United States Court of Appeals

for the Fifth Circuit

No. 20-50112

United States of America, 

Plaintiff—Appellee,

versus

Mary Ann Lara; Melissa Janet Lara, 

Defendants—Appellants.

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 2:18-CR-859-2

Before King, Higginson, and Wilson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Sisters Mary Ann Lara and Melissa Lara were convicted by a jury of 

various drug trafficking counts after attempting to drive a pickup truck 

containing over 38 kilograms of methamphetamine hidden in a compartment 

in the truck’s tires from Mexico into the United States. They were sentenced 

to 288 months’ imprisonment. They each raise numerous issues on appeal. 

For the following reasons, we AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

January 11, 2022

Lyle W. Cayce

Clerk

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I.

A.

On April 11, 2018, Priscilla Ramirez and her two daughters 

approached the Eagle Pass, Texas border checkpoint, driving a black 

Trailblazer. At primary inspection, Customs and Border Protection Officer 

Emily Vasquez questioned Ramirez about her trip to Mexico. Officer 

Vasquez stated that Ramirez gave no direct answers, seemed nervous, would 

not make eye contact, and looked back in the rearview mirror quite a few 

times. Ramirez denied traveling with anyone else. Ramirez told Officer 

Vazquez that the purpose of her trip was to visit a friend. Officer Vasquez 

noted that Ramirez had travelled all the way from San Antonio and had 

remained in Mexico for a very short amount of time. Officer Vasquez sent 

Ramirez to the secondary inspection area for a more intensive screening. 

The next vehicle to come through Officer Vasquez’s lane at the 

checkpoint was a silver Ford F-150 truck containing Mary Ann Lara, Melissa 

Lara, and a child. The Laras’ itinerary was exactly the same as Ramirez’s. 

Officer Vasquez recalled that she did not get any “straight answers” from 

either Mary Ann Lara or Melissa Lara. Additionally, the truck’s license plate 

returned a “text hit,” indicating that a full inspection on the vehicle was 

necessary. Accordingly, Officer Vasquez referred Mary Ann Lara and 

Melissa Lara to secondary inspection.

Ramirez, Mary Ann Lara, Melissa Lara, and the children exited the 

vehicles for the secondary inspection, and Customs and Border Protection 

Officer Leonardo Lopez escorted them inside to a waiting area. He asked if 

Ramirez, Mary Ann Lara, and Melissa Lara were related, and they said no. 

He told them that they “look like sisters,” but they did not respond. Once 

the women and children were inside, Officer Lopez visually inspected the 

truck. He noted that it was “abnormally” clean inside, which is a “red flag.” 

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After the inspection, an x-ray machine indicated anomalies inside the tires. 

These anomalies were compartments containing methamphetamine. 

Laboratory testing indicated that the methamphetamine was 97% pure and 

had a net weight of 38.2 kilograms. No contraband was found in Ramirez’s 

vehicle.

While in the waiting area, Ramirez, Mary Ann Lara, and Melissa Lara 

were separated, and their unlocked cell phones were taken by an officer. 

Ramirez and the Lara sisters indicated that they were traveling separately, 

and they acted like they did not know each other. After a little while, however, 

their children started talking and sharing Cheetos. The officers again asked if 

Ramirez and the Lara sisters knew each other, and they said “no.”

Eventually, the children started playing with each other, and at that time 

Ramirez and the Lara sisters admitted to knowing each other. The Lara 

sisters and Ramirez were subsequently arrested.

Mary Ann Lara, Melissa Lara, and Ramirez were ultimately charged 

as co-defendants, along with another woman named Ashley Trinidad. 

Ramirez pleaded guilty to conspiracy to tamper with a witness (for a 

confrontation with Trinidad in a detention center). Trinidad pleaded guilty 

to conspiracy to import methamphetamine. Mary Ann Lara and Melissa Lara 

pleaded not guilty and proceeded to trial.

B.

At the trial, Priscilla Ramirez testified that she knew Mary Ann Lara 

and Melissa Lara through their older sister, Carla Lara. Mary Ann Lara 

contacted Ramirez on Facebook, asking for a ride to Mexico to pick up a work 

truck from Rogelio Flores, Carla Lara’s ex-husband. Mary Ann Lara told 

Ramirez that she would pay Ramirez $200 to bring her to Mexico to pick up 

the truck.

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A Facebook Messenger transcript showed that Flores contacted Mary 

Ann Lara on April 10, 2018, asking her if she knew anyone who could drive a 

truck from Nava, Mexico to San Antonio, Texas as soon as possible. He 

offered to pay $600 plus expenses. Mary Ann Lara asked Flores what was in 

the truck, and he responded, “right now nothing it’s clean.” He also told her 

that the truck was not stolen. He told her to erase all their messages more 

than once. Mary Ann Lara told Flores that Ramirez would pick up the truck,

that she would accompany Ramirez, and that she would message him later on 

WhatsApp. Flores would not give Mary Ann Lara an address to pick up the 

truck but rather stated that once she and Ramirez had arrived in Nava, he 

would take them to the truck. Similarly, he did not give an address at which 

to drop off the truck in San Antonio. Later in that Messenger conversation, 

Mary Ann Lara asked Flores if they could leave the next day because Ramirez 

needed to fix her tire. Flores responded that it was urgent that the truck be 

driven to San Antonio, and he said that he would fix the tire or send them 

additional money to fix the tire. Mary Ann Lara asked Flores not to tell 

anyone that they were coming to get the truck; he responded that “nobody 

will know about this seriously.” The next morning, Mary Ann Lara told 

Flores that she and Ramirez had left for Mexico. Mary Ann Lara then 

exchanged two Facebook audio calls with Flores. After the calls, Mary Ann 

Lara told Flores on Messenger that she had brought Melissa Lara and “the 

baby” and that she had told Melissa Lara “not to say anything.”

Ramirez testified that she drove Mary Ann Lara, Melissa Lara, Carla 

Lara’s son, and her own two daughters to Nava, Mexico on April 11, 2018. 

She stated that they were receiving directions from Flores and that Flores’

cousin was requesting updates on their trip down to Mexico. Ramirez further 

testified that once they arrived in Mexico, they met Flores at a gas station and

followed him to get something to eat and then to a house. After waiting at the 

house for over 20 minutes, an old man delivered the truck. The old man gave 

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money and the keys to the truck to Flores, who in turn gave them to Mary 

Ann Lara. Melissa Lara drove the truck back to Texas. Because the Lara 

sisters did not know their way back to the border, they followed Ramirez. 

Ramirez had to slow down to allow the Laras to keep up with her.

The Facebook Messenger transcript showed that Mary Ann Lara and 

Flores were in communication during the drive to Mexico, with Flores giving 

directions and asking for updates. During the drive home, Flores told Mary 

Ann Lara that the truck would run back and forth between Mexico and Texas. 

Mary Ann Lara then told Flores that the license plate was expired. Flores told 

Mary Ann Lara to tell the checkpoint officers that the truck belonged to an 

aunt or a friend and that they came to Mexico to allow Carla Lara’s son to see 

his dad.

Ramirez testified that she began to drive faster once she neared the 

border, because she was “thinking of [her] kids.” Ramirez said that she was 

nervous at the primary checkpoint because her daughter got out of her car 

seat. She admitted to falsely telling the border patrol officer that she was 

traveling alone, explaining that she did not acknowledge knowing the Lara 

sisters because she “thought it was best to keep quiet, it would be faster.”

After the border patrol agents discovered the drugs in the truck, Ramirez was 

taken into custody.

The last Facebook message from Mary Ann Lara to Flores indicated 

that the Lara sisters were in line at the checkpoint. Flores asked whether they 

were able to cross with the expired license plate, but Mary Ann Lara did not 

respond. Flores continued to message Mary Ann Lara, telling her that he was 

worried that she was not responding.

Bjorn Schreiner, a special agent with Homeland Security 

Investigations, testified that on April 11, 2018 (the day the Laras were 

stopped at the border), Melissa Lara agreed to call Flores while agents 

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monitored and recorded the call. Agents instructed Melissa Lara to tell 

Flores that the truck had broken down somewhere between Eagle Pass and 

LaPryor and to ask him if he would come to get it. Agents believed that the 

truck breaking down was a logical story because Melissa Lara had told them 

that the truck was “driving funny and shaking really bad.” Although Melissa 

Lara eventually told Flores that the truck broke down, she began the call by 

saying, “Why didn’t you tell me the truck had drugs in it?” Agent Schreiner 

stated that as an investigative strategy, agents would not tell the target of a 

call that the drugs had been found. Informing Flores that the drugs had been 

found would likely interfere with the agents’ plan to get Flores to meet them 

off-site.

