* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50822

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

RUDY NARANJO

Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 5:05-CR-134-1

Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:*

A jury convicted Rudy Naranjo of four counts of conspiracy to distribute

and possess cocaine and cocaine base, and one count of using a semi-automatic

weapon in furtherance of a drug trafficking crime. Naranjo appeals his

conviction. He contends that the district court erred in denying: his motion to

suppress; his request that the Government produce debriefing notes from its

interviews with cooperating witnesses; his request for a jury instruction on

third-party guilt; and his motion for a mistrial after a witness referred to his

United States Court of Appeals

Fifth Circuit

F I L E D

February 9, 2009

Charles R. Fulbruge III

Clerk
No. 07-50822

2

prior incarceration. He further argues that the Government used perjured

testimony against him and impermissibly commented on his failure to testify.

For the reasons stated below, we find no error and therefore affirm all

convictions.

I.

The facts of this case necessarily begin with Frank Mora, the

Government’s informant. In January 2005, Mora was a state fugitive. On

January 28, he called DEA Agent Nancy Sanford, whom he knew, and told her

that a black truck traveling from San Antonio to Houston was carrying cocaine

and marijuana. Agent Sanford informed officers in Welder, Texas, who

identified the black truck and, because it was speeding, stopped it. They

arrested the driver, Robert Torres, because he had no liability insurance. A

search of the truck turned up 11 kilograms of cocaine and more than 68 pounds

of marijuana.

Meanwhile, Sergeant Robert Perez of the San Antonio Police Department

received a call from a confidential informant who told him where Mora was

hiding. Officers then located and arrested Mora, who told them he wanted to

talk. Sergeant Perez and Detective Val Lopez interviewed Mora, and he

repeated the information he had previously given Agent Sanford. He also told

them that Rudy Naranjo and Juan Losoya were trafficking large amounts of

narcotics, and that he had seen bundles of narcotics at their apartments at the

Enclaves apartment complex in San Antonio.

Sergeant Perez knew from his own experience that Naranjo and Losoya

were involved in drug trafficking and, because Mora’s information was so

detailed, he believed it to be credible. He confirmed that one of the apartments

was leased to Donna Hull, Naranjo’s common-law wife. On the basis of his prior

knowledge and Mora’s information, Sergeant Perez prepared an affidavit and

obtained a warrant to search apartments 905 and 1601 and a garage.
No. 07-50822

1 Specifically, Naranjo was charged with:

Count 1: Conspiracy to distribute and possess with intent to distribute 5 kilograms or

more of cocaine. 28 U.S.C. §§ 841(a)(1), 841 (b)(1)(A), & 846.

Count 2: Conspiracy to distribute and possess with intent to distribute 50 grams or

3

In apartment 1601, officers found cocaine, clear plastic wrappings with

cocaine residue, a money-counting machine, loose marijuana, a safe with $5,000

cash, and an SKS assault rifle with thirty live rounds in it. They also found

evidence establishing that Naranjo lived there with Donna Hull, their baby

daughter, and Jason Martinez, his nephew. Officers found a hotel receipt and

a prescription pill bottle with Naranjo’s name on it, documents related to Bad

Boy Audio, Naranjo’s business, and an application for Medicaid for Naranjo’s

daughter.

In apartment 905, officers found cocaine and a money-counting machine,

as well as a security badge, handcuffs, a hat labeled “narcotics officer,” and a

bullet-proof vest. Evidence established that Losoya lived in apartment 905.

In the garage, officers found 7.6 kilograms of bundled cocaine and 728

grams of bagged cocaine base, also known as crack. There was also a one-gallon

plastic bucket holding approximately 1,010 grams of loose cocaine, and a plastic

bag holding a brick of cocaine weighing 1,048 grams. Fingerprints lifted from

the bucket matched Losoya’s. Documents found in the garage bore Naranjo’s

and Bad Boy Audio’s names.

A title search of the black truck eventually linked it to Naranjo. A man

identified as Naranjo’s nephew later visited Torres, the truck’s driver, while he

was in jail. That man drove a sedan that was registered to Donna Hull.

