United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-40239 

____________ 

United States of America, 

Plaintiff—Appellee, 

versus

Victor Javier Lopez-Llamas, 

Defendant—Appellant. 

______________________________ 

Appeal from the United States District Court 

for the Eastern District of Texas 

USDC No. 4:18-CR-205-10 

______________________________ 

Before Dennis, Willett, and Duncan, Circuit Judges.

Per Curiam:*

Victor Javier Lopez-Llamas was arrested for participating in a multiyear drug-trafficking conspiracy. He was convicted by a jury for conspiring to 

possess with the intent to distribute cocaine. Llamas appealed that 

conviction, arguing that five errors warrant reversal individually and in the 

aggregate. We disagree and AFFIRM. 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

September 23, 2024 

Lyle W. Cayce 

Clerk 

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2 

I 

In 2019, Victor Javier Lopez-Llamas was arrested as he and his wife, 

Ruth Margarita Martinez-Garcia, crossed into the United States from 

Mexico. He was charged with conspiring to possess with the intent to 

distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846 in Count Two 

of the indictment. Other individuals, but not Llamas, were named in Count 

One for conspiring to possess with the intent to manufacture and distribute 

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 846. Llamas 

pleaded not guilty. 

During a four-day jury trial, the Government called eight witnesses 

and presented audio recordings, photographs, and other records establishing 

that Llamas participated in a drug-trafficking conspiracy with the Cártel del 

Jalisco Nuevo Generación, a cartel with operatives in Mexico and Texas. The 

Government showed that Llamas knew Francisco Mejia-Chavez—a cocaine 

supplier for the cartel—for twenty-five years and that they made frequent 

trips across the United States–Mexico border. The Government also put on 

evidence of an attempted drug deal between two confidential sources and 

Llamas, his wife, and another man from the conspiracy (though the Drug 

Enforcement Administration ultimately found no drugs and let Llamas and 

his group go). In addition, two co-conspirators testified against Llamas. 

Marco Antonio Rodriquez-Izazaga testified that Mejia-Chavez and Llamas 

sought his help in distributing cocaine in Dallas, that Mejia-Chavez and 

Llamas were partners in the cartel, and that Llamas was “in charge of the 

[cocaine] transport.” Another member of the conspiracy and Government 

cooperator, Magdalena Chavez, corroborated Izazaga’s account.

Llamas testified in his own defense and called no other witnesses. He 

maintained that he “ha[d] never been involved in transporting cocaine or 

methamphetamine to the United States,” and said that he was a mechanic, 

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3 

that he raced cars, and that he traveled to the United States for car shows.

He explained that he feigned interest in the Government’s attempted drug 

deal so that he could recover a racecar that was stolen from him.

The district court instructed the jury as to Counts One and Two. The 

jury found Llamas guilty of both. After realizing that Llamas was not named 

in Count One of the indictment, the district court acquitted him of Count 

One and sentenced him to 188 months’ imprisonment on Count Two. 

Llamas appealed his conviction and sentence. Llamas’s notice of 

appeal was untimely under Federal Rule of Appellate Procedure 4(b)(1)(A), 

but the Government has waived its objection. Because Rule 4(b)(1)(A) is not 

jurisdictional, we accept the Government’s waiver and reach the merits. See 

United States v. Martinez, 496 F.3d 387, 388–89 (5th Cir. 2007) (“Rule 

4(b)(1)(A)’s time limit is not dictated by statute, and as Bowles [v. Russell, 551 

U.S. 205 (2007)] teaches, it is not jurisdictional.”); United States v. Fearce, 

455 F. App’x 528, 529 (5th Cir. 2011) (“[T]he time limit for filing a criminal 

appeal is not jurisdictional and can be waived.”). 

Llamas raises five separate errors: prosecutorial misconduct because 

he was tried on a count for which he was not indicted; questions about 

Llamas’s wife’s indictment and fugitive status; admission of several news 

articles; questions about whether other witnesses lied; and comments about 

defense counsel “trying to trick” a witness. We review each asserted error in 

turn, before addressing whether the purported individual errors in the 

aggregate warrant reversal. 

II 

Llamas argues for the first time on appeal that the prosecutor 

committed misconduct and violated his right to a fair trial under the Sixth 

Amendment by subjecting him to evidence of a methamphetamine 

conspiracy (Count One) that was inadmissible to prove the cocaine 

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conspiracy (Count Two). He concedes that review is for plain error. To 

prevail, he must show (1) an error (2) that is “clear or obvious” and that (3) 

affected his “substantial rights.” See Puckett v. United States, 556 U.S. 129, 

135 (2009). If he makes this showing, we may remedy the error—but only if 

the error “seriously affect[s] the fairness, integrity or public reputation of 

judicial proceedings.” Id. (alteration in original) (quoting United States v. 

