* 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. 08-10063

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

OSCAR JAVIER CABRERA-LOPEZ,

Defendant–Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:07-CR-119

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Oscar Javier Cabrera-Lopez (Cabrera) appeals his jury conviction for

possession of cocaine with intent to distribute. He argues that the district court

abused its discretion in allowing Special Agent Joe Paggit to testify regarding

the authenticity of Cabrera’s Mexican driver’s license because Agent Paggit was

not an expert and had no special training regarding Mexican identification

documents. Cabrera also argues that the admission of Agent Paggit’s testimony

was not harmless as the testimony destroyed Cabrera’s credibility.

United States Court of Appeals

Fifth Circuit

F I L E D

October 24, 2008

Charles R. Fulbruge III

Clerk
No. 08-10063

2

Cabrera has not shown that the district court abused its discretion in

admitting Agent Paggit’s testimony concerning the authenticity of Cabrera’s

Mexican driver’s license. See United States v. Gutierrez-Farias, 294 F.3d 657,

662 (5th Cir. 2002). Agent Paggit testified that he had twenty-one years of

experience working as a border patrol agent in San Diego, CA and Amarillo, TX,

and that he had observed thousands of Mexican driver’s licenses. He testified

that he was familiar with driver’s licenses from Chihuahua, Mexico, both

authentic and counterfeit. He testified that he thought Cabrera’s Mexican

driver’s license was fraudulent. Agent Paggit acknowledged on crossexamination that he did not hold himself out as an expert and that he did not

have any certification in document examination or special training in Mexico.

He stated that he was relying on his twenty-one years of field experience. 

The district court specifically instructed the jury to determine the weight

to give to Agent Paggit’s opinion and that it could disregard the opinion if the

opinion was not based upon sufficient education and experience, the reasons

given for the opinion were not sound, or the opinion was outweighed by other

evidence. “[J]uries are presumed to follow their instructions.” Zafiro v. United

States, 506 U.S. 534, 540 (1993) (citation omitted). In view of Agent Paggit’s

acknowledgment that he was not an expert and that his testimony was based on

his experience, and the district court’s instructions to the jury, Cabrera has not

shown that the district court abused its discretion in admitting this evidence.

See Gutierrez-Farias, 294 F.3d at 662.

Further, any error in the admission of Agent Paggit’s testimony was

harmless because it did not “affect[] the outcome of the district court

proceedings.” United States v. Harper, 527 F.3d 396, 408 (5th Cir. 2008), cert.

denied, No. 08-5037, 2008 WL 2717604 (U.S. October 6, 2008). Although Agent

Paggit’s testimony impugned Cabrera’s credibility, the Government presented

substantial circumstantial evidence that Cabrera knew that the drugs and

currency were hidden in the truck. See United States v. Diaz-Carreon, 915 F.2d
No. 08-10063

3

951, 954-55 (5th Cir. 1990) (nervous behavior, inconsistent statements to

customs officials, and a less-than-credible explanation for defendant’s actions are

part of overall circumstance evidence from which possession and knowledge may

be inferred). 

Texas State Trooper Jason Henderson stopped a 2005 white Nissan pickup

truck driven by Cabrera on Interstate 40 near McLean, Texas. Cabrera

appeared nervous, and his hands and voice were shaking. Based on Henderson’s

observation of an overwhelming odor of spray paint and Bondo, Henderson asked

for and received Cabrera’s permission to search the truck. Henderson found a

secret compartment under the hood and asked Cabrera to follow the police car

to a garage in McLean. A drug-sniffing dog alerted Henderson to the presence

of drugs in the area of the suspected compartment. In the compartment,

Henderson found four bundles, one of which contained 987.7 grams of 80% pure

cocaine worth about $20,000. Henderson also found that the other three bundles

contained $99,020. 

Cabrera testified that he lives in Phoenix, Arizona, and that he purchased

the truck there for $10,000 from a man named Jaime Vasquez. Vasquez

borrowed the truck for a few days, drove it to Boston, MA, and left it there.

Vasquez agreed to give Cabrera $700 to drive the truck back to Phoenix, AZ.

Vasquez sent a man named “Jose,” and another man, whose name Cabrera did

not know, to drive Cabrera to Boston to get the truck. In Boston, they went to

a warehouse where Jose introduced Cabrera to a man identified as “El Maestro.”

El Maestro gave Cabrera the $700 promised by Vasquez. Cabrera was driving

the truck back to Phoenix when he was stopped by Henderson. Cabrera testified

that he was nervous because he was in the United States illegally. Cabrera also

testified that he did not know that drugs and cash were in the truck and that his

Mexican driver’s license was legitimate.

The jury could infer that Cabrera had knowledge of the hidden drugs and

currency from Cabrera’s nervousness and implausible explanations for his
No. 08-10063

4

actions. See Diaz-Carreon, 915 F.2d at 954-55. In view of the evidence

presented at trial, Cabrera has not shown that the district court’s admission of

Agent Paggit’s testimony concerning Cabrera’s Mexican driver’s license “affected

the outcome of the district court proceedings.” See Harper, 527 F.3d at 408.

Therefore, any error in the district court’s admission of Agent Paggit’s testimony

was harmless. See id.

AFFIRMED.