Customs and Border Protection Officer Hector Hernandez testified 

regarding Ashley Lynn Trinidad’s arrest. On April 18, 2018, one week after 

the Lara sisters were arrested, Trinidad approached the Del Rio Port of 

Entry, driving a silver Expedition. Based on her itinerary and story, Officer 

Hernandez directed her to the secondary inspection area. At secondary 

inspection, they found her tires loaded with methamphetamine. Laboratory 

testing indicated that the methamphetamine was 95% pure and had a net 

weight of 38.9 kilograms. Trinidad was ultimately charged along with the 

Lara sisters and Ramirez.

Trinidad testified that she is a close friend of Carla Lara. She stated 

that Carla Lara asked her to find someone to drive a truck to Piedras Negras, 

Mexico and back on the same day for $300. Trinidad agreed to drive the truck 

herself because she needed the money. After she repeatedly asked Carla Lara 

about the contents of the car, Lara told her that the car contained a kilogram 

of cocaine. At one point following their arrests, Trinidad, Ramirez, Mary 

Ann Lara, and Melissa Lara were all housed at the same detention center. 

While there, Ramirez and the Laras confronted Trinidad after Ramirez 

learned that Trinidad had cooperated with law enforcement. Ramirez told 

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Trinidad that she needed to “watch [her] back.” Mary Ann Lara asked 

Trinidad why she would cooperate with the Government and stated that it 

was “not right, [her] snitching.” Melissa Lara similarly asked Trinidad why 

she was cooperating.1

Border Patrol Intelligence Agent Gerardo Huerta testified as an expert 

regarding methods of operation unique to drug trafficking organizations, 

based on the hundreds of load driver interviews he has conducted and 

hundreds of load driver reports he has reviewed. He stated that drug 

trafficking organizations use the same tactics and procedures. They recruit 

drivers who are unemployed, and they send them to Mexico to pick up 

vehicles to bring to the United States. Drivers are at the lowest level of the 

organization. The load drivers he interviewed usually knew that they were 

transporting narcotics, but they did not know the location, type of 

compartment, or the amount of narcotics they were transporting. Some 

drivers he interviewed, however, did not know what was in the vehicle they 

were transporting. Based on his interviews, Agent Huerta stated that the 

drivers who lied to agents usually knew that they were carrying something 

illegal. Typically, drivers are given a partial payment when they pick up the 

vehicle, to cover gas, food, and lodging. They receive final payment once the 

narcotics are delivered in the United States. Drivers often communicate with 

other players in the organization via WhatsApp and Facebook, because it is 

harder for law enforcement agencies to retrieve the information from these 

applications. Some drivers bring children to distract border patrol agents. 

Agent Huerta also explained that in 2018 he had identified a common 

characteristic among certain vehicle seizures that led to the identification of 

1 Ramirez pleaded guilty to witness tampering based on this incident. When 

Ramirez testified at the Laras’ trial, however, she contradicted the factual basis of her plea, 

and the Government impeached her.

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a drug-trafficking organization out of Nava, Mexico. The vehicles all 

transported 30 to 40 kilograms of methamphetamine, using a compartment 

that was built into the wheels. Agent Huerta further testified that the streetlevel value of the methamphetamine found in the truck that Melissa Lara was 

driving was $7.4 million.

C.

Mary Ann Lara and Melissa Lara were each charged with five counts: 

1. Conspiracy to possess with intent to distribute 500g or 

more of methamphetamine, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(a), and 846;

2. Possession with intent to distribute 500g or more of 

methamphetamine, id. § 841(a)(1), (b)(1)(a);

3. Conspiracy to import methamphetamine, id. §§ 952(a), 

960(a)(1), (b)(1), and 963; 

4. Importation of methamphetamine, id. §§ 952(a) and

960(a)(1), (b)(1);

5. Witness tampering, in violation of 18 U.S.C. § 1512(b)(3), 

(k).

At the close of the Government’s case, Mary Ann Lara and Melissa Lara both 

moved for a judgment of acquittal pursuant to Federal Rule of Criminal 

Procedure 29. The court denied both motions. The jury ultimately convicted

Mary Ann Lara of counts one through four but acquitted her on count five

and convicted Melissa Lara of counts two through four but acquitted her on 

counts one and five.

The Sentencing Guidelines calculation for both Laras was the same.

Each received a total offense level of 42, with a guidelines range of 360 

months to life imprisonment. The district court downwardly varied and 

sentenced each sister to 288 months’ imprisonment. Both Mary Ann Lara 

and Melissa Lara appealed.

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II.

On appeal, Mary Ann Lara and Melissa Lara both raise the following 

four issues: whether the district court erred in denying their Rule 29 motions;

whether the district court erred by allowing the Government to elicit 

improper expert testimony from a Border Patrol agent, contrary to the

court’s own pre-trial order; whether the Government impermissibly 

commented on the Laras’ silence in its opening and closing arguments; and 

whether the Government improperly alluded to evidence not in the record 

during its closing argument.

A.

The Laras contend that the district court erred in denying their Rule 

29 motions. They challenge only the knowledge element of their respective 

convictions, arguing that the evidence presented at trial was insufficient for 

a rational juror to find either (1) that they had knowledge that a controlled 

substance was hidden in the truck or (2) that they had knowingly entered into 

an agreement to traffic drugs.2

We review challenges to the sufficiency of the evidence as follows:

Where . . . a defendant has timely moved for a judgment of 

acquittal, this court reviews challenges to the sufficiency of the 

evidence de novo. Though de novo, this review is nevertheless 

highly deferential to the verdict. Because of the shortcomings 

inherent in examining a cold appellate record without the 

benefit of the dramatic insights gained from watching the trial, 

we review the evidence and all reasonable inferences in the 

2 Mary Ann Lara also raises the argument that even if there were evidence that she 

had knowledge that some sort of controlled substance was in the truck, the evidence was 

insufficient to prove that she had knowledge of the drug type and the drug quantity. 

However, she correctly concedes that this argument is foreclosed by our decision in United 

States v. Betancourt, 586 F.3d 303 (5th Cir. 2009), and asserts it to preserve the issue.

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light most favorable to the prosecution and to determine 

whether any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.

United States v. Delgado, 984 F.3d 435, 446 (5th Cir. 2021) (quoting United 

States v. Nicholson, 961 F.3d 328, 338 (5th Cir. 2020)).

To convict Mary Ann Lara and Melissa Lara of Counts 2 and 4, the 

Government was required to prove that each knowingly possessed and 

imported a controlled substance. See United States v. Lopez-Monzon, 850 F.3d 

202, 206 (5th Cir. 2017) (explaining that possession with intent to distribute

requires “knowledge” and that importation of a controlled substance

requires knowledge both that “the substance was controlled” and that “the 

substance would enter the United States” (first quoting United States v. 

Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008); and then quoting United 

States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999))). On the conspiracy 

counts, the Government had to prove “(1) the existence of an agreement to 

import or to possess with intent to distribute; (2) knowledge of the 

agreement; and (3) voluntary participation in the agreement.” United States 

v. Rodriguez-Mireles, 896 F.2d 890, 892 (5th Cir. 1990).

“Knowledge of the presence of a controlled substance often may be 

inferred from the exercise of control over a vehicle in which the illegal 

substance is concealed.” United States v. Diaz-Carreon, 915 F.2d 951, 954 

(5th Cir. 1990). However, when the contraband was “smuggled in hidden 

compartments which were not clearly visible or readily accessible to the 

defendant,” “control of the vehicle . . . does not support an inference of 

guilty knowledge; it is at least a fair assumption that a third party might have 

concealed the controlled substances in the vehicle with the intent to use the 

unwitting defendant as the carrier in a smuggling enterprise.” Id.

Accordingly, in such cases, “this court ‘also require[s] circumstantial 

evidence that is suspicious in nature or demonstrates guilty knowledge.’”

