carries inherent prejudice, but the question Rule 403 poses is whether the

cocaine evidence’s unfair prejudice substantially outweighs its relevance. Here,

the cocaine evidence introduced at trial was relevant to issues of intent and

knowledge, among others. See Nguyen, 504 F.3d at 574; United States v.

Parziale, 947 F.2d 123, 128–29 (5th Cir. 1991). Juan Garcia’s testimony

occupied approximately 170 pages of the record, and the most significant

portions of the cocaine testimony occupied less than 10 pages. He explained that

the cocaine and marijuana trafficking occurred on Salvador Garcia’s Midway

property during the same period of time, engaged almost identical methods of
No. 05-41424

 For almost identical reasons, Salvador Garcia’s conclusory assertion that the district 3

court’s admission of the cocaine evidence violated the Fifth Amendment is without merit. See

Story v. Collins, 920 F.2d 1247, 1254 (5th Cir. 1991) (“An extraneous offense may be admitted

into evidence without violating the due process clause if the government makes a ‘strong

showing that the defendant committed the offense’ and if the extraneous offense is ‘rationally

connected with the offense charged.’” (quoting Enriquez v. Procunier, 752 F.2d 111, 115 (5th

Cir. 1984))).

9

acquisition, transport, storage, and distribution, and involved similar

participants. He also explained the method by which the operation packaged

cocaine on Salvador Garcia’s Midway property, and that the members of the

operation used cocaine to stay awake while participating in trafficking

operations. Two other members of the operation testified for a much shorter

total period, and provided a similarly detailed explanation of the cocaine

packaging and transportation activities. Because “Rule 404(b) evidence is

particularly probative where the government has charged conspiracy,” United

States v. Gordon, 780 F.2d 1165, 1174 (5th Cir. 1986), and because several

considerations militated in favor of admitting this cocaine evidence—namely, the

high degree of similarity and the dominance of non-cocaine evidence in this

case—we cannot conclude that the district court committed plain error when it

decided to admit the cocaine evidence in spite of its inherent prejudice. See

Emery, 682 F.2d at 500–01; Beechum, 582 F.2d at 910 (“Where . . . the extrinsic

offense evidence is relevant to an issue such as intent, it may well be that the

evidence has probative force that is not substantially outweighed by its inherent

prejudice.”).

3

As an extension of his Rule 404(b) argument, Salvador Garcia argues that

despite his failure to object or tender any alternative, the district court erred

when it failed to sua sponte provide a specific instruction concerning the limits
No. 05-41424

 The jury charge also included one instruction that outlined the purposes for which the 4

jury could use Rule 404(b) evidence, but that instruction addressed only evidence of

Arriaga-Guerrero’s acts.

10

of the Rule 404(b) cocaine evidence. Because Salvador Garcia failed to object at

trial and request the instruction he now seeks, we review the content of the

district court’s jury instruction for plain error only. See United States v.

Delgado, 401 F.3d 290, 299 (5th Cir. 2005). “Plain error occurs only when the

instruction, considered as a whole, was so clearly erroneous as to result in the

likelihood of a grave miscarriage of justice.” United States v. Davis, 19 F.3d 166,

169 (5th Cir. 1994); see also Parziale, 947 F.2d at 129 (“Furthermore, ‘failure to

give limiting instructions is generally held not to be plain error.’” (quoting

United States v. Bermudez, 526 F.2d 89, 97 (2d Cir. 1975))). This standard of

review is predicated, in part, on our realization that district courts cannot be

expected to foresee all potential sources of evidentiary confusion and

controversy, and are not required to issue panoptic sets of preventive

instructions. For trials to function effectively, parties themselves must play an

active role in creating the jury charge; the inclusion of Rule 404(b) instructions

is no exception.

