United States v. Martinez-Larraga

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 7, 2008

No. 06-40489 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

HUMBERTO MARTINEZ-LARRAGA; FRANCISCO JAVIER GARZA-

GUEVARRA; MANUEL GUEVARRA-RODARTE; AMADO ROMEO-ORTIZ

Defendants-Appellants

Appeal from the United States District Court

for the Southern District of Texas

Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Appellants Humberto Martinez-Larraga (“Martinez-Larraga”), Francisco

Javier Garza-Guevarra (“Garza-Guevarra”), Manuel Guevarra-Rodarte

(“Guevarra-Rodarte”), and Amado Romeo-Ortiz (“Romeo-Ortiz”) (collectively,

“the defendants”) were convicted by a jury of conspiracy to possess with intent

to distribute more than 100 kilograms of marihuana in violation of 21 U.S.C. §§

846, 841(a)(1), and 841(b)(1)(B), and of possession of more than 100 kilograms

of marihuana with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B). They were indicted following the United States Border Patrol

agents having caught them, on September 30, 2005, carrying bundles of

No. 06-40489

marihuana north from the Mexican border near Brownsville, Texas. The four

defendants each primarily argue that their convictions should be reversed and

remanded for new trial because the prosecutor commented on their post-arrest,

pre-trial, silence during its rebuttal closing argument. Martinez-Larraga,

Romeo-Ortiz,1 and Guevarra-Rodarte2 also argue that their convictions should

be reversed and remanded for new trial because the government improperly

bolstered its witnesses’ testimony during closing argument. Finally,

Romeo-Ortiz additionally complains that the district court erred by denying him

a downward adjustment of his base offense level pursuant to United States

Sentencing Guidelines (U.S.S.G.) § 3B1.2.

FACTS AND PROCEEDINGS BELOW

On September 30, 2005, Border Patrol agents were observing an area

known as a “hot spot” for drug smuggling activity on the border between Texas

and Mexico near the Rio Grande river. Agent Jesus Sanchez saw a man stop at

1

Romeo-Ortiz adopts the arguments of his codefendants in his brief. See FED. R. APP.

P. 28(I).

2

In his reply brief, but not his original brief, Guevarra-Rodarte attempts to adopt

Martinez-Larraga’s argument, as set forth in both his original and reply briefs, that the

government improperly bolstered its witnesses’ testimony in closing argument. It is not

entirely clear whether he may do so. FED. R. APP. P. 28(I) indicates that a party may adopt by

reference a portion of another’s brief, and that “[p]arties may also join in reply briefs.” This

language could indicate that Guevarra-Rodarte may adopt the arguments made by his

codefendants in their reply briefs. It also could be interpreted to mean that in his reply brief,

Guevarra-Rodarte may adopt all of the arguments of his codefendants, even those made in

their original briefs. However, arguments not asserted in an original brief are generally

deemed to be abandoned. Haspel & Davis Milling & Planting Co. v. Board of Levee

Commissioners of the Orleans Levee District, 493 F.3d 570, 579 n.29 (5th Cir. 2007). In an

unpublished opinion, this court has held that one codefendant may not adopt the arguments

of another codefendant for the first time in a reply brief. See United States v. Cugno, No. 05-

51758, slip op. at 10 n.4 (5th Cir. Aug. 13, 2007); see also United States v. Bieganowski, 313

F.3d 264, 281 n.14 (5th Cir. 2002) (indicating that the law remains unclear on this issue, but

finding it unnecessary to resolve the issue in that case). Because we conclude that the district

court did not improperly allow the prosecutor to bolster the government witnesses’ testimony,

we need not and do not decide whether Guevarra-Rodarte’s appellate briefing adequately

preserves this contention for purposes of his appeal.

2

No. 06-40489

the top of a levee, whistle, and wave his hands. Within seconds, four men

carrying large bundles walked to the top of the levee where this scout stood.

When Agent Sanchez saw the four men carrying the bundles, he alerted his

fellow Border Patrol agents. He watched the four men through his binoculars

as they moved north, but lost sight of them for approximately two minutes.

Agent Miguel Angel Rodriguez found and confronted the four men carrying the

bundles. He drew his gun and instructed them to stop. Three of these men,

Garza-Guevarra, Guevarra-Rodarte, and Romeo-Ortiz, stopped with their

bundles, but the fourth dropped the bundle he was carrying and ran from Agent

Rodriguez. Agent Rodriguez then informed a third agent, Agent Julio Tijerina,

that one of the men had run. Agent Tijerina captured Martinez-Larraga, who

fit Agent Rodriguez’s description, approximately forty-five yards from Agent

Rodriguez hiding beneath a shrub. All of the men were arrested. The four

bundles recovered from the scene contained in total approximately 107.77

kilograms of marihuana.

Border Patrol agents read the defendants their Miranda rights both at the

scene of the arrest and again at the Border Patrol station. Defendants invoked

their right to remain silent and made no statements. Counsel was later

appointed for each of them.