Naranjo was indicted in March 2005 on four counts of conspiracy to

distribute and possess cocaine and cocaine base, and one count of using,

carrying, and possessing a semi-automatic assault weapon in furtherance of a

drug trafficking crime.1
No. 07-50822

more of cocaine base. 28 U.S.C. §§ 841(a)(1), 841 (b)(1)(A), & 846.

Count 3: Conspiracy to distribute and possess with intent to distribute 5 kilograms or

more of cocaine within 1,000 feet of an elementary school. 28 U.S.C. §§

841(a)(1), 841 (b)(1)(A), 846, & 860(a).

Count 4: Conspiracy to distribute and possess with intent to distribute 50 grams or

more of cocaine base within 1,000 feet of an elementary school. 28 U.S.C. §§

841(a)(1), 841 (b)(1)(A), 846, & 860(a).

Count 5: Using, carrying, and possessing a semi-automatic assault weapon during, in

relation to and in furtherance of a drug trafficking crime. 18 U.S.C. §

924(c)(1)(B)(I).

4

At trial, the Government offered the testimony of four cooperating

witnesses. Israel Soto testified that he had purchased cocaine from Naranjo on

two separate occasions, and that Naranjo had showed him his AK 47 assault

rifle. Mario Fuentes, who was present when Naranjo showed Soto his gun,

corroborated Soto’s testimony. Pedro Ramos testified that he once lent $20,000

to Naranjo, who paid him back in cocaine. Ramos said that in 2004 Naranjo sent

cocaine to Louisiana and Mississippi on a weekly basis; he identified Torres as

Naranjo’s drug courier. Finally, Chris Barron testified that while he and

Naranjo were in jail together, Naranjo told him about his case and asked for

Barron’s help in having Mora killed so that he could not testify at trial. 

Naranjo called his own witnesses. Nate Nichols testified that Mora called

him on January 27, 2005, to ask him to steal cocaine from the Enclave

apartments. That call, which was recorded, was introduced into evidence.

Robert Torres testified that Mora recruited him to drive the black truck to

Houston, and that Mora helped him load the drugs into the truck. He testified

that Mora was working with Losoya and Martinez, and that Naranjo was not

involved in thattransaction. Robert Fernandez testified that he once purchased

an assault rifle from Mora, and that the assault rifle found in apartment 1601

looked like a rifle he had seen in Mora’s possession.
No. 07-50822

5

A jury found Naranjo guilty on all five counts. He was sentenced to 360

months of imprisonment for each of the first four counts, to run concurrently,

and 120 months of imprisonment for the fifth count, to run consecutively.

Naranjo now appeals his conviction, arguing that the district court erred in

denying: his motion to suppress the evidence seized from his apartment; his

request for debriefing notes from the Government’s interviews with cooperating

witnesses; his request for a jury instruction on third-party guilt; and his motion

for mistrial after a witness referred to his prior incarceration. He also insists

that the Government used perjured testimony against him and impermissibly

commented on his failure to testify. We address each alleged error in turn.

II.

We first consider the argument that the affidavit supporting the warrant

to search Naranjo’s apartment was misleading because it omitted material

information. Specifically, Naranjo complains that Sergeant Perez did not tell the

issuing magistrate that Mora was a known con man with a criminal record who

had previously acted as an informant. Naranjo argued at a suppression hearing,

as he does here, that in the light of those omissions officers could not have relied

on the warrant in good faith, and that any evidence seized under the warrant

should have been suppressed. The district court denied his motion to suppress.

For the reasons stated, we find no error in the denial.

When reviewing a district court’s denial of a motion to suppress,this court

reviews factual findings for clear error and legal conclusions de novo. United

States v. Cherna, 184 F.3d 403, 406 (5th Cir. 1999). When reviewing factual

findings based on live testimony at a suppression hearing, this court considers

the evidence in the light most favorable to the prevailing party, here the

Government. United States v. Garza, 118 F.3d 278, 282 (5th Cir. 1997). 

