### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50021

UNITED STATES OF AMERICA, Plaintiff–Appellee,

versus ELADIO CLARK-GONZALEZ, III, Also Known as Eladio Clark; JUAN CARLOS AGUILAR-DIAZ, Also Known as Juan Aguilar-Diaz, Defendants–Appellants.

Appeals from the United States District Court for the Western District of Texas USDC No. 1:11-CR-26-10

Before SMITH, HAYNES, and GRAVES, Circuit Judges. JERRY E. SMITH, Circuit Judge: *

E l a di o C l ark

- G o n z al e z (“Clark”) and Juan Aguilar-Dia z (“ Agu il ar”) c o nt e s t the s ufficiency o f the evidence supporting their convictions of conspiracy to manU n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 19, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50021 Document: 00512280768 Page: 1 Date Filed: 06/19/2013No. 12-50021

ufacture and possess with intent t o distribute one hundred or more marihuana plants. They also contend that the district c o urt erred by f ailing to declare a mistrial over the introduction of improper evidence. Moreover, Aguilar maintains t h a t the court plainly erred by a llowing t estimony t h at i mplied he had exercised his right to remain silent. Finding no reversible error, we affirm.

I. Clark a nd Aguilar were charged, along with several others, including Abel Agu il ar - O t a n o (“

A b e l”) a n d Lazaro Ruiz-Ruiz (“Ruiz”), with conspiracy to p o s s e s s with i n tent to distribute and to m a n u f a c t ure one hundred or more marihuana
p l a nts, 21 U.S.C. §§ 841(b)(1)(B), 846. Clark, Aguilar, and Ruiz wer e t r i e d together. F ollowing a f ive-day jury trial, a ll three were found guilty of conspiracy, a nd the jury found that the conspiracy involved at least o ne hundred marihuana plants. Abe l w a s a fugitive in Cuba at the t ime of trial. Sariel Enriquez-Otano (“Sariel”), Abel’s cousin, t estified that in June or July 2010, he became i nvolved in a marihuana-grow operation with Abel. The two men set the operation up in the garage of a house on Disraeli Street i n Pflugerville, T exas, and Sariel resided in the house. S a riel conducted two grows at the Disraeli address and w as starting a third crop when the house was raided in December 2010. During the raids, marihuana-grow operations were found at three houses, and the c omponents for a nother operation were found at a fourth h o u s e
. Law enforcement o fficers found grow o p e r a t i o n s taking place at a house on Quail Creek that had been occupied by R uiz and his girlfriend, Yamila Mateos, and at

a hous e o n T u f

f i t owned by Heber Morales. Sariel knew that Morales was conducting a marihuana grow at the Tuffit address and h ad seen Morales and Abel together several t imes there. M a t e o s t e stified t hat Abel had been a frequent visitor to the Q uail Creek house. Extra c ooling s ystems and specialized

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electrical systems had to be set up to sustain the grow operations. At a ll three locations, there were similar air-conditioni n g s y s t e m s , a n d th e e l e c tri c al systems had the same schemes, breaker boxes, a nd t imers, which had been mounted on boards that could b e pulled off the w a lls. S i m i lar types of f ertilizers, highintensity light b ulbs, reflective paneling, plant stakes, plant pots, and plantcloning operations were found at each of those three locations.

I I. Clark and Aguilar moved for a judg m e n t of acquittal at the close of the government’s case-in-chief and after the close of all evidence, pursuant to Federal R ule of Criminal Proce d u r e 2 9

. They appeal t h e denial of those motions, arguing that the evide n c e w a s not constitutionally sufficient to support their convictions. “We review de novo the d e n i a l o f a Rule 29 motion for a judgment of acquittal.” United States v. Xu , 599 F.3d 452, 4 53 (5th C ir. 2010). “In determining i f t here was s ufficient evidence to s upport a conviction, t h e ‘relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, a ny rational trier of fact cou l d have found the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackso n v. Virginia , 443 U.S. 307, 319 (1979)). In our review of sufficiency, the “only questio n” b e fore us is whether the jury’s “finding was so insupportable as to fall below the threshold of bare r a tionality.” Coleman v. Johnson , 132 S. Ct. 2060, 2065 ( 2012). “Direct and circumstantial evidence are given equal w eight, and the e vidence need not exclude e ve r y reasonable h ypothesis of innocence.” United S tates v
. Gonzales , 79 F.3d 413, 423 (5th Cir. 1996). To prove a conspiracy under § 846, the government must show (1) the existence of an agreement between two o r m ore persons to violation federal narcotics laws, ( 2) the defendant’s knowledge of the agreement, and ( 3) the defendant’s