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Lopez-Monzon, 850 F.3d at 206 (alteration in original); see also United States 

v. Rojas Alvarez, 451 F.3d 320, 334 (5th Cir. 2006) (“[W]here . . . the 

contraband was secreted in a hidden compartment, this court requires 

additional evidence to prove the knowing element, such as a consciousness 

of guilt, conflicting statements, or an implausible account of events.”).

The question is how offense-specific this additional circumstantial 

evidence must be, if at all. The Laras argue that while the evidence may 

support the inference that they knew that there was something illegal about 

the operation to transport the truck from Mexico into the United States, it 

does not support the more specific inference that they knew about the 

existence of a controlled substance in the truck or that the conspiracy 

involved the trafficking of a controlled substance. If a defendant controls a 

vehicle with drugs in a hidden compartment and then engages in additional 

suspicious behavior that demonstrates a general consciousness of guilt but 

not necessarily specific knowledge of the presence of a controlled substance, 

is that enough evidence to sustain a conviction?

Our hidden compartment cases often speak of the required 

consciousness of guilt in general terms and focus on suspicious behavior that 

is not offense-specific. These cases have emphasized lies and inconsistent 

statements. For example, in Lopez-Monzon we described inconsistent 

statements and “attempts to mislead” investigators as “circumstantial 

evidence of ‘consciousness of guilt.’” 850 F.3d at 207 (quoting Rojas Alvarez, 

451 F.3d at 334). Similarly, we explained in Diaz-Carreon that “[a]n 

implausible account of exculpatory events suggests that the defendant desires 

to obscure his criminal responsibility” and concluded that such an “account 

provides persuasive circumstantial evidence of the defendant’s 

consciousness of guilt.” 915 F.2d at 955. And in United States v. GutierrezFarias, we noted “the incompleteness of [the defendant’s] answers when 

asked where he picked up the tractor, and where he was taking it” and held 

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that “[b]ased on [the defendant’s] demeanor at the checkpoint and the 

vagueness of his answers, the jury could have inferred that he knew the 

marijuana was in the tires but was trying to hide that fact.” 294 F.3d 657, 660 

(5th Cir. 2002); see also United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 

1994) (“Evasive and erratic behavior may be evidence of guilty 

knowledge.”); United States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988) 

(“[A] less-than-credible explanation is part of the overall circumstantial 

evidence from which possession and knowledge may be inferred.” (cleaned 

up)). Thus, control over a vehicle containing hidden drugs plus evidence of 

the defendant’s general consciousness of guilt is enough to prove the 

“knowledge” element of the possession with intent to distribute and 

importation of a controlled substance offenses. 

In this case, the record contains ample evidence of the Laras’ general 

consciousness of guilt. To list just some of the evidence: after Flores offered 

(via Facebook Messenger) to pay Mary Ann Lara $600 to drive the truck 

from Mexico to San Antonio but refused to tell her the addresses at which 

she would pick up and drop off the truck and told her to delete their messages,

Mary Ann Lara told him not to “say anything to anyone” about the trip; 

Mary Ann Lara told Melissa Lara “not to say anything” when asking Melissa 

to accompany her on the trip; when the truck started “driving funny and 

shaking really bad” on the way back from Nava, Melissa Lara continued to 

drive, even though her young nephew was in the backseat without a car seat;

when Mary Ann Lara asked Flores about the expired license plate, he told 

her to lie to checkpoint agents; at the Eagle Pass checkpoint, the Laras did 

not give Officer Vasquez any straight answers when asked about their 

itinerary; the sisters lied to officers about being related when they were 

initially detained; and Melissa Lara deviated from the script during her

monitored call to Flores, potentially alerting him that the methamphetamine 

had been found. Additionally, once the jury reasonably inferred Mary Ann 

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Lara’s knowledge of the methamphetamine in the vehicle from her Facebook 

messages with Flores, it could have reasonably concluded that she would not 

put her sister in the position of unwitting drug smuggler. See United States v. 

Williams-Hendricks, 805 F.2d 496, 501 (5th Cir. 1986) (concluding that a 

father-son relationship supported a similar inference). Finally, the 

methamphetamine found in the truck’s tires had a street value of $7.4 

million. Given the money at stake, the jury reasonably could have inferred 

that Mary Ann Lara and Melissa Lara were not unwitting accomplices. See, 

e.g., United States v. Del Aguila-Reyes, 722 F.2d 155, 157 (5th Cir. 1983); 

United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003); Lopez-Monzon, 

850 F.3d at 209.3

In light of the foregoing, a rational jury could have found that Mary 

Ann Lara and Melissa Lara knowingly possessed and imported a controlled 

substance (counts two and four). Additionally, because Mary Ann Lara 

agreed with Flores that she would pick up the truck in Mexico and take it to 

San Antonio, where she would leave it for someone else to pick up, a rational 

jury could have found that she agreed to import a controlled substance (count 

three) and to possess a controlled substance with intent to distribute (count 

one). See United States v. Michelena-Orovio, 719 F.2d 738, 753-54 (5th Cir. 

1983) (“[A] defendant’s distribution of the contraband need not be made to 

the ultimate consumer in order to convict him of conspiracy to possess with 

intent to distribute; it may, in appropriate circumstances, be made to a 

coconspirator.”). And because Melissa Lara agreed both to accompany Mary 

Ann Lara to Mexico and to drive the truck back to San Antonio, a rational 

jury could have found that she agreed to import a controlled substance (count 

3 Of course, “[t]he high volume and value of the drugs [is] not dispositive,” even 

though “it does present circumstantial evidence that [the defendants] knew about the 

methamphetamine.” Lopez-Monzon, 850 F.3d at 209.

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three). We also note that the jury gave a particularized verdict, acquitting 

each sister of some charged conduct. Accordingly, the district court did not 

err by denying Mary Ann Lara and Melissa Lara’s motions for judgment of 

acquittal.

B.

The Laras argue that the district court erred by allowing the 

Government to elicit improper expert testimony from Border Patrol 

Intelligence Agent Gerardo Huerta. Specifically, they contend that a portion 

of Agent Huerta’s testimony improperly commented on the ultimate issue in 

the case: whether the Laras knew that there were drugs hidden in the tires of 

the truck.

The relevant testimony is as follows:

• [Government]: Okay. And how many load drivers have 

you interviewed over your career?

• [Huerta]: Hundreds.

• [Government]: And how many load driver reports have 

you reviewed in your career?

• [Huerta]: Hundreds.

• [Government]: Okay. Now, based on those interviews and 

that -- the reviews in the reports, generally how much did 

these load drivers know about the inner workings of the 

[drug trafficking organization]?

• [Huerta]: Well, usually it’s -- they know they’re 

transporting narcotics, but they don’t know the location, 

the type of compartment, or the amount of -- of the 

narcotics they’re transporting.

• [Government]: So, they don’t -- again, they don’t know 

what they’re trans -- they -- they know that there’s 

something in there, they don’t know what they’re 

transporting?

• [Huerta]: Yes, sir.

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Following this testimony, on cross-examination Agent Huerta agreed 

that drug-trafficking organizations do not always inform their drivers that 

vehicles contain contraband and that he was familiar with smuggling cases 

where the drivers did not know what they were transporting. None of the 

parties referenced any of the above testimony in their closing arguments.

i.

The parties contest the standard of review for this issue. Before trial, 

the Government gave notice that it intended to offer the expert testimony of 

Agent Huerta to address, in part, the techniques that drug trafficking 

organizations use to distribute narcotics, including “narcotics trafficking 

patterns and importation practices.” Citing United States v. Gutierrez-Farias, 

294 F.3d 657 (5th Cir. 2002), both Laras filed pretrial motions in limine

seeking to exclude any expert testimony that would impermissibly assert an 

opinion with respect to their knowledge of the presence of the drugs. During 

a pretrial conference, the district court granted the motions in limine with 

respect to that objection, assuring the Laras’ attorneys that it would not allow 

Agent Huerta to “give an opinion as to your clients’ state of mind.”

Significantly, however, when Agent Huerta testified, neither Lara made a 

contemporaneous objection to the now-challenged portion of his testimony. 

Because the Laras failed to contemporaneously object, the Government 

argues that the admission of this testimony should be reviewed for plain error. 

The Laras argue that the district court’s ruling on their pretrial motion in 

limine preserved their objection, making abuse of discretion the appropriate 

standard.