On October 18, 2005, the defendants were charged by indictment with

conspiracy to possess with intent to distribute approximately 107.77 kilograms

of marihuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B), and

with possession of the same quantity of marihuana with intent to distribute in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Their consolidated trial took

place from December 12-14, 2005, and a jury convicted each of the defendants

on both counts.

During trial, the government’s witnesses were the three Border Patrol

agents who patrolled the area where the defendants were arrested and the Drug

3

No. 06-40489

Enforcement Administration agent who inspected the bundles of marihuana.

The defendants did not testify or present any witnesses or other evidence. The

first witness to testify was Agent Sanchez. After several pages of testimony as

to his observations of the area and witnessing of defendants carrying the

bundles, and their apprehension, the prosecutor asked Agent Sanchez about

when the agents read the defendants their Miranda rights after their arrest.

That portion of the questioning was as follows:

“Q [prosecutor] After these four individuals were arrested – were

they apprehended? Were they arrested?

A [Agent Sanchez] Yes, sir.

Q Where were they taken?

A We usually read their rights out in the field, Mirandized them

with our card.

Q What are the Mir – can you tell us what Miranda rights are?

A The Miranda rights are – they can be read to them out in the

field. We have a card for them. Unfortunately, I don’t have that

with me. I usually carry it with my uniform. It was read by

Miguel A. Rodriguez to them.

Q At the scene?

A At the scene before we actually cleaned up, picked up

everything, and we moved out of there.

Q And did they invoke the right to remain silent, to your

knowledge?

A At that time we just asked them if they understood their

rights, and we put them in the vehicles. And we clear the area

because we don’t know how hot it is, if there’s any other individuals

out there.

Q So when you took them to the station, did you advise them

4

No. 06-40489

of their rights?

A Once upon arriving at the station, we give them their 214,

which is a government form, and they read the rights again. And

we ask them again do they understand their rights or do they want

somebody to help them out, and they invoked their rights.

Q Okay. And were these rights given to them in Spanish?

A Yes.

Q So you didn’t ask them any questions?

A No, sir.”

During cross examination of Agent Sanchez, counsel for Garza-Guevarra

also elicited the following testimony:

“Q [counsel for Garza-Guevarra] Okay. And you didn’t take any

statements from any of the three individuals or the four individuals

that you apprehended, correct, because you said –

A [Agent Sanchez] They invoked their rights.

Q Excuse me?

A They invoked their rights.

Q Okay. And so you don’t have any statements from any of those

four individuals either?

A That’s correct.”

The second witness was Agent Tijerina, who testified to his apprehension

of Martinez-Larraga and return of him to where the other three defendants and

four bundles were. The prosecutor then elicited from Agent Tijerina testimony

on Miranda warnings:

Q [prosecutor] Now, were you the person that basically read the

Miranda warnings there at the scene to the individuals?

5

No. 06-40489

A [Agent Tijerina] Not at the scene, sir. At the scene, it was

Officer Miguel Rodriguez.

Q And what about at the processing?

A At the processing area, yes, sir, I served them with a – it’s a

Form 214 rights, and we do that formally for the individuals. I read

all four of them their rights. They went ahead and signed it,

acknowledging that they did not want to answer any question.

Q And did you ask them any more questions?

A No, I didn’t, sir.”

At no time during any of the proceedings below was any character of

objection, complaint or request for relief made by or on behalf of any party

6

No. 06-40489

respecting any of the above quoted testimony of Agents Sanchez and Tijerina.3

Nor has the admission of any such testimony been assigned as error on appeal.

3

These inquiries into the advice concerning and exercise of Miranda rights seem to

have had their genesis in the following circumstances. At a conference between the court and

counsel on December 12, 2005 (just after the jury had been selected and retired until the next

morning when opening statements would be made) the prosecutor advised that the agents’

report, copies of which had been furnished defense counsel, reflected that “all four [defendants]

were given their Miranda rights and nobody said anything” and that “all four individuals

invoked their rights, and they didn’t say anything except for biographical data.” However, the

prosecutor further stated that “[a]ccording to one of the agents while he was conducting

biographical data, one of them said the reason he did it was he was forced by someone in

Mexico;” however “they didn’t pursue it any further because they had already given him his

Miranda warnings.” The prosecutor said that counsel for Martinez-Larraga “brought it to my

attention someone had said that.” Counsel for Martinez-Larraga confirmed he had mentioned

this to the prosecutor and that his client had “indicated to me that he told the agents that

arrested him, he goes, ‘Hey, you know, somebody forced me to do this’ . . . .” The prosecutor

said that earlier that morning (December 12) “when the agent was coming in, I told him to go

and confirm who was the one that said it, and it was Mr. Troiani’s client [Garza-Guevarra],

according to the agent.” Two defense counsel expressed concern about this, noting that the

statement amounted to an admission and that it might implicate the other defendants, and

that it was unclear whether more than one defendant made such a statement. The court

directed that the prosecutor allow defense counsel to interview the agents. The next morning