Olano, 507 U.S. 725, 736 (1993)). 

As the Government acknowledges, Llamas undeniably suffered an 

error on Count One because he could not be convicted of an uncharged 

offense. United States v. Greenlaw, 84 F.4th 325, 358 (5th Cir. 2023), cert. 

denied, No. 23-631, 2024 WL 2116272 (U.S. May 13, 2024) (“[A] court 

cannot permit a defendant to be tried on charges that are not made in the 

indictment against him.” (alterations in original) (quoting Stirone v. United 

States, 361 U.S. 212, 217 (1960))). But the district court remedied this error 

by acquitting him of his Count One conviction. 

So we consider alleged errors only as to Count Two. Llamas has not 

shown that he was denied a fair trial on Count Two because he was also tried 

on Count One. Relying on Federal Rule of Evidence 404(b), he “asserts that 

the evidence of methamphetamine would not and should not have come in” 

had he been tried on only Count Two (cocaine conspiracy). But he fails to 

“specifically identify” evidence that would be admissible as to Count One 

but not as to Count Two. See United States v. West, 22 F.3d 586, 594 n.24 (5th 

Cir. 1994) (“We note that West’s failure to specifically identify those 

portions of the record relevant to his claim of [Rule 404(b)] error borders on 

waiving any claim of error.” (citing former Fed. R. App. P. 28(a)(4), what 

is now Fed. R. App. P. 28(a)(8)(A))); see also United States v. Moreno, 540 

F. App’x 276, 276–77 (5th Cir. 2013) (per curiam) (“Moreno does not 

identify with specificity any instance in which the district court refused to 

admit into evidence the criminal conviction of any Government witness.”); 

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Zapet v. Ashcroft, 75 F. App’x 244, 245 (5th Cir. 2003) (per curiam) (“Zapet 

does not identify the particular documentary evidence that he alleges the BIA 

did not consider, nor does he explain why the specific evidence was pivotal 

to his case. Zapet has not shown error.”). This “borders on [forfeiture] of 

any claim of error.” West, 22 F.3d at 594 n.24. 

Regardless, “[n]o facts appear . . . to convince” us that there is clear 

or obvious error as to Count Two. See United States v. Meadows, 523 F.2d 365, 

368 (5th Cir. 1975) (“We can find obvious error here only if the facts in the 

record compel the conclusion that the seizure was illegal. No facts appear in 

this record to convince us that the evidence should have been 

suppressed . . . .”). It is not clear that all evidence relating to the alleged 

methamphetamine conspiracy “was simply inadmissible in circumstances 

where [Llamas] was only charged with the cocaine conspiracy.” Llamas 

invokes Rule 404(b), which “limits the admissibility of extrinsic evidence, 

but not intrinsic evidence.” United States v. Garcia, 567 F.3d 721, 727 (5th 

Cir. 2009). “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. (quoting 

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

extrinsic, the district court must determine whether (1) “the extrinsic 

evidence is relevant to an issue other than the defendant’s character” and 

(2) “the evidence . . . possess[es] probative value that is not substantially 

outweighed by its undue prejudice and . . . meet[s] the other requirements of 

Rule 403.” Id. (quoting United States v. Sanders, 343 F.3d 511, 518 (5th Cir. 

2003)). 

The methamphetamine evidence here is intrinsic. The cartel’s 

methamphetamine and cocaine ventures were “commingled,” see United 

States v. Sudeen, 434 F.3d 384, 388–89 (5th Cir. 2005) (holding that evidence 

of the insulin scheme was intrinsic to evidence of the fertilizer scheme 

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because the defendant “commingled funds between the two”), and the 

evidence involving methamphetamine gave background on the cartel’s 

methods and personnel, all of which were relevant to understanding the 

scope and structure of the cartel’s cocaine conspiracy. See United States v. 

Navarro, 169 F.3d 228, 233 (5th Cir. 1999) (finding that “the evidence of drug 

operations and organization in Arkansas [postdating the charged conspiracy] 

demonstrated the continuing nature of the organization, the structure of the 

organization, and the continuing contact between Edmondson, Navarro, and 

Ferguson” was intrinsic because it was “‘inextricably intertwined’ with the 

evidence used to prove the charges of possession and conspiracy of 

methamphetamine”). The other methamphetamine evidence explained how 

Izazaga was caught accepting methamphetamine and then induced to 

cooperate with the Government. See Navarro, 169 F.3d at 233. Evidence 

about Izazaga’s cooperation is relevant to Count Two because Izazaga 

testified about the cartel’s structure and Llamas’s role in the cocaine 

conspiracy. 