“The bulwark of Fourth Amendment protection, of course, is the Warrant

Clause,” which requires that “police obtain a warrant from a neutral and
No. 07-50822

6

disinterested magistrate before embarking upon a search.” Franks v. Delaware,

438 U.S. 154, 164 (1978). The Fourth Amendment instructs that “no warrants

shall issue, but upon probable cause, supported by oath or affirmation.” U.S.

CONST. amend. IV. 

The exclusionary rule, when properly invoked, operates to suppress

evidence seized in violation of the Fourth Amendment. See, e.g., United States

v. Calandra, 414 U.S. 338, 347 (1974). The exclusionary rule is “a judicially

created remedy designed to safeguard Fourth Amendment rights generally

through its deterrent effect, rather than a personal constitutional right of the

party aggrieved.” See United States v. Leon, 468 U.S. 896, 906 (1984).

Accordingly, a good-faith exception has been carved into the exclusionary rule.

Evidence seized in violation of the Fourth Amendment will not be suppressed

“where probable cause for a search warrant is founded on incorrect information,

but the officer’s reliance upon the information’s truth was objectively

reasonable.” United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002) (citing

Leon, 468 U.S. at 919-20). 

Our review of the denial of a motion to suppress evidence seized under a

search warrant is a two-step process. United States v. Sibley, 448 F.3d 754, 757

(5th Cir. 2006) (citing Cherna, 184 F.3d at 407). We first ask whether a goodfaith exception to the exclusionary rule applies. Id. If a good-faith exception

applies, we affirm the denial of the motion to suppress. Id. If it does not, we

necessarily proceed to the second step of the two-step process, which asks

whether, nevertheless, there existed a substantial basis for the issuing

magistrate to find probable cause. Id.

Naranjo argues a good-faith exception does not apply in his case because,

according to him, Sergeant Perez intentionally omitted material information

from his affidavit such that he furnished an incomplete picture of Mora’s

credibility. Naranjo is correct that a good-faith exception does not apply “if the
No. 07-50822

7

warrant affidavit contains a false statementthat was made intentionally or with

reckless disregard for the truth.” Cavazos, 288 F.3d at 709-10 (citing Franks,

438 U.S. at 155-56); see also Sibley, 448 F.3d at 757 (listing circumstances in

which good-faith exception will not apply). Naranjo bears the burden to

establish that the omissions were intentional or reckless. Id. (citing United

States v. Wake, 948 F.2d 1422, 1428-29 (5th Cir. 1991)). 

The affidavit here omitted both that Mora was a con man with a criminal

record and that he had previously acted as a government informant. Although

the district court initially ruled that Sergeant Perez’s omissions were made in

reckless disregard for the truth, after it heard testimony from Sergeant Perez it

reconsidered its ruling and decided that Sergeant Perez had prepared the

affidavit in good faith. The district court found that Sergeant Perez had not

omitted the information to mislead the magistrate, but rather had believed at

the time that the information was not critical to a finding of probable cause.

Sergeant Perez had explained in his affidavitthatthe informant knew thatifthe

information he provided was incorrect it would be broughtto the attention ofthe

authorities handling the case against him. Sergeant Perez also told the district

court that the detail of Mora’s information led him to believe Mora was credible,

notwithstanding his criminal record. Moreover, as the Government points out,

the factthat Mora had previously acted as a governmentinformantin fact would

have supported probable cause; if SergeantPerez had feltit necessary to mislead

the magistrate into believing there was probable cause, he would not have

omitted thatfact. Given these considerations, the district court’s finding was not

clearly erroneous. Naranjo has not established that the omissions were

intentional or reckless, such that a good-faith exception does not apply.

Nevertheless, even if Naranjo had established that the omissions were

intentional or reckless, we would still ask, as did the district court, whether the

omitted information would have affected probable cause. See Sibley, 448 F.3d
No. 07-50822

8

at 757. Probable cause is a “practical, common-sense determination as to

whether, given all of the circumstances set forth in the affidavit, there is a fair

probability that contraband or evidence will be found in a particular place.”