(December 13), before the jury was brought in, at a conference with the court and counsel, the

prosecutor announced “I had the witnesses available for all defense counsel, but . . . my

understanding is that they’re going to not touch that question, and I’m not going to bring it out

through the witnesses, Your Honor.” Counsel for Garza-Guevarra argued that was correct,

and no counsel suggested otherwise. The following then transpired:

“MR. CASAS [counsel for Martinez-Larraga]: Your Honor, I did want to make

a motion on the record. In the event that it comes up, that defense comes up,

that is coercion or a justification or any type of duress defense by Defendant

Francisco Javier Garza-Guevara, we believe that it would be mutually exclusive

and antagonistic . . . to the defense posture and position of Mr. Martinez-

Larraga, and we’d be moving for a severance.

THE COURT: In the event it comes up? Okay.

MR. CASAS: Well, I mean, I’m being assured that it’s not going to come up. But

in the event that it, you know –

THE COURT: All right. I guess we’ll cross that road when we come to it.”

No motion to sever was ever made.

7

No. 06-40489

During closing arguments, counsel for Guevarra-Rodarte argued that the

government had not proven that the defendants were guilty beyond a reasonable

doubt. In doing so, he indicated that the government had no testimony from the

defendants regarding the alleged conspiracy, and no testimony regarding

whether they knew that there was marihuana in the bundles:

“How did the government show that they [the Defendants] all had

a plan together? Were there any statements made between any of

these individuals? No, there were not. Was there any testimony

from the group here that said, ‘Oh, we all acted together’? No, there

was none of that testimony. . . .

Has the government presented any evidence where these

individuals knew what was in the bundles they were carrying, if

they were carrying them at all? Has the government come over here

and said, ‘Well, this person here admitted that it was marihuana’?

. . . Did the government provide you with any of that information?

Did the agents testify that these individuals knew that they were

carrying contraband?”

The prosecutor’s rebuttal closing argument, which appears as several

pages in the transcript, included the following brief response to the foregoing

argument concerning lack of proof of knowledge in that there was no showing

any defendant “admitted that it was marihuana.” The prosecutor stated:

“Another thing is you’ve heard the saying actions speak louder than

words. Well, here the actions speak louder than words. They were

caught with the marijuana. It was on their persons. And you heard

there’s no testimony that they knew. You heard the agents, that

they basically lawyered up. They didn’t make any statements. You

can surmise by their actions . . . ”

At that point, counsel for Romeo-Ortiz interrupted the prosecutor, and addressed

the court, stating, “Your Honor, I’m going to object to the prosecution trying to

switch the burden. There is no burden for a defendant, and there is no inference

made by silence.” The prosecutor responded: “Your Honor, they brought it up,

Your Honor. The defense counsel brought it up.” The court did not explicitly

sustain or overrule the objection, but instructed the jury, “The jury will

8

No. 06-40489

remember my instructions. The burden of proof is on the government until the

very end of the case.” The prosecutor continued:

“We accept the burden, and actions speak louder than words. You

saw what they did. You saw the two agents. These are the agents

that are there every day. Every day they’re out there. And you saw

them. It’s a question of do you believe them or not? Do you believe

these agents or not? Why would they get up here and try to make

up lies or make up suggestions and so forth? They were there.

They’re telling you what they saw, so it’s a question whether you

believe these agents or not.”

At this point, counsel for Martinez-Larraga approached the bench and stated:

“I think Mr. Esquivel [the prosecutor] has crossed the line. We need to comment

on the defendants’ right to remain silent, and we move to . . . I want to put that

on the record that we move for a mistrial.”4 The court overruled the motion.

After closing arguments, the district court released the jury for the day.

The next morning, when court reconvened, the district court gave the jury this

admonishment before allowing it to retire for deliberations:

“Before you begin deliberations, though, I want to give you one

further instruction. Right before we adjourned at the very end of

the government’s argument, a reference was made that when the

defendants were arrested, they didn’t make any statements to the

officials, and I want to -- I reminded you at the time that the

government bears the burden of proof until the very end of the case.

And now before you begin your deliberations, I want to remind you

that as a part of the defendant’s right to remain silent under the 5th

Amendment, not only do they not have to testify or put on any

evidence, but they also don’t have to talk to law enforcement

officials. And so I’m instructing you that they’re -- the comment

that was made, the refusal to talk to agents and that they made a

request for counsel was a lawful exercise of their rights, and you

4

Counsel for Romeo-Ortiz and Garza-Guevarra joined in the motion immediately.

Counsel for Guevarra-Rodarte did not join the motion at that time. However, after the jury

was dismissed for the day, counsel for Romeo-Ortiz asked the court, “Just for the record, Your

Honor, the motion for mistrial was for all four defendants and was denied as to all four?” The

court responded that that was the case.

