Petition for Writ of Certiorari — Mary Ann Lara, Petitioner v. United States

Supreme Court briefApr 11, 2022

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No. _________

UNITED STATES

IN THE SUPREME COURT OF THE UNITED

MARY

LARA,

ARY ANN

ANN L

ARA,

Petitioner,

UNITED

AMERICA,

NITED STATES

STATES OF A

MERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

APPENDIX

IINDEX

NDEX TO APPENDICES

APPENDICES

Appendix A Judgment and Opinion of Fifth Circuit

Appendix B Judgment

Judgment and Sentence of the United States District Court for the Western

District of Texas

APPENDIX A

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nppeall

United

States (Court

Court of Appeals

for the Ifitth

Fifth Circuit

Circuit

Appeals

United States Court of Appeals

Fifth Circuit

Circuit

FILED

___________

January 11, 2022

2022

No. 20-50112

20-50112

___________

Lyle W. Cayce

Cayce

Clerk

United

States OF

of AMERICA,

America,

UNITED STATES

Plaintiff@Appellee,

Plaintiff—Appellee,

versus

Mary

Ann LARA,

Lara,

MARY ANN

Defendant@Appellant.

Defendant—Appellant.

____________________________

Appeal from the United States District Court

Court

for the Western District of

of Texas

Texas

USDC No. 2:18-CR-859-2

2:18-CR-859-2

____________________________

Before King,

Higginson, and

and WILSON,

Wilson, Circuit

Circuit Judges.

KING, HIGGINSON,

Judges.

N TT

JU DG M

This causewas considered on the record on appeal and was argued by

counsel.

IS ORDERED

ORDERED and

and ADJUDGED

ADJUDGED that

that the

the judgment

judgment of

of the

the

IT IS

District Court is AFFIRMED.

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United

States Court of appeall

Appeals

lIntteb Iptatel

for the Fifth

Circuit

j i itth Circuit

Appeals

United States Court of Appeals

Fifth Circuit

Circuit

FILED

January

2022

January 11, 2022

No. 20-50112

20-50112

Lyle W. Cayce

Cayce

Clerk

United

States OF

of AMERICA,

America,

UNITED STATES

Plaintiff@Appellee,

Plaintiff—Appellee,

versus

Mary

Ann LARA;

Lara; MELISSA

Melissa JANET

Janet ',ARA,

Lara,

MARY ANN

Defendants@Appellants.

Defendants—Appellants.

Appeal from the United States District Court

Court

for the Western District of

of Texas

Texas

USDC No. 2:18-CR-859-2

2:18-CR-859-2

Before King,

Higginson, and

and WILSON,

Wilson, Circuit

Circuit Judges.

KING, HIGGINSON,

Judges.

Stephen

A. HIGGINSON,

Higginson, Circuit

Circuit Judge:

STEPHEN A.

Judge:

Sisters Mary Ann

Ann Lara and Melissa Lara were convicted

convicted by a jury of

drug trafficking

trafficking counts

counts after

after attempting

attempting to

to drive

drive aa pickup

pickup truck

truck

various drug

containing over 38 kilograms of

of methamphetamine hidden in a compartment

compartment

in the truck's

truckCs tires from Mexico into the United States. They were sentenced

sentenced

to 288 months'

monthsC imprisonment.

imprisonment. They each raise

raise numerous

numerous issues

issues on

on appeal.

appeal.

For the following reasons, we AFFIRM.

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On April

April 11,

11, 20187

2018, Priscilla

Priscilla Ramirez

Ramirez and

and her

her two

two daughters

daughters

approached the

the Eagle

Eagle Pass,

Pass, Texas

Texas border

border checkpoint,

checkpoint, driving

driving aa black

black

Customs and

and Border

Border Protection

Protection Officer

Officer

Trailblazer. At primary inspection, Customs

Emily Vasquez

Vasquez questioned

questioned Ramirez

Ramirez about

about her

her trip

trip to

to Mexico.

Mexico. Officer

Officer

Vasquez

seemed nervous, would

Vasquez stated that Ramirez gave no direct answers, seemed

would

not make

make eye

eye contact,

contact, and

and looked

looked back

back in the

the rearview

rearview mirror

mirror quite

quite aa few

few

times. Ramirez

Ramirez denied

denied traveling

traveling with

with anyone

anyone else.

else. Ramirez

Ramirez told

told Officer

Officer

Vazquez that the

the purpose

purpose of

of her trip was

was to

to visit

visit a friend. Officer

Officer Vasquez

Vasquez

noted that

that Ramirez

Ramirez had

had travelled

travelled all

all the

the way

way from

from San

San Antonio

Antonio and

and had

had

remained in Mexico

Mexico for aa very

very short

short amount

amount of

of time. Officer

Officer Vasquez

Vasquez sent

sent

Ramirez to the secondary inspection area for a more intensive screening.

screening.

next vehicle

vehicle to

to come

come through

through Officer

Officer Vasquez's

VasquezCs lane

lane at

at the

the

The next

checkpoint was a silver Ford F-150 truck containing Mary Ann Lara, Melissa

Melissa

Lara, and

and aa child.

child. The

The Laras'

LarasC itinerary

itinerary was

was exactly

exactly the

the same

same as

as Ramirez

RamirezCs.

'5.

Officer Vasquez

Vasquez recalled

recalled that

that she

she did

did not

not get

get any

)4D./-$"#/).2

-.E!-*(

"straight answers"

from

either Mary Ann Lara or Melissa Lara. Additionally, the truck's

truckCs license plate

plate

-returned

/0-) a"text

D/ 3/ hit,"

#$/6Eindicating

$)$/$)"that

/#/ a full

!0''inspection

$).+ /$*)on

*)the

/# vehicle

1 #$' was

necessary. Accordingly,

Accordingly, Officer

Officer Vasquez

Vasquez referred

referred Mary

Mary Ann

Ann Lara

Lara and

and

Melissa Lara to secondary

secondary inspection.

inspection.

Ramirez, Mary

Mary Ann

Ann Lara,

Lara, Melissa

Melissa Lara,

Lara, and

and the

the children

children exited

exited the

the

for the secondary

secondary inspection,

inspection, and

and Customs

Customs and

and Border

Border Protection

Protection

vehicles for

Officer Leonardo

Leonardo Lopez

Lopez escorted

escorted them

them inside

inside to

to aa waiting

waiting area.

area. He

He asked

asked if

Ramirez, Mary Ann

Ann Lara, and

and Melissa Lara were related, and

and they said no.

no.

(/#//#

4D'**&'$&

-.6E0//#

4$)*/.+*)7)

He/*'/#

told them

that they

"look like.$./

sisters,"

but they

did not respond.

Once

the women

women and

and children

children were

were inside,

inside, Officer

Officer Lopez

Lopez visually

visually inspected

inspected the

the

/-0&7

/#/$/2.D)*-(''4E'

)$).$

!'"7E

truck. He)*/

noted

that it was "abnormally" clean

inside,62#$#$.Dwhich is a "red

flag."

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anomalies inside the tires.

After the inspection, an x-ray machine indicated anomalies

tires.

methamphetamine.

containing methamphetamine.

compartments containing

were compartments

anomalies were

These

These anomalies

and

pure and

97% pure

was 97%

methamphetamine was

indicated that the methamphetamine

Laboratory

Laboratory testing indicated

RamirezCs

was found in Ramirez

contraband was

of 38.2 kilograms. No contraband

had

had a net weight of

vehicle.

While in the waiting area, Ramirez, Mary Ann Lara, and Melissa Lara

Lara

officer.

an officer.

by an

taken by

were taken

phones were

cell phones

unlocked cell

their unlocked

and their

separated, and

were separated,

separately,

traveling separately,

were traveling

they were

indicated that they

sisters indicated

Lara sisters

and the Lara

Ramirez

Ramirez and

a little while, however,

each other. After a

know each

and

and they acted like they did not know

however,

asked if

their children started talking and sharing Cheetos. The officers againasked

D)*7E

.$ "no."

/# 4said

)they

other, and

each other,

knew each

sisters knew

Lara sisters

the Lara

and the

Ramirez and

time

at that time

and at

other, and

each other,

with each

playing with

started playing

children started

the children

Eventually, the

Lara

The Lara

other. The

each other.

knowing each

to knowing

admitted to

sisters admitted

Lara sisters

the Lara

and the

Ramirez and

sisters and Ramirez were subsequently arrested.

arrested.

charged

and Ramirez were ultimately charged

Melissa Lara, and

Mary Ann Lara, Melissa

Trinidad.

Ashley Trinidad.

named Ashley

woman named

another woman

with another

along with

co-defendants, along

asco-defendants,

(for aa

witness (for

with aa witness

tamper with

to tamper

conspiracy to

to conspiracy

guilty to

pleaded guilty

Ramirez pleaded

guilty

pleaded guilty

Trinidad pleaded

confrontation with Trinidad in a detention center). Trinidad

to conspiracy to import methamphetamine. Mary Ann Lara and Melissa Lara

Lara

pleaded not guilty and proceeded to trial.

trial.