Salvador Garcia’s argument fails because the district court’s instructions

sufficiently mitigated the risk that prejudice resulting from the cocaine evidence

would affect the verdict. In addition to instructions on the elements of the

offenses, the district court’s instructions included the following admonishment

under the heading “CAUTION—CONSIDER ONLY CRIMES CHARGED”: “The

defendant is not on trial for any act, conduct, or offense not alleged in the

indictment.” In Parziale, 947 F.2d 123, the district court admitted Rule 404(b) 4

evidence and its charge gave the essential elements of each count with an almost
No. 05-41424

11

identical additional instruction: “[T]he defendant is not on trial for any act or

conduct or offense not alleged in the indictment.” Id. at 129. As we did in

Parziale, id., we conclude in this case that the district court’s instructions

sufficiently guarded against the risk of unfair prejudice to the defendant.

Accordingly, the district court’s decision to admit the evidence of cocaine

trafficking and cocaine use was not reversible error.

2. Ineffective Assistance of Counsel

In his second issue, Salvador Garcia argues that his attorney rendered

ineffective assistance of counsel by failing to object to the cocaine evidence, and

by failing to mitigate the effects of the cocaine evidence. Our standards for

evaluating claims of ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668 (1984), are well established:

First, [a defendant] must demonstrate that his attorney’s

performance fell below an objective standard of reasonableness.

This court has described that standard as “requiring that counsel

research relevant facts and law, or make an informed decision that

certain avenues will not be fruitful.” Second, [a defendant] must

also prove that he was prejudiced by his attorney’s substandard

performance. “[T]o prove prejudice, [a defendant] must show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.”

United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005) (footnotes omitted)

(quoting United States v. Conley, 349 F.3d 837,841 (5th Cir. 2003)). However,

we do not reach Salvador Garcia’s Strickland challenge because it is premature.

[T]he “general rule in this circuit is that a claim of ineffective

assistance of counsel cannot be resolved on direct appeal when the

claim has not been raised before the district court since no
No. 05-41424

12

opportunity existed to develop the record on the merits of the

allegations.” Only in those rare occasions where the record is

sufficiently developed will the court undertake to consider claims of

inadequate representation on direct appeal. If we cannot fairly

evaluate the claim from the record, we must decline to consider the

issue without prejudice to a defendant’s right to raise it in a

subsequent proceeding.

United States v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (citations omitted)

(quoting United States v. Higdon, 832 F.2d 312, 313–14 (5th Cir. 1987)). This

case falls within that general rule because the record reveals neither the reasons

for Salvador Garcia’s attorney’s decisions nor the availability of alternative

strategies. See United States v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007)

(refusing to hear a Strickland claim because “the district court did not hold a

hearing and the record does not provide sufficient detail about trial counsel’s

conduct and motivations”); United States v. Garcia-Jasso, 472 F.3d 239, 245 (5th

Cir. 2006) (refusing to hear a Strickland claim because “the reasons for [the

attorney’s] decisions and any plausible alternative strategies available to him

are unclear”); United States v. Gordon, 346 F.3d 135, 137 (5th Cir. 2003)

(refusing to hear a Strickland claim because “[t]he record has not been developed

with regard to counsel’s motivation for his trial tactics”). While Salvador Garcia

may raise this argument in a later proceeding, see United States v.

Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (“Normally, the

appropriate mechanism for raising this claim would be a habeas corpus

proceeding pursuant to 28 U.S.C. § 2255.”), it is not a ground for reversal in this

appeal.
No. 05-41424

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B. Toribio Arriaga-Guerrero

1. Double Jeopardy

In his first issue, Arriaga-Guerrero challenges his convictions on both

counts by arguing that the district court erred when it denied his motion for a

judgment of acquittal in the second trial. Specifically, Arriaga-Guerrero argues

that the first trial’s evidence was insufficient to support a verdict on either

charge, and that the first trial’s insufficiencies triggered Double Jeopardy Clause

protections prohibiting his reprosecution in the second trial. Because

Arriaga-Guerrero did not raise this argument in the district court, we review

only for plain error. See, e.g., United States v. Odutayo, 406 F.3d 386, 392 (5th

Cir. 2005).

Arriaga-Guerrero’s Double Jeopardy Clause argument fails because the

government placed him in jeopardy only once. In the successive prosecution

context, the authorities hold that a defendant’s double jeopardy concerns arise

only after original jeopardy attaches and terminates. Richardson v. United

States, 468 U.S. 317, 325 (1984). No matter the sufficiency of the evidence, “the

failure of the jury to reach a verdict is not an event which terminates jeopardy.”