9

No. 06-40489

should not infer guilt or anything else from their exercise of those

rights.

The law prohibits you in arriving at your verdict from considering

the fact that a defendant may have exercised his or her 5th

Amendment rights, and so I’m instructing you that you should

ignore that comment in its entirety, all right?”

The jury then retired to begin its deliberations, after which counsel for Martinez-

Larraga, joined by the other defendants, stated “we would again renew our

motion for a mistrial. Despite the judge’s curative instructions, we believe that

the taint cannot be removed with any instruction, and we ask again for a

mistrial.” The district court responded that it did not “see the comment or the

argument as being that harmful to begin with, given the context in which it was

made.” It concluded, “Secondly, I didn’t think the motion made yesterday or the

motion made today was timely, but that’s not the only reason I overruled it. I

don’t think it merits a mistrial, so I’m overruling the motion.”5

Later that morning the jury returned its verdict finding each defendant

guilty on each count.

On March 31, 2006, the district court sentenced each of the defendants to

sixty-three months’ imprisonment and four years’ supervised release, on each

ount, with the sentences on each count to run concurrently. Each defendant

timely filed his notice of appeal.

DISCUSSION

We limit our discussion to the issues raised by the parties on appeal:

Whether the defendants’ convictions should be reversed because the prosecutor

improperly commented on their post-arrest, pre-trial, silence; whether the

defendants’ convictions should be reversed because the prosecutor improperly

bolstered the testimony of the Border Patrol agents; and whether the district

5

No objection was made below, or has been raised on appeal, as to anything stated in,

or omitted from, any of the district court’s instructions to the jury.

10

No. 06-40489

court erred in failing to assess Romeo-Ortiz a minor role adjustment pursuant

to U.S.S.G. § 3B1.2. For the reasons stated below, we affirm the judgment of the

district court.

A. Prosecutor’s Comments About Defendants’ Post-Arrest Silence

The defendants argue that their convictions should be reversed because

the prosecutor deprived them of a fair trial by improperly referring to their

post-arrest silence during his rebuttal to the defendants’ closing argument. The

defendants timely objected to these statements by moving for a mistrial. They

argue that by making these statements, the prosecutor violated their Fifth

Amendment rights.

Two of the clauses of the Fifth Amendment are arguably relevant here, viz:

the self-incrimination clause providing that no person “shall be compelled in any

criminal case to be a witness against himself,” and the due process clause

providing that no person shall “be deprived of life, liberty, or property, without

due process of law.”

In Griffin v. California, 85 S.Ct. 1229, 1232 (1965), the Supreme Court

held that the Fifth Amendment’s self-incrimination clause (as applicable to the

states under the Fourteenth Amendment) precluded the prosecution from

arguing to the jury that the accused’s failure to testify at the trial was evidence

of his guilt. In Miranda v. Arizona, 86 S.Ct. 1602 (1966), the Court held that, in

order to effectuate the self-incrimination clause of the Fifth Amendment

(applicable to the states under the Fourteenth Amendment), evidence of

statements made by the defendant to law enforcement officers while under

custodial interrogation could not be admitted in the defendant’s criminal

prosecution unless preceded by the now familiar Miranda warnings. Id. at 1612-

13, 1621. See also id. at 1624-25 n.37 (“[I]t is impermissible to penalize an

individual for exercising his Fifth Amendment privilege when he is under police

11

No. 06-40489

custodial interrogation. The prosecution may not, therefore, use at trial the fact

that he stood mute or claimed his privilege in the face of accusation.”).

The Court has held that the prosecution’s introduction at trial of evidence

of the accused’s silence after being given Miranda warnings following arrest

violates the due process clause. Doyle v. Ohio, 96 S.Ct. 2240 (1976). The

Supreme Court has explained that “Doyle rests on ‘the fundamental unfairness

of implicitly assuring a suspect that his silence will not be used against him and

then using his silence to impeach an explanation subsequently offered at trial’.”

Wainwright v. Greenfield, 106 S.Ct. 634, 638 (1986) (quoting South Dakota v.

Neville, 103 S.Ct. 916, 923 (1983)). In Wainwright the court applied Doyle even

though the defendant did not testify. Id. at 636. Wainwright further casts doubt

on the applicability of the self-incrimination clause in this setting, stating:

“Notably, the Court in Doyle did not rely on the contention that Ohio

had violated the defendants’ Fifth Amendment privilege against

self-incrimination by asking the jury to draw an inference of guilt

from the exercise of their constitutional right to remain silent. Cf.