Lara

Ann Lara

Mary Ann

knew Mary

she knew

Priscilla Ramirez testified that she

At the trial, Priscilla

Lara

Ann Lara

Mary Ann

Lara. Mary

Carla Lara.

sister, Carla

older sister,

their older

through their

Lara through

Melissa Lara

and

and Melissa

contacted Ramirez on Facebook, asking for a ride to Mexico to pick up a work

work

told

Lara told

Ann Lara

Mary Ann

ex-husband. Mary

LaraCs ex-husband.

Carla Lara's

Flores, Carla

Rogelio Flores,

from Rogelio

truck from

Ramirez that she would pay Ramirez $200 to bring her to Mexico to pick up

the truck.

truck.

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showed that Flores contacted Mary

Messenger transcript showed

Facebook Messenger

A Facebook

Mary

anyone who could drive aa

knew anyone

asking her ifif she

Ann

Ann Lara on April 10, 2018, asking

sheknew

possible. He

as possible.

soon as

as soon

Texas as

Antonio, Texas

San Antonio,

to San

Mexico to

Nava, Mexico

from Nava,

truck from

was in

asked Flores what was

pay $600 plus expenses. Mary Ann Lara asked

offered to pay

clean.EHe'.*/*'#

.+*) 6D-$"#/)*2)*/#$)"$/Cs

the/-0&6)#

truck, and he-responded,

"right now nothing it's clean."

also told her

messages more

erase all their messages

her to erase

stolen. He told her

not stolen.

was not

that the truck was

than once. Mary Ann Lara told Flores that Ramirez would pick up the truck,

truck,

message him later on

she would message

accompany Ramirez, and that she

she would accompany

that she

address to pick up the

WhatsApp. Flores would not give Mary Ann Lara an address

the

Nava, he

arrived in Nava,

had arrived

Ramirez had

and Ramirez

she and

once she

stated that once

but rather stated

truck but

address at which

would take them to the truck. Similarly, he did not give an address

which

Messenger conversation,

Antonio. Later in that Messenger

San Antonio.

off the truck in San

to drop off

conversation,

because Ramirez

day because

asked Flores ifif they

they could leave the next day

Ramirez

Mary Ann Lara asked

truck be

the truck

urgent that the

was urgent

that it was

responded that

Flores responded

needed to fix her tire. Flores

them

send them

or send

tire or

the tire

would fix the

said that he would

he said

and he

Antonio, and

San Antonio,

driven to San

tell

to tell

not to

Flores not

asked Flores

Lara asked

Ann Lara

Mary Ann

tire. Mary

the tire.

fix the

to fix

money to

additional money

.+*) /#/D)**4

/-0&8#

get the truck;

coming to get

anyone

anyone that they were coming

he-responded

that " nobody

told

Lara told

Ann Lara

Mary Ann

morning, Mary

next morning,

The next

. -$*0.'47EThe

/#$.seriously."

*0/this

will

&)*2about

2$''know

then

Lara then

Ann Lara

Mary Ann

Mexico. Mary

for Mexico.

left for

had left

Ramirez had

and Ramirez

she and

that she

Flores that

Ann

After the calls, Mary Ann

calls with Flores. After

Facebook audio calls

exchanged two Facebook

exchanged

-)D/#

'$..Lara

/#/.#

Messenger that

on Messenger

Flores on

Lara told Flores

she#-*0"#/

had brought Melissa

and "the

-D)*//*.4)4/#$)"7E

'$..Lara

baby"

and that she#/*'

had told Melissa

" not to say anything."

4E)/#/.#

Carla

Lara, Carla

Melissa Lara,

Lara, Melissa

Ann Lara,

Mary Ann

drove Mary

she drove

Ramirez testified that she

2018.

11, 2018.

on April 11,

Mexico on

Nava, Mexico

to Nava,

daughters to

two daughters

own two

and her own

son, and

Lara's son,

LaraCs

FloresC

that Flores'

and that

Flores and

from Flores

directions from

receiving directions

were receiving

stated that they were

She

She stated

further

cousin was requesting updates on their trip down to Mexico. Ramirez further

and

station and

gas station

at aagas

Flores at

met Flores

they met

Mexico, they

in Mexico,

arrived in

they arrived

once they

testified that once

followed him to get something to eat and then to a house. After waiting at the

the

house for over 20 minutes, an old man delivered the truck. The old man gave

house

gave

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Mary

gave them to Mary

who in turn gave

keys to the truck to Flores, who

money

money and the keys

Lara

the Lara

Because the

Texas. Because

to Texas.

back to

truck back

the truck

drove the

Lara drove

Melissa Lara

Lara. Melissa

Ann

Ann Lara.

Ramirez.

followed Ramirez.

they followed

border, they

the border,

back to the

way back

know their way

not know

did not

sisters did

keep up with her.

slow down to allow the Laras to keep

had to slow

Ramirez

Ramirez had

her.

showed that Mary Ann Lara and

Messenger transcript showed

Facebook Messenger

The Facebook

and

Flores were in communication during the drive to Mexico, with Flores giving

giving

Flores told Mary

and asking for updates. During the drive home, Flores

directions and

Mary

and Texas.

and forth between Mexico and

back and

Ann Lara that the truck would

would run back

Texas.

was expired. Flores told

told

Mary Ann Lara then told Flores that the license plate was

to an

belonged to

truck belonged

the truck

Mary Ann Lara to tell the checkpoint officers that the

son to see

a friend and that they came to Mexico to allow Carla LaraCs

aunt

aunt or a

Lara'sson

see

his dad.

dad.

the

neared the

she neared

once she

faster once

drive faster

to drive

began to

she began

that she

testified that

Ramirez testified

Ramirez said that she was

-O&$..E

0. .#

border6

border,

because

she2.D/#$)&$)"*!N#

was "thinking of [her]

kids." Ramirez

was

car

of her car

out of

got out

daughter got

her daughter

because her

checkpoint because

primary checkpoint

the primary

nervous at the

was

she was

that she

officer that

patrol officer

border patrol

the border

telling the

falsely telling

to falsely

admitted to

She admitted

seat. She

Lara

the Lara

knowing the

acknowledge knowing

not acknowledge

did not

she did

that she

explaining that

alone, explaining

traveling alone,

-.E

/6$/2*0'

+,0$

.//*&

0. .#

.$./

sisters

because

sheD/#*0"#/$/2.

"thought it was best

to keep

quiet,

it would be!./

faster."

After the border patrol agents discovered the drugs in the truck, Ramirez was

was

custody.

taken into custody.

indicated

Flores indicated

Ann Lara to Flores

from Mary Ann

message from

Facebook message

The last Facebook

that the Lara sisters were in line at the checkpoint. Flores asked whether they

they

cross with the expired license plate, but Mary Ann Lara did not

were able to cross

not

respond. Flores continued to message Mary Ann Lara, telling her that he was

was

was not responding.

worried that shewas

responding.

Security

Homeland Security

with Homeland

agent with

special agent

Schreiner, aa special

Bjorn Schreiner,

were

Laras were

the Laras

day the

(the day

2018 (the

11, 2018

April 11,

on April

that on

testified that

Investigations, testified

agents

while agents

Flores while

call Flores

to call

agreed to

Lara agreed

Melissa Lara

border), Melissa

the border),

at the

stopped at

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tell

to tell

Lara to

Melissa Lara

instructed Melissa

Agents instructed

call. Agents

the call.

recorded the

and recorded

monitored and

and

Pass and

between Eagle Pass

somewhere between

down somewhere

Flores that the truck had broken down

Agents believed that the

come to get it. Agents

he would come

ask him if

LaPryor and to ask

if he

the

because Melissa Lara had told them

was a logical story because

down was

truck breaking down

them

'$..

''47Eʫ'/#*0"#

that the/-0&2.D-$1$)"!0))4).#&$)"truck was " driving funny and shaking really

bad." Although Melissa

/#//#

began the call by

she began

Lara

Lara eventually told Flores that the truck broke down, she

$) -

)/#''(

saying, D#4$)C/4*0/

" Why didn't you tell

me/#

the/-0&#-0".$)$/=Eʫ"

truck had drugs in it?" Agent

Schreiner

of aa

agents would not tell the target of

an investigative strategy, agents

as an

stated

stated that as

call that the drugs had been found. Informing Flores that the drugs had been

been

plan to get Flores to meet them

agentsC plan

found

found would likely interfere with the agents'

them

off-site.

testified

Hernandez testified

Hector Hernandez

Protection Officer Hector

Border Protection

and Border

Customs and

one week after

TrinidadCs arrest. On April 18, 2018, one

Ashley Lynn Trinidad's

after

regarding Ashley

Port of

Rio Port

Del Rio

the Del

approached the

Trinidad approached

arrested, Trinidad

were arrested,

sisters were

Lara sisters

the Lara

Officer

on her itinerary and story, Officer

Based on

driving a silver Expedition. Based

Entry, driving

secondary

At secondary

area. At

inspection area.

secondary inspection

the secondary

to the

her to

directed her

Hernandez directed

Laboratory

methamphetamine. Laboratory

loaded with methamphetamine.

they found her tires loaded

inspection, they

net

had aa net

and had

pure and

95% pure

was 95%

methamphetamine was

the methamphetamine

that the

indicated that

testing

testing indicated

the

with the

along with

charged along

ultimately charged

was ultimately

Trinidad was

kilograms. Trinidad

weight of 38.9 kilograms.

Ramirez.