Cavazos, 288 F.3d at 710 (quoting United States v. Byrd, 31 F.3d 1329, 1340 (5th

Cir. 1994)). The district court concluded the omitted information, had it been

made known, would not have adversely affected probable cause. We agree. 

We have already stated that the fact that Mora had previously acted as a

government informant would have supported, not detracted from, a finding of

probable cause. And the fact that Mora was a con man with a criminal record

would not have been fatal to a finding of probable cause, especially in the light

of other factors. It was clear from the affidavit that the informant’s tip was not

anonymous. Sergeant Perez represented that he had spoken with the informant

and believed him to be credible. He represented that the informant was aware

that if the information he provided was incorrect, the authorities handling the

case against him would be notified. The informant had provided detailed

information, based on his personal first-hand knowledge, and his descriptions

were consistent with Sergeant Perez’s own experience. Finally, the affidavit

indicated that Sergeant Perez had prior knowledge of Naranjo’s involvement in

drug trafficking. Even had the magistrate been made aware of Mora’s

reputation and record, the affidavit nevertheless established a sufficient basis

for probable cause to search Naranjo’s apartment.

In sum, we conclude not only that Naranjo has failed to establish that the

omissions were intentional or reckless, but also that the omitted information

would not have adversely affected probable cause in this circumstance. The

district court did not err in denying Naranjo’s motion to suppress evidence seized

under the warrant.
No. 07-50822

9

III.

Naranjo next complains that the district court erred in denying his request

that the Government produce debriefing notes from its interviews with

cooperating witnesses. We find no merit in this claim.

In a pretrial motion he filed with the district court, Naranjo asked thatthe

district court either compelthe Governmentto produce all of its debriefing notes,

or review the notes in camera to determine whether they contained any material

that must be disclosed under either Brady v. Maryland, 373 U.S. 83 (1963)

(evidence favorable to the accused or usefulto the defense for impeachment must

be produced), or Giglio v. United States, 405 U.S. 150 (1972) (same). The district

court did not compel the Government to produce the notes, but did review in

camera the notes from interviews with each of the four cooperating witnesses

who testified at trial. The district court concluded that none of the notes

contained Brady-Giglio material. Later, upon Naranjo’s request, the district

court reviewed the same notes again for so-called Jencks statements and found

none. 18 U.S.C. §§ 3500(b), (e)(1) (statements made by witnesses that relate to

the subject matter on which the witness has testified must be produced).

We review Brady determinations de novo. East v. Johnson, 123 F.3d 235,

237 (5th Cir. 1997). We review a district court’s rulings regarding discovery

under the Jencks Act for clear error. United States v. Brown, 303 F.3d 582, 591

(5th Cir. 2002). 

Naranjo complains that although the district court reviewed the notes in

camera, it “refused to tender the notes to Appellant for review and use for cross

examination of the witnesses.” But Naranjo does not point to any portion of the

notes that he alleges contained Brady-Giglio material or Jencks statements.

Instead, he asserts generally that he had a right to view all of the notes.

Naranjo, however, cites no authority that supports that defendants generally are

entitled to the Government’s notes, and the authority that he does cite does not
No. 07-50822

10

support his position. In United States v. Thomas, 12 F.3d 1350 (5th Cir. 1994),

it was unclear whether the district court had reviewed all or only portions of the

debriefing notes at issue for Brady material. We remanded so that the district

court could review the notes in their entirety. Id. at 1365. In United States v.

Carreon, 11 F.3d 1225, 1238 (5th Cir. 1994), we remanded so that the district

court could review a presentence report for Brady material. Id. at 1238. 

Here the district court has already reviewed all of the notes for each of the

four cooperating witnesses who testified at trial. Naranjo does not allege that

any portion of the notes contained Brady-Giglio material or Jencks statements,

nor that the district court’s review was incomplete such that remand is

necessary for additional review. We need not dwell further on this issue. The

district court properly reviewed the notes in camera, and Naranjo has shown no

error.