Federal Rule of Evidence 103(b) provides that “[o]nce the court rules 

definitively on the record—either before or at trial—a party need not renew 

an objection or offer of proof to preserve a claim of error for appeal.” As we 

explained in Mathis v. Exxon Corp., when this rule was adopted in 2000, it 

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“changed the law that had prevailed in this circuit” regarding the 

preservation of evidentiary errors. 302 F.3d 448, 459 n.16 (5th Cir. 2002)

(citing Fed. R. Evid. 103(a)).

4 We had previously required parties to make 

contemporaneous objections at trial, even if they had made a pretrial

objection to the admissibility of the challenged evidence. Id. at 459 & n.16. 

But given the 2000 amendment to Rule 103, we held that “[a] pre-trial 

objection is sufficient to preserve [an evidentiary] error for appellate 

review,” regardless of whether the party objected at trial. Id. at 459.

Similarly, in United States v. Lucas, we held that “Lucas was not required to 

renew his objection to the . . . evidence at trial. . . . A pretrial motion in limine, 

objecting to the evidence, is enough.” 849 F.3d 638, 642 (5th Cir. 2017) 

(citing Mathis, 302 F.3d at 459).

One could read this language from Mathis and Lucas to suggest that 

the Laras preserved their objection to Agent Huerta’s testimony by obtaining 

a pretrial ruling on their motion in limine, despite failing to 

contemporaneously object to the testimony at trial. However, neither Mathis

nor Lucas stated whether the district court had granted or denied the motion 

in limine. See Mathis, 302 F.3d at 459; Lucas, 849 F.3d at 642-43. And, as the 

Advisory Committee Note accompanying the 2000 amendment to Rule 103

makes clear, this distinction is important:

If the court changes its initial ruling, or if the opposing party 

violates the terms of the initial ruling, objection must be made 

when the evidence is offered to preserve the claim of error for 

appeal. The error, if any, in such a situation occurs only when 

the evidence is offered and admitted. United States Aviation 

Underwriters, Inc. v. Olympia Wings, Inc., 896 F.2d 949, 956 

(5th Cir. 1990) (“[O]bjection is required to preserve error 

4 The relevant provision was originally codified as part of Rule 103(a)(2); in 2011, 

it was recodified as Rule 103(b).

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when an opponent, or the court itself, violates a motion in 

limine that was granted”).

Fed. R. Evid. 103 advisory committee’s note to 2000 amendment

(emphasis added).

In accordance with this committee note, the Tenth Circuit has held 

that “where a ruling on a motion in limine is modified or violated, ‘[s]ince 

the error is not in granting or denying the motion in limine, but in admitting 

or excluding the evidence at trial, the motion in limine does not preserve this 

error.’” United States v. Fonseca, 744 F.3d 674, 684 (10th Cir. 2014) (quoting 

21 Charles A. Wright & Kenneth W. Graham, Federal 

Practice & Procedure § 5037.16 (2d ed. 2005)). As that court 

explained, when a party’s pretrial evidentiary objection is denied, it would be 

futile for that party to “continue making objections at trial.” Id. at 683. 

Indeed, “requiring the renewal of objections after a definitive ruling may be 

a needless provocation to the trial judge, not to mention a distracting 

interruption during the trial.” Id.(quoting United States v. Mejia-Alarcon, 995 

F.2d 982, 986 (10th Cir. 1993)) (internal quotation marks omitted). 

“However, this reasoning seems inapplicable where evidence is admitted in 

spite of, rather than in accordance with, a district court’s ruling.” Id. After 

all, in such cases, a contemporaneous objection does not “re-rais[e] an 

objection that ha[s] already been rejected.” Id. Rather, it “put[s] the district 

court on notice” that the other party is “violating the court’s earlier 

evidentiary ruling.” Id.; cf. United States v. Soza, 874 F.3d 884, 889 (5th Cir. 

2017) (explaining that, in order to preserve an issue for appeal, the objecting 

party “must present the issue so that it places the opposing party and the 

[district] court on notice that a new issue is being raised” (quoting Kelly v. 

Foti, 77 F.3d 819, 823 (5th Cir. 1996)) (internal quotation marks omitted)).

The Laras do not cite, and we have not identified, any cases holding 

that the rule set forth in Mathis applies regardless of whether the relevant 

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motion in limine was granted or denied. As already explained, Mathis and 

Lucas neither grapple with the distinction between granting and denying a 

pretrial objection nor state how the district court ruled. And in the cases 

applying Mathis where the district court’s ruling is identified, the relevant 

pretrial objection was denied. See, e.g., United States v. Lewis, 796 F.3d 543, 

545 & n.6 (5th Cir. 2015); Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 

194, 198 (5th Cir. 2016); United States v. Avants, 367 F.3d 433, 443-44 (5th 

Cir. 2004); United States v. Ahedo, 453 F. App’x 544, 547 (5th Cir. 2011) (per 

curiam).5 Accordingly, Mathis and its progeny do not control this case. See 

Thomas v. Tex. Dep’t of Crim. Just., 297 F.3d 361, 370 n.11 (5th Cir. 2002) 

(“Where an opinion fails to address a question squarely, we will not treat it 

as binding precedent.”).

Without any authority from our court that explicitly addresses this 

issue, we are persuaded by the reasoning of the Tenth Circuit and the 

Advisory Committee Note. When a district court grants a party’s pretrial 

evidentiary objection, that party must contemporaneously object to any 

evidence it believes contravenes the district court’s previous ruling. If the 

party does not object, the admission of that evidence is reviewed for plain 

error. See Avants, 367 F.3d at 443 (“Evidentiary rulings are reviewed for 

abuse of discretion; however, in the absence of a proper objection, we review 

only for plain error.”). 

ii.

Under plain error review, the appellant must show that: “(1) there was 

an error; (2) the error was clear or obvious; (3) the error affected his or her 

5 Further, though neither Mathis nor Lucas states how the district court ruled on 

the relevant motion in limine, the circumstances of those cases suggest that in all likelihood 

the motions were denied. See Mathis, 302 F.3d at 459; Lucas, 849 F.3d at 642-43.

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substantial rights; and (4) the error seriously affects the fairness, integrity, or 

public reputation of judicial proceedings such that we should exercise our

discretion to reverse.” United States v. Oti, 872 F.3d 678, 690 (5th Cir. 2017).

a.

Federal Rule of Evidence 704(b) states: “In a criminal case, an expert 

witness must not state an opinion about whether the defendant did or did not 

have a mental state or condition that constitutes an element of the crime 

charged or of a defense. Those matters are for the trier of fact alone.” Fed. 

R. Evid. 704(b). Accordingly, in drug trafficking cases, there is a “‘fine but 

critical line’ between ‘expert testimony concerning methods of operation 

unique to the drug business, and testimony comparing a defendant’s conduct 

to the generic profile of a drug courier.’” United States v. Sosa, 897 F.3d 615, 

619 (5th Cir. 2018) (quoting United States v. Gonzalez-Rodriguez, 621 F.3d 

354, 364 (5th Cir. 2010)). “A witness crosses this line by offering a direct 

opinion as to the defendant’s mental state or by giving the ‘functional 

equivalent’ of such a statement.” United States v. Morin, 627 F.3d 985, 995 

(5th Cir. 2010) (quoting Gutierrez-Farias, 294 F.3d at 663).

While Agent Huerta did not offer a direct opinion on either Lara’s 

mental state, the Laras argue that the challenged portion of his testimony is 

error under our decision in United States v. Gutierrez-Farias. In that case, the 

defendant was convicted of conspiracy and possession with intent to 

distribute marijuana after Border Patrol agents discovered marijuana hidden 

in the tires of a tractor he was towing. 294 F.3d at 659. At trial, the 

Government presented the expert testimony of DEA Agent Robert 

Afanasewicz. Id. at 661. The defendant challenged “the portion of Agent 

Afanasewicz’s testimony in which he described the manner in which drug 

trafficking organizations generally select people to transport their drugs and 

the extent to which those selected are aware of the drugs they are 

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transporting,” arguing that “Agent Afanasewicz was really giving an opinion 

as to whether [the defendant] personally had knowledge of the marijuana in 

the tires.” Id. at 661-62. 

