IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40299

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ENRIQUE VEGA-MILIAN,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:11-CR-553-1

Before WIENER, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Enrique Vega-Milian appeals his conviction of

possession with intent to distribute marijuana. Vega-Milian, a truck driver,

contends that his wife’s proffered testimony that he told her he planned to

return to a truck stop should have been admitted pursuant to Rule 803(3) of the

Federal Rules of Evidence to bolster his testimony that he in fact returned to the

truck stop to pick up a legitimate load of merchandise. He argues that the

United States Court of Appeals

Fifth Circuit

F I L E D

February 22, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-40299

district court deprived him of his right to present a defense by sustaining the

government’s hearsay objection.

Vega-Milian raised the hearsay argument in the district court. He did not

raise the constitutional argument. We review the hearsay argument for abuse

of discretion, see United States v. Narviz-Guerra, 148 F.3d 530, 536 (5th Cir.

1998), and the constitutional argument under the plain error standard, see

United States v. Ferguson, 211 F.3d 878, 886 (5th Cir. 2000).

Any error in sustaining the government’s hearsay objection was harmless. 

See United States v. El-Mezain, 664 F.3d 467, 526 (5th Cir. 2011), cert. denied,

133 S. Ct. 525 (2012). Vega-Milian was stopped with two tons of marijuana

worth over $3.3 million in the trailer portion of his truck, which took a team of

agents between three and four hours to unload. He had a bogus bill of lading,

and he either tampered with his logbooks as he testified he did or testified

falsely about doing so. As he was alone in the vehicle when he was stopped, the

jury could have inferred that Vega-Milian possessed the marijuana in the trailer. 

See United States v. Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992). The jury could

also have inferred from the massive quantity and value of the marijuana that

Vega-Milian intended to distribute the drug, see id., and that it would be most

unlikely for a drug-distribution ring to trust an unknown driver with such a

large cargo, see United States v. Gonzalez-Rodriguez, 621 F.3d 354, 362 (5th Cir.

2010). And the jury could have inferred Vega-Milian’s guilty intent from the

bogus bill of lading and the testimony about the logbooks.

In the face of this strong evidence of Vega-Milian’s guilt, testimony from

his wife that he told her he intended to return to the truck stop, to which, he

testified, he actually returned, would not have affected the outcome of the trial. 

Any error in sustaining the government’s objection, therefore, was harmless. See

El-Mezain, 664 F.3d at 526. For the same reasons, Vega-Milian cannot

demonstrate the prejudice necessary to prevail on his constitutional claim on

plain error review. See Puckett v. United States, 556 U.S. 129, 135 (2009).

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Finally, Vega-Milian contends that the evidence was insufficient to

support his conviction because the government was obliged to prove his

knowledge of the type and quantity of the drug he carried. He concedes that this

issue is foreclosed by United States v. Betancourt, 586 F.3d 303 (5th Cir. 2009),

but he raises it to preserve it for further review. Vega-Milian is correct that his

contention is foreclosed. See id. at 308-09.

AFFIRMED.

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