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106

(1965) (Fifth Amendment prohibits prosecutorial comment on

defendant’s refusal to testify).” 106 S.Ct. at 639 n.7.6

Defendants’ arguments on appeal somewhat differ from one another in

that Guevarra-Rodarte and Martinez-Larraga contend that the prosecutor’s

argument violated Doyle and their due process rights, while counsel for Garza-

Guevarra contends that the argument violated his Fifth Amendment right

against self-incrimination, citing Griffin, and counsel for Romeo-Ortiz simply

“adopts the arguments of all codefendant/appellants” (without any explanation,

elaboration or specification). The initial objection below was made by counsel for

6

We also note that this court has not resolved, and there is a circuit split as to, whether

the Fifth Amendment privilege against self-incrimination prohibits prosecution proof, as

substantive evidence of guilt, of a nontestifying defendant’s post-arrest, pre-Miranda warning

silence not in response to custodial interrogation. See United States v. Salinas, 480 F.3d 750,

758-59 (5th Cir. 2007); United States v. Frazier, 408 F.3d 1102, 1110-11 (8th Cir. 2005).

12

No. 06-40489

Romeo-Ortiz; both motions for mistrial were made by counsel for Martinez-

Larraga.

We think it clear that there was no comment on the failure of any

defendant to testify. The complained of argument by the prosecutor was

obviously in response to the argument of Guevarra-Rodarte’s counsel that: “Has

the government presented any evidence where these individuals knew what was

in the bundles they were carrying, if they were carrying them at all? Has the

government come over here and said, ‘Well, this person here admitted that it was

marihuana?” (emphasis added). In response, the prosecutor argued: “They were

caught with the marijuana. It was on their persons. And you heard there’s no

testimony that they knew. You heard the agents, that they basically lawyered

up. They didn’t make any statements.” The prosecutor’s reference is plainly and

unambiguously to the agents’ wholly unobjected to testimony that the

defendants made no statements to the agents. Absolutely nothing the prosecutor

stated could be construed as referring to the failure of the defendants to testify.7

What we clearly have here is a comment on the defendants’ silence

pretrial, post-arrest, post-Miranda warnings. So far as we are aware the

Supreme Court and this court have always addressed such a situation under

Doyle, and we will likewise do so here, although self-incrimination clause cases

may also inform the analysis.

Doyle succinctly describes its holding as follows:

“The question in these consolidated cases is whether a state

prosecutor may seek to impeach a defendant’s exculpatory story, told

7

Moreover, it is plain that the defendants and the district court understood the

prosecutor to be referring only to the defendants’ failure to make any statements to the agents.

Neither the objection by counsel for Romeo-Ortiz nor the motions for mistrial in any way

complain of any comment on the failure to testify, and the district court’s curative instruction

reflects the same understanding concerning the complained of “comment that was made, the

refusal to talk to agents and that they made a request for counsel was a lawful exercise of their

rights, and you should not infer guilt or anything else from their exercise of those rights.”

13

No. 06-40489

for the first time at trial, by cross-examining the defendant about his

failure to have told the story after receiving Miranda warnings at

the time of his arrest. We conclude that use of the defendant’s post-

arrest silence in this manner violates due process. . . .” 96 S.Ct. at

2241 (footnote omitted; emphasis added).

However, Doyle also expressly recognizes that a prosecutor’s reference to a

defendant’s post-Miranda silence may properly be made where it is not “used to

impeach” the defendant’s “exculpatory story”, or as substantive evidence of guilt,

but rather to respond to some contention of the defendant concerning his post-

arrest behavior. See 96 S.Ct. at 2245 n.11 (citing United States v. Fairchild, 505

F.2d 1378, 1383 (5th Cir. 1975). In Fairchild we stated that where the

defendant had “opened the door” respecting his post-arrest interaction with the

authorities “he discarded the shield which the law had created to protect him”

from comment on his post-arrest silence, although the prosecution still could not

go beyond a proper response so as to use the silence “as direct evidence” of guilt.

Id., 505 F.2d at 1383. We, and other circuits, have continued to recognize this

“open the door” or “reply” exception to Doyle, see, e.g., United States v. Allston,

613 F.2d 609, 611 (5th Cir. 1980); United States v. Shue, 766 F.2d 1122, 1129

(7th Cir. 1985), while likewise recognizing that it does not permit the

prosecution to argue “that the jury should infer . . . [the defendant’s] guilt

directly from his post-arrest silence,” United States v. Rodriguez, 260 F.3d 416,

421 (5th Cir. 2001).

The same basic rationale of this Doyle exception has likewise been applied

in cases dealing with prosecutorial comment on the defendant’s failure to testify.

Thus, where defense counsel argued that the government had not given the

defendant a chance to explain his actions and the prosecutor responded by

stating that he “could have taken the stand and explained,” the Supreme Court

held that the response did not infringe on the defendant’s Fifth Amendment

rights or violate Griffin. United States v. Robinson, 108 S.Ct. 864 (1988). The

14

No. 06-40489

Court held that the prosecutor was entitled to make “a fair response” to defense

counsel’s argument and, quoting from Justice Steven’s concurring opinion in

United States v. Hastings, 103 S.Ct. 1974, 1984 (1983), observed that “‘the

protective shield of the Fifth Amendment should [not] be converted into a

sword.” Robinson goes on to say that “it is important that both the defendant

and the prosecutor have the opportunity to meet fairly the evidence and

arguments of one another,” 108 S.Ct. at 869, and rejected the notion that the

prosecutor’s response should be considered the equivalent of treating “a

defendant’s exercise of his right to silence at trial as substantive evidence of

guilt.” Id. at 870.