Id. at 325–26. Arriaga-Guerrero’s citation to Burks v. United States, 437 U.S.

1 (1978), is inapposite, for “Burks did not deal with the situation in which a trial

court declares a mistrial because of a jury’s inability to agree on a verdict.”

Richardson, 468 U.S. at 323. Rather, “Burks established only that an appellate

court’s finding of insufficient evidence to convict on appeal from a judgment of

conviction is for double jeopardy purposes, the equivalent of an acquittal.” Id.

at 325.
No. 05-41424

 While our holding in United States v. Wilkinson, 601 F.2d 791 (5th Cir. 1979), 5

supports Arriaga-Guerrero’s argument, Achobe decided that Richardson had effectively

overruled Wilkinson. See Achobe, 560 F.3d at 266–67.

14

Richardson and Burks’s boundaries are no longer an open question in this

Circuit. See United States v. Achobe, 560 F.3d 259 (5th Cir. 2008); Vanderbilt

v. Collins, 994 F.2d 189 (5th Cir. 1993); United States v. Miller, 952 F.2d 866

(5th Cir. 1992).

After [Justice of Boston Municipal Court v. Lydon, 466 U.S.294

(1984)] and Richardson, it appears that there are only three possible

jeopardy terminating events: (1) an acquittal, (2) a trial court

determination of insufficiency leading to a directed verdict of

acquittal, and (3) an unreversed determination on direct appeal that

there was insufficient evidence to support the conviction. In the

absence of one of these events, a later determination that there was

insufficient evidence apparently will not bar a retrial.

Vanderbilt, 994 F.2d at 195 (footnotes omitted). With respect to appeals from

first-trial sufficiency decisions, “Miller holds that after Richardson, the Burks

bar only prevents retrial when the appellate court in fact reverses for insufficient

evidence.” Id. Thus, when defendants raise first-trial insufficiency arguments

in a subsequent trial, Miller, Vanderbilt, and now Achobe dictate that our task

is not to determine whether original jeopardy should have ceased before retrial

because of the insufficiency argument; rather, we determine only the narrower

question of whether original jeopardy actually ceased before retrial. Achobe, 560

F.3d at 265–68; Vanderbilt, 994 F.2d at 195. The district court denied 5

Arriaga-Guerrero’s first-trial motions for acquittal, the first trial’s jury did not

acquit Arriaga-Guerrero, and Arriaga-Guerrero did not present a favorable

appellate ruling on the sufficiency issue to the district court. As a result,
No. 05-41424

15

Arriaga-Guerrero’s first-trial insufficiency and Double Jeopardy Clause

arguments do not demonstrate plain error.

2. Sufficiency

In his second issue, Arriaga-Guerrero challenges his convictions on both

counts by arguing that the second trial’s evidence was insufficient to support a

verdict on either charge. Because Arriaga-Guerrero raised his sufficiency

argument in a motion for judgment of acquittal, we review the district court’s

denial of that motion by examining the evidence and all reasonable inferences

drawn therefrom in the light most favorable to the verdict, and asking whether

a rational trier of fact could have found guilt beyond a reasonable doubt. See,

e.g., United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006). Contrary to

Arriaga-Guerrero’s assertion, “[i]t is not necessary that the evidence exclude

every reasonable hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt, provided a reasonable trier of fact could find that

the evidence establishes guilt beyond a reasonable doubt.” United States v. Bell,

678 F.2d 547, 549 & n.3 (5th Cir. Unit B 1982) (en banc). “A jury is free to

choose among reasonable constructions of the evidence.” Id. at 549.

Arriaga-Guerrero’s conviction on Count One—conspiracy to possess more

than 1,000 kilograms of marijuana with intent to distribute—required proof that

“(1) an agreement existed between the defendant and one or more persons to

violate the applicable narcotics laws; (2) each defendant knew of the conspiracy

and intended to join it; and (3) the defendant participated voluntarily in the

conspiracy.” United States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005); see

United States v. Aguirre Aguirre, 716 F.2d 293, 297 (5th Cir. 1983) (“In a drug

conspiracy case, however, under the provisions of the drug conspiracy statute,
No. 05-41424

16

proof of an overt act in furtherance of the conspiracy is not necessary.”).