Lara sisters and Ramirez.

stated

She stated

Lara. She

of Carla Lara.

friend of

close friend

is aa close

she is

that she

testified that

Trinidad testified

Negras,

Piedras Negras,

to Piedras

truck to

drive aa truck

to drive

someone to

that Carla Lara asked her to find someone

back on the sameday for $300. Trinidad agreed to drive the truck

Mexico and back

truck

herself

herselfbecause

becauseshe needed the money. After she repeatedly asked Carla Lara

Lara

of the car, Lara told her that the car contained a kilogram

about

about the contents of

kilogram

Mary

Ramirez, Mary

Trinidad, Ramirez,

arrests, Trinidad,

their arrests,

following their

point following

one point

of cocaine.

At one

cocaine. At

center.

detention center.

same detention

the same

at the

housed at

all housed

were all

Lara were

Melissa Lara

and Melissa

Lara, and

Ann Lara,

Ramirez

after Ramirez

Trinidad after

confronted Trinidad

Laras confronted

the Laras

and the

While there,

Ramirez and

there, Ramirez

told

Ramirez told

enforcement. Ramirez

law enforcement.

with law

cooperated with

had cooperated

Trinidad had

that Trinidad

learned that

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-$)$that

/#/she

.# needed

) to

/*"watch

D2/#[her]

[her] back."

&7EMary

-4Ann

ʫ))Lara

- asked

Trinidad

Trinidad why

why she

she would

would cooperate

cooperate with the Government

Government and

and stated

stated that it

2.D)*/-$"#/,

snitching.E

'$..Lara

-.$($'-'4.&

-$)$2#4

was

" not right, [her] snitching."

Melissa

similarly asked

Trinidad why

she

shewas cooperating.

cooperating.'

Border Patrol Intelligence Agent Gerardo Huerta testified as

as an

an expert

expert

regarding methods

methods of

of operation

operation unique

unique to

to drug

drug trafficking

trafficking organizations,

organizations,

based on

on the

the hundreds

hundreds of

of load

load driver

driver interviews

interviews he

he has

has conducted

conducted and

and

based

hundreds of

of load

load driver

driver reports

reports he

he has

has reviewed.

reviewed. He

He stated

stated that

that drug

drug

trafficking organizations

organizations use

use the

the same

same tactics

tactics and

and procedures.

procedures. They

They recruit

recruit

drivers who

who are

are unemployed,

unemployed, and

and they

they send

send them

them to

to Mexico

Mexico to

to pick

pick up

States. Drivers

Drivers are

are at the lowest level of

of the

vehicles to bring to the United States.

the

organization. The

The load

load drivers

drivers he

he interviewed

interviewed usually

usually knew

knew that

that they

they were

were

transporting narcotics,

narcotics, but

but they

they did

did not

not know

know the

the location,

location, type

type of

compartment, or

or the

the amount

amount of

of narcotics

narcotics they

they were

were transporting.

transporting. Some

Some

drivers he

he interviewed, however,

however, did not know what was

was in the vehicle they

they

were transporting.

transporting. Based

Based on

on his

his interviews,

interviews, Agent

Agent Huerta

Huerta stated

stated that

that the

the

drivers who

who lied

lied to agents

agents usually

usually knew

knew that they

they were

were carrying

carrying something

something

illegal. Typically, drivers

drivers are

are given

given a partial payment

payment when they pick up the

the

once the

the

vehicle, to cover gas, food, and lodging. They receive final payment once

narcotics are delivered in the United States. Drivers often communicate with

with

other players in the organization

organization via WhatsApp and

and Facebook,

Facebook, because

because it is

harder for law enforcement agencies

agencies to retrieve the information from these

these

applications. Some

Some drivers

drivers bring

bring children

children to

to distract

distract border

border patrol

patrol agents.

agents.

Huerta also

also explained

explained that

that in

in 2018

2018 he

he had

had identified

identified aa common

common

Agent Huerta

characteristic among

among certain vehicle seizures that led to the identification of

1Ramirez

Ramirez pleaded

pleaded guilty

guilty to

to witness

witness tampering

tampering based

based on

on this

this incident.

incident. When

When

Ramirez5/testified

at theLaras'

trial, however,

she*)/-$/

contradicted/#

the!/0'.$.*!#

factual basis of her-+'

plea,

($./$!$ //#

-.C/-$'6#*2

1 -6.#

and the Government impeached her.

her.

and

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all

vehicles all

The vehicles

Mexico. The

Nava, Mexico.

of Nava,

out of

organization out

drug-trafficking organization

aa drug-trafficking

using a compartment

of methamphetamine, using

kilograms of

transported 30 to 40 kilograms

compartment

streetAgent Huerta further testified that the streetwas built into the wheels. Agent

that was

level value of

ofthe

the methamphetamine found in the truck that Melissa Lara was

was

was $7.4 million.

driving was

million.

driving

Mary Ann Lara and Melissa Lara were each charged with five counts:

counts:

500g or

distribute 500g

to distribute

intent to

with intent

possess with

to possess

Conspiracy to

1. Conspiracy

§§

U.S.C. §§

violation of 21 U.S.C.

in violation

more of methamphetamine, in

841(a)(1), (b)(1)(a), and 846;

846;

more of

or more

500g or

distribute 500g

to distribute

intent to

with intent

Possession with

2. Possession

methamphetamine, id. § 841(a)(1), (b)(1)(a);

(b)(1)(a);

952(a),

§§ 952(a))

id. §§

methamphetamine, id.

import methamphetamine,

to import

Conspiracy to

3. Conspiracy

960(a)(1), (b)(1), and 963;

963;

and

952(a) and

id. §§§

methamphetamine, id.

of methamphetamine,

Importation of

4. Importation

§ 952(a)

960(a)(1), (b)(1);

(b)(1);

1512(b)(3),

U.S.C. § 1512(b)(3),

of 18 U.S.C.

tampering, in violation of

Witness tampering,

5. Witness

(k).

GovernmentCs case, Mary Ann Lara and Melissa Lara both

At the close of

of the Government's

both

Criminal

of Criminal

Rule of

Federal Rule

to Federal

pursuant to

acquittal pursuant

of acquittal

judgment of

for aa judgment

moved for

Procedure 29. The court denied both motions. The jury ultimately convicted

convicted

five

count five

on count

acquitted her on

through four but acquitted

one through

of counts one

Ann Lara of

Mary Ann

of counts two through four but acquitted her on

and

and convicted Melissa Lara of

one and five.

counts one

five.

same.

the same.

was the

Laras was

both Laras

calculation for both

Guidelines calculation

Sentencing Guidelines

The Sentencing

360

of 360

range of

guidelines range

with aa guidelines

42, with

of 42,

level of

offense level

total offense

received aa total

Each received

and

varied and

downwardly varied

court downwardly

district court

The district

imprisonment. The

life imprisonment.

to life

months to

Lara

Ann Lara

Mary Ann

Both Mary

imprisonment. Both

monthsC imprisonment.

288 months'

to 288

sister to

each sister

sentenced each

and Melissa Lara appealed.

appealed.

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II.

On appeal, Mary Ann Lara and Melissa Lara both raise the following

following

denying their Rule 29 motions;

issues: whether the district court

four

four issues:

court erred in denying

motions;

elicit

to elicit

Government to

the Government

allowing the

by allowing

erred by

court erred

district court

the district

whether the

the

to the

contrary to

agent, contrary

Patrol agent,

Border Patrol

from aa Border

testimony from

expert testimony

improper expert

impermissibly

Government impermissibly

the Government

whether the

order; whether

pre-trial order;

own pre-trial

courtCs

court's own

and

closing arguments; and

opening and closing

silence in its opening

LarasC silence

commented

commented on the Laras'

record

evidence not in the record

Government improperly alluded to evidence

whether the Government

argument.

during its closing argument.

denying their Rule

contend that the district court erred in denying

The Laras contend

Rule

of their respective

knowledge element of

motions. They challenge only the knowledge

29 motions.

respective

was insufficient for

arguing that the evidence presented at trial was

convictions, arguing

for

controlled

that aa controlled

knowledge that

had knowledge

they had

that they

(1) that

either (1)

aarational juror to find either

substance

substancewas hidden in the truck or (2) that they had knowingly entered into

into

anagreement to traffic drugs.

drugs.2

follows:

as follows:

evidenceas

We review challenges to the sufficiency of the evidence

judgment of

for aa judgment

moved for

timely moved

has timely

defendant has

Where . .. .. aa defendant

acquittal, this court reviews challenges to the sufficiency of the

the

nevertheless

is nevertheless

review is

this review

novo, this

de novo,

Though de

novo. Though

de novo.

evidence de

shortcomings

of the shortcomings

Because of

highly deferential to the verdict. Because

the

without the

record without

appellate record

cold appellate

examining aa cold

in examining

inherent in

trial,

the trial,

watching the

from watching

gained from

insightsgained

dramatic insights

benefit of the dramatic

the

in the

inferences in

reasonable inferences

all reasonable

and all

evidence and

the evidence

review the

we review

2Mary Ann Lara also raises the argument that even if

if there were evidence that she

she

was

evidence was

the evidence

truck, the

the truck,

in the

was in

substance was

had knowledge

of controlled substance

some sort of

knowledge that some

insufficient to

quantity.

drug quantity.

the drug

and the

type and

drug type

the drug

of the

knowledge of

had knowledge

she had

that she

prove that

to prove

However, she

United

she correctly concedes that this argument is foreclosed by our decision in United

States

issue.

asserts it to preserve the issue.

and asserts

586 F.3d 303 (5th Cir. 2009), and

Betancourt, 586

v.Betancourt,

States y.

