IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50906

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JUAN L. GARCIA, also known as Juan Garcia,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:10-CR-708-2

Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.

PER CURIAM:*

A jury convicted Juan L. Garcia of: conspiring to possess, with intent to

distribute, one kilogram or more of heroin; possessing, with intent to distribute,

one kilogram or more of heroin; and carrying a firearm during, and in relation

to, a drug-trafficking crime. He was sentenced, inter alia, to 211-months’

imprisonment. Garcia, who testified at trial, raises numerous issues regarding

his convictions. Each lacks merit.

United States Court of Appeals

Fifth Circuit

F I L E D

September 10, 2012

Lyle W. Cayce

Clerk

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

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

R. 47.5.4.

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Garcia first contends the Government did not prove beyond a reasonable

doubt that he carried a firearm during, and in relation to, a drug-trafficking

crime. Because Garcia moved for judgment of acquittal at the close of the

Government’s case and at the close of all the evidence, this sufficiency-of-theevidence contention is reviewed de novo. E.g., United States v. Mudekunye, 646

F.3d 281, 285 (5th Cir. 2011). Accordingly, the verdict will be upheld if a

reasonable juror could conclude from the evidence that the Government

established all elements of the offense beyond a reasonable doubt. Id. Along

that line, the evidence is viewed, and all reasonable inferences drawn, in the

light most favorable to the verdict. Id.

To establish guilt, the Government was required to prove, beyond a

reasonable doubt, that Garcia: (1) committed a drug-trafficking crime; and (2)

knowingly carried a firearm, (3) during, and in relation to, that crime. E.g.,

United States v. Franklin, 561 F.3d 398, 402 (5th Cir. 2009). Garcia contests the

second and third elements. 

Regarding the second element, trial evidence established that, after Garcia

was stopped for committing traffic violations, police officers found a handgun in

the center console of his vehicle. They also found thousands of dollars in cash,

which Garcia admitted belonged to him. Some of the cash was found in the

center console along with the firearm, which suggests Garcia knew the firearm

was in the vehicle and it was not placed there without his knowledge, as he

maintains on appeal. Moreover, a police officer testified that, when Garcia was

stopped, he was sweating and glanced suspiciously at the console. Thus, a

reasonable juror could have found Garcia knowingly carried the firearm.

In order to satisfy the “in relation to” (third) element, the Government

must prove the firearm had “some purpose or effect with respect to the drug

trafficking crime”; the presence of the firearm “cannot be the result of accident

or coincidence”. United States v. Smith, 481 F.3d 259, 264 (5th Cir. 2007)

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(internal quotation marks omitted). The Government need not prove defendant

actively used the firearm, but it must put forward “evidence that the firearm was

available to provide protection to . . . defendant in connection with his

engagement in drug trafficking”. Id. (internal quotation marks omitted).

Trial evidence showed Garcia regularly sold significant quantities of

heroin and handled substantial amounts of cash—approximately $11,000 for a

typical ten-ounce sale. The handgun was readily accessible to Garcia in the

center console. Officers found a magazine and ammunition along with the

firearm; and a reasonable juror could have inferred that it was loaded, or at the

very least that Garcia could have loaded it quickly and easily, based on a

photograph taken at the time it was found. The Government presented

evidence, including testimony of one of Garcia’s customers, from which a

reasonable juror could have found that the large amount of cash represented the

proceeds of drug sales. Moreover, the Government presented evidence that

Garcia, using his vehicle, participated in a drug transaction on the day the

firearm was found. Accordingly, a reasonable juror could have found that Garcia

carried the firearm during, and in relation to, a drug-trafficking crime.

Garcia contends for the first time in his reply brief that his customer’s

testimony was unreliable and should be disregarded. Garcia did not object to

that testimony at trial and, as noted, did not raise this issue in his opening brief. 

“For obvious reasons, our court generally will not consider an issue raised for the

first time in a reply brief.” United States v. Rodriguez, 602 F.3d 346, 360 (5th

Cir. 2010).