Arriaga-Guerrero’s conviction on Count Two—possession of approximately 759

kilograms of marijuana with intent to distribute—required proof of “(1)

possession, (2) knowledge, and (3) intent to distribute.” Valdez, 453 F.3d at 260

n.7. The government’s aiding and abetting theory on Count Two required proof

that “the defendant: (1) associated with a criminal venture; (2) participated in

the venture; and (3) sought by action to make the venture successful.” Infante,

404 F.3d at 385.

Initially, Arriaga-Guerrero argues that the jury could not have relied upon

Juan Garcia’s testimony because of Juan Garcia’s regular drug use. However,

it is now well established that “whether judges doubt the credibility of a witness,

even an accomplice cooperating with the Government, is beside the point in

reviewing a sufficiency claim such as this—with the exception of cases where a

witness’ testimony is so incredible or insubstantial that, as a matter of law, we

may discredit it.” United States v. Greenwood, 974 F.2d 1449, 1458 (5th Cir.

1992); accord United States v. Lopez, 74 F.3d 575, 578 (5th Cir. 1996). Such

cases “typically involve testimony about an event that could not have occurred

‘under the laws of nature,’” Greenwood, 974 F.2d at 1458 (quoting United States

v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991), and this is not that kind of case.

The question of Juan Garcia’s credibility was one for the jury.

Next, Arriaga-Guerrero argues that the government never established the

existence of an actual agreement between Arriaga-Guerrero and the persons who

conducted the November 30 marijuana trafficking operation. The evidence of

this fact was not insufficient because Juan Garcia testified that

Arriaga-Guerrero asked to participate in the November 30 operation, and that
No. 05-41424

17

he and Arriaga-Guerrero agreed that Arriaga-Guerrero would serve as a lookout.

In addition, a federal agent testified that Arriaga-Guerrero admitted that he

carried out the agreement. While Juan Garcia did not testify to reaching an

agreement as to payment for that day’s work, a conspiracy conviction does not

require proof of such details, see United States v. Dean, 59 F.3d 1479, 1488–89

(5th Cir. 1995); Aguirre Aguirre, 716 F.2d at 297 (“[P]roof of the defendant’s

knowledge of all the details of the drug conspiracy is not required, as long as

knowledge of the essential details is established, and the defendant need neither

have been present at the inception of the conspiracy, nor have played a major

role therein.”). Rather, the jury was entitled to infer the existence of an

agreement from Juan Garcia’s testimony and the other circumstantial evidence.

See Am. Tobacco Co. v. United States, 328 U.S. 781, 810 (1946); United States v.

Vergara, 687 F.2d 57, 61 (5th Cir. 1982) (“A conviction will not be reversed for

lack of evidence that a defendant was acquainted with or knew all of the

coconspirators, or lack of evidence that he knew each detail of the conspiracy, or

because he became a member of the conspiracy after its inception, or played only

a minor role in the overall scheme.” (citations omitted)).

Along similar lines, Arriaga-Guerrero argues that the government failed

to prove that Arriaga-Guerrero was acting as a lookout for Salvador Guerrero’s

marijuana operation, as opposed to Salvador Guerrero’s cocaine operation or an

operation directed by someone else. The evidence of this fact was not insufficient

for two reasons. First, the government provided direct evidence of this fact in

the form of Juan Garcia’s testimony that he saw Arriaga-Guerrero serving as a

lookout that day, as well as evidence of Arriaga-Guerrero’s admission of the

same. Second, the jury could have inferred that Arriaga-Guerrero was looking
No. 05-41424

18

out for Salvador Garcia’s marijuana operation from the government’s

circumstantial evidence—namely, evidence that Arriaga-Guerrero volunteered

to work for Salvador Garcia’s operation that morning, that Juan Garcia ordered

him to serve as a lookout for Salvador Garcia’s marijuana operation by going to

that location, that Arriaga-Guerrero then went to the lookout location and

stayed until the completion of the operation, and that Arriaga-Guerrero

associated with the members of Salvador Garcia’s operation that same evening.