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light most

most favorable

favorable to

to the

the prosecution

prosecution and

and to

to determine

determine

whether any

any rational trier of

fact

could

have

found

the

essential

elements of

of the crime beyond a reasonable doubt.

doubt.

United

States 2).

v. Delgado,

Delgado, 984

984 F.3d 435, 446

446 (5th Cir. 2021)

2021) (quoting

(quoting United

United

United States

States 2).

v. Nicholson,

Nicholson, 961 F.3d 328, 338 (5th Cir. 2020)).

2020)).

States

To convict Mary Ann

Ann Lara and

and Melissa

Melissa Lara of

of Counts 2 and

and 4, the

the

Government was

was required

required to

to prove

prove that

that each

each knowingly

knowingly possessed

possessed and

and

imported a controlled substance.See

See United

v. Lopez-Monzon,

Lopez-Monzon, 850 F.3d

United States

States2).

F.3d

202, 206 (5th Cir. 2017) (explaining that possession

possession with intent to distribute

distribute

-requires

,0$- ."knowledge"

D&)*2' " Eand

) that

/#/importation

$(+*-//$*) of

*! acontrolled

*)/-*'' substance

.0./)

requires knowledge

knowledge both that "the

Dthe substance

substance was

was controlled"

controlledE and

and that Dthe

"the

substance

would enter

enter the

the United

United States"

StatesE (first

(first quoting

quoting United

United States

States 2).

substance would

533 F.3d

F.3d 304,

304, 309

309 (5th

(5th Cir.

Cir. 2008);

2008); and

and then

then quoting

quoting United

United

Patino-Prado, 533

States 2).

v. Moreno,

Moreno, 185

185 F.3d

F.3d 465,

465, 471

471 (5th

(5th Cir.

Cir. 1999))).

1999))). On

On the

the conspiracy

conspiracy

States

counts, the Government had to prove "DLeM/#

3$./ ) *!)"( )//*

(1) theexistence

of an agreement

import or

or to

to possess

possess with

with intent

intent to

to distribute;

distribute; (2)

(2) knowledge

knowledge of

of the

the

"( )/8)LgM1*'0)/-4+-/$$+/$*)$)/#

( )/7EUnited

agreement;

and (3) voluntary participation in the"agreement."

United States

States

Rodriguez-Mireles, 896 F.2d 890, 892 (5th Cir. 1990).

2).Rodriguez-Mireles,

1990).

DKnowledge

of the presence

presence of

of a

a controlled substance

substance often may

may be

"Knowledge of

inferred from

from the

the exercise

exercise of

of control

control over

over aa vehicle

vehicle in

in which

which the

the illegal

illegal

substance

is concealed."

concealed.EUnited

United States

States 2).

v. Diaz-Carreon,

Diaz-Carreon, 915

915 F.2d

F.2d 951,

951, 954

954

substance is

(5th Cir. 1990).

1990). However,

However, when

2# )the

/# contraband

*)/-)was

2. "Dsmuggled

in hidden

hidden

smuggled in

compartments which

which were

were not

not clearly

clearly visible

visible or

or readily

readily accessible

accessible to

to the

the

defendant6E

Dcontrol of the vehicle

vehicle .d. o. does

not support

support an

an inference

inference of

defendant," "control

e s not

guilty knowledge; it is at least a fair assumption that a third party might have

have

concealed the controlled substances

substances in the vehicle with the intent to use

use the

the

unwitting defendant

defendant as

as the

the carrier

carrier in

in aa smuggling

smuggling enterprise."

enterprise.E Id.

Id.

in such

such cases,

cases, "this

Dthis court

court 'also

Balso require[s]

require[s] circumstantial

circumstantial

Accordingly, in

evidence that

that is

is suspicious

suspicious in

in nature

nature or

or demonstrates

demonstrates guilty

guilty knowledge."

knowledge.CE

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see also

also United

United States

Lopez-Monzon, 850 F.3d at 206 (alteration in original); see

States

v. Rojas

Rojas Alvarez,

Alvarez, 451

451 F.3d

F.3d 320,

320, 334

334 (5th

(5th Cir.

$-72006)

fddjM("[W]here

LDNOhere . t . h. the

contraband was

was secreted

secreted in

in aa hidden

hidden compartment,

compartment, this

this court

court requires

requires

additional evidence

evidence to prove

prove the knowing

knowing element,

element, such

such as

as aa consciousness

consciousness

or an

an implausible

implausible account

account of events.EM7

of guilt, conflicting statements, or

events.").

question is

is how

how offense-specific

offense-specific this

this additional

additional circumstantial

circumstantial

The question

evidence must

must be,

be, if at all.

all. The

The Laras

Laras argue

argue that

that while

while the

the evidence

evidence may

may

support

inference that they

they knew

knew that there

there was

was something

something illegal about

about

support the inference

the operation

operation to transport

transport the truck from Mexico into the United

United States,

States, it

does

not support

support the

the more

more specific

specific inference

inference that

that they

they knew

knew about

about the

the

does not

existence of

of aa controlled

controlled substance

substance in

in the

the truck

truck or

or that

that the

the conspiracy

conspiracy

involved the

the trafficking

trafficking of aa controlled

controlled substance.

substance. If

If aa defendant

defendant controls

controls a

drugs in a hidden compartment and then engages

engages in additional

additional

vehicle with drugs

suspicious behavior

behavior that

that demonstrates

demonstrates aa general

general consciousness

consciousness of

of guilt but

but

not necessarily

necessarily specific knowledge of

of the presence

presence of

of a controlled

controlled substance,

substance,

is that enough evidence to sustain a conviction?

conviction?

Our hidden

hidden compartment

compartment cases

cases often

often speak

speak ooff the

the required

required

consciousness

of guilt in general terms and focus on suspicious behavior that

consciousness of

that

not offense-specific.

offense-specific. These

These cases

cases have

have emphasized

emphasized lies

lies and

and inconsistent

inconsistent

is not

statements. For

For example,

example, in

in Lopez-Monzon

Lopez-Monzon we

we described

described inconsistent

inconsistent

statements and

and "attempts

Dattempts to

to mislead"

misleadE investigators

investigators as

."circumstantial

D$-0(./)/$'

evidence of

Rojas Alvarez,

ofBconsciousness

'consciousness of

of guilt.CE850

guilt." 850 F.3d at 207 (quoting Rojas

Alvarez,

451

F.3d at

at 334).

334). Similarly,

Similarly, we

we explained

explained in

in Diaz-Carreon

Diaz-Carreon that

/#/ "[a]n

DNO)

451 F.3d

implausible account of

suggests that the defendant desires

ofexculpatory

exculpatory eventssuggests

desires

/**.0.+*).$$'$/4E)*)'0

/#/.0#)D*0)/

to obscure#$.-$($)'his criminal responsibility"

and concluded

that such an " account

provides persuasive

persuasive circumstantial

circumstantial evidence

evidence ooff the

the defendant's

defendantCs

*).$*0.)

..*!"0$'/7E915

955. And

And in United

United States

States v. GutierrezGutierrezconsciousness

of guilt." 915 F.2d at 955.

Farias, we

we noted

noted "the

Dthe incompleteness

incompleteness of

of [the defendant's]

defendantCs] answers

answers when

when

_arias,

asked

and where he was

was taking itE)#

asked where he picked up the tractor, and

it" and held

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the

and the

checkpoint and

the checkpoint

at the

demeanor at

defendantCs] demeanor

[the defendant's]

on [the

DNOased on

/#/

that "[biased

the

knew the

he knew

that he

inferred that

have inferred

could have

jury could

the jury

answers, the

vagueness of his answers,

657, 660

marijuana was in the tires but was trying to hide that fact7E294

fact." 294 F.3d 6577

660

Cir.

603 (5th Cir.

600, 603

Casilla, 20 F.3d 6007

v. Casilla,

States 2).

United States

also United

see also

(5th Cir. 2002); see

guilty

evidence ooff guilty

e evidence

(4 be

#1$*- may

--/$ behavior

) erratic

LD1.$1 and

emmhM

1994) ("Evasive

509, 513 (5th Cir. 1988)

Richardson, 848 F.2d 5097

v. Richardson,

" 7EM8United

&)*2'

knowledge.");

United States

States2).

