# 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 arre sted 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 wa rrant 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 Case: 23-40239 Document: 91-1 Page: 1 Date Filed: 09/23/2024No. 23-40239

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, photogra phs, and other records establishing that Llamas participated in a drug-tra fficking conspiracy with the Cártel del Jalisco Nuevo Generación, a cartel wi th 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 cocain e 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 defe nse 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, Case: 23-40239 Document: 91-1 Page: 2 Date Filed: 09/23/2024No. 23-40239

3 that he raced cars, and that he travel ed to the United St ates 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 ju ry 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 co nviction 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 Gove rnment’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 othe r witnesses lied; and comments about defense counsel “trying to trick” a witne ss. 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 ri ght 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 Case: 23-40239 Document: 91-1 Page: 3 Date Filed: 09/23/2024No. 23-40239

4 conspiracy (Count Two). He concedes that review is for plain error. To prevail, he must show (1) an error (2) th at 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 fairne ss, 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 hi s 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 woul d not and should not have come in” had he been tried on only Co unt 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 fa ilure 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. 20 13) (per curiam) (“Moreno does not identify with specificity any instance in which the district court refused to admit into evidence the criminal conv iction of any Government witness.”); Case: 23-40239 Document: 91-1 Page: 4 Date Filed: 09/23/2024No. 23-40239

5 Zapet v. Ashcroft , 75 F. App’x 244, 245 (5th Ci r. 2003) (per curiam) (“Zapet does not identify the particular documen tary evidence that he alleges the BIA did not consider, nor does he explain why the specific ev idence 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 relati ng to the alleged methamphetamine conspiracy “was si mply inadmissible in circumstances where [Llamas] was only charged with the cocaine conspiracy.” Llamas invokes Rule 404(b), which “limits th e 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 intr insic 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 pr eliminary 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] prob ative 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 ve ntures 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 Case: 23-40239 Document: 91-1 Page: 5 Date Filed: 09/23/2024No. 23-40239

6 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 ca rtel’s cocaine conspiracy. See United States v. Navarro , 169 F.3d 228, 233 (5th Cir. 1999) (f inding that “the evidence of drug operations and organization in Arkans as [postdating the charged conspiracy] demonstrated the continuing nature of the organization, the structure of the organization, and the continuing co ntact between Edmondson, Navarro, and Ferguson” was intrinsic because it was “‘inextricably intertwined’ with the evidence used to prove the charge s of possession an d conspiracy of methamphetamine”). The other methamphetamine evidence explained how Izazaga was caught accepting metha mphetamine 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 structur e and Llamas’s role in the cocaine conspiracy. Accordingly, Llamas has not show n 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 indictmen t against his wife and co-defendant, Martinez-Garcia; (2) imputing her guilt to him; and (3) improperly referring to an out-of-court conver sation with Llamas in which the prosecutor told Llamas that his wife was a fugitive. We review for plain er ror 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 Case: 23-40239 Document: 91-1 Page: 6 Date Filed: 09/23/2024No. 23-40239

7 charge against a co-defendant, and much less after the defense already disclosed the charge. This isn’t surpri sing. Although Rule 6(e)(4) has some benefits for defendants, especially infor mants, 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 th e charges and opportunity to flee.”). Where we have “not previo usly 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 th at the Government imputed his wife’s guilt to him. The prosecutor men tioned 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 do es not indicate[] that the Government attempted to use the guilty plea as su bstantive evidence of Samak’s guilt.”). Finally, the district court did no t plainly err in permitting the prosecutor to reference an out-of-court co nversation. 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 th at juries follow instructions. See, e.g. , Samia v. United States , 599 U.S. 635, 646 (2023). Llamas has not shown that Case: 23-40239 Document: 91-1 Page: 7 Date Filed: 09/23/2024No. 23-40239

8 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 pretri al 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 distri ct court plainly erred in admitting into evidence newspaper articles and pr ess releases stating that drugs were smuggled in trucks’ oil pans. But Ll amas “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 [r eferring to the Government and the defense] would -- and by agreement, we’r e 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. Case: 23-40239 Document: 91-1 Page: 8 Date Filed: 09/23/2024No. 23-40239

9 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 distri ct 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 a ffected, we consider “(1) the magnitude of the prejudicial effect of the prosecuto r’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 question s about the veracity of other witnesses or declarants. “Given the strident advoca cy 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 co me 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 alre ady “skillfully and properly led” Llamas “to contradict directly the te stimony of other witnesses,” and thus Llamas “had already called these witne sses liars, albeit implicitly” before the Case: 23-40239 Document: 91-1 Page: 9 Date Filed: 09/23/2024No. 23-40239

10 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 instruct ed 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] i mmediately 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 substant ial—with eight witnesses, including multiple co-conspirators’ testimony, audio recordings, photographs, and other records of Llamas’s participatio n 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 questionin g, 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 dist rict court sustained the objection. Second, and soon after, the prosecuto r asked Izazaga, “So when defense Case: 23-40239 Document: 91-1 Page: 10 Date Filed: 09/23/2024No. 23-40239

11 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 su stained 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 obviou s” 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 a ll 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 allege d impropriety and one where no further objection has been made to the trial ju dge’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. Case: 23-40239 Document: 91-1 Page: 11 Date Filed: 09/23/2024No. 23-40239

12 Llamas has not shown an error, le t 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) (i nternal quotation marks and citation omitted), a prosecutor commits no erro r 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 tra il” or a “red herr ing,” comments we have previously held not to be e rror, “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 “trick ery” 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 “d irectly 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 “b olstering” as “a largely emotional appeal to the jury to credit [certain ] testimony”). Accordingly, no error occurred.

VII Finally, Llamas invokes the cumulati ve-error doctrine to argue that even if the alleged errors do not require reversal indi vidually, they do in the Case: 23-40239 Document: 91-1 Page: 12 Date Filed: 09/23/2024No. 23-40239

13 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 an d 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 th e 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 va cate his conviction and re-do the trial in hopes of a better outcome.

We AFFIRM

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