We agreed. “Rather than assisting the jury to understand evidence 

presented or complicated fact issues in the case, Agent Afanasewicz 

presented the jury with a simple generalization: In most drug cases, the 

person hired to transport the drugs knows the drugs are in the vehicle.” Id.

at 663. Accordingly, his testimony was a “forbidden opinion on the ‘ultimate 

legal issue’ in the case.” Id. (quoting United States v. Speer, 30 F.3d 605, 610 

(5th Cir. 1994)). Agent Afanasewicz might not have expressly said, “In my 

expert opinion, [the defendant] knew the marijuana was in the tires,” but we 

concluded that “his testimony amounted to the functional equivalent of such 

a statement.” Id.; see also United States v. Ramirez–Velasquez, 322 F.3d 868, 

879 (5th Cir. 2003) (citing Gutierrez-Farias in determining that an expert 

agent improperly “made the generalization, albeit not quite directly, that 

drivers know they are carrying drugs”).

Here, the Government acknowledges that Agent Huerta’s testimony 

“bears a resemblance to testimony that this Court has held to be the 

‘functional equivalent’ of an improper opinion under Rule 704(b).” 

However, it argues that Agent Huerta’s testimony is ultimately 

distinguishable from Agent Afanasewicz’s testimony and the similar 

testimony at issue in Ramirez-Velasquez because, “[u]nlike those cases, 

Agent Huerta did not express the opinion that most drivers know or that [the 

Laras] knew” that their vehicles contained a controlled substance. Rather, 

his testimony “boiled down to ‘a lot of the time, the drivers know, but they 

don’t always.’” The Government also argues that the reach of GutierrezFarias has been limited by this court’s subsequent decision in United States 

v. Portillo, 969 F.3d 144 (5th Cir. 2020), cert. denied, 141 S. Ct. 1275 (2021).

Accordingly, the Government maintains that while Agent Huerta’s 

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testimony is “arguably close to the line,” it cannot “be definitively 

characterized as ‘clear or obvious’ error.”

The Government’s efforts to distinguish Gutierrez-Farias from this 

case are unpersuasive. Just like the agent in Gutierrez-Farias, Agent Huerta 

“described . . . the extent to which those selected [to transport drugs] are 

aware of the drugs they are transporting,” ultimately testifying that drug

couriers “usually” know that they are transporting drugs. 294 F.3d at 661-62.

Although neither Agent Huerta nor Agent Afanasewicz expressly opined on 

the mental state of the defendant, both gave the “functional equivalent” of 

such testimony. Id. at 663. And while Agent Huerta did acknowledge during 

cross-examination that not all couriers know they are transporting drugs, this 

statement is simply consistent with his testimony that couriers “usually” 

know. Cf. id. at 662 (“The clear suggestion of Agent Afanasewicz’s 

testimony is that, because most drivers know there are drugs in their vehicles, 

[the defendant] must have known too.” (emphasis added)). 

We also reject the argument that Portillo limited the holding of 

Gutierrez-Farias. In Portillo, the defendant challenged the admissibility of 

expert testimony concerning the typical characteristics of the president of the 

Bandidos motorcycle gang. 969 F.3d at 171. Relying upon Gutierrez-Farias, 

the defendant, who was the president of the Bandidos at the time of the 

offense, contended that the testimony impermissibly communicated that he 

must have known about and participated in the offenses. Id. Citing another 

decision where expert testimony focused more on background than on the 

charged defendant’s culpability, the Portillo court suggested that the 

perceived inference of criminal scienter was too attenuated to violate the 

Rule 704(b) bar. Id. (citing United States v Morin, 627 F.3d 985, 996 (5th Cir. 

2010)). However, like Gutierrez-Farias, both Portillo and Morin acknowledge 

the caution necessary when expert testimony describes criminal 

organizations and “typical” positions in them, in order to avoid prohibited 

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mental-state opinion testimony. See Portillo, 969 F.3d at 171; Morin, 627 F.3d 

at 995-96. Further, rather than holding that it was not error to admit the 

challenged testimony, Portillo instead concludes that “[e]ven if” the district 

court erred, “any error was harmless.” Id. Accordingly, to the extent that the

Portillo court overbroadly described the ruling in Morin, its statements were

dicta that do not call into doubt Gutierrez-Farias’s holding that the 

“functional equivalent” of a direct opinion on a defendant’s mental state 

violates Rule 704(b). 294 F.3d at 663; see also id. at 663 n.5 (acknowledging 

but distinguishing cases finding no Rule 704(b) error).

Because Agent Huerta effectively testified that the Laras knew that 

drugs were hidden in the tires of the truck they were driving, the district 

court’s admission of that testimony was error under Federal Rule of 

Evidence 704(b). And because this case is indistinguishable from GutierrezFaria, the error was clear and obvious. Accordingly, the first two prongs of 

the plain error analysis are satisfied. 

b.

To prevail under plain error review, an appellant must not only show 

that the district court committed a clear or obvious error but also that “the 

error affected his or her substantial rights.” Oti, 872 F.3d at 690. In order to 

show that the error affected their substantial rights, the Laras must

demonstrate that there is “a reasonable probability that [their] trial would 

have come out differently but for the illegitimate aspects of Agent [Huerta’s] 

testimony.” Gonzalez-Rodriguez, 621 F.3d at 367. “This third requirement of 

plain-error review has prevented defendants from obtaining relief in [many] 

other cases involving improper drug profiling testimony.” Sosa, 897 F.3d at 

620 (collecting cases). The question of whether an error affected an 

appellant’s substantial rights is conceptually similar to the well-known 

“harmless error” inquiry, “with one important difference: It is the defendant 

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rather than the Government who bears the burden of persuasion with respect 

to prejudice.” United States v. Olano, 507 U.S. 725, 734 (1993).

Ultimately, we conclude that Agent Huerta’s testimony did not affect 

the Laras’ substantial rights. For the reasons explained in supra Part II.A, 

even without Agent Huerta’s testimony, considerable evidence supported 

the jury’s verdict. Moreover, the jury was aware that Agent Huerta had never 

had “any direct conversations” with the Laras, and the court instructed the 

jury members that they should judge Agent Huerta’s testimony “like any 

other testimony” and that they could “accept it or reject it,” giving the 

testimony “as much weight as you think it deserves.” In similar 

circumstances, we have held that a defendant’s substantial rights were not 

affected. See Ramirez-Velasquez, 322 F.3d at 879 (holding that a narcotics 

agent’s improper testimony did not affect the defendant’s substantial rights 

given both (1) the court’s instructions to the jury that the agent “was not 

claiming to know the particular facts of the case” and that “his testimony 

was to be weighed and could be disregarded like that of any other witness” 

and (2) “the other evidence . . . from which the jury could infer [the 

defendant’s] guilt”). The Government’s decision not to reference Agent 

Huerta’s testimony in its closing argument further suggests that this 

testimony was not crucial. Cf. Sosa, 897 F.3d at 620 (concluding that 

improper drug courier profile testimony was not plain error in part because 

the prosecutor did not “remind the jury of the agent’s improper testimony 

during closing argument”). We caution that under circumstances such as 

these, involving above all a violation of a pre-trial order, the Government

would not be able to show that the error was harmless had an objection been 

preserved. However, considering that the Laras have not cited any cases or 

pointed to any facts in the record to support their argument that Agent 

Huerta’s testimony affected their substantial rights, we cannot say that they 

have met their plain error burden of demonstrating that “the inadmissible 

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profile testimony was likely the difference maker at trial.” Sosa, 897 F.3d at 

620. Accordingly, the Laras do not prevail on this issue under plain error 

review.

C.

“No person . . . shall be compelled in any criminal case to be a witness 

against himself.” U.S. Const. amend. V. Accordingly, if a defendant 

decides not to testify at trial, “[t]he Fifth Amendment forbids comment by 

the prosecution, either direct or indirect, on the accused’s silence.” United 

States v. Murra, 879 F.3d 669, 682 (5th Cir. 2018) (citing Griffin v. California, 

380 U.S. 609, 615 (1965)); see also United States v. Martinez-Larraga, 517 F.3d 

258, 266 (5th Cir. 2008) (“[T]he Fifth Amendment’s self-incrimination 

clause . . . preclude[s] the prosecution from arguing to the jury that the 

accused’s failure to testify at the trial [is] evidence of his guilt.”).