IV.

Naranjo next contends that the district court erred in denying his proposed

jury instruction on third-party guilt. The Government contends that Naranjo’s

instruction was an incorrect statement of the law. We agree with the

Government.

Naranjo requested the following instruction:

Evidence has been introduced tending to establish the

criminal responsibility of another, Frank Mora, and

thatthe defendant was not present atthe time when, or

at the place where, the defendant is alleged to have

committed the offenses charged in the indictment. It is

of course the Government’s burden to establish beyond

a reasonable doubt each ofthe essential elements of the

offense, including the involvement of the defendant;

and if after consideration of all of the evidence in the

case, you have a reasonable doubt as to whether the

defendant was present at the time or place alleged in the

indictment, you must find the defendant not guilty.
No. 07-50822

11

(Emphasis added.)

Naranjo claims to have patterned the instruction after an alibi instruction

approved by this court. Naranjo argues that the instruction was critical to his

defense. 

We review asserted error in jury instructions for abuse of discretion. See

United States v. Lucas, 516 F.3d 316, 324 (5th Cir. 2008). A district court abuses

its discretion by refusing a defense theory instruction only if the requested

instruction: “(1) is substantively correct; (2) is not substantially covered in the

charge given to the jury; and (3) concerns an important point in the trial so that

the failure to give it seriously impairs the defendant’s ability to present

effectively a particular defense.” Id. (quoting United States v. Simkanin, 420

F.3d 397, 410 (5th Cir. 2005)).

As the Government points out, Naranjo’s instruction tells jurors to acquit

him if they find he was not present at a specified place and time. A defendant,

however, need not be present at a specified place and time to be convicted of

conspiracy; presence at a specified place and time is not an element of that

offense. See United States v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003) (elements

of conspiracy under 21 U.S.C. § 846 are “(1) an agreement between two or more

persons to violate the narcotics laws; (2) the defendant’s knowledge of the

agreement; and (3) the defendant’s voluntary participation in the conspiracy”)

(internal quotation marks and citations omitted). Nor is presence at a specified

place and time an element of possession with intent to distribute. See United

States v. Garcia, 917 F.2d 1370 (5th Cir. 1990) (elements of possession with

intent to distribute are “the defendant (1) knowingly (2) possessed contraband

(3) with the intent to distribute”; possession “may be either actual or

constructive, and may be proven by either direct or circumstantial evidence”).

Naranjo’s instruction would have misled jurors to believe that if he were not
No. 07-50822

12

present at a specified place and time, he could not be convicted of conspiracy to

distribute and possession with intent to distribute narcotics. 

The instruction would have misled jurors further to conclude that they

must acquit Naranjo if they found Mora criminally responsible. It should go

without saying that criminal responsibility on Mora’s part would not require the

acquittal of Naranjo, especially where, as here, conspiracy has been charged.

Because of its misleading nature, the requested instruction was not

substantively correct. Lucas, 516 F.3d at 324. The district court did not abuse

its discretion in denying the instruction.

V.

Naranjo next asserts thatthe district court erred in denying his motion for

a mistrial after witness Robert Fernandez referred to Naranjo’s prior

incarceration. We disagree.

Naranjo called Fernandez to testify that he had purchased an assault rifle

from Mora. On cross-examination, the Government asked Fernandez how long

he had known Naranjo:

Q: So, you – And just kind of going back through to

the – to the beginning, you’ve known the Naranjo

family about sixteen years.

A: Yes.

Q: Used to be kind of brothers-in-law with Joe. How

long have you known Rudy Naranjo?

A: Through his brother.

Q: Okay. That whole time pretty much?

A: No. He was incarcerated for a while and then

when he got out that’s when I got to know him.
No. 07-50822

13

The district court immediately interjected, instructing the jury to ignore

Fernandez’s testimony and striking the testimony from the record. Later,

outside the presence of the jury, Naranjo objected to the testimony and moved

for a mistrial. The district court denied his motion, but offered to give an

additional curative instruction:

I’ve already told the jury to disregard that testimony.