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voluntary particip a t i o n in the conspiracy. United S tates v. Thomas , 690 F.3d 358, 366 (5th Cir.), cert. denied , 133 S. Ct. 673 ( 2012), and cert. denied , 133 S. Ct. 1281, and cert. denied , 1 33 S. Ct. 1743 (2013). “[K]nowledge of a conspiracy and voluntary p a r t i c i p ation may be inferred from a collection of c i rcumstances.” United States v. Watkins , 5 91 F.3d 780, 788 (5th C ir. 2009) (marks a nd citation omitted). “While mere presence at the scene or association with co-conspirators is insufficient, they are f a ctors that may be c o nsidered in finding conspiratorial activity.” Thomas , 690 F.3d at 366 (internal quotation mark s and citation omitted). “[P]lacing a defendant in a climate of activity t hat reeks of s omething foul is not enough t o support a conspiracy conviction,” and “while circumstantial evidence may be particula r l y v a l u able in proving the existence of the conspiratorial agreement, we have repeatedly stressed that we will not lightly infer a d e f

e n d a n t ’ s knowledge o f and p articipation i n a conspiracy.” United States v. Dean , 59 F.3d 1479, 1485 (5th Cir. 1995) (quotation m arks and citation omitted). Neither defendant disputes the existence of a conspiracy to manufacture and possess with the intent to distribute marihuana. At i ssue is whether Clark and Aguilar knew of and voluntarily participated in the conspiracy.

A. Viewing the evidence in a light most f a vorable t o the p rosecution, a rational jury could have found Clark guilty beyond a r easonable doubt. First, he

was given unusual access to the garage a t t h e Q uail Creek h ouse, which was ultimately found to contain a marihuana grow. M ateos testified that Ruiz kept the garage under lock and k ey and never let her ent e r i t , a l t h ough he went in
every f ew days. When she asked about t he g arage, R u iz told h er not to “ put [her]

nose in it.” The first few times the co-conspirators arrived to go to t h e garage, Ruiz i n s t r u cted Mateos to go upstairs, to the second floor o f the house. After

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that, she knew to go upstairs on her own. Abel visited t he Q u a il Creek location “twenty, thirty, fifty times” during the six- to eight-month period Mateos lived there w ith Ruiz. Clark visited three or four times and was permitted t o go into the garage at least once. Clark’s presence at Quail Creek was corroborated by

n e i ghbors who saw his pickup there and wrote down its license plate n umber. A rational fact-finder could c onclude that R uiz allowed only members of the conspiracy to enter the garage, because h e was growing, or setting up to grow, marihuana there. 1 Second, the evidence at tri al , th o u gh n o t c o n c l usive, w as a t least consistent with the government’s theory that Clark i nstalled air-conditioning and e l e c tri c al wiring in some of the grow houses. 2 The jury heard that Clark h a d the ability to perform that type of work, that he was seen going into the gara g e a t Quail Creek, that the AC and electrical systems in the three gr ow houses w ere similar, and that law e nforcement had received information “that [ Clark] had done work in the marihuana grow.” 3 Clark contends that the evid e n c e presents a stronger case that William Martin installed the AC and e lectrical systems observed in t he Q uail C r eek garage o n D ecember 21, 2 010. In particular, Martin had relevant work experience,

1 Clark contend s that the evid ence d id no t p r ove that a m arihuana- grow op eration exis ted at the hous e on Q uail Creek bef ore 2010, and his acces s to the garage in 2008 cannot, theref ore, be connected to the grow op eration. A rational jury could have inf erred that there
w as a grow op eration, p erhap s at an early s tage, in 2008 f rom the f

acts that Ruiz kep t the garage lock ed d uring that tim e and that neighbors f irs t rep orted s us p icious activity there in early 2008.

2 Sariel tes tif

ied that he and Abel ins talled the air cond itioning and sp ecialized electrical wiring in the garage on Dis raeli.