1988)

circumstantial

overall circumstantial

of the overall

part of

is part

explanation is

less-than-credible explanation

LD[A]

("[A] less-than-credible

(cleaned

inferred.E (cleaned

evidence from which possession and knowledge may be inferred."

plus evidence of

up)). Thus, control over a vehicle containing hidden drugs plus

the

prove the

to prove

enough to

is enough

guilt is

of guilt

consciousness of

general consciousness

defendantCs general

the defendant's

and

distribute and

to distribute

intent to

with intent

possession with

the possession

element ooff the

" Eelement

D&)*2'

"knowledge"

importation of

of aa controlled substance offenses.

offenses.

general

LarasC general

In this case, the record contains ample evidence of

of the Laras'

consciousness of guilt.

guilt. To list just some of

of the evidence: after Flores offered

offered

drive the truck

$600 to drive

Ann Lara $600

pay Mary Ann

to pay

Messenger) to

Facebook Messenger)

(via Facebook

which

addresses at which

Antonio but refused to tell her the addresses

from Mexico to San Antonio

she

she would pick up and drop off the

the truck and told her to delete their messages,

messages,

trip;

the trip;

*0/the

)4*) Eabout

/*anyone"

)4/#$)" to

D.4anything

Lara told him not to "say

Ann Lara

Mary Ann

Mary Ann Lara told Melissa Lara D)*//*.4)4/#$)"E

"not to say anything" when asking Melissa

Melissa

)

!0))4 and

D-$1$)"funny

./-/ "driving

/-0&started

/# truck

w# )the

the trip; when

on the

accompany her on

to accompany

Melissa Lara continued to

on the way back from Nava, Melissa

''4E

.#&$)"shaking really

bad" on

drive, even though her young nephew was in the backseat without a car seat;

seat;

he told

license plate, he

expired license

about the expired

Flores about

asked Flores

Ann Lara asked

when Mary Ann

checkpoint, the Laras did

Pass checkpoint,

her to lie to checkpoint agents; at the Eagle Pass

their

about their

asked about

when asked

answers when

straight answers

any straight

Vasquez any

Officer Vasquez

give Officer

not give

were

they were

when they

related when

being related

about being

officers about

to officers

lied to

sisters lied

the sisters

itinerary; the

her

during her

script during

the script

from the

deviated from

Lara deviated

Melissa Lara

and Melissa

detained; and

initially detained;

monitored call to Flores, potentially alerting him that the methamphetamine

methamphetamine

once the jury reasonably inferred Mary Ann

Additionally, once

found. Additionally,

been found.

had been

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LaraCs

Lara's knowledge of

of the

the methamphetamine in the vehicle from her Facebook

Facebook

she would not

concluded that she

reasonably concluded

have reasonably

could have

messages

messages with Flores, it could

not

See United

drug smuggler. See

put

put her sister in the position of

of unwitting drug

United States

Statesv.v.

that a

(concluding that

1986) (concluding

Cir. 1986)

(5th Cir.

501 (5th

496, 501

F.2d 496,

805 F.2d

Williams-Hendricks,

Williams-Hendricks, 805

the

Finally, the

inference). Finally,

similar inference).

supported aa similar

relationship supported

father-son relationship

father-son

$7.4

of $7.4

value of

street value

had aa street

tires had

truckCs tires

the truck's

in the

found in

methamphetamine

methamphetamine found

inferred

have inferred

could have

reasonably could

the jury reasonably

stake, the

money at stake,

Given the money

million. Given

See,

that Mary Ann Lara and Melissa Lara were not unwitting accomplices. See,

1983);

Cir. 1983);

(5th Cir.

157 (5th

155, 157

F.2d 155,

722 F.2d

Aguila-Reyes, 722

Del Aguila-Reyes,

States v. Del

United States

e.g., United

Lopez-Monzon,

United

United States

States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003); Lopez-Monzon,

850 F.3d at 209.

209.3

Mary

found that Mary

have found

could have

foregoing, aa rational jury could

of the foregoing,

In light of

and imported a controlled

possessed and

controlled

Ann Lara and Melissa Lara knowingly possessed

Lara

Ann Lara

Mary Ann

because Mary

Additionally, because

four). Additionally,

and four).

two and

(counts two

substance

substance (counts

she would pick up the truck in Mexico and take it to

agreed

agreed with Flores that she

someone else to pick up, a rational

San

SanAntonio, where she would leave it for someone

rational

substance (count

a controlled substance

she agreed to import a

jury could have found that she

(count

substance with intent to distribute (count

possess a controlled substance

and to possess

three) and

(5th Cir.

753-54 (5th

738, 753-54

F.2d 738,

719 F.2d

Michelena-Orovio, 719

See United States v. Michelena-Orovio,

one). See

made to

of the contraband need not be made

defendantCs distribution of

LDNʫO defendant's

1983) ("[A]

with

possess with

of conspiracy

the ultimate consumer in order to convict him of

conspiracy to possess

to aa

made to

be made

circumstances, be

appropriate circumstances,

in appropriate

may, in

it may,

distribute; it

to distribute;

intent to

accompany Mary

coconspirator.EM7And

coconspirator."). And because Melissa Lara agreed both to accompany

Mary

rational

Antonio, aa rational

San Antonio,

back to San

truck back

the truck

drive the

and to drive

Mexico and

Lara to Mexico

Ann Lara

a controlled substance (count

jury could have found that sheagreed to import a

(count

1 )

dispositive,Eeven

D[t]he high volume and value of the drugs [is] not dispositive,"

Of course, "[t]he

though "it

the

about the

knew about

defendants] knew

that [the defendants]

evidence that

circumstantial evidence

present circumstantial

does present

Dit does

methamphetamine."

209.

Lopez-Monzon, 850 F.3d at 209.

( /#(+# /($) 7E Lopez-Monzon,

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acquitting

three). We also note that the jury gave a particularized verdict, acquitting

Accordingly, the district court did

each

each sister of

of some

some charged conduct. Accordingly,

did not

not

LaraCs motions for judgment of

err by denying Mary Ann Lara and Melissa Lara's

acquittal.

the

allowing the

by allowing

erred by

court erred

district court

the district

that the

argue that

Laras argue

The Laras

Patrol

Border Patrol

from Border

testimony from

expert testimony

improper expert

elicit improper

to elicit

Government to

Intelligence Agent Gerardo Huerta. Specifically, they contend that a portion

portion

of Agent HuertaCs

Huerta's testimony improperly commented on the ultimate issue in

the case: whether the Laras knew that there were drugs hidden in the tires of

the truck.

truck.

The relevant testimony is as follows:

follows:

[Government]: Okay. And how many load drivers have

x• [Government]:

have

you interviewed over your career?

career?

[Huerta]: Hundreds.

x• [Huerta]:

Hundreds.

[Government]: And how many load driver reports have

x• [Government]:

have

career?

you reviewed in your career?

[Huerta]: Hundreds.

x• [Huerta]:

Hundreds.

[Government]: Okay. Now, based on those interviews and

x• [Government]:

and

that -- the reviews in the reports, generally how much did

did

the

workings

inner

these load drivers know about the

the

[drug trafficking organization]?

organization]?

[Huerta]: Well, usually itCs

x• [Huerta]:

it's -- they know theyCre

they're

the location,

know

transporting narcotics, but they donCt

don't

location,

the type of

of compartment,

compartment, or the amount of --ooff the

the

theyCre transporting.

narcotics they're

transporting.

[Government]: So, they donCt

x• [Government]:

don't -- again, they donCt

don't know

know

what theyCre

they're trans -- they -- they know that thereCs

there's

don't know what theyCre

they're

something in there, they donCt

transporting?

[Huerta]: Yes, sir.

x• [Huerta]:

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Following this testimony, on cross-examination Agent Huerta agreed

agreed

that

drivers that

their drivers

inform their

always inform

not always

do not

organizations do

drug-trafficking organizations

that drug-trafficking

cases

was familiar with smuggling cases

vehicles contain contraband and that he was

where the drivers did not know what they were transporting. None of the

the

of the

the above testimony in their closing arguments.

arguments.

parties referenced any of

The parties contest the standard of

of review for this issue. Before trial,

trial,

the Government gave notice that it intended to offer the expert testimony of

trafficking

drug trafficking

that drug

techniques that

the techniques

part, the

in part,

address, in

to address,

Huerta to

Agent Huerta

/-!!$&$)"

D)-*/$.trafficking

$)'0$)" "narcotics

)-*/$.6including

$./-$0/ narcotics,

/*distribute

0. to

organizations use

Gutierrez-Farias,

v. Gutierrez-Farias,

.7E$/$)"United

-).)$(+*-//$*)+-/$

+//

patterns

and importation practices."

Citing United States

States2).

limine

in limine

motions in

pretrial motions

filed pretrial

Laras filed

both Laras

2002), both

Cir. 2002),

(5th Cir.

657 (5th

F.3d 657

294 F.3d

seeking to exclude any expert testimony that would impermissibly assert an

During

opinion with respect to their knowledge of the presence of

of the drugs. During

the district court granted the motions in limine with

conference, the

aa pretrial conference,

respect to that objection, assuring the LarasC

Laras' attorneys that it would not allow

allow

mind.E

of mind."

state of

clientsC state

your clients'

to your

as to

opinion as

an opinion

Dgive an

to "give

Huerta to

Agent Huerta

made aa

Lara made

neither Lara

testified, neither

Huerta testified,

Agent Huerta

when Agent

however, when

Significantly, however,

testimony.

contemporaneous objection to the now-challenged portion of his testimony.

Government

the Government

object, the

contemporaneously object,

to contemporaneously

failed to

Laras failed

the Laras

Because the

argues that the admission of

of this

this testimony should be reviewed for plain error.

error.

ruling on their pretrial motion in

courtCs ruling

the district court's

argue that the

The Laras

Laras argue

appropriate

limine preserved their objection, making abuse of discretion the appropriate

standard.