The Laras argue that the Government improperly commented on 

their choice not to testify in their own defense during its opening statement 

and closing argument. The Laras challenge the following remarks from the 

Government’s opening statement:

At the end of the proceeding the judge is going to instruct you 

that you are to evaluate all the evidence in this case. You will 

evaluate with your own common sense and your own common 

experiences. And I want you to look at this evidence and I want 

you to ask: Why? Why would someone go to a -- to a town 

they’ve never been? Why would someone pick up a vehicle 

from a person they’ve never known? Why would someone get 

paid to do so? Why would someone continue driving when that 

vehicle’s shaking violently, can barely get above 50, can barely 

steer with a -- with a three-year-old in the car?

Now, I suspect the defense is going to get up here and 

tell you the only crime that was committed by their clients is 

misplaced trust in an untrustworthy individual, [Flores]. While 

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I want you to -- when you hear that, I want you to just keep 

asking: Why? Why ignore the red flags? Even if -- even if you’re 

ostensibly trusting this guy, why ignore the alarm bells?

They argue that this statement indirectly comments on their decision not to 

testify because only they could have answered the various questions that the 

Government asked.

The Laras also challenge part of the Government’s closing argument:

How can you tell what’s in someone’s mind? That’s 

what this entire case is about, right? You have no evidence of any 

statements from Ms. Mary Ann Lara or Ms. Melissa Lara. You 

just have their actions; what they did, what was happening, and 

some lies, but no direct statements. What was in their minds?

Now, ladies and gentlemen, it -- it doesn’t take a rocket 

scientist to kind of piece together what’s happening. It doesn’t 

take a Border Patrol intel agent, it doesn’t take a Customs and 

Border Protection officer. It just takes some common sense.

When you look at the facts in this case, your common

sense will lead you to one conclusion. Mary Ann Lara and

Melissa Lara were conspiring to bring in a controlled 

substance. They were importing it from Mexico into the 

United States and they were taking it to San Antonio so 

someone else could pick it up and it could be distributed.6

They argue that the italicized portions of the first paragraph of this statement

directly commented on their decision not to testify.

When reviewing claims that a prosecutor improperly commented on 

a defendant’s decision not to testify, we must “first decide whether the 

prosecutor made an impermissible remark.” Murra, 879 F.3d at 682. If we 

conclude that the remark is impermissible, we must then determine 

6 Emphasis added.

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“whether the remark casts serious doubt on the correctness of the jury’s 

verdict.” Id. at 684 (cleaned up). Additionally, because, here too, the Laras 

“failed to object at trial,” they “bear[] the burden of demonstrating that the 

prosecutor’s statements constitute plain error.” United States v. Vargas, 580 

F.3d 274, 278 (5th Cir. 2009); see also Oti, 872 F.3d at 690 (describing plain 

error review).

The Government’s above-quoted remarks are impermissible under

the Fifth Amendment’s Self-Incrimination Clause if either “the prosecutor’s 

manifest intent was to comment on the defendant’s silence” at trial or “the 

character of the remark was such that the jury would naturally and necessarily 

construe it as a comment on the defendant’s silence.” Murra, 879 F.3d at

683. This test is strict. Regarding the first prong, “[i]f there is an ‘equally 

plausible explanation for the remark,’ the prosecutor’s intent is not 

manifest.” United States v. Green, 324 F.3d 375, 382 (5th Cir. 2003) (quoting 

United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996)). Further, “[t]he 

defendant bears the burden of proving the prosecutor’s intent.” Murra, 879 

F.3d at 683. Regarding the second prong, “the question is not whether the 

jury possibly or even probably would view the challenged remark in this 

manner, but whether the jury necessarily would have done so.” United States 

v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996) (citation omitted). When making 

these determinations, we must examine the prosecutor’s remarks “in 

context” rather than “isolation.” United States v. Weast, 811 F.3d 743, 753 

(5th Cir. 2016). 

The Government’s remarks in its opening statement were not 

constitutionally impermissible. In context, it does not seem likely that the 

prosecutor was intending to comment on the Laras’ decision not to testify. 

Rather, the Government was apparently providing a list of rhetorical 

questions for the jury to keep in mind when they evaluated the defendants’

knowledge based on the evidence. An “attorney is entitled to urge the 

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conclusions which the attorney thinks the jury should draw from the 

evidence.” United States v. Allen, 588 F.2d 1100, 1108 (5th Cir. 1979). In 

doing so, the Government may utilize rhetorical questions that are 

“inferential in substance.” United States v. Sorzano, 602 F.2d 1201, 1202 (5th 

Cir. 1979). Such questions are not impermissible comments on a defendant’s 

right to remain silent. See id.

The Government’s remarks in its closing argument are more difficult. 

One could plausibly view the prosecutor’s assertions that “You have no 

evidence of any statements from Ms. Mary Ann Lara or Ms. Melissa Lara” 

and that the Laras made “no direct statements” as a comment on the Laras’

decision not to testify. However, reviewing for plain error only, we pretermit 

confirming whether the challenged remarks were necessarily a comment on 

the Laras’ decisions not to testify, as opposed to part of an argument that 

even though the Government had not introduced any evidence showing that 

either Lara had ever made a single statement to law enforcement, Flores, 

Ramirez, or Trinidad directly indicating that she knew the truck contained 

methamphetamine, the jury should nonetheless infer their knowledge from 

circumstantial evidence. See United States v. Pando Franco, 503 F.3d 389, 394 

(5th Cir. 2007) (“[C]ircumstantial evidence is often used to establish the 

knowledge element for possession or importation of drugs.”); United States 

v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996) (“The [F]ifth [A]mendment

protects against compelled self-incrimination but does not, as Zanabria 

suggests, preclude the proper evidentiary use and prosecutorial comment 

about every communication or lack thereof by the defendant which may give 

rise to an incriminating inference.”). Instead, we decide only that even if the 

Government erroneously commented on the Laras’ decision not to testify,

the Laras have not met their plain error burden of showing that such an error 

was, in the context of a case built on circumstantial evidence rather than 

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direct admissions of guilt, both obvious and substantially prejudicial. See Oti, 

872 F.3d at 690.

Of course, in addition to prohibiting comment on a defendant’s 

decision not to testify, the Constitution also prohibits prosecutors from 

commenting on a defendant’s silence in certain other contexts. The Laras 

briefly argue that even if the challenged remarks from the Government’s 

closing argument were not an impermissible comment on their decision not 

to testify, they were an impermissible comment on their post-arrest silence, 

in violation of Doyle v. Ohio, 426 U.S. 610 (1976). Indeed, “the prosecution’s 

introduction at trial of evidence of the accused’s silence after being given 

Miranda warnings following arrest violates the due process clause.”

Martinez-Larraga, 517 F.3d at 266 (citing Doyle, 426 U.S. 610) (emphasis 

omitted). However, in this case, both Laras voluntarily waived their Miranda

rights and talked with law enforcement after their arrest. “[E]vidence of 

defendant’s silence and refusal to answer post-arrest questions is 

admissible” if it is “‘part of an otherwise admissible conversation’ pursuant 

to defendant’s Miranda waiver.” United States v. Pando Franco, 503 F.3d 389, 

397 (5th Cir. 2007) (quoting United States v. Burns, 276 F.3d 439, 442 (8th 

Cir. 2002)). After all, “[a] defendant cannot have it both ways. If he talks, 

what he says or omits is to be judged on its merits or demerits, and not on 

some artificial standard that only the part that helps him can be later referred 

to.” Id. (quoting United States v. Goldman, 563 F.2d 501, 503 (1st Cir. 1977)). 

Accordingly, the Government’s remarks did not violate Doyle. 

D.

The Laras argue that during its rebuttal closing argument, the 

Government improperly alluded to evidence not in the record and implied 

that the Laras destroyed evidence. The Government responds that the 

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prosecutor’s remarks were a fair and direct response to defense counsel’s 

closing arguments.

“A prosecutor may not directly refer to or even allude to evidence that 

was not adduced at trial.” United States v. Murrah, 888 F.2d 24, 26 (5th Cir. 

1989). Likewise, prosecutors “may not suggest that evidence which was not 

presented at trial provides additional grounds for finding defendant guilty.” 

United States v. Garza, 608 F.2d 659, 663 (5th Cir. 1979). Rather, prosecutors 

are “confined in closing argument to discussing properly admitted evidence 

and any reasonable inferences or conclusions that can be drawn from that 

evidence.” Vargas, 580 F.3d at 278. In doing so, a prosecutor may directly 

respond to theories of the evidence offered by defense counsel. See id. at 279. 