I don’t want to talk about the testimony again, but I’m

here to – I’m going to use . . . part of the charge that’s

normally given to them again. I will tell them they are

here to decide whether the Government has proved

beyond a reasonable doubt that the defendant is guilty

of the crime charged. The defendant is not on trial for

any act, conduct, or offense not alleged in the

indictment. . . . [R]emember that Mr. Naranjo is

presumed innocent and cannot be convicted unless the

Government proves every element of each of those

crimes beyond a reasonable doubt.

Naranjo, however, objected to further instruction, so none was given. He

now complains that the district court did not declare a mistrial.

We review the district court’s denial of Naranjo’s motion for a mistrial for

abuse of discretion. United States v. Valles, 484 F.3d 745, 756 (5th Cir. 2007).

“A new trial is required only when, after a review of the entire record, it appears

that there is a significant possibility that the prejudicial evidence had a

substantial impact on the jury’s verdict.” Id. (citing United States v. Paul, 142

F.3d 836, 844 (5th Cir. 1998)). We give great weight to the district court’s

assessment of the subject testimony’s prejudicial effect. Id. We examine the

testimony in context to determine whether it was elicited by the Government,

or spontaneously uttered by the witness. Id.(citing UnitedStates v. Moreno, 185

F.3d 465, 472-73 (5th Cir. 1999)). In addition, we recognize that a curative

instruction from the district court can render prejudicial effect harmless. Id.

(citing United States v. Nguyen, 28 F.3d 477, 483 (5th Cir. 1994)). 
No. 07-50822

14

The district court did not abuse its discretion in denying Naranjo’s motion

for a mistrial. It is clear that Fernandez’s testimony was inadvertent, as

Fernandez was Naranjo’s witness and the Government’s line of questioning was

not formed to elicit testimony as to Naranjo’s prior incarceration. We have held

under similar circumstances that such testimony does not warrant a mistrial.

See United States v. Leonard, 386 F.2d 423, 425 (5th Cir. 1967) (“The

volunteered words were not responsive to the question, nor could they be

anticipated by the prosecuting attorney.”); United States v. Perez, 223 F. App’x

336, 347 (5th Cir. 2007) (unpublished). The inadvertent and fleeting reference

to Naranjo’s prior incarceration could not have had a substantial impact on the

jury, especially considering all of the testimony the jury heard over the course

of Naranjo’s trial, which lasted almost two weeks. Any prejudice was cured by

the districtjudge’s immediate interjection and curative instruction. The district

court did not err in denying Naranjo’s motion for a mistrial.

VI.

Naranjo next alleges error in that the Government knowingly presented

perjured testimony, thus denying his right to due process. He urges that

SergeantPerez and Agent Sanford told conflicting accounts of how Mora became

a cooperating witness, and that the conflict is such that one of the officers

committed perjury. 

Naranjo points first to testimony Sergeant Perez gave at a suppression

hearing in which he stated that it “was just a coincidence” that he encountered

Mora on January 28, 2005. Naranjo asserts that there was no coincidence, as

evidenced by the factthat Agent Sanford testified that she called Detective Lopez

and advised him to talk to Mora, and Sergeant Perez contacted Detective Lopez

thereafter.

Naranjo also points to testimony in which Sergeant Perez stated that he

did not speak with Agent Sanford until after he had interviewed Mora. Naranjo
No. 07-50822

15

points to Agent Sanford’s phone records that show Sergeant Perez spoke with

Agent Sanford immediately after Mora’s arrest, earlier than he testified.

To prove his right to due process has been violated by the use of perjured

testimony, Naranjo must show “(1) the actual falsity of a witness’s testimony, (2)

that the testimony was material, and (3) that the prosecution knew the witness’s

testimony was false.” Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001)

(citations omitted). 