) edgLM+-*1$

-'0'

Federal

Rule*!1$

of Evidence

103(b) provides./#/DN*Once

that " [o]nce the court rules

rules

renew

trialAaa party need not renew

recordAeither before or at trial—

definitively on the record—either

As we

appeal.E As

an objection or offer of proof

proof to preserve a claim of error for appeal."

2000, it

adopted in 20007

was adopted

rule was

when this rule

Corp., when

Exxon Corp.,

v. Exxon

explained in Mathis 2).

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D#)"

the

/# law

'2 that

/#/ had

#prevailed

+- 1$' i $)

/#$. circuit"

$-0$/E regarding

regarding the

the

"changed

n this

preservation of evidentiary errors. 302

302 F.3d 4487

448, 459

459 n.16

n.16 (5th

(5th Cir. 2002)

2002)

(citing Fed.

Evid. 103(a)).4

103(a)).4 We had previously required parties to make

FED. R. EvID.

make

contemporaneous objections

objections at

at trial,

trial, even

even iiff they

they had

had made

made aa pretrial

pretrial

objection to the admissibility of the challenged evidence. Id.

Id. at

at 459 & n.16.

n.16.

But given

given the

the 2000

2000 amendment

amendment to

to Rule

Rule 103,

103, we

we held

# ' that

/#/ "[a]

DNOpre-trial

+- -trial

objection is

is sufficient

sufficient to

to preserve

preserve [an

[an evidentiary]

evidentiary] error

error for

for appellate

appellate

review,E

- "-' .. o*!

2# /# - the

/# party

+-/4objected

*% / at

/ trial.

/-$'7 Id.

Id. at

at 459.

459.

review," regardless

f whether

Similarly, in United

United States

Lucas, we held that "Lucas

DLucas was not required to

States v. Lucas,

renew his objection to the .evidence

. . evidence at trial. . .A. A pretrial motion in limine,

limine,

/$)" to

/*the

/# evidence,

1$ ) 6is

$.enough."

)*0"#7E 849

849 F.3d

F.3d 638,

638, 642

642 (5th

(5th Cir.

Cir. 2017)

2017)

objecting

(citing Mathis, 302 F.3d at 459).

459).

One could read this language

language from Mathis and Lucas

Lucas to suggest

suggest that

that

the Laras preserved their objection to Agent HuertaCs

Huerta' s testimony by obtaining

obtaining

aa pretrial

pretrial ruling

ruling oon

their motion

motion i n

in limine,

limine, despite

despite failing

failing t to

n their

contemporaneously object to the testimony at trial. However, neither Mathis

Mathis

nor Lucas

Lucas stated whether the district court had granted or denied the motion

motion

in limine. See

See Mathis, 302 F.3d at 459; Lucas, 849 F.3d at 642-43. And, as the

the

Advisory Committee Note accompanying the 2000 amendment to Rule 103

103

makes clear, this distinction is important:

important:

If the court

court changes

changes its

its initial

initial ruling,

ruling, or

or ifif the

opposing party

party

the opposing

violates

terms of

objection must

must be

be made

made

violates the terms

of the

the initial ruling, objection

when the evidence is offered to preserve the claim of error for

appeal. The error, if any, in such a situation occurs only when

when

the evidence

evidence is

is offered

offered and

and admitted.

admitted. United

United States

States Aviation

Aviation

Underwriters,

Inc. v.

v. Olympia

Olympia Wings,

Wings, Inc.,

Inc., 896

896 F.2d 949,

949, 956

956

Underwriters, Inc.

Li/#

$-71990)

emmdM("[O]bjection

LD[O]bjection is

is required

required to

to preserve

preserve error

error

(5th Cir.

relevant provision

provision was

was originally

originally codified

codified as

as part

part of

103(a)(2); in

in 2011,

2011,

4The

The relevant

of Rule

Rule 103(a)(2);

was recodified

recodified as

as Rule

Rule 103(b).

it was

103(b).

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motion in

violates aa motion

itself, violates

court itself,

the court

or the

opponent, or

an opponent,

when an

EM7

limine /#/2."-)/

that was granted").

amendment

2000 amendment

to 2000

note to

committeeCs note

advisory committee's

103 advisory

Evid. 103

Fed.

FED. RR.. EVID.

(emphasis added).

added).

held

has held

committee note, the Tenth Circuit has

In accordance with this committee

that "where a ruling on a motion in limine is modified or violated, 'B[s]ince

[s]ince

/#/Dwhere

the error is not in granting or denying the motion in limine, but in admitting

admitting

or excluding the evidence at trial, the motion in limine does not preserve this

this

674, 684 (10th Cir. 2014) (quoting

Fonseca, 744 F.3d 6747

v. Fonseca,

United States

error." United

States2).

(quoting

error.CE

Federal

Graham, FEDERAL

W. GRAHAM,

Kenneth W.

& KENNETH

Wright 8c

Charles AA.

21 CHARLES

. WRIGHT

court

that court

As that

2005)). As

ed. 2005)).

(2d ed.

5037.16 (2d

Procedure § 5037.16

& PROCEDURE

PRACTICE 8c

Practice

a partyCs

explained, when a

party's pretrial evidentiary objection is denied, it would be

683.

at 683.

Id. at

trial.EId.

at trial."

objections at

making objections

Dcontinue making

/*"continue

+-/4 to

/#/ party

!*- that

!0/$'

futile for

) 6Drequiring

Indeed,

"requiring the renewal of objections after a definitive ruling may be

distracting

mention aa distracting

to mention

not to

judge, not

trial judge,

the trial

to the

provocation to

needless provocation

aaneedless

v. Mejia-Alarcon, 995

interruption during the trial.EId.

trial." Id. (quoting United

United States

States2).

995

omitted).

marks omitted).

quotation marks

(internal quotation

1993)) (internal

Cir. 1993))

(10th Cir.

986 (10th

982, 986

F.2d 9827

DHowever,

"However, this reasoning seems inapplicable where evidence is admitted in

After

ruling.EId.

courtCs ruling."

spite of, rather than in accordance with, a district court's

Id. After

D- -rais[e] an

)*/ "re-rais[e]

* . not

*% /$*)does

*)/ (+*-) *0.objection

. .6acontemporaneous

.0#cases,

$)such

''6

all, in

/# -6$/D+0/N.Othe

% / 7EId.

)-rejected."

/$*)/#/#N.O'*%

objection

that ha[s] already

been

Id. Rather,

it " put[s] the district

district

earlier

courtCs earlier

the court's

Dviolating the

$."violating

+-/4 is

*/# - party

/# other

/#/ the

noticeEthat

on notice"

court on

884, 889 (5th Cir.

Soza, 874 F.3d 8847889

v. Soza,

evidentiary ruling7EId.;

ruling." Id.; cf. United States

States2).

Cir.

2017) (explaining that, in order to preserve an issue for appeal, the objecting

objecting

and the

*++osing party and

/# opposing

+' .the

/#/$/

.*that

$..0 so

/# issue

+- . )/the

D(0./present

+-/4

party "must

it places

ELquoting

$)"-$.

2$..0

N$./-$/O*0-/*))*/$

[district] court on notice/#/)

that a new

issue$.

is being

raised"

(quoting Kelly v.

2).

Foti, 77 F.3d 819, 823 (5th Cir. 1996)) (internal quotation marks omitted)).

omitted)).

holding

cases holding

any cases

have not identified, any

and we have

do not cite, and

Laras do

The Laras

relevant

the relevant

regardless of whether the

Mathis applies regardless

set forth in Mathis

rule set

the rule

that the

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motion in limine

limine was

was granted

granted or

or denied.

denied. As

As already

already explained,

explained, Mathis

Mathis and

and

Lucas neither grapple

grapple with

with the

the distinction

distinction between

between granting

granting and

and denying

denying a

Lucas

pretrial objection

objection nor

nor state

state how

how the

the district

district court

court ruled.

ruled. And

And in

in the

the cases

cases

applying Mathis

Mathis where

where the

the district

district court's

courtCs ruling

ruling is

is identified,

identified, the

the relevant

relevant

pretrial objection

objection was

was denied.

denied. See,

See, e.g.,

e.g., United

United States

States v. Lewis,

Lewis, 796 F.3d 543,

543,

545 & n.6 (5th Cir. 2015); Carlson v. Bioremedi

Bioremedi Therapeutic

Therapeutic Sys., Inc., 822 F.3d

F.3d

194, 198

198 (5th Cir. 2016);

2016); United

United States

States v. Avants,

Avants, 367

367 F.3d 433, 443-44

443-44 (5th

(5th

Cir. 2004); United

United States

Ahedo, 453 F. App'x

AppCx 544, 547 (5th Cir. 2011) (per

States v.Ahedo,

(per

curiam).

Accordingly, Mathis

Mathis and its progeny

progeny do

do not

not control this

this case.

case. See

See

curiam).55 Accordingly,

Thomas

Tex. Dep't

DepBt of

Just., 297

297 F.3d 361,

361, 370

370 n.11

n.11 (5th Cir. 2002)

2002)

Thomas v. Tex.

ofCrim.

Grim. Just.,

LD#

- )*+$)$*)!$'./*..,0

./$*).,0'462

at it

("Where

an opinion fails to address

a question

squarely,

we2$'')*//will not treat

.$)$)"+ )/7EM7

asbinding precedent.").

