* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 6, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 06-40903

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD JOE MARQUEZ, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

(4:05-CR-82)

Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Convicted of possessing methamphetamine with intent to

distribute (21 U.S.C. § 841(a)(1)), assaulting a federal employee

(18 U.S.C. § 111), and using a firearm in relation to a crime of

violence (18 U.S.C. § 924(c)(1)(A)), Edward Joe Marquez was

sentenced to, inter alia, 171 months imprisonment. He challenges:

the sufficiency of the evidence; and the exclusion of his wife’s

purportedly mitigating testimony. AFFIRMED.
2

I.

On 5 April 2006, approximately 15 state and federal Officers,

wearing bullet-proof vests identifying them as law enforcement,

served a “no knock” search and arrest warrant at Marquez’

residence. Upon entering the house, shouting “Sheriff’s

Department, search warrant”, Officers were confronted by two pitbull dogs. When one lunged at the Officers, they shot and injured

it. Officers then heard Marquez moving furniture to barricade

himself in a back room. A protracted confrontation ensued. 

Marquez testified he was unaware the Officers were law

enforcement, but feared they were a rival motorcycle gang. Others

present testified Officers inside and outside the house yelled they

were law enforcement. In response, Marquez threatened to shoot

them if they opened his barricaded door.

Following failed attempts to subdue Marquez, Officers fired

five rounds of tear gas into his room. After the fifth round,

Marquez fired his .45 caliber pistol toward an Officer within the

house, who had been communicating with him. That shot stopped in

an interior wall, approximately 22 feet from the Officer. Officers

discharged three additional tear-gas rounds. Marquez responded by

firing at an Officer outside the house, hitting the Officer’s

unmarked police car. Following negotiations, Marquez eventually

disassembled his firearm, placed it outside the room, and was

arrested. 
3

After being read his Miranda rights, Marquez admitted firing

the two shots, but claimed he aimed at the ceiling; no bullet holes

were found there, however, and ballistics tests showed Marquez’

weapon fired the bullets that struck the interior wall and the

unmarked car.

The search of Marquez’ property produced: 5.5 grams of

methamphetamine in his car; and tools and ingredients to make

methamphetamine (e.g., muriatric acid, Coleman fuel, rubbing

alcohol, table salt, hydrogen peroxide, and iodine) in his barn.

One Officer present testified he has never seen those items

together when they were not involved in methamphetamine creation.

The Officers further reported a fresh chemical scent in the air, as

if methamphetamine had been cooked there recently.

II.

Marquez contends: the evidence was insufficient to prove he

intended to assault law enforcement Officers and possessed

methamphetamine; and the district court erred in excluding his

wife’s testimony, offered to show he was a Vietnam veteran

suffering from Post-traumatic Stress Disorder. Both claims lack

merit.

A. 

Marquez moved for a judgment of acquittal at the close of the

Government’s case and renewed it at the close of all the evidence.

[Bl.Br. at 10] Accordingly, we review his sufficiency claims to
4

determine “whether the evidence, when reviewed in the light most

favorable to the government with all reasonable inferences and

credibility choices made in support of a conviction, allows a

rational fact finder to find every element of the offense[s] beyond

a reasonable doubt”. United States v. Redd, 355 F.3d 866, 872 (5th

Cir. 2003) (internal quotation marks omitted). 

Concerning his assault and firearm-use convictions, Marquez

contends he lacked the requisite mens rea. Toward this end, he

testified: he believed the Officers were members of a rival

motorcycle gang, there to kill him; he later suspected they might

be law enforcement Officers; but, “[e]ven though they were cops, I

still thought they was there to kill me”. Contrary to his postarrest statement that his shots were aimed at the ceiling, Marquez

testified: he fired the first shot in a failed suicide attempt;

and the second resulted from his weapon’s jamming and then

chambering a round as his hand slid against the trigger due to an

incoming tear-gas canister.

Regarding his methamphetamine conviction, Marquez also

contends, inter alia, no physical evidence directly linked him to

the methamphetamine (e.g., his fingerprints were not found on the

methamphetamine’s container). He testified: he had no knowledge

of the substance hidden in his car; and the items in his barn were

for cleaning and cooking fish. 
5

Ample evidence supports a rational juror’s finding Marquez

intentionally assaulted law enforcement Officers, used a firearm in

furtherance of this crime of violence, and possessed distributable

quantities of methamphetamine. The sufficiency challenges fail.

B.

Outside the presence of the jury, Mrs. Marquez testified her

husband had been treated for, among other things, Post-traumatic

Stress Disorder, stemming from his service in Vietnam. Marquez

proffered this testimony, not to support an expert opinion, but to

demonstrate his mental state during the events in question. In

evaluating, inter alia, the relevance of Mrs. Marquez’ testimony

under Federal Rule of Evidence 401, the district court stated:

“[Mrs. Marquez’] testimony ... doesn’t give the jury a basis to go

one way or the other ... without an expert to say what that means”.

An abuse-of-discretion standard of review applies. E.g.,

United States v. Parks, 68 F.3d 860, 867 (5th Cir. 1995). Along

this line, “a trial court has broad discretion in determining the

admissibility of evidence based on relevance ..., and that

determination will be overturned only when the abuse of that

discretion is clearly shown from the record”. United States v.

Collins, 690 F.2d 431, 438 (5th Cir. 1982). Collins upheld the

exclusion of the defendant’s wife’s testimony, proffered to

demonstrate the defendant’s mental state, because the testimony

“did not invoke specific observations, involved a professional
6

opinion as to mental competency, and related to a time period

distant from the events at issue”. Id.

As in Collins, if Marquez wished to place his mental health at

issue, or use it to negate intent, he should have utilized an

expert witness, such as the physician who, he claimed, prescribed

medication for his psychiatric problems. In the absence of such

professional accompaniment to explain Mrs. Marquez’ testimony’s

relevance to the jury, its exclusion was not an abuse of

discretion.

III.

For the foregoing reasons, the judgment is

AFFIRMED.