See United States v. Lopez, 979 F.2d 1024,1029 (5th Cir. 1992) (“Concert of

action can indicate agreement and voluntary participation.”).

Arriaga-Guerrero also argues that the government failed to prove the

intent element of the possession count, which required proof that

Arriaga-Guerrero knew that Salvador Garcia’s group intended to distribute the

marijuana and intended to aid the conspiracy in that respect. See United States

v. Longoria, 569 F.2d 422, 425 (5th Cir. 1978) (“Where a defendant is charged

with aiding and abetting a crime involving an element which enhances or

aggravates the offense, there must be proof that the defendant associated herself

with and participated in both elements of the crime.”). The evidence of these

facts was not insufficient because juries are entitled to infer a defendant’s intent

to distribute from evidence that the defendant knew that the transaction

involved a large amount of narcotics. See United States v. Prieto-Tejas, 779 F.2d

1098, 1103 (5th Cir. 1986) (“[T]he intent to distribute may be inferred from the

quantity and quality of the cocaine in their possession and from possession of a

scale of a type commonly used in the distribution of narcotics.”). The jury heard

testimony that Salvador Garcia’s trafficking operation regularly sold very large

quantities of marijuana, that Arriaga-Guerrero had participated in past
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operations, and that Arriaga-Guerrero was present during the coordination of

the November 30 operation. From this the jury could have inferred that

Arriaga-Guerrero intended to further the conspiracy’s goal of distributing the

759 kilograms of marijuana involved in that day’s operation.

3. Jury Instructions

In his third issue, Arriaga-Guerrero challenges the district court’s jury

instructions by arguing that the district court should have included a limiting

instruction concerning the cocaine evidence challenged by Salvador Garcia.

Specifically, Arriaga-Guerrero argues that the district court should have

instructed the jury as to the limited purposes for which the evidence of Salvador

Garcia’s acts of cocaine packaging and trafficking could be used, and that the

court should have instructed the jury not to use that evidence against

Arriaga-Guerrero. Arriaga-Guerrero raised this issue for the first time in his

reply brief; this despite our earlier order directing counsel to “file a brief

addressing whether the admission of [certain testimony regarding cocaine

transportation and packaging activities] was erroneous.” We often conclude that

an appellant’s failure to raise an issue in its brief on the merits results in waiver.

E.g., Stephens v. C.I.T. Group/Equip. Fin., Inc., 955 F.2d 1023, 1026 (5th Cir.

1992); see Fed. R. App. P. 28(a)(9)(A). However, we sometimes decide

inadequately briefed issues sua sponte in cases of plain error. United States v.

Gonzalez, 259 F.3d 355, 359 (5th Cir. 2001); United States v. Pineda-Ortuno, 952

F.2d 98, 104–05 (5th Cir. 1992).

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
No. 05-41424

20

obvious, or if they otherwise seriously affect the fairness, integrity,

or public reputation of judicial proceedings.

United States v. Atkinson, 297 U.S. 157, 160 (1936); accord Silber v. United

States, 370 U.S. 717, 717–18 (1962) (per curiam) (collecting cases); Gonzales, 259

F.3d at 359; Pineda-Ortuno, 952 F.2d at 104–05; United States v. Adams, 634

F.2d 830, 836 (5th Cir. Unit A Jan. 1981). We choose to consider

Arriaga-Guerrero’s argument that the trial court failed to provide a limiting

instruction addressing the cocaine evidence because Salvador Garcia and the

government briefed the issue, and because the error is likely to arise in a

subsequent habeas proceeding. See Gonzales, 259 F.3d at 359; Pineda-Ortuno,

952 F.2d at 105. Nonetheless, Arriaga-Guerrero’s argument fails.

We again review the content of the district court’s jury instruction for

plain error because Arriaga-Guerrero failed to object at trial and request either