And of course, as stated above, we examine a prosecutor’s allegedly improper 

remarks “in context” rather than “isolation.” Weast, 811 F.3d at 753.

During closing arguments, defense counsel for Mary Ann Lara and 

defense counsel for Melissa Lara both argued that the Facebook Messenger 

transcript shows lack of knowledge of methamphetamine because the 

transcript shows that Flores repeatedly told Mary Ann Lara that nothing 

illegal was in the truck. Melissa Lara’s counsel also indicated that all the 

conversations between Mary Ann Lara and Flores were depicted in the 

Facebook Messenger transcript. In its rebuttal closing argument, the 

Government then made the following remarks:

I want to make another point. We don’t know what was 

said between these individuals in person. We don’t know what 

was said between these individuals when they call each other 

on the telephone. There are even a couple of audio calls on the 

Facebook message. We don’t know what’s said then. We don’t 

know what was said in WhatsApp, but they sure went and

talked there. She told him to.

Why is that important? Because the information you

have, government -- or the Defendant’s Exhibit Number One, 

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is a very small selection of Facebook messages that were pulled 

in February. There’s a date on there. February 2019. This

happened in April of 2018. Those were the messages that still

existed in Facebook on February of 2019. Those aren’t the 

whole story. They’re a good start and they still don’t show that 

the defendant had absolutely no knowledge. It shows that the 

defendant didn’t delete any messages when he’s saying, No, 

no, there’s nothing in the car. Don’t worry about it.

But compare that to what Ashley Trinidad told you. She 

told you she asked Carla multiple times, [a]re there going to be 

drugs in the truck I’m taking? And Carla told her several times, 

[n]o. Before finally saying, [a]ll right, there’s one kilo of coke.

Read those messages in progress -- progression just like 

defense asked you to. . . . You’ll see that after a while, the

questions about what’s in the car stop. And it’s after they’ve

picked up the truck and met with him for an hour and eight

minutes in person, the truck the old man drops off and doesn’t

talk to them about.

The Laras argue that the prosecutor’s statement that the Facebook 

Messenger transcript admitted at trial was a “very small selection of 

Facebook messages that were pulled in February” implied that a larger 

selection of messages existed. They further argue that the prosecutor’s 

comparison of Mary Ann Lara’s conversation with Flores to Trinidad’s 

conversations with Carla Lara implied that these messages were 

incriminating. Finally, the Laras contend that the prosecutor’s remark, “It 

shows that the defendant didn’t delete any messages when [Flores is] saying, 

[n]o, no, there’s nothing in the car,” clearly implies that Mary Ann Lara or 

Melissa Lara deleted incriminating evidence.

However, we read the above remarks as simply emphasizing that the 

Facebook Messenger transcript does not definitively show lack of knowledge 

and does not contain all the conversations that occurred between Mary Ann 

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Lara and Flores. The Government was arguing that because there is no 

evidence of (1) what was said between Mary Ann Lara, Melissa Lara, and 

Flores in person or on the phone, (2) what was said during the audio calls 

between Mary Ann Lara and Flores referenced in the Facebook Messenger 

transcript, or (3) what was said on WhatsApp between Mary Ann Lara and 

Flores, the jury could reasonably infer that the Facebook Messenger

transcript was not a complete record of the sisters’ conversations with 

Flores. To further support the inference that Flores may have revealed the 

truck’s contents to the Laras in one of these conversations not in the record 

despite not having done so in the Facebook Messenger conversation, the 

Government reminded the jury that (4) Carla Lara had not revealed to 

Trinidad that the truck she would be driving would contain drugs until after 

Trinidad had asked several times and (5) the Laras stopped asking Flores 

about the contents of the truck after they met with him in person.

Prosecutors can discuss such reasonable inferences during closing 

arguments. See Vargas, 580 F.3d at 278. Even if the prosecutor did mean to 

imply that Mary Ann Lara may have deleted some of the more incriminating 

messages, this argument would be an appropriate response to defense 

counsel’s statement that the Facebook Messenger transcript was a complete 

record of any conversations with Flores. See id. at 279. Accordingly, the 

Government’s remarks in its rebuttal closing argument were not improper. 7

7 The Laras also argue that the Government’s rebuttal closing argument indirectly 

commented on their Fifth Amendment right to remain silent because only they could have 

answered the rhetorical questions that the Government asked in the first paragraph of the 

above-quoted remarks. However, as explained in supra Part II.C, the Government may ask 

rhetorical questions that are “inferential in substance” when urging “the conclusions it 

thinks the jury should draw from the evidence.” Sorzano, 602 F.2d at 1202.

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III.

In addition to the above issues raised by both Mary Ann Lara and 

Melissa Lara, Melissa Lara independently raises the following three issues. 

A.

The Government called Agent Katherine Leonard to testify regarding 

alleged inconsistencies between what Priscilla Ramirez had told agents and 

what she had said on the witness stand. In her testimony at trial, Ramirez 

(1) denied knowing whether the Lara sisters had issues with the truck; 

(2) denied having concerns about what was in the truck during the trip to 

Mexico because she had asked Mary Ann Lara, prior to the trip, whether the 

truck was stolen or a drug truck; and (3) denied being nervous at the border 

checkpoint for any reason other than her daughter getting out of her car seat. 

However, Agent Leonard testified that Ramirez had previously told her 

during a debriefing that (1) the Lara sisters had told her that something was 

wrong with the truck; (2) she had tried to put distance between her vehicle 

and the truck because she had a “bad feeling” and was worried that 

something was wrong with the truck; and (3) she had felt nervous when she 

saw that Melissa Lara had pulled the truck directly behind her vehicle at the 

border checkpoint. Agent Leonard also testified that Ramirez had told her 

(4) that the Laras were following her because they did not know the way back 

to San Antonio and (5) that she had encouraged the Laras to drive faster. 

Melissa Lara argues that these portions of Agent Leonard’s testimony are

inadmissible hearsay evidence.

Statements that “(1) the declarant does not make while testifying at 

the current trial or hearing; and (2) a party offers in evidence to prove the 

truth of the matter asserted in the statement” are hearsay. Fed. R. Evid.

801(c). Hearsay is generally inadmissible. See Fed. R. Evid. 802. Because 

Melissa Lara did not object to Agent Leonard’s testimony at trial, we yet 

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again review the district court’s admission of the testimony only for plain 

error. See Oti, 872 F.3d at 690. As stated above, to prevail under plain error 

review, the appellant must show that: “(1) there was an error; (2) the error 

was clear or obvious; (3) the error affected his or her substantial rights; and 

(4) the error seriously affects the fairness, integrity, or public reputation of 

judicial proceedings such that we should exercise our discretion to reverse.” 

Id.

The Government conceded at oral argument that the district court 

clearly erred by admitting the relevant portion of Agent Leonard’s testimony 

without instructing the jury that it could not consider the evidence 

substantively. We agree. Agent Leonard’s testimony contained out-of-court 

statements made by Ramirez. Though “[e]vidence of a witness’ prior 

inconsistent statements may be admitted to impeach that witness,” United 

States v. St. Junius, 739 F.3d 193, 202 (5th Cir. 2013), the court did not 

instruct the jury that it could only consider Ramirez’s out-of-court 

statements for impeachment purposes. Without such an instruction, the 

admission of Agent Leonard’s testimony was a clear and obvious error. 

Accordingly, we proceed to the third prong of plain error review.

“A defendant demonstrates that an error had an effect on [her] 

substantial rights when [s]he shows a reasonable probability that the jury, 

absent the error, would have acquitted [her].” Oti, 872 F.3d at 693. As 

explained above, Agent Leonard’s testimony contained five relevant hearsay 

statements. Regarding the first statement, Agent Schreiner also testified that 

Melissa Lara told him the truck was driving funny and shaking. Regarding the

remaining four statements, the reasons why Ramirez tried to put distance 

between her vehicle and the truck, why she felt nervous at the border 

checkpoint, and why the Laras were following her are minimally relevant to 

Melissa Lara’s knowledge of methamphetamine in the truck, as is the 

question of whether Ramirez encouraged the Laras to drive faster. For these 

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reasons, Melissa Lara has not shown that the jury would have acquitted her 

but for the admission of Agent Leonard’s hearsay testimony. Accordingly, 

she cannot prevail on this issue under plain error review.

B.