3 D etective D ean Peters on tes tif ied to that f

act on cros s - exam ination. The f ound ation f or his tes tim ony w as a pos t- arres t s tatem ent f rom C lark , w hich had been exclud ed by the d is

trict court bas ed on Bruton v
. U ni ted Sta tes , 391 U

. S. 123 ( 1968)

. B e c a u s e Peters on’s tes tim ony w as d irectly res p ons ive to a ques tion of op p os ing couns el, it w as not objected to on hears ay ground s . 5 Case: 12-50021 Document: 00512280768 Page: 5 Date Filed: 06/19/2013No. 12-50021

stayed w ith Mateos i n the Quail Creek house, had a Texas Hydroponics business card, and had equipment in his residence similar to that used i n the three grow houses. None of that evidence makes it more plausible that Martin rather than Clark installed the AC a nd electrical systems. Both were capable and had access to the Q uail Creek garage. T h e r e m a i n i ng evidence may indicate that Martin built t he actual grow systems, but it has nothing to do w ith the AC and electrical systems. I n any event, the “jury is fr e e to c hoose among reasonable constructions of the evidence.” United States v. Pigrum , 922 F.2d 2 49, 254 (5th Cir. 1991). Third, a rational factfinder could c o n c l u de t hat Clark was compensated for h i s r ole in the conspiracy. When law enforcement officers raided the T u f f i t house, they discovered a p aper, which appeared to be a drug-tally sheet, indicating that “Lallin”—Clark’s nickname—was owed $1000. Clark offers a number of reasons to discount the evidence—the price and quantity s eem t oo low, several of the n otations did not r efer to known members of the conspiracy, and one of the notations might refer to a n a quarium—but this court m ust view the evidence in

a light most fa v o r a b l e t o the government. Additionally, Mateos, possibly at Ruiz’s b ehest, wrote a $2000 check for cash i n July 2010, which Clark endorsed. Mateos testified that it was not a rent payment. F o urth, the government presented evi d e nc e th at C l ark m a d e p urch a s e s f ar in excess of his apparent income. In 2010, he owned two 2009 v e hicles and two residences, one of w hich was worth $145,000. The jury heard that Clark’s sole

source of income was his work as lead maintenance man at a n apartment complex and could reasonably infer that he supplemented his income illicitly. 4 Fifth, Clark had numerous associations with the conspirators. He allowed Mateos, R uiz, and Martin to use his address for vehicle registrations and bank

4 See U ni ted Sta tes v
. G onz a les , 79 F. 3d 413, 424 ( 5th C ir. 1996) ( noting that incons is

tency betw een rep orted incom e and exp end itures “s ugges t[ ed] incom e f rom illicit s ources ”)

. 6 Case: 12-50021 Document: 00512280768 Page: 6 Date Filed: 06/19/2013No. 12-50021

statements. Ruiz and Mateos lived at his ranch. Clark worked with and supervised Martin a nd knew and visited Abel. Shortly before the raids, a black SUV registered to C lark was seen arriving at the house on Tuffit. Clark’s close association with t h e c onspirators, standing alone, might not be sufficient to support his conviction, 5 but “presence or association is one factor that the jury may rely
on, along with other evidence, in finding conspiratorial activity by a defendant.” United States v. Gallo , 927 F.2d 815, 820 (5th Cir. 1991) (quotation marks and citation omitted). T he evidence of Clark’s close a ssociations with the c onspirators, access to the locked g ara g e a t Quail Creek, specialized skills that would have been useful t o th e conspirators, purchases in e xcess of legitimate income, and possible payment for services rendered allowed a rational t rial of f act to find Clark guilty of conspiracy beyond a reasonable doubt.