Accordingly, Llamas has not shown clear or obvious error in the 

admission of this evidence. 

III 

For the first time on appeal, Llamas accuses the Government of 

(1) violating Federal Rule of Criminal Procedure 6(e)(4) by asking Llamas 

about the existence of a sealed indictment against his wife and co-defendant, 

Martinez-Garcia; (2) imputing her guilt to him; and (3) improperly referring 

to an out-of-court conversation with Llamas in which the prosecutor told 

Llamas that his wife was a fugitive. We review for plain error and find none. 

First, Llamas has not shown that the prosecutor plainly erred under 

Rule 6(e)(4). Llamas cites no case in which a defendant invoked Rule 6(e)(4) 

to forbid a prosecutor’s inquiry into a sealed charge, much less a sealed 

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charge against a co-defendant, and much less after the defense already 

disclosed the charge. This isn’t surprising. Although Rule 6(e)(4) has some 

benefits for defendants, especially informants, it’s largely a tool wielded by 

and for the Government. See, e.g., United States v. Rogers, 781 F. Supp. 1181, 

1190 (S.D. Miss. 1991) (noting that “the government’s decision to seal an 

indictment is found to have been proper” when it is “based on a legitimate 

prosecutorial objective”); United States v. Khoury, No. 4:17-MC-2553, 2018 

WL 2864413, at *4 (S.D. Tex. June 11, 2018) (“Reasons for sealing an 

indictment include: (1) to prevent a broader, ongoing investigation from 

being compromised; (2) to protect an informant or witness; (3) to prevent the 

defendant from having notice of the charges and opportunity to flee.”).

Where we have “not previously addressed an issue,” as here, we “ordinarily 

do not find plain error.” United States v. Evans, 587 F.3d 667, 671 (5th Cir. 

2009) (internal quotation marks and citation omitted). 

Second, Llamas has not shown that the Government imputed his 

wife’s guilt to him. The prosecutor mentioned Martinez-Garcia’s charge not 

as substantive evidence of Llamas’s guilt but to “discredit his tale of a stolen 

racecar, especially by highlighting his motives to lie”—namely, to avoid 

implicating his wife. See United States v. Samak, 7 F.3d 1196, 1199 (5th Cir. 

1993) (per curiam) (“[T]he record does not indicate[] that the Government 

attempted to use the guilty plea as substantive evidence of Samak’s guilt.”). 

Finally, the district court did not plainly err in permitting the 

prosecutor to reference an out-of-court conversation. Even if it was a clear or 

obvious error, Llamas fails to show it substantially affected his rights. See 

Puckett, 556 U.S. at 135. First, the district court instructed the jury that the 

prosecutor’s statements, questions, and arguments were not evidence, see 

Fifth Circuit Pattern Jury Instructions (Criminal 

Cases) § 1.06, and courts presume that juries follow instructions. See, e.g.,

Samia v. United States, 599 U.S. 635, 646 (2023). Llamas has not shown that 

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the jury ignored the district court’s instruction. See, e.g., United States v. 

Williams, 343 F.3d 423, 438 (5th Cir. 2003). Second, the prosecutor also put 

on other substantial evidence of Llamas’s guilt, making it unlikely that the 

prosecutor’s reference to their pretrial conversation “had a substantial 

impact on the jury’s verdict.” United States v. Robins, 978 F.2d 881, 889 (5th 

Cir. 1992); see also United States v. Dong Dang Huynh, 420 F. App’x 309, 318 

(5th Cir. 2011) (per curiam); United States v. Osula, 623 F. App’x 257, 257–

58 (5th Cir. 2015) (per curiam). 

Thus, Llamas has not shown plain error. 

IV 

 Llamas also argues that the district court plainly erred in admitting 

into evidence newspaper articles and press releases stating that drugs were 

smuggled in trucks’ oil pans. But Llamas “waived his objection to the 

admission of the [articles and press releases]” and “cannot now argue that 

[their] admission was error” when he “agreed to the admission” of those 

newspapers in the district court. United States v. Ramirez-Velasquez, 322 F.3d 

868, 876–77 (5th Cir. 2003); see also United States v. Hinton, 235 F. App’x 

223, 224 (5th Cir. 2007) (per curiam); United States v. Garrison, 380 F. App’x 

423, 427 (5th Cir. 2010) (per curiam). 