We conclude that the prosecutor’s rebuttal argument’s brief reference to

the jury having “heard the agents” (who had testified that defendants were

warned under Miranda and invoked their rights) and that “they [defendants]

didn’t make any statements” was a fair response to defense counsel’s argument

that there was no evidence defendants knew what was in the bundles because

there was no evidence “this person here admitted it was marihuana.” The

prosecutor’s said argument in this respect was simply an explanation of why

there were no statements, the absence of which defense counsel had alluded to,

thus invoking silence as a sword rather than a shield and opening the door to a

response. The referenced response was not an assertion that the jury should

infer defendants’ guilt directly from their post-arrest silence.8

8

The other three defendants argue that Guevarra-Rodarte’s counsel cannot have

“opened the door” as to them. In the present context, this contention is unavailing. We note

that no such argument was made below, nor was any instruction ever requested that the

prosecution’s now complained of response be disregarded as to the other defendants or the like.

Nor was any severance ever requested. Moreover, the remarks in question of Guevarra-

Rodarte’s counsel was not made in reference to that particular defendant but rather in respect

to all the defendants collectively and without differentiation. No defendant objected to that

or did anything to disavow those remarks or that aspect of them. Further, counsel for Garza-

Guevarra had, on cross examination of Agent Sanchez, brought out the fact all the defendants

had invoked their rights and made no statements; as noted above there was never any

objection or motion whatever in respect to any of that testimony or similar testimony in the

15

No. 06-40489

There is, however, one rather troubling aspect of the prosecutor’s response,

namely the statement that “they [defendants] basically lawyered up.” It is, at

best, highly questionable that this brief, unrepeated comment qualifies as a fair

response. The appropriate response to the defense criticism that the prosecution

had not presented any statements by any of the defendants, is that such was not

due to the disinterest of the agents or the prosecution in what the defendants

had to say, or to their holding back any denial or explanation which had been

offered by any defendant, but rather to the defendants’ own choice to exercise

their Miranda right to silence of which the agents had advised them. That they

did so because “they basically lawyered up” is essentially irrelevant to the

prosecution’s otherwise legitimate response.9

However, even assuming that the prosecutor violated the defendants’

1 constitutional rights, any error committed by the prosecutor was harmless

2 beyond a reasonable doubt. When faced with a Doyle violation, this court must

3 determine if, absent the prosecutor’s improper statements, it is clear beyond a

4 reasonable doubt that the jury would have found the defendant guilty in any

5 event. Brecht v. Abrahamson, 113 S.Ct. 1710, 1717 (1993). If this is clear, the

error is harmless, and the defendant’s conviction should not be reversed.

The typical Doyle case – indeed Doyle itself – involves the prosecution’s use

of the defendant’s post-Miranda silence “to impeach a defendant’s exculpatory

story, told for the first time at trial.” Doyle, 96 S.Ct. at 2241. For purposes of

determining whether a Doyle error requires reversal we have categorized Doyle

cases according to how directly or expressly the prosecution “links the

prosecutor’s direct examination of Agent Sanchez and Agent Tijerina. See also note 3 supra.

9

Moreover, there is really no adequate support in the evidence for any “lawyering up”

at that time. The only evidence in that respect is Agent Sanchez’s brief unexplained and

unrepeated statement that “we ask them again do they understand their rights or do they want

somebody to help them out, and they invoked their rights” (emphasis added).

16

No. 06-40489

implausibility of the exculpatory story to the defendant’s ostensibly inconsistent

act of remaining silent.” See Chapman v. United States, 547 F.2d 1240, 1249-50

(5th Cir. 1977); see also Rodriguez, 260 F.3d at 422.10 Here, however, there is no

exculpatory story whatever, either through testimony of any defendant or

through any other evidence, whether from the defense or the prosecution.

Further, the district court, clearly and fully instructed the jury, just before

it retired, that the defendants had the Fifth Amendment right not only not to

testify or put on any evidence, but also the right not to talk to law enforcement

and to request counsel and that the jury should not infer guilt, or anything else,

from defendants’ exercise of those rights and should disregard the prosecutor’s

challenged comment “in its entirety.”

Moreover, the prosecutor’s brief and unrepeated “lawyered up” statement

was, in context, part of response to the defense argument about the absence of

statements and was not explicitly or clearly an attempt to use the lawyering up

as direct evidence of defendants’ guilt to or directly link it to rebutting any

exculpatory story or defense advanced.