Without any

any authority

authority from

from our

our court

court that

that explicitly

explicitly addresses

addresses this

this

issue, we

we are

are persuaded

persuaded by

by the

the reasoning

reasoning of

of the

the Tenth

Tenth Circuit

Circuit and

and the

the

Committee Note.

Note. When

When aa district

district court

court grants

grants aa party's

partyCs pretrial

pretrial

Advisory Committee

evidentiary objection,

objection, that

that party

party must

must contemporaneously

contemporaneously object

object to

to any

any

evidence it believes

believes contravenes

contravenes the

the district

district court's

courtCs previous

previous ruling.

ruling. If the

the

party does

does not

not object,

object, the

the admission

admission of

of that evidence

evidence is

is reviewed

reviewed for plain

plain

error. See

See Avants,

Avants, 367

367 F.3d

F.3d at

at 443

443 ("Evidentiary

LDEvidentiary rulings

rulings are

are reviewed

reviewed for

for

abuse

absence of

abuse of

of discretion; however, in the absence

of aaproper objection, we review

review

only for plain error7EM.

error.").

ii.

Under plain error review, the appellant must show

show that: DLeM/#

- 2.

" (1) there

was

the error was

was clear

clear or obvious;

obvious; (3) the

the error affected his or her

an error; (2) the

her

5Further, though

though neither Mathis nor Lucas states how the district court ruled on

of those

those cases suggest that in all likelihood

likelihood

the relevant motion in limine, the circumstances of

the motions were denied. See

642-43.

See Mathis, 302 F.3d at 459; Lucas, 849 F.3d at 642-43.

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substantial rights; and (4) the error seriously affects the fairness, integrity, or

public reputation

reputation of judicial proceedings

proceedings such

such that we

we should

should exercise

exercise our

d$./$*)/*1 -. 7EUnited

v. Oti, 872 F.3d 678, 690 (5th Cir. 2017).

discretion

to reverse."

United States

States2).

2017).

Federal Rule of

704(b) states: DIn

of Evidence 704(1»

"In a criminal case, an expert

expert

witness must not state an opinion about whether the defendant did or did not

not

have aa mental

mental state

state or condition

condition that constitutes

constitutes an

an element

element of the crime

crime

#-"

*-*!

! ). 7#*.

-.7EFed.

charged

or of a defense.

Those(//

matters

are!*-/#

for the/-$

trier-*!!/'*)

of fact alone."

FED.

R. EVID.

Evid. 704(1)).

704(b). Accordingly, in drug

dr0"/-!!$&$)".

.6/#

- $.DBfine

but

trafficking cases,

there

is a "fine but

critical line'

lineC between

between 'expert

Bexpert testimony concerning

concerning methods

methods of operation

operation

unique to the drug business, and testimony comparing a

a defendantCs

defendant's conduct

conduct

to the generic profile of a

a drug courier.CEUnited

v. Sosa,

Sosa, 897 F.3d 615,

courier." United States 2).

615,

619

(5th Cir. 2018)

2018) (quoting

(quoting United States

States 2).

v. Gonzalez-Rodriguez,

Gonzalez-Rodriguez, 621

621 F.3d

F.3d

619 (5th

354, 364

364 (5th Cir. 2010)).

2010)M7 "A

Dʫwitness

2$/) ..crosses

-*.. .this

/#$.line

'$) by

4offering

*!! -$)"a direct

$- /

opinion as

as to

to the

the defendant's

defendantCs mental

mental state

state or

or by

by giving

giving the

the 'functional

Bfunctional

equivalentC

*!.0#.//

( )/7EUnited

States 2).

v. Morin,

Morin, 627

627 F.3d 985, 995

995

equivalent' of

such a statement."

United States

(5th Cir. 2010) (quoting Gutierrez-Farias, 294 F.3d at 663).

663).

While Agent

Agent Huerta did not offer aa direct opinion on either Lara's

LaraCs

mental state, the Laras argue that the challenged portion of his testimony is

error under our decision in United

United States

v. Gutierrez-Farias. In that case, the

States2).

the

defendant was

was convicted

convicted ooff conspiracy

conspiracy and

and possession

possession with

with intent

intent to

distribute marijuana after Border Patrol agents discovered marijuana hidden

hidden

in the

the tires

tires of

of aa tractor

tractor he

he was

was towing.

towing. 294

294 F.3d

F.3d at

at 659.

659. At

At trial,

trial, the

the

Government presented

presented the

the expert

expert testimony

testimony ooff DEA

DEA Agent

Agent Robert

Robert

Afanasewicz. Id.

Id. at

/661.

jje7The

# defendant

! ))/challenged

#'' )" "the

D/# portion

+*-/$*) of

*! Agent

ʫ" )/

AfanasewiczCs testimony

testimony in which he

he described

described the manner

manner in which drug

drug

Afanasewicz's

trafficking organizations generally

generally select people

people to transport their drugs and

and

the extent

extent to

to which

which those

those selected

selected are

are aware

aware ooff the

the drugs

drugs they

they are

are

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''4"$1$)")*+$)$*)

2$52.)/ʫ!).

transporting,E

transporting," arguing that Dʫ"

"Agent

Afanasewicz

was really

giving an opinion

marijuana in

of the

knowledge of

personally had knowledge

asto whether [the defendant] personally

the marijuana

.7EId.

the/$tires."

Id. at 661-62.

661-62.

evidence

understand evidence

jury to understand

the jury

assisting the

than assisting

DRather than

"- 7"Rather

We agreed.

Afanasewicz

Agent Afanasewicz

case, Agent

the case,

in the

issues in

fact issues

complicated fact

or complicated

presented or

the

cases, the

drug cases,

most drug

In most

generalization: In

simple generalization:

with aa simple

jury with

the jury

presented the

1 #$' 7EId.

knows the drugs are in the vehicle."

drugs knows

person

person hired to transport the drugs

Id.

Dforbidden opinion on the Bultimate

was a "forbidden

at 663. Accordingly, his testimony was

'ultimate

Speer, 30 F.3d 605, 610

v. Speer,

United States

case7EId.

issueC in the case."

legal issue'

Id. (quoting United

States2).

610

3+- ..'4.$6DIn

($"#/)*/#1

Afanasewicz might

Agent Afanasewicz

1994)). Agent

(5th Cir. 1994)).

not haveexpressly

said, " In my

tires6E0/2

was in the tires,"

expert opinion, [the defendant] knew the marijuana was

but we

/#/Dhis

*)'0

concluded

that "his testimony amounted to the functional equivalent of

of such

such

Ramirez?Velasquez, 322 F.3d 868,

v. Ramirez-Velasquez,

United States

see also

704(b). 294 F.3d at 663; see

violates Rule 704(1)).

error).

Rule 704(b) error).

cases finding no Rule

but distinguishing cases

but

that

knew that

Laras knew

the Laras

that the

testified that

effectively testified

Huerta effectively

Agent Huerta

Because

BecauseAgent

district

the district

driving, the

were driving,

they were

truck they

tires of the truck

the tires

in the

hidden in

were hidden

drugs

drugs were

Rule of

Federal Rule

under Federal

error under

was error

testimony was

that testimony

of that

admission of

courtCs

court's admission

Gutierrezindistinguishable from Gutierrezcase is indistinguishable

because this case

And because

704(b). And

Evidence 704(1».

prongs of

two prongs

Accordingly, the first two

obvious. Accordingly,

and obvious.

clear and

was clear

the error was

Faria, the

_aria,

the plain error analysis are satisfied.

satisfied.

an appellant must not only show

To prevail under plain error review, an

show

Dthe

also that "the

obvious error but also

that the district court committed a clear or obvious

rights.E Oti, 872 F.3d at 690. In order to

error affected his or her substantial rights."

must

Laras must

the Laras

rights, the

substantial rights,

their substantial

affected their

error affected

the error

that the

show

show that

2*0'

/-$' would

N/# $-Otrial

/#/[their]

+-*$'$/4that

- .*)' probability

Dreasonable

$."a

/# - is

/#/there

(*)./-/ that

demonstrate

of Agent [HuertaCs]

have come out differently but for the illegitimate aspects of

[Huerta's]

requirement of

./$(*)47EGonzalez-Rodriguez6jfe7g/gjk7DThis

/testimony."

Gonzalez-Rodriguez, 621 F.3d at 367. "This third requirement

[many]

relief in [many]

defendants from obtaining relief

prevented defendants

has prevented

plain-error review has

F.3d at

897 F.3d

./$(*)47ESosa,

*/#

other-.

cases.$)1*'1$)"$(+-*+

involving improper--0"+-*!$'$)"/

drug profiling testimony."

Sosa, 897

affected an

error affected

an error

whether an

of whether

question of

The question

cases). The

(collecting cases).

620 (collecting

well-known

the well-known

to the

similar to

conceptually similar

is conceptually

rights is

substantial rights

appellantCs

appellant's substantial

"harmless error"

"with one important difference: It is the defendant

defendant

errorE inquiry, Dwith

Dharmless

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rather than the Government who bears the burden of

ofpersuasion

persuasion with respect

respect

v. Olano, 507 U.S. 725, 734 (1993).

prejudice.EUnited

to prejudice."