When the Government asked Llamas about the newspapers on crossexamination, Llamas’s counsel did not object. And at the next recess, the 

Government said to the court, “We [referring to the Government and the 

defense] would -- and by agreement, we’re going to agree that everything [up 

to Exhibit 83] is preadmitted even though they may not have been in the first 

offering.” Aware that the newspapers were marked as Exhibit 82 and thus 

included in the exhibits to be admitted, Llamas’s counsel responded, 

“That’s consistent with our agreement, your Honor.” Llamas thus waived 

his evidentiary argument, rendering it “entirely unreviewable” on appeal. 

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United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995). Thus, we need not 

address it further. 

V 

 Llamas next argues that the district court plainly erred by permitting 

the prosecutor to ask Llamas if other witnesses had lied. Because Llamas did 

not object below, we again review for plain error. 

The Government rightly concedes that these questions were clear or 

obvious error. See Williams, 343 F.3d at 437; United States v. Thomas, 246 

F.3d 438, 439 & n.1 (5th Cir. 2001); see also United States v. Chaparro-Luna, 

790 F. App’x 560, 566 (5th Cir. 2019) (per curiam); United States v. Pittman, 

401 F. App’x 895, 898–99 (5th Cir. 2010) (per curiam). However, Llamas has 

not shown that his substantial rights were affected. To determine whether an 

individual’s substantial rights were affected, we consider “(1) the magnitude 

of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any 

cautionary instruction by the judge, and (3) the strength of the evidence 

supporting the conviction.” United States v. Wyly, 193 F.3d 289, 299 (5th Cir. 

1999) (citation omitted). 

As for the first factor, “the magnitude of the prejudicial effect, 

weighed in context,” was small. See Williams, 343 F.3d at 438. The 

prosecutor at most asked five questions about the veracity of other witnesses 

or declarants. “Given the strident advocacy on both sides of this case and the 

numerous witnesses, pieces of evidence, and issues placed before the jury,” 

we “cannot say that the prosecutor’s [three to five] statements 

overshadowed what had come before and unduly prejudiced the Appellants’ 

case.” United States v. Gallardo-Trapero, 185 F.3d 307, 320–21 (5th Cir. 

1999). Moreover, the prosecutor had already “skillfully and properly led” 

Llamas “to contradict directly the testimony of other witnesses,” and thus 

Llamas “had already called these witnesses liars, albeit implicitly” before the 

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prosecutor asked at least some of these questions. Williams, 343 F.3d at 438. 

We have “previously held that the prejudicial effect of a remark like this is 

small.” Chaparro-Luna, 790 F. App’x at 567 (citing Williams, 343 F.3d at 

437). 

Second, the district court instructed the jury that the prosecutor’s 

questions and arguments were not evidence and that the jury alone was 

responsible for determining the credibility of each witness. See Fifth 

Circuit Pattern Jury Instructions (Criminal Cases)

§§ 1.06, .09; Williams, 343 F.3d at 438; Chaparro-Luna, 790 F. App’x at 567; 

Pittman, 401 F. App’x at 899–900. We see nothing in the record indicating 

that the jury ignored these instructions. See, e.g., Williams, 343 F.3d at 428.

Moreover, “the instruction[s] immediately preceded the jury’s 

deliberations, whereas the improper questioning occurred earlier in the 

trial.” See id. (citing Wyly, 193 F.3d at 300). And, finally, the strength of the 

evidence against Llamas was substantial—with eight witnesses, including 

multiple co-conspirators’ testimony, audio recordings, photographs, and 

other records of Llamas’s participation in a drug trafficking conspiracy. See 

Williams, 343 F.3d at 438; Chaparro-Luna, 790 F. App’x at 567; Pittman, 401 

F. App’x at 900. Accordingly, “[t]he questioning, though inappropriate, is 

not reversible error.” See Williams, 343 F.3d at 438. 

VI 

 Llamas next argues that the district court erred by allowing the 

prosecutor to impugn defense counsel’s integrity, pointing to two allegedly 

nefarious comments. First, on Izazaga’s redirect, the prosecutor said that 

“defense counsel [was] trying to trick you” on cross-examination and that 

the indictment alleged specific start and end dates for the conspiracy.

Defense counsel objected, and the district court sustained the objection.

Second, and soon after, the prosecutor asked Izazaga, “So when defense 

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counsel is trying to limit you just to 2016, that’s not being truthful to what 

this [i]ndictment says, correct?” Defense counsel did not object.