of the instructions he now seeks. See United States v. Delgado, 401 F.3d 290,

299 (5th Cir. 2005). Arriaga-Guerrero’s challenge to the instruction fails to

demonstrate plain error for the same reasons that Salvador Garcia’s challenge

to the jury instruction fails: the district court did not commit plain error when

it admitted the cocaine evidence, and the jury convicting Arriaga-Guerrero heard

the same instruction that prevented reversible prejudice with respect to

Salvador Garcia. By instructing the jury that “[t]he defendant is not on trial for

any act, conduct, or offense not alleged in the indictment,” the district court

mitigated the prejudice resulting from the cocaine evidence in this case. See

Parziale, 947 F.2d at 129; see also United States v. Peterson, 244 F.3d 385, 394

(5th Cir. 2001). Arriaga-Guerrero has failed to demonstrate that the district
No. 05-41424

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court’s instructions “seriously affect[ed] the fairness, integrity, or public

reputation of [the] judicial proceedings.” Atkinson, 297 U.S. at 160.

C. Jorge Garcia

1. Sufficiency

In his first issue, Jorge Garcia challenges his convictions on both counts

by arguing that the government presented insufficient evidence of his presence

at the Aqua Verde property on the day of the seizure. According to Jorge Garcia,

the testimony of law enforcement officials conflicted with that of the other

witness, a convicted felon who testified to Jorge Garcia’s presence that day.

Because Jorge Garcia raised his sufficiency argument in a motion for judgment

of acquittal, we review the district court’s denial of that motion de novo, applying

the same standard as the district court. See supra Part II.B.2; United States v.

Valdez, 453 F.3d 252, 256 (5th Cir. 2006).

This argument does not undermine the Count One conspiracy conviction

because that conviction did not require Jorge Garcia’s presence at the Aqua

Verde property on the day of the seizure. See Valdez, 453 F.3d at 256–57

(conspiracy elements). Nor did the Count Five possession conviction. See United

States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008) (“Possession may

be actual or constructive, may be joint among several defendants, and may be

proven by direct or circumstantial evidence.”); United States v. Salinas-Salinas,

555 F.2d 470, 473 (5th Cir. 1977) (“Constructive possession may be shown by

ownership, dominion or control over the contraband itself, or dominion or control

over the premises or the vehicle in which the contraband was concealed.”).

Instead, the jury was entitled to rely on the testimonial evidence from multiple

witnesses that Jorge Garcia owned the Aqua Verde property, that Jorge Garcia
No. 05-41424

22

had agreed to assist the operation by making the property available as a storage

location, and that the group had agreed to store the drugs from the November

30 operation at Jorge Garcia’s property. See United States v. Vergara, 687 F.2d

57, 61–62 (5th Cir. 1982) (affirming a jury’s inference of constructive possession

from evidence of control of the property and repeated engagements with

coconspirators).

2. Rule 16

In his second issue, Jorge Garcia challenges his conviction by arguing that

the government violated Federal Rule of Criminal Procedure 16(a)(1)(E) by

introducing photographs of the Aqua Verde home into evidence without first

disclosing those photographs to Jorge Garcia. Upon a defendant’s request, Rule

16 requires the government disclose to the defendant certain items “within the

government’s possession, custody, or control.” Fed. R. Crim. P. 16(a)(1)(E).

According to Jorge Garcia, the government’s failure to disclose undermined his

strategy of arguing that he did not live at the Aqua Verde home. “We review

alleged discovery errors for abuse of discretion and will order a new trial only

where a defendant demonstrates prejudice to his substantial rights.” United

States v. Doucette, 979 F.2d 1042, 1044–45 (5th Cir. 1992); accord United States

v. Cuellar, 478 F.3d 282, 293 (5th Cir. 2007) (en banc), rev’d on other grounds,

128 S.Ct. 1994 (2008). Jorge Garcia’s argument fails for at least two reasons.

Initially, Jorge Garcia fails to demonstrate that the district court abused

its discretion when it refused to punish the government for a failure to disclose.