Finally, there is “overwhelming evidence” of the defendants’ guilt. United

States v. Hasting, 103 S. Ct. 1974, 1982 (1983) (holding that the prosecution’s

Griffin error was harmless beyond a reasonable doubt in light of “overwhelming

evidence of guilt”). They were caught by Border Patrol agents with bundles of

marihuana. Although one of the four men stopped by Agent Rodriguez ran from

him, he was caught by another agent only a few minutes later, and there is

absolutely nothing to suggest that the agents caught the wrong man. The

defendants presented no evidence or witnesses at trial, nor did they present any

10

Fifth Circuit cases subsequent to Chapman have substantially modified its apparent

rigidity, have recognized that many cases fall somewhat between its categories, and have

declined to reverse even where the exculpatory story is not totally implausible but the evidence

of guilt is substantial or overwhelming. See Alderman v. Austin, 695 F.2d 124, 125-26 n.7 (5th

Cir. Unit B 1983) (en banc); United States v. Rodriguez, 43 F.3d 117, 121-22 (5th Cir. 1995).

17

No. 06-40489

defense or theory of the case. At trial and on appeal, defendants stressed that,

among other things, the bushes and grass were four to five feet tall where the

defendants were arrested and that Agent Sanchez lost sight of the four men

(whom he identified at trial) carrying bundles for two minutes just before the

defendants were arrested. They suggest that with this evidence, “the jury could

infer that the men fell down to the ground at a point where someone left hidden

bundles.” However, no evidence suggests that Agent Rodriguez, who caught and

arrested the men, could not clearly see them, as he testified he had, carrying the

bundles of marihuana. The Border Patrol agents caught the defendants red-

handed with illegal drugs.

In light of the overwhelming evidence of the defendants’ guilt and the

cautionary instructions given to the jury, it is clear beyond a reasonable doubt

that the jury would have found the defendants guilty in the absence of the

prosecutor’s challenged comments during closing argument. See, e.g., Cotton v.

Cockrell, 343 F.3d 746, 752 (5th Cir. 2003) (holding that “[g]iven the

overwhelming evidence of guilt and the court’s cautionary instruction to the jury

. . . the prosecution’s statement had no substantial and injurious effect or

influence in the determination of [the defendant’s] guilt”). Because any

improper comment made by the prosecutor was harmless beyond a reasonable

doubt, we affirm the decision of the district court denying the defendants’

motions for a mistrial.

B. Bolstering Witnesses’ Testimony

Defendants also argue that the prosecutor impermissibly bolstered the

witnesses’ testimony.11 In his closing argument, the prosecutor stated:

11

Martinez-Larraga asserts this argument in his brief, while Romeo-Ortiz adopted all

of the arguments of his codefendants in his. Garza-Guevarra does not assert this argument.

In his reply brief, Guevarra-Rodarte attempted to adopt the argument from the brief of

Martinez-Larraga. As discussed supra, note 2, it is not clear whether he may adopt a new

argument in his reply brief, but it is not necessary to decide that issue in this case.

18

No. 06-40489

“These are the agents that are there every day. Every day they're

out there. And you saw them. It’s a question of do you believe them

or not? Do you believe these agents or not? Why would they get up

here and try to make up lies or make up suggestions and so forth?

They were there. They’re telling you what they saw, so it’s a

question whether you believe these agents or not.”

A prosecutor should not invoke the sanction of the government as a basis

for convicting a defendant. United States v. Ramirez-Velasquez, 322 F.3d 868,

874 (5th Cir. 2003) (quoting United States v. Gallardo-Trapero, 185 F.3d 307,320

(5th Cir. 1999)). When a prosecutor vouches for government witnesses, it

provides the witnesses with “the imprimatur of the Government, and may induce

the jury to trust the Government’s judgment rather than its own view of the

evidence.” Id. (quoting United States v. Young, 105 S. Ct. 1038, 1048 (1985)).

However, the government may argue that the jury can or should infer from the

relevant facts that a witness does not have a reason to lie. Gallardo-Trapero,

185 F.3d at 320. To determine whether to reverse a conviction based on a

prosecutor’s statements, this court reviews the statements in two steps. Id.

First, it must determine whether the prosecutor made an improper remark. Id.

If the remark was improper, it decides whether it substantially affected the

defendant’s right to a fair trial. Id.; Ramirez-Velasquez, 322 F.3d at 874 (quoting

United States v. Murrah, 888 F.2d 24, 27 (5th Cir. 1989).

Because the defendants did not object to the prosecutor’s above quoted

comments about the Border Patrol agents’ testimony, this court’s review is for

plain error only. United States v. Mares, 402 F.3d 511, 515 (5th Cir. 2005).

Thus, defendants must establish that “(1) there was an error; (2) the error was

clear and obvious; and (3) the error affected the defendant’s substantial rights.”

United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).