B. The evidence of Aguilar’s knowledge of and voluntary participation in the conspiracy s u f

f i c iently supports the verdict. Aguilar was pulled over and

a r rested in July 2008 while transporting over t h irty pounds of h igh-poten c y marihuana through Mississippi in a recreational vehicle ( “ RV” )

. Although he asserts t here was no evidence he had knowledge o f the marihuana, a jury could reasonably infer that he did. Aguilar made a call on his cell phone w hile seated in t he back of the patrol

car after being pulled over. During the call, he s tated that the vehicle was being checked, that he was in the back seat of a patrol car, and that “they’re going to get me f o r s u re.” Although it is unclear from Aguilar’s cell phone records to whom he w a s s peaking during that c onversation, the records show that he recei v e d a round ten brief calls from Ruiz on the day of the arrest. The jury

5 See, e. g. , U

ni ted Sta tes v. M

a l tos , 985 F. 2d 743, 747 ( 5th Cir. 1992) ; U ni ted Sta tes v
. G ardea Ca rra sco , 830 F. 2d 41, 45 ( 5th Cir. 1987)

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heard that this pattern of short calls is c ommon when a s upplier is checking on h i s d r ug carrier’s t rip. Also, cell phone records f or Aguilar and Ruiz reveale d that they frequently communicated with Abel and that the three talked on the day of Aguilar’s arrest. Additionally, a reasonable jury could have connected the marihuana discovered in Aguilar’s RV to the conspiracy in t wo w ays. First, the jury heard from

an officer, who observed both, that the marihuana found with Aguilar a ppeared similar t o the marihuana s eized from the grow houses. 6 Second, although Aguilar lived in Florida, he rente d the RV in Austin and paid cash. As the government notes, a jury could reasonably infer that Aguilar r e nted the trailer in Austin so he could load i t with m arihuana grown in or near Austin a nd t hen transport it to the Eastern United States. The government contends that this incident alone would allow a reasonable inference of Aguilar’s knowledge of and v oluntary participation in the broader conspiracy. [C]onduct co n s i s ti n g o nly of involvement in a single transaction may nevertheless be treated as rationally perm i tting the inference of k n o w l e dge o f the broader conspiracy w here the single act itse l f shows so much familiarity with or high-l e v e l p a rticipation in t h e overall conspiracy as to be in and of itself indicative o f the broader conspiracy.
United States v. Hawkins , 661 F.2d 4 36, 4 5 4 ( 5 t h Cir. Unit B Nov. 1981). In H a w k i n s , we held that the defendant’s knowledge of the broader conspira c y could b e inferred f

rom his a wareness of the u s e of p rivate pl a n e s to t ransport drugs and from his p ersonal contact and i nvolvement with other members of the

6 Aguilar contend s that any link betw een the tw o is p ure s p eculation and w ithout any f ound ation, given t h a t all m arihuana look s the s am e. The of f icer ack now led ged that his t e s t i m o ny w as not conclus ive—he tes tif ied im med iately bef

orehand that he w as “not a horticulturis t”— s till, in connection w ith the p hone calls and other evid ence, the tes tim ony as to s im ilarity, in ap p earance and grad e, could have been help f ul to the jury. 8 Case: 12-50021 Document: 00512280768 Page: 8 Date Filed: 06/19/2013No. 12-50021

conspiracy. Id. A g u i l a r a rgues that Hawkins is distinguishable, because his transporting nearly $100,000 worth of high-potency marihuana d i d n o t make him a high-level participant in the overall conspiracy. Regardless of whether the jury could have rationally found Aguilar guilty based on his arrest alone, it heard much more e vidence. In particular, it heard of A g uilar’s connections and a ssociations with the conspirators that rivaled or exceeded Clark’s. F or instance, Abel and other conspirators made use o f a black BMW, registered to Agu i lar. Abel o nce used it t o r etrieve a package from an unlocked, parked v e hicle that was in front of a house the DEA had been watching. The jury heard a DEA task force officer testify t hat h e inferred, t h erefore, that Abel was involved with drugs. Abel also drove Aguilar’s BMW to meet with Ruiz, and the c ar was spotted at the Quail Creek house. Aguilar was also linked to Mateos, Ruiz, and Morales. Furthermore, the jury heard that Aguilar met with Morales a t one point in a parking lot, where the two exchanged a small object hand-to-hand. Morales

came t o t he m eeting from the Tuffit house, where i n v e s t i gators would shortly find m arihuana. Aguilar notes that there was no direct evidence that the small object had to do with marihuana, but the jury could have rationally i n ferred that it h ad s omething t o do with the conspiracy and therefore that it demonstrated Aguilar’s knowledge of and p a r t i cipation in the conspiracy. Based on this evidence, a rational jury could f i n d b e y o nd a reasonable doubt that Aguilar was guilty of conspiracy. 7