The district court determined that the photographs in question were made

available to the public, and that Jorge Garcia’s inability to acquire the photos

resulted from his attorney’s confusion about how to ask the clerk’s office for
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access. In light of the rule that “there can be no violation of Rule 16

where . . . the defendant’s lack of diligence is the sole cause of his failure to

obtain evidence made available by the government,” Doucette, 979 F.2d at 1045,

the district court did not abuse its discretion when it refused to find a violation

of Rule 16 here. Moreover, Jorge Garcia failed to demonstrate that the district

court’s admission of the photographs prejudiced his substantial rights. The

district court found that the photographs created no surprise, and the other

evidence at trial was sufficient to establish Jorge Garcia’s participation in the

conspiracy and his possession of the marijuana. That is, the evidence of

conspiracy and possession that defeats Jorge Garcia’s sufficiency argument also

defeats the prejudice component of his Rule 16 argument.

Jorge Garcia also argues that the government’s failure to disclose the

photographs violated the government’s duty to disclose evidence under Brady v.

Maryland, 373 U.S. 83 (1963).

To make out a Brady violation, “a defendant must show that (1)

evidence was suppressed; (2) the suppressed evidence was favorable

to the defense; and (3) the suppressed evidence was material to

either guilt or punishment.” “Evidence is material under Brady

when there is a ‘reasonable probability’ that the outcome of the trial

would have been different if the suppressed evidence had been

disclosed to the defendant.”

United States v. Miller, 520 F.3d 504, 514 (5th Cir. 2008) (footnote omitted)

(quoting United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002)). This

argument fails for multiple reasons, the simplest of which is that the

photographs Jorge Garcia challenges do not trigger Brady protections because

they are inculpatory, not exculpatory. See United States v. Johnson, 872 F.2d

612, 619 (5th Cir. 1989).
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3. Sentencing

Finally, Jorge Garcia challenges his sentence by arguing that the district

court added two levels to the original offense level when it actually intended to

subtract two levels to account for Jorge Garcia’s role in the offenses. Jorge

Garcia does not challenge the district court’s calculation of the base offense level,

and does not challenge the substance of the district court’s sentencing decisions.

Instead, Jorge Garcia argues only that the district court “inadvertently added

two points to the offense level after stating its intention to subtract out two

levels for [Jorge Garcia’s] role.” Because Jorge Garcia objected to the omission

of a role reduction in the district court, we review the district court’s application

of the United States Sentencing Guidelines de novo and its factual findings for

clear error. See, e.g., United States v. Barrera-Saucedo, 385 F.3d 533, 535 (5th

Cir. 2004); United States v. Garcia, 242 F.3d 593, 599 (5th Cir. 2001).

Jorge Garcia’s argument fails because the district court made no

inadvertent calculation. After calculating a base offense level of thirty-four, see

United States Sentencing Guidelines Manual § 2D1.1(a)(3) (2004), the district

court enhanced the base offense by two levels for possession of a dangerous

weapon, see id. § 2D1.1(b)(1). Although the presentence investigation report

recommended another two level enhancement for organizing, leading, managing,

or supervising the activity, see id. § 3B1.1(c), the district court rejected that

recommendation. The district court also rejected Jorge Garcia’s request for a

minor participant reduction, see id. § 3B1.2(b), and concluded that Jorge Garcia’s

involvement was “pervasive and over a long period of time.” Contrary to Jorge

Garcia’s suggestion, when the district court said that “[a]fter making the twopoint adjustment, he’s at a Level 36 when I subtract out his role,” the court was
No. 05-41424

 Jorge Garcia does not challenge the substance of the district court’s rejection of the

6

§ 3B1.2 reduction argument.

25

referring to its rejection of the § 3B1.1(c) role enhancement, not an acceptance

of the § 3B1.2(b) reduction. The district court made its conclusion clear:

The Court adopts the factual findings contained within the

Presentence Report. However, the Court concludes that [Jorge

Garcia] should not have been assessed with an enhanced role, that

he was just a regular participant. After making this modification,

this would result in an offense level of 36, which is a guideline range

of 188 to 235 months.

Thus, as a matter of fact, the record defeats Jorge Garcia’s contention that the

district court intended to reduce the sentence to something less than level

thirty-six.

6

III. CONCLUSION

For the foregoing reasons, the district court judgments are AFFIRMED in

all respects.