Garcia next contends the district court improperly admitted into evidence

a report of data files stored on one of his cellular telephones. Evidentiary rulings

are reviewed for abuse of discretion, but a harmless error will not be reversed. 

E.g., United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011); Fed. R. Evid.

103(a). Even if the admission of this evidence was erroneous, the error would

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not warrant reversal because it was harmless. The other evidence against

Garcia was strong: the customer testified to the multitude of drug deals in

which Garcia engaged; police officers testified about the firearm and large sums

of cash found in Garcia’s vehicle; the testimony of both the customer and the

officers, along with other evidence, could have led a reasonable juror to

determine that Garcia participated in a drug transaction at a motel on the day

of his arrest; and a bulletproof vest and a page from a drug ledger were found in

Garcia’s home. In the light of this evidence, the contents of Garcia’s cellular

telephone did not impact the verdict. Because there is no reasonable probability

that the report contributed to Garcia’s conviction, his substantial rights were not

affected by its admission. E.g., United States v. Sumlin, 489 F.3d 683, 688 (5th

Cir. 2007).

Listing several claimed errors made by his trial attorney, Garcia next

claims ineffective assistance of counsel (IAC). Except in rare circumstances, an

IAC claim not preserved in district court will not be addressed on direct appeal. 

E.g., United States v. Montes, 602 F.3d 381, 387 (5th Cir. 2010). Garcia presents

no reason to deviate from that general rule in this instance. The record does not,

inter alia, reveal the reasons for his attorney’s decisions. Accordingly, Garcia’s

contentions are premature. Of course, he may raise them in a 28 U.S.C. § 2255

motion. Id. at 388. 

Garcia also challenges the district court’s denying him a continuance to

secure the presence of a witness—a detective involved in his investigation—who

was on vacation at the time of trial. At trial, a police officer testified that, while

conducting surveillance of a club with the detective, the detective reported that

Garcia entered the club carrying a satchel. The officer did not personally see

whether Garcia was carrying anything. Garcia contends that the court’s denial

of a continuance to secure the presence of the detective resulted in the denial of

Garcia’s right to confront adverse witnesses.

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Defense counsel did not raise a Confrontation Clause objection in district

court; thus, review is only for plain error. E.g., United States v. Martinez-Rios,

595 F.3d 581, 584 (5th Cir. 2010). To show reversible plain error, Garcia must

show a clear or obvious error that affected his substantial rights. E.g., Puckett

v. United States, 556 U.S. 129, 135 (2009). Even if he makes this showing,

however, our court retains discretion whether to correct the error but generally

will do so only if it seriously affects the fairness, integrity, or public reputation

of the proceedings. Id.

The Confrontation Clause prohibits the admission of an out-of-court

testimonial statement unless the declarant is unavailable and defendant had a

prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36,

59 (2004). Even assuming the detective’s statement that Garcia carried a

satchel into the club was testimonial and that its admission amounted to clear

or obvious error, Garcia cannot succeed because he has not shown his

substantial rights were affected.

To make such a showing, Garcia must show a reasonable probability that,

but for the violation, the outcome of the trial would have been different. 

Martinez-Rios, 595 F.3d at 587. The Government’s case centered around the

drug transactions Garcia engaged in, drugs found in a hotel room where Garcia

had been earlier on the day of his arrest, and the firearm and cash found in his

vehicle. In short, whether Garcia carried a bag into a club did not affect the

outcome of the trial. Accordingly, he has failed to show reversible plain error.

Garcia contends the district court should have granted him a continuance

to give him time to review telephone records and photographs that the

Government produced five days before trial. Denial of a continuance is reviewed

for abuse of discretion. E.g., United States v. Stalnaker, 571 F.3d 428, 439 (5th

Cir. 2009). Garcia must demonstrate the denial “resulted in specific and

compelling or serious prejudice”. United States v. Barnett, 197 F.3d 138, 144

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(5th Cir. 1999) (internal quotation marks omitted). Garcia has not done so

because he does not explain what a longer period of time for review would have

produced or precisely how his defense suffered because counsel had only five

days to review this evidence. 