7 Aguilar as s erts , in the alternative, that the dis trict court s hould have granted jud gm ent of acquittal as to the greater of f ens e and s hould have allow ed the jury to cons id er only the les s er includ ed of

f ens e of f ew er than one hund red p lants

. Aguilar of f ers no argum ents or citations to sup p ort t h a t a s sertion, w hich is w ithout m erit— during the 2010 raid s, of f icers f ound thirty- f

our m arihuana p lants grow ing at the T uf f it hous e and another s eventy- f our on D is raeli. 9 Case: 12-50021 Document: 00512280768 Page: 9 Date Filed: 06/19/2013No. 12-50021 III. C l a r k a nd Aguilar contend that the district court erred by failing to declare a mistrial after the introduction of improper evidence. 8 “When i mproper evidence is introduced t o the j ury but a defendant’s subsequent motion for mistrial is denied, w e review the denial for abuse of discretion and, if w e find error,

we apply harmless error review.” United States v
. Lucas , 516 F .3d 316, 345 (5th Cir. 2008) (internal citation omitted). At the end of the second day o f trial, Mateos testified t hat s he had moved with R uiz from Florida to Au s t i n. When t he prosecutor a sked why they had done so, Ruiz’s counsel objected, anticipating h er testimony that Ruiz h ad been involved in a marihuana-grow operation. After t he jury had been dismissed for the evening, Mateos stated that Ruiz had been growing marihuana in Florida. The next morning, Mateos testified, over defense counsel’s objection, that Ruiz was “clearly” growing marihuana when the two lived in Florida. Upon further questioning, M ateos clarified that she had never seen Ruiz growing marihuana but assumed he had been because he p a lled a round with a k nown marihuana grower and would not allow h er i nto a locked area of h is house. Ruiz’s counsel moved to strike Mateos’s t estimony, because she had no p ersonal knowledge that Ruiz grew marihuana. J oined by c ounsel for Aguilar and C lark, Ruiz’s counsel also moved for a mistrial because the jury had heard M ateos testify that Ruiz was growing marihuana in Florida. The court d enied the motion for a mistrial but agreed to s trike M a teos’s testimony. The court informed the j u r y t h a t i t was striking the t estimony

8 Clark ad op ted the p ortion of Aguilar’s brief m ak ing this argum ent by a Fed eral Rule of Ap pellate Proced ure 28(i) letter. This court has “p revious ly held that an ap p ellant m ay not rais e fact- s p ecif

ic challenges t o h i s o w n conviction or s entence, such as s uf f iciency- of

- theevid ence challenges or c h a l l e n g e s to the ap p lication of the s entencing guid elines , by m erely ref erring to s im ilar challenges in another ap pellant’s brief.” U ni t ed Sta tes v
. A l ix , 86 F. 3d 429, 434 n. 2 (5th Cir. 1996)

. Becaus e this is not a f act- s p ecif

ic challenge, Clark ’s letter s uf f ices to rais e it. 10 Case: 12-50021 Document: 00512280768 Page: 10 Date Filed: 06/19/2013No. 12-50021

because Mateos lacked personal knowledge and that t h e j u r y was n ot to “consider [it] for any p erson because you do not k n ow what he did and we can’t speculate on it.” The c o u r t s t ressed that “it’s not a dmissible evidence, a nd you shouldn’t consider it w hen you decide the innocence or the guilt of Mr. Ruiz or any of the defendants, for that matter. So I’m just striking it entirely.” Aguilar and Clark assert that, b e c au s e M at e o s ’ s t e s ti m o ny w a s irr e p ar ab ly prejudicial, the court abused its discretion by failing to declare a mistrial. “A

new trial is required only when, after a r e v i e w o f the entire record, it appears that t here is a significant possibility that the prejudicial evidence had a substantial impact on the jury verdict.” United States v. Valles , 484 F.3d 745, 756 (5th Cir. 2007). T his court “give[s] great weight to the trial court’s a ssessment of the prejudicial effect of the evidence, and prejudice may be rendered harmless by a curative instruction.” Id. Where, as here, the c o u r t gi ves the j ury a curative instruction, w e “presume that such instructions are followed unless there is an overwhelming probability that the jury will be unable to follow the instruction