In Gallardo-Trapero, a majority of a panel of this court agreed that a

prosecutor improperly bolstered a Drug Enforcement Administration agent’s

19

No. 06-40489

testimony. 185 F.3d at 320. In that case, the prosecutor stated to the jury in

closing argument:

“[D]o you think that agents for the federal government and a

prosecutor for the federal government, for the United States of

America, are going to risk their career and get on the stand and

commit * * * would get on the witness stand and commit perjury

and risk their career. It's not going to happen, ladies and

gentlemen.” Id. at 319.

A majority of the panel concluded that the remarks were improper because they

“invoked the aegis of a governmental imprimatur.” Id. at 320. However, the

court found that the statements did not “prejudicially affect the substantive

rights of the defendants,” so it did not reverse the conviction. Id.

In Ramirez-Velasquez, 322 F.3d at 873-76, this court again addressed

allegations that a prosecutor improperly commented on the credibility of

government witnesses. In response to defense counsel’s suggestion that the

government was prosecuting the defendant despite the fact that it knew he was

innocent, the prosecutor stated:

“Do the agents have any reason? Do they have a reason to throw

away their career, to say, oh this load is just too much for me, I'm

going to give up my twenty-year law enforcement career, because I

really care that two people get convicted. They’re there to testify to

the truth. They enforce the laws and they’re going to honor it. And

they’re going to say, these are the facts.

***

I guess they want you to think that you we [sic] made this whole

thing up, that Agent Perez after twenty years in law enforcement,

seven years as a special agent with the Border Patrol working out

of DEA just—” Id. at 873.

The court found that these statements were inappropriate, despite the fact that

they were a response to the defense counsel’s allegations, because the prosecutor

“went too far in arguing that, as a rule, federal law enforcement agents appear

in court and tell the truth.” Id. at 875. However, it held that the statements did

not affect the defendant’s substantial rights, and so did not reverse. Id. at 876.

20

No. 06-40489

In this case, the prosecutor’s statements concerning the agents’ testimony

do not warrant a reversal. The prosecutor asked the jury why the government

agents “would . . . get up here and try to make up lies or make up suggestions,”

and reminded the jurors that the agents “were there,” and were “telling you

what they saw.” He also told the jury three times that the case turned on

whether the jury believed the agents’ testimony. Unlike the remarks at issue in

Gallardo-Trapero, the prosecutor’s remarks did not imply that because they are

government agents, the witnesses would not lie. They also do not imply that as

a general rule, federal law enforcement agents tell the truth in court. See id. at

875. Thus, the prosecutor’s remarks did not improperly “invoke[] the aegis of a

governmental imprimatur.” Gallardo-Trapero, 185 F.3d at 320. Instead, they

accurately stated that whether the defendants should be convicted depended

upon whether the jury believed the testimony of the Border Patrol agents. The

prosecutor simply suggested that the jury should infer from the facts that the

agents did not have a reason to lie. See id. That was not improper argument,

and certainly not plainly improper argument.

Therefore, we hold that the prosecutor’s statements did not improperly

bolster the testimony of government witnesses, and that the district court did

not err, and certainly did not plainly err, in failing to take sua sponte action in

respect to that argument.

C. Minor Role Adjustment

Romeo-Ortiz is the only appellant who challenges his sentence. He argues

that the district court erred by failing to apply a two-point downward adjustment

to his offense level pursuant to U.S.S.G. § 3B1.2(b) because he was a “minor

participant” in the drug trafficking enterprise in which he took part. Under

section 3B1.2, a district court may decrease a defendant’s offense level by two

points if he is considered a minor participant. Under note 4 of section 3B1.2, a

“minimal participant” is one who is plainly among the least culpable of those

21

No. 06-40489

involved in the conduct of a group. Note 5 indicates that a minor participant is

“less culpable than most other participants,” but his role is not minimal. A

minor participant must be peripheral to the advancement of the criminal

activity. United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001).

Romeo-Ortiz did not object in the district court to the failure to reduce his

base offense as a minor participant so the plain error rule applies. United States

v. Washington, 480 F.3d 309, 313 (5th Cir. 2007). A person convicted of merely

transporting drugs, a mere “mule,” is not necessarily a minor participant in the

illicit activity. United States v. Pofahl, 990 F.2d 1456, 1485 (5th Cir. 1993).

Thus, the district court did not commit plain error by failing to give Romeo-Ortiz

a minor role adjustment of two points despite the fact that he may have played

only a small role in the drug trafficking activity in which he participated. United

States v. Jenkins, 487 F.3d 279, 282 (5th Cir. 2007) (holding that a district court

did not clearly err by failing to award a defendant a downward adjustment for

being a mere drug courier because a courier is not necessarily a minor

participant).12

CONCLUSION

For the foregoing reasons, the respective convictions and sentences of each

of the appellants are in all things

AFFIRMED.

12

When a defendant timely objects to a district court’s failure to make a downward

adjustment based on section 3B1.2, this court reviews his sentence for clear error. Jenkins,

487 F.3d at 282.

22