Garcia’s motion to suppress was denied as untimely. Garcia contends the

court should have held a hearing and decided the motion on its merits. The

court did not abuse its discretion. E.g., United States v. Oliver, 630 F.3d 397,

410 (5th Cir. 2011). It was authorized to set a deadline for filing pretrial

motions. Id. at 411; Fed. R. Crim P. 12(c). Garcia waived any issue not raised

by that deadline. Oliver, 630 F.3d at 410; Fed. R. Crim. P. 12(e). Garcia and his

counsel agreed in writing that pretrial motions were required to be filed within

40 days after the latest scheduled arraignment date. That date was 19 October

2010. Garcia did not move to suppress until 20 May 2011, seven months after

that date. Garcia does not explain either in the motion or here why he could not

meet the deadline. 

Garcia next contends the Government was permitted improperly to

introduce evidence of his ties to the “Mexican Mafia”. Evidence may be excluded

if its probative value is substantially outweighed by unfair prejudice. Fed. R.

Evid. 403. Obviously, defendant may not be convicted on the basis of his

association with “unsavory characters”. United States v. McCall, 553 F.3d 821,

826 (5th Cir. 2008) (internal quotation marks omitted). Re-stated, evidence that

defendant is associated with a criminal does not support an interference that he

is a criminal. Id. Both the Government and Garcia elicited testimony, to which

there was no objection, that witnesses were members of the gang and that others

with ties to Garcia were also members. During cross-examination, Garcia was

asked whether his father was a member of the gang and was “normally the

general” or an advisor to the current “general”. Over objection, Garcia responded

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that his father did not discuss the issue with him and that he did not know

whether his father was involved.

As for the testimony to which defense counsel did not object, review is only

for plain error. E.g., United States v. Espino-Rangel, 500 F.3d 398, 399-400 (5th

Cir. 2007). Even if it was clear or obvious error to permit testimony as to the

gang affiliation of the witnesses and their associates, Garcia cannot show that

his substantial rights were affected because, as explained above, there was

sufficient other evidence of his guilt for conviction. See McCall, 553 F.3d at 827

(finding no plain error in district court’s failure to grant sua sponte mistrial on

basis of “guilt-by-association” testimony because of strong evidence of

defendant’s guilt). 

Garcia objected to the Government’s questions as to whether his father

was involved in the gang. The standard for assigning error under Rule 403

requires a showing of “a clear abuse of discretion”. United States v. Curtis, 635

F.3d 704, 716 (5th Cir.) (internal quotation marks omitted), cert. denied, 132 S.

Ct. 191 (2011). There was no clear abuse of discretion because the probative

value of the testimony outweighed any unfair prejudice. Garcia’s codefendant,

a witness for the defense, testified that he sold drugs but that Garcia did not. 

In attempting to elicit testimony that the codefendant and Garcia’s father were

involved in the same gang and that Garcia’s father held a position of power, the

Government sought to call into question the veracity of the codefendant’s

testimony by implying that he had a reason to lie in support of Garcia. In any

event, any error in permitting unduly prejudicial testimony regarding the gang

was harmless because, in the light of the other evidence of Garcia’s guilt, there

is no reasonable probability that the evidence contributed to the conviction. 

Sumlin, 489 F.3d at 688.

Garcia also challenges the admission of two photographs as well as the

Government’s questions to his codefendant regarding whether the persons in the

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photographs, including Garcia, were members of the gang. Again, even if the

district court clearly abused its discretion in admitting the photographs and

allowing questions about them, the errors were harmless in the light of the other

evidence of Garcia’s guilt. Id.

Finally, Garcia maintains the cumulative effect of the district court’s

claimed errors resulted in an unfair trial. The evidence showed that Garcia

frequently sold drugs to a drug dealer for resale and that Garcia carried a

firearm in his vehicle along with proceeds of drug sales. To the extent the court

committed errors, they did not “so fatally infect the trial that they violated the

trial’s fundamental fairness”. United States v. Fields, 483 F.3d 313, 362 (5th Cir.

2007) (internal quotation marks omitted). 

AFFIRMED.

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