a nd there is a strong probability that the effect [of the i m proper stat e m e n t ] i s devastating.” United States v. Turner , 674 F.3d 420, 440 (5th Cir.) (internal quotation marks and citation omitted; alteration i n original), c ert. denied , 1 33 S. Ct. 302 (2012). We find no merit in this challenge. Mateos testified that Ruiz was growing marihuana in Florida, but s h e s o on c larified that she m erely assumed he was d oing so. Her testimony was objected to immediately, then was stru c k w i t h detailed curative instructions emphasizing that i t was speculation with no foundation in Mateos’s personal knowledge. F urthermore, t he t estimony concerned Ruiz’s possible grow operation, not Aguilar’s a nd n ot Clark’s. The only, tenuous, connection with Aguilar i s Mateos’s later testimony that Aguilar and Ruiz were co-workers, coupled with the fact that Aguilar is from Florida. Finally, neither defendant d i s p u t e s t he e xistence of a conspiracy to grow and distribute mari11 Case: 12-50021 Document: 00512280768 Page: 11 Date Filed: 06/19/2013No. 12-50021

huana; a t issue i s Aguilar’s a n d C l ark ’ s k n o w l e d g e o f and voluntary p a rticipation i n that conspiracy. There is no significant possibility that Mateos’s testimon y had a substantial impact on the jury’s decision on that issue.

IV. Aguilar maintains that the district court erred by ad m i t t i n g t estimony that implied he had exercised his right to remain silent. Because Aguilar failed to object to the testimony, r eview is f or plain error. See United States v
. GarciaFlores , 246 F.3d 451, 457 ( 5th C i r . 2001). Aguilar must s how a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States , 556 U.S. 129, 1 35 (2009). If he makes s uch a showing, this court has discretion to c orrect the error, b ut only if it seriously a ffects the fairness, integrity, or public reputation of judicial proceedings. Id. O n cross-examination, Aguilar’s attorney asked the officer who stopped Aguilar in Mississippi whether he o r a nother officer had informed Agu ilar of the

reason for his arrest. T h e o fficer replied, semi-responsively, “The investigator would advise him o f his rights, and I do k now that the investigator put ‘refused’

on his rights.” Although Aguilar failed to object at the t ime, he now a rgues that the officer improperly commented on his silence, violating his Fifth Amendment right to be free from self-incrimination. Under the Fourteenth Amendment, t he government may not use “a defendant’s post-arrest, post- Miranda silence t o create an inference of guilt.” GarciaFlores , 246 F.3d a t 4 55 (citing Doyle v. Ohio , 426 U.S. 610 (1976)). The test for

a Doyle violation is “whether the ‘manifest intent’ of the remarks was to comment on the defendant’s silence, or (stated a nother way) whether the character of the remark was such that the jury would naturally and necessarily construe it as a comment on the defendant’s silence.” United Stat e s v
. P ennington , 20 F.3d 593, 599 (5th Cir. 1994). This court also seeks “to determine whether the

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remark was a spontaneous comment b y the witness or a comment prompted by the prosecutor.” United States v. Moreno , 185 F.3d 465, 472 (5th Cir. 1999). Aguilar has not shown that t here w as an error, much less an obvious one. First, t he officer’s comment was not elicited by the p rosecution during its casein-chief but b y defense counsel on cross-examinatio n . Aguilar points o ut that the

rema r k w a s u n solicited, as in fact it was, b ut there is no evidence that it was anything othe r t h a n spontaneous. Second, Aguilar’s silence did not come up again; the prosecutor did not mention it in closing argument. There is no e v i

dence that the government i ntended to use his silence t o create a n inference of guilt. Third, the r emark was vague; the jury would n ot naturally construe it as

a comment o n Aguilar’s silence. The officer did not say that Aguilar had exercised his rights by refusing to speak but only that the investigator had written “refused” on his rights. This could mean that Aguilar r efused to sign the form acknowledging his rights or perhaps even that he refused his right to counsel. Finally, even if there was p lain e r r o r, Aguilar has not shown that it affected his substantial rights. Given t he o t h e r e vidence of his guilt and the vague nature of the c omment, Aguilar has not show a reaso n ab l e probability that, but for the error, the result of his trial would hav e b e e n d i f ferent. See United States v. Martinez-Rios , 595 F.3d 581, 587 (5th Cir. 2010). AFFIRMED.

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