United States Court of Appeals

for the Fifth Circuit ____________

No. 23-40269

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Nestor Garcia, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:22-CR-911-1 

______________________________

Before Barksdale, Engelhardt, and Wilson, Circuit Judges.

Per Curiam:*

Nestor Garcia received a within-Guidelines 144-months’ sentence 

following his jury-trial conviction for: conspiracy to import 500 grams or 

more of a mixture or substance containing a detectable amount of 

methamphetamine and 500 grams or more of a mixture or substance 

containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 963, 

_____________________

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

United States Court of Appeals

Fifth Circuit

FILED

May 13, 2024

Lyle W. Cayce

Clerk

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952(a), 960(a)(1), (b)(1), (b)(2); importing 500 grams or more of a mixture or

substance containing a detectable amount of methamphetamine, in violation 

of 21 U.S.C. §§ 952(a), 960(a)(1), (b)(1), 18 U.S.C. § 2; importing 500 grams 

or more of a mixture or substance containing a detectable amount of cocaine, 

in violation of 21 U.S.C. §§ 952(a), 960(a)(1), (b)(2), 18 U.S.C. § 2; 

conspiracy to possess with intent to distribute 500 grams or more of a mixture 

or substance containing a detectable amount of methamphetamine and 500 

grams or more of a mixture or substance containing a detectable amount of 

cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), (b)(1)(B); 

possession with intent to distribute 500 grams or more of a mixture or 

substance containing a detectable amount of methamphetamine, in violation 

of 21 U.S.C. § 841(a)(1), (b)(1)(A), 18 U.S.C. § 2; and possession with intent 

to distribute 500 grams or more of a mixture or substance containing a 

detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), 

18 U.S.C. § 2.

Garcia arrived at a port of entry carrying, inter alia, a very large box 

containing smaller boxes of candy. He had travelled in a van in Mexico, 

transferred to a taxi to take him to the port of entry, and planned to then 

transfer back to the van past the port of entry. After he was referred for 

further inspection, packages of the above-described illegal substances were 

found inside the large box of candy. 

He presents four issues: sufficiency of the evidence regarding his

knowledge and possession; the notice and admissibility of an agent’s 

testimony; the court’s admitting a bilingual audio recording without a 

certified translation; and the court’s commenting about the parties’ ability to 

call a witness. Our court first reviews sufficiency challenges “without 

reference to the evidentiary issues, for double-jeopardy purposes”. United 

States v. Robinson, 87 F.4th 658, 667 n.1 (5th Cir. 2023). 

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At the close of the Government’s case, Garcia moved unsuccessfully 

for judgment of acquittal. (Garcia did not present evidence.) Therefore, 

review of Garcia’s challenge to the sufficiency of evidence proving he had 

knowledge of the hidden illegal substances is de novo. See id. at 667. We 

affirm a “jury verdict if, viewing the evidence in the light most favorable to 

the verdict and drawing all reasonable inferences from the evidence to 

support the verdict, a reasonable trier of fact could conclude from the 

evidence that the elements of the offense were established beyond a 

reasonable doubt”. Id. (citation omitted). “The evidence need not exclude 

every reasonable hypothesis of innocence or be wholly inconsistent with 

every conclusion except that of guilt, and the jury is free to choose among 

reasonable constructions of the evidence.” United States v. Ortega-Reyna, 

148 F.3d 540, 543 (5th Cir. 1998) (citation omitted), abrogated on other grounds 

by United States v. Vargas-Ocampo, 747 F.3d 299, 302–03 & n.2 (5th Cir. 

2014) (en banc). 

Additional circumstantial evidence is necessary to establish guilty 

knowledge when, as in this instance, the illegal substances are hidden or 

concealed. See United States v. Gonzalez-Rodriguez, 621 F.3d 354, 361 (5th 

Cir. 2010) (“When drugs are hidden in a secret compartment, however, 

guilty knowledge may not be inferred solely from the defendant’s control of 

the [area]”.). Garcia’s admissions about his plans with the van’s driver and 

attempts to withhold details about the van from investigators weakens the 

plausibility that the van driver concealed the illegal substances in the box of 

candy without Garcia’s knowledge. Considered together, Garcia’s 

demeanor, inconsistent statements, admissions to several lies, implausible 

story, and the value of the illegal substances provided a sufficient basis for the 

jury to find Garcia had the requisite knowledge. E.g., United States v. Miller, 

146 F.3d 274, 281 (5th Cir. 1998)(concluding cumulative evidence “provided 

a substantial basis” for jury’s finding). 

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Additionally, in the light of the trial testimony, a reasonable trier of 

fact could find the laboratory-tested samples were from Garcia’s candy box. 

See Robinson, 87 F.4th at 667 (outlining standard). Although Garcia contends 

the Government failed to prove beyond a reasonable doubt that the samples 

tested at the lab were the same samples taken from his possession, the 

Government was required to make only a prima-facieshowing of authenticity. 