Even though the district court sustained Llamas’s objection to the 

first statement—that defense counsel was trying to “trick” Izazaga—and 

instructed the jury that they “must disregard” any questions to which it 

sustained an objection, see Fifth Circuit Pattern Jury 

Instructions (Criminal Cases) § 1.06, Llamas maintains that the 

court’s error was “clear or obvious” because the “prosecutor clearly 

denigrated defense counsel in the presence of the jury.” But Llamas has not 

shown that the jury ignored the district court’s instruction. See United States 

v. Alaniz, 726 F.3d 586, 614 (5th Cir. 2013). And he did not object to the 

district court’s handling of his objection or request that the district court 

declare a mistrial. See United States v. Salinas, 480 F.3d 750, 755–56 (5th Cir. 

2007). Thus, he “effectively received all of the relief that he requested from 

the district court.” Id. at 756. 

In requesting that we nonetheless reverse his conviction, Llamas asks 

us “to go against the implicit judgment of both the trial court and [his] trial 

counsel that the trial court’s corrective action was adequate and 

appropriate.” Id. (citation omitted); see also Alaniz, 726 F.3d at 616. In these 

circumstances, we review for plain error. See Salinas, 480 F.3d at 756; see also 

United States v. Carter, 953 F.2d 1449, 1466 (5th Cir. 1992) (“Because 

logically there is little difference between a case that comes to us where no 

objection has been made to the alleged impropriety and one where no further 

objection has been made to the trial judge’s handling of an impropriety, we 

concluded . . . that the plain-error standard of review should apply.”). And 

because Llamas did not object below to the second statement—that defense 

counsel was “not being truthful” to the indictment—we also review it for 

plain error.

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Llamas has not shown an error, let alone a clear or obvious one. 

Although “[n]o prosecutor . . . may impugn the integrity of a particular 

lawyer or that of lawyers in general, without basis in fact, as a means of 

imputing guilt to a defendant,” United States v. Valas, 822 F.3d 228, 245 (5th 

Cir. 2016) (alteration in original) (internal quotation marks and citation 

omitted), a prosecutor commits no error by “attack[ing] the strength of the 

defense on the merits,” United States v. Bernard, 299 F.3d 467, 488 (5th Cir. 

2002). Here, the prosecutor criticized defense counsel’s allegedly flawed and 

misleading view of the dates in the indictment, not defense counsel’s 

integrity. 

Calling the defense’s arguments a “trick” or “untruthful” is no 

different from calling them a “rabbit trail” or a “red herring,” comments we 

have previously held not to be error, “much less [a] plain” one. See id. at 487–

88. Our reasoning in a prior opinion applies equally here: A prosecutor’s 

reference to defense counsel’s “trickery” is directed at the defense’s 

arguments and does not impugn “the integrity of defense counsel.” See 

United States v. Hernandez, 455 F. App’x 517, 519 (5th Cir. 2011) (per 

curiam). And because the prosecutor “directly linked his assertions” to the 

language in the indictment, he was not impermissibly testifying, see United 

States v. Thompson, 482 F.3d 781, 786 (5th Cir. 2007), or engaging in 

“inflammatory, irrelevant, or impermissible bolstering,” see United States v. 

Stallings, No. 19-11300, 2023 WL 3534445, at *7 (5th Cir. May 18, 2023), cert. 

denied, 144 S. Ct. 366 (2023) (defining “bolstering” as “a largely emotional 

appeal to the jury to credit [certain] testimony”). Accordingly, no error 

occurred. 

VII 

Finally, Llamas invokes the cumulative-error doctrine to argue that 

even if the alleged errors do not require reversal individually, they do in the 

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aggregate. See United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998).

Under that doctrine, “an aggregation of non-reversible errors (i.e., plain 

errors failing to necessitate reversal and harmless errors) can yield a denial of 

the constitutional right to a fair trial, which calls for reversal.” Id. But “[t]he 

doctrine justifies reversal only in the unusual case in which synergistic or 

repetitive error violates the defendant’s constitutional right to a fair trial.”

United States v. Delgado, 672 F.3d 320, 344 (5th Cir. 2012) (en banc). 

Llamas has, at most, demonstrated only one non-reversible error—the 

prosecutor’s questions to Llamas about other witnesses’ veracity. Because 

Llamas has not successfully demonstrated any other error, and because 

“non-errors have no weight in a cumulative error analysis, there is nothing to 

accumulate.” Id. 

* * * 

Contrary to Llamas’s arguments, none of the errors he asserts 

warrants a new trial. Indeed, only one of his asserted errors was actually an 

error—and even then, it did not affect his substantial rights. And Llamas 

cannot try to aggregate non-errors to vacate his conviction and re-do the trial 

in hopes of a better outcome. 

We AFFIRM. 

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