Melissa Lara argues that the cumulative effect of the claimed trial 

errors described above resulted in the denial of her right to a fair trial. “The 

cumulative error doctrine provides that 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.” United States v. Delgado, 672 F.3d 320, 343-44 (5th Cir. 2012) (en 

banc) (cleaned up). We apply this doctrine “only in rare instances,” in cases 

where “errors ‘so fatally infect[ed] the trial that they violated the trial’s 

fundamental fairness.’” Id. at 344 (citation omitted). In other words, the 

cumulative error doctrine “justifies reversal only in the unusual case in which 

synergistic or repetitive error violates the defendant’s constitutional right to 

a fair trial.” Id.

This case does not present such a rare situation. Melissa Lara has 

demonstrated that errors occurred at trial—notably, the admission of Agent 

Huerta’s testimony that load drivers generally know that they’re 

transporting narcotics and the admission of Agent Leonard’s testimony 

regarding Ramirez’s out-of-court statements. However, as explained above, 

Agent Huerta’s testimony does not justify reversal under plain error review, 

and Agent Leonard’s testimony was either cumulative or minimally relevant 

to the question of whether Melissa Lara knew that the truck contained drugs. 

Because the errors were unrelated to each other, and because one of the 

errors is extremely unlikely to have influenced the jury’s verdict, we cannot 

say that this is the rare case in which individual errors do not justify reversal 

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but the synergistic combination of multiple errors violated the defendant’s

right to a fair trial.

C.

Section 3B1.4 of the Sentencing Guidelines states, “If the defendant 

used or attempted to use a person less than eighteen years of age to commit 

the offense or assist in avoiding detection of, or apprehension for, the offense, 

increase by 2 levels.” Melissa Lara argues that the district court erred by 

applying this enhancement to her sentence.

Whether a defendant “used or attempted to use a minor to assist in 

avoiding detection within the meaning of § 3B1.4 is a conclusion of law that 

we review de novo, while any findings of fact made in support of that 

determination we review for clear error.” United States v. Mata, 624 F.3d 

170, 175 (5th Cir. 2010). A sentencing court’s finding of fact is clearly 

erroneous if, after reviewing all the evidence, the reviewing court “is left with 

the definite and firm conviction that a mistake has been committed.” Id. at 

173 (citation omitted). “A factual finding is not clearly erroneous so long as 

it is ‘plausible in light of the record as a whole.’” Id. (citation omitted).

“Absent other evidence, the mere presence of a minor at the scene of 

a crime is insufficient to support the application of § 3B1.4.” Mata, 624 F.3d 

at 176 (5th Cir. 2010) (cleaned up). Rather, “the defendant must take some 

affirmative action to involve the minor in the offense.” Id. However, “[w]hen 

a defendant’s crime is previously planned—when, for example, she leaves 

the house knowing she is on her way to smuggle drugs . . . —the act of 

bringing the child along instead of leaving the child behind is an affirmative 

act that involves the minor in the offense,” at least in cases “where additional 

circumstantial evidence tends to confirm that the defendant brought the 

minor along as a decoy and to avoid detection.” Id. at 176-77. Accordingly, 

“a defendant who makes a decision to bring a minor along during the 

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commission of a previously planned crime as a diversionary tactic or in an 

effort to reduce suspicion is subject to having her sentence enhanced under 

§ 3B1.4.” Id. at 175.

When Melissa Lara was apprehended at the border driving a truck 

containing methamphetamine, a child was in the car. At sentencing, the 

district court rejected Melissa Lara’s argument that she had brought the child 

with her to Mexico so that the child could visit his father, finding instead that 

Melissa Lara had used the child as “a cover story.” A variety of evidence

supported this finding: the child had been sitting in the backseat, 

unrestrained by a car seat or seat belt; Flores had told Mary Ann Lara to tell 

border agents that she and Melissa Lara had come to Mexico so that the child 

could see his dad; the government had stated at sentencing that Melissa Lara 

and Mary Ann Lara told border agents that they had taken the child to 

Mexico to see his father, and neither Lara objected to this statement; and

Agent Huerta had testified that drug traffickers commonly “bring kids to 

distract the [Customs and Border Protection] officer.” Because the district 

court’s finding is plausible based on this record, its finding is not clearly 

erroneous. Additionally, because Mary Ann Lara and Flores planned the 

truck’s crossing the previous day, the district court could have reasonably 

inferred that Melissa Lara’s crime was previously planned. See United States 

v. Caldwell, 448 F.3d 287, 292 (5th Cir. 2006) (explaining that a “sentencing 

court is permitted to make common-sense inferences from the circumstantial 

evidence”).

By thus using a child as a diversionary tactic during the commission of

a previously planned crime, Melissa Lara committed an affirmative act that 

involved the child in drug trafficking. Accordingly, the district court did not 

err by applying the § 3B1.4 enhancement to Melissa Lara’s sentence. See

Mata, 624 F.3d at 175.

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IV.

Mary Ann Lara was sentenced to 288 months in prison, a downward 

variance from her guidelines range of 360 months to life imprisonment. She

argues that her prison sentence was substantively unreasonable. Specifically, 

she contends that because the methamphetamine Guideline has evolved 

through congressional mandates rather than through the Sentencing 

Commission’s examination of empirical data, national expertise, and expert 

opinion, the Guideline lacks an empirical basis, results in guidelines ranges 

that are greater than necessary to determine the appropriate sentence, and 

produces overly severe sentences. 

“We presume sentences within or below the calculated guidelines 

range are reasonable.” United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 

2015). Mary Ann Lara relies on Kimbrough v. United States, in which the 

Supreme Court held that a district court did not abuse its discretion by 

concluding that the disparity between guidelines ranges for crack and powder 

cocaine offenses resulted in an excessive sentence, given that the crack 

cocaine Guideline did not reflect the Sentencing Commission’s ordinary 

methods of relying on empirical evidence and national experience. 552 U.S. 

85, 109-10 (2007). However, we have held that Kimbrough does not disturb 

the reasonableness presumption, even if the relevant Guideline is not 

empirically based. For example, in United States v. Mondragon-Santiago, we 

rejected the argument that the unlawful entry Guideline “is not empiricallybased, and therefore should not be afforded the appellate presumption of 

reasonableness,” explaining that while Kimbrough allows “district courts, in 

their discretion, to consider the policy decisions behind the Guidelines, 

including the presence or absence of empirical data, as part of their § 3553(a) 

analyses,” the decision “does not require discarding the presumption [of 

reasonableness] for sentences based on non-empirically-grounded 

Guidelines.” 564 F.3d 357, 366 (5th Cir. 2009). Similarly, in United States v. 

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Duarte, another case involving the unlawful entry Guideline, we held that 

“Kimbrough does not force district or appellate courts into a piece-by-piece 

analysis of the empirical grounding behind each part of the sentencing 

guidelines.” 569 F.3d 528, 530 (5th Cir. 2009). Rather, “the thrust of recent 

Supreme Court decisions has been to affirm the traditional entrustment of 

sentencing to the discretion of district courts, close to the ground and more 

cognizant of the details of offender and offense that should be determinative 

of sentence.” Id. at 530-31.

Both Mondragon-Santiago and Duarte involved the unlawful entry 

Guideline. However, no part of the reasoning of Mondragon-Santiago and 

Duarte was specific to that Guideline. Indeed, as Mary Ann Lara 

acknowledges, we have concluded in unpublished opinions that these 

decisions also control challenges to the substantive reasonableness of the

methamphetamine Guideline. See, e.g., United States v. Labrador, 734 F. 

App’x 270, 271 (5th Cir. 2018) (unpublished) (concluding that MondragonSantiago “foreclose[s]” the argument that a “within-guidelines sentence is 

substantively unreasonable because the methamphetamine Guideline is not 

based on empirical evidence” (citing 564 F.3d at 366-67)); United States v. 

Croxton, 693 F. App’x 327, 328 (5th Cir. 2017) (unpublished) (“Croxton’s 

contention that the district court should have taken into account the 

empirical basis for the methamphetamine Guideline is foreclosed.” (citing 

Duarte, 569 F.3d at 530-31)). Accordingly, we hold that Mondragon-Santiago

and Duarte foreclose Mary Ann Lara’s argument that because the 

methamphetamine Guideline is not empirically-based, her below-guidelines 

sentence was substantively unreasonable.

V.

For the foregoing reasons, we AFFIRM the judgment of the district 

court.

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