E.g., United States v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993) (outlining 

standard). His assertions that the seizing officer did not testify or sign the 

chain-of-custody form until the day after the seizure fails to show a break in 

the chain of custody. In any event, such a break is relevant only to the weight 

of the evidence, not to its admissibility. See id. Because the Government 

made a prima-facie showing of admissibility, the evidence was properly 

admitted. See, e.g., United States v. Jardina, 747 F.2d 945, 951–52 (5th Cir. 

1984). 

Next, Garcia raises several challenges to the case agent’s testimony. 

First, we decline to address his contention that the Government was required 

to designate the agent as an expert because Garcia has not explained how he 

was prejudiced by the failure to designate. E.g., United States v. Dailey, 868 

F.3d 322, 328 (5th Cir. 2017) (“[Defendant] has not explained how he was 

prejudiced by the omission”.). 

Second, by failing to sufficiently brief the issue, Garcia has abandoned 

his contention that the agent was not qualified to give expert testimony on

micro expressions. See United States v. Reagan, 596 F.3d 251, 254–55 (5th 

Cir. 2010) (stating inadequately briefed contentions in counseled briefs are 

waived); Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986) (explaining

counseled litigants are not entitled to liberal construction of their pleadings). 

Third, concerning Garcia’s code-word-testimony contention, the 

court sustained his objection, accordingly, review is only for plain error. See 

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United States v. Salinas, 480 F.3d 750, 755–56 (5th Cir. 2007) (applying plainerror review when court sustained defendant’s objections). Under that 

standard, Garcia must show a forfeited plain error (clear-or-obvious error, 

rather than one subject to reasonable dispute) that affected his substantial 

rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that 

showing, we have the discretion to correct the reversible plain error, but 

generally should do so only if it “seriously affect[s] the fairness, integrity or 

public reputation of judicial proceedings”. Id. (citation omitted). Garcia has 

not shown the requisite clear-or-obvious error regarding the Government’s 

unsuccessful attempt to solicit code-word testimony. See Salinas, 480 F.3d 

at 755–56. 

Fourth, regarding the agent’s testimony explaining the operations of 

drug-trafficking organizations, “[t]he rule is well-established that an 

experienced narcotics agent may testify about the significance of certain 

conduct or methods of operation unique to the drug distribution business, as 

such testimony often is helpful in assisting the trier of fact understand the 

evidence.” United States v. Washington, 44 F.3d 1271, 1283 (5th Cir. 1995)

(footnote omitted). 

Fifth, for Garcia’s challenge to the testimony that he was being 

deceptive and not forthcoming, this testimony was “a mere explanation of 

the expert’s analysis of facts which would tend to support a jury finding on 

the ultimate issue”. United States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994). 

This testimony was permissible because it was based on the agent’s 

observations of Garcia’s behavior, body language, and facial expressions. See 

id. at 609–10. Further, the agent’s explanation of his personal observations 

was helpful to the jurors because they heard audio of the interview and could 

not observe Garcia’s body language. See United States v. Churchwell, 807 F.3d 

107, 119 (5th Cir. 2015) (“[T]he jurors did not personally view [defendant]’s 

conduct and behavior during the interview”.). 

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Sixth, his challenging the testimony that he was not genuinely crying, 

was feigning surprise, was withholding information, and was putting on an 

act are not preserved; and, therefore, review is only for plain error. E.g.,

United States v. Pierre, 88 F.4th 574, 578 (5th Cir. 2023). Garcia fails to show 

the requisite clear-or-obvious error. See id. (outlining standard). 

Garcia next asserts the court abused its discretion by admitting an 

audio recording of a bilingual interview without a certified translation. 

Garcia’s objection, however, was conditioned on the recording being played 

in the presence of a court interpreter, and one was provided. Because Garcia

effectively received the requested relief, review is only for plain error. See 

Salinas, 480 F.3d at 755–56. Garcia does not show the requisite clear-orobvious error because our court has not previously held that the translation 

of foreign-language phrases by a trial witness or court interpreter is not 

competent trial evidence. See United States v. Jones, 88 F.4th 571, 574 (5th 

Cir. 2023) (“Arguments that require the extension of existing precedent 

cannot meet the plain error standard.”). Further, Garcia fails to satisfy his 

burden to produce evidence showing that the translation was erroneous or 

supporting a different translation. See United States v. Llinas, 603 F.2d 506, 

509 (5th Cir. 1979) (“If the government’s translation was inaccurate, it was 

[defendant]’s burden to challenge its accuracy by presenting another 

translation, so that the jury could choose which version to believe.”). 

Further, Garcia’s related lack-of-pretrial-notice assertion fails because he 

does not identify any erroneous translations he could have countered with his 

own expert or other testimony his trial counsel would have handled 

differently with more preparation. See Dailey, 868 F.3d at 328. 

And, Garcia contends the court shifted the burden of proof by 

improperly commenting on Garcia’s failure to call a witness. Review is only 

for plain error because he did not object in district court. E.g., United States 

v. Andrews, 22 F.3d 1328, 1344 (5th Cir. 1994) (rejecting shifted-burden 

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contention). Garcia’s contention fails because he does not show the requisite 

clear-or-obvious error in the light of the court’s jury instructions. See id. 

AFFIRMED.

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