Naranjo does not meet his burden because at best he shows only minor

inconsistencies that were not material to his guilt. “Perjury is material, and a

new trial is required ‘ifthere is any reasonable likelihood thatthe false testimony

could have affected the judgment ofthe jury.’” Creel v. Johnson, 162 F.3d 385, 391

(5th Cir. 1998) (quoting Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993)).

We cannot see how the very minor inconsistencies to which Naranjo points

affected the judgment of the jury. Accordingly, this issue is without merit.

VII.

Finally, Naranjo says that the Government impermissibly commented on

on Naranjo’s failure to testify, in violation of Naranjo’s Fifth Amendment right

to silence. 

In closing argument, the prosecutor for the Government told the jury:

But there’s one person in this room who has told you

more clearly than anyone else that Mora was telling the

truth about those drugs and that person, ladies and

gentlemen, is Rudy Naranjo.

Naranjo objected, and the prosecutor explained that she intended only to

draw an inference from other evidence. The district court then instructed the

jury:

Just remember, ladies and gentlemen, Mr. Naranjo is

presumed innocent. Mr. Naranjo does not have to testify

or give evidence of any kind. I will allow an inference –

inferential argument, but you know of course, Ms.
No. 07-50822

16

Carlisle,there can be no statement or inference that Mr.

Naranjo needs to testify or has to give evidence or

anything like that.

The prosecutor went on to state:

[H]ere’s my point on this, ladies and gentlemen: Based

on Chris Barron’s testimony, it was Rudy Naranjo who

said Frank Mora can’t testify. Frank Mora can’t be

allowed to testify. Because Rudy knew that Frank Mora

was an eyewitness to that big load of drugs at the – that

Rudy got at the apartment on January 27th. So these

actions, ladies and gentlemen, tell you that the

defendant believed that Frank Mora’s testimony was

indeed very, very important. Critical. The eyewitness.

Of course, it is well-established that the Government may not comment on

a defendant’s decision not to testify. See Doyle v. Ohio, 426 U.S. 610, 617-18

(1976). Not every comment, however, violates the Fifth Amendment. A comment

violates the Fifth Amendment only where the language used was (1) “manifestly

intended” or (2) “of such character that the jury would naturally and necessarily

take it to be a comment on the failure of the accused to testify.” United States v.

Wharton, 320 F.3d 526, 538 (5th Cir. 2003) (quoting United States v. Rocha, 916

F.2d 219, 232 (5th Cir. 1990)). We review such comments in context, and they

“must have a clear effect on the jury before reversal is warranted.” Rocha, 916

F.2d at 232. We apply the doctrine of harmless error: a comment will not

warrant reversal if, beyond a reasonable doubt, it did not contribute to the jury’s

verdict. United States v. Moreno, 185 F.3d 465, 475 (5th Cir. 1999). Finally, we

have recognized that a curative instruction can “militate against finding a

constitutional violation, or become central to the harmless error analysis.” Id. at

477 (citing Greer v. Miller, 483 U.S. 756, 764 (1987); United States v. Carter, 953

F.2d 1449, 1466 (5th Cir. 1999)).
No. 07-50822

17

Our review of the prosecutor’s comment in context leads us to the

conclusion that she did not manifestly intend it to be an indirect comment on

Naranjo’s decision not to testify. We have held that “[t]he prosecutor’s intent is

not manifestifthere is some other, equally plausible explanation for the remark.”

United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996). Here, the plausible

explanation for the prosecutor’s comment is that it sought to draw attention to

evidence thatindicated Naranjo did not want Mora to testify. The prosecutor was

commenting on Chris Barron’s testimony as to statements Naranjo made to him,

not on Naranjo’s decision not to testify. 

Nor was the comment such that the jury would naturally and necessarily

interpret it to be a comment on Naranjo’s decision not to testify at trial. The

district court instructed the jury that Naranjo had no burden to testify or put on

evidence. Error, if any, was rendered harmless by the district court’s instruction.

VIII.

For the reasons we have stated, we find no error in the prosecution and

trial of this case. Accordingly, Naranjo’s convictions are, in all respects,

AFFIRMED.