United States

States2).

(1993).

Ultimately, we conclude that Agent HuertaCs

Huerta' s testimony did not affect

affect

supra Part II.A,

explained in supra

reasons explained

substantial rights. For the reasons

LarasC substantial

the Laras'

supported

evidence supported

considerable evidence

testimony, considerable

HuertaCs testimony,

Agent Huerta's

even without Agent

the juryCs

jury's verdict. Moreover, the jury was aware that Agent Huerta had never

never

-.6 and the court instructed the

-./$*).E2$/#/#

/*)1

#D)4$had "any direct

conversations"

with theLaras,

the

D'$& any

/ ./$(*)4 "like

HuertaC.testimony

Agent Huerta's

judge Agent

members that they should judge

jury members

the

giving the

$/6E giving

- % / it,"

*-reject

$/ or

D +/ it

*0' "accept

/# 4 could

/#/ they

) that

testim*)4E and

other testimony"

similar

. -1 ..E I In

/#$)& i $/

4*0 think

. you

2 $"#/ as

(0# weight

D. much

testimony "as

t deserves."

n similar

were not

substantial rights were

defendantCs substantial

have held that a defendant's

we have

circumstances, we

narcotics

that aa narcotics

(holding that

879 (holding

at 879

F.3d at

322 F.3d

Ramirez-Velasquez, 322

See Ramirez-Velasquez,

affected. See

defendantCs substantial rights

agentCs

agent's improper testimony did not affect the defendant's

rights

Dwas not

" )/ "was

/# agent

instructions to the jury that the

courtCs instructions

the court's

both (1) the

given both

testimony

Dhis testimony

and that "his

caseE and

claiming to know the particular facts of the case"

witnessE

be disregarded like that of any other witness"

be weighed and could be

was to be

[the

infer [the

could infer

jury could

the jury

which the

from which

evidence . . . from

other evidence..,

Dthe other

(2) "the

and (2)

Agent

reference Agent

not to reference

decision not

GovernmentCs decision

The Government's

guiltEM7 The

defendantCs]

defendant's] guilt").

this

that this

suggests that

further suggests

argument further

closing argument

its closing

in its

testimony in

HuertaCs

Huerta's testimony

that

(concluding that

620 (concluding

at 620

F.3d at

897 F.3d

Sosa, 897

Cf. Sosa,

crucial. Cf.

not crucial.

was not

testimony was

because

part because

error in part

plain error

not plain

was not

drug courier profile testimony was

improper drug

testimony

)/Cs improper testimony

($)/#

0/*-$)*/Dthe+-*.

prosecutor

did not "remind

the%0-4*!/#

jury of the"

agent's

such as

circumstances such

under circumstances

caution that under

We caution

-"0( )/EM7 We

'*.$)"argument").

0-$)"

during closing

Government

the Government

order, the

violation of a pre-trial order,

all aa violation

above all

involving above

these, involving

would not be able to show that the error was harmless had an objection been

been

cases or

have not cited any cases

considering that the Laras have

preserved. However, considering

Agent

that Agent

argument that

their argument

support their

to support

record to

the record

in the

facts in

any facts

to any

pointed to

we cannot say that they

HuertaCs testimony affected their substantial rights, we

Huerta's

they

$)($..$'

D/# inadmissible

/#/ "the

burden of demonstrating that

plain error burden

met their plain

have met

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897 F.3d at

profile testimony was likely the difference maker at trial.ESosa,

trial." Sosa, 897

error

under plain error

issue under

do not prevail on this issue

Laras do

the Laras

Accordingly, the

620. Accordingly,

review.

'' $))4-$($)'.

-.*)777.#''

D*+

"No person

s h a l l be*(+

compelled

in any criminal case/*

to be2$/)

a witness

defendant

Accordingly, iiff a defendant

V. Accordingly,

amend. V.

Const. amend.

U.S. CONST.

#$(. '!7EU.S.

"$)./

against himself."

)/4

)( )/!*-$.*((

./$!4//-$'6DN/O#

$ .)*//*/

decides

not to testify

at trial, " [t]he$!/#ʫ(

Fifth Amendment

forbids comment

) 7EUnited

accusedC..$'

the prosecution, either direct or indirect, on the accused's

silence."

United

California,

v. California,

v. Murra, 879 F.3d 669, 682 (5th Cir. 2018) (citing Griffin 2).

States

States2).

517 F.3d

v. Martinez-Larraga, 517

see also

609, 615 (1965)); see

380 U.S. 609,615

also United

United States

States2).

F.3d

self-incrimination

AmendmentCs self-incrimination

Fifth Amendment's

LDNOhe

2008) ("

Cir. 2008)

(5th Cir.

266 (5th

258, 266

[T]he Fifth

that the

jury that

the jury

arguing to the

from arguing

prosecution from

the prosecution

. .r e. cpreclude[s]

clause p

l u d e [ s ] the

accused's failure to testify at the trial [is] evidence of his guilt.EM7

guilt.").

accusedCs

commented on

improperly commented

Government improperly

the Government

that the

argue that

Laras argue

The Laras

their choice not to testify in their own defense during its opening statement

statement

the

challenge the following remarks from the

Laras challenge

and closing argument. The Laras

GovernmentCs

Government's opening statement:

statement:

At the end of the proceeding the judge is going to instruct you

you

case. You will

evaluate all the evidence in this case.

that you are to evaluate

evaluate with your own common sense and your own common

common

I want

and

evidence

this

look

you

want

And

experiences.

want

town

to aa -- to aa town

go to

someone go

would someone

Why would

Why? Why

ask: Why?

to ask:

you to

vehicle

up aa vehicle

pick up

someone pick

would someone

Why would

been? Why

never been?

theyCve

they've never

theyCve never known? Why would someone get

from a person they've

get

paid to do so? Why would someone continue driving when that

that

vehicle's

barely

vehicleCs shaking violently, can barely get above 50, can barely

car?

steer with a -- with a three-year-old in the car?

and

going to get up here and

defense is going

Now, I suspect the defense

committed by their clients is

was committed

you the only crime that was

tell you

misplaced trust in an untrustworthy individual, [Flores]. While

While

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I want

want you

you to

to -- when

when you

you hear

hear that, I want you to just keep

keep

asking: Why? Why ignore the red flags? Even if -even

youCre

even you're

ostensibly trusting this guy, why ignore the alarm bells?

bells?

They argue that this statement indirectly comments on their decision not to

testify because only they could have answered the various questions that the

the

Government asked.

asked.

GovernmentCs closing argument:

The Laras also challenge part of

of the

the Government's

argument:

How can

can you

you tell what's

whatCs in someone's

someoneCs mind?

mind? That's

ThatCs

have no

no evidence

evidence of

what this entire case is about, right? You have

ofany

any

statements from Ms.

Ms. Maly

Mary Ann

Ann Lara or Ms. Melissa

Melissa Lara. You

You

statements

just have their actions; what they did, what was happening, and

and

some lies, but no

no direct

statements.

What

was

their

minds?

direct

was

minds?

Now, ladies and gentlemen, it -- it doesnCt

doesn't take a rocket

rocket

scientist to kind of

of piece together whatCs

what's happening. It doesnCt

doesn't

take a Border Patrol intel agent, it doesnCt

doesn't take a Customs and

and

Border Protection officer. It just takes some

some common sense.

sense.

When you look at the facts in this case,

case, your common

common

sense will

will lead

lead you

you to

to one

one conclusion.

conclusion. Mary

Mary Ann

Ann Lara

Lara and

and

Melissa Lara

Lara were

were conspiring

conspiring tto

bring i in

controlled

o bring

n aa controlled

substance. They

They were

were importing

importing itit from

from Mexico

Mexico into

into the

the

United States

States and

and they

they were

were taking

taking itit to

to San

San Antonio

Antonio so

someone else could pick it up and it could be distributed.

distributed.6

They argue that the italicized portions of

of the first paragraph of this

this statement

statement

directly commented on their decision not to testify.

testify.

When reviewing claims that a prosecutor improperly commented on

aa defendant's

defendantC.decision

$.$*) not

)*/ to

/*testify,

/ ./$!46we

2 must

(0./ "first

D!$-./decide

$ whether

2# /# - the

+-*.

0/*-(

-($..$' -remark."

(-&7EMurra,

Murra, 879

879 F.3d at 682. If we

prosecutor

made)$(+

an impermissible

conclude that

that the

the remark

remark is

is impermissible,

impermissible, we

we must

must then

then determine

determine

Emphasis

6Emphasi

s added.

added.

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D2#

/# -the

/# remark

- (-&casts

./.serious

. -$*0.doubt

*0/on

*)the

/# correctness

*-- /) .. of

*! the

/# jury's

%0-4Cs

"whether

1 -$/7EId.

Additionally, because,

because, here

here too, the Laras

verdict."

Id. at 684 (cleaned up). Additionally,

Laras

D!$'

///-$'6E/#

-NO/#

)*!

(*)./-/$)"/#//#

"failed/**%

to object

at trial," they4D

"bear[]

the0-

burden

of demonstrating

that the

prosecutorC..//

( )/.*)./$/0/

--*-7EUnited

v. Vargas, 580

prosecutor's statements

constitute+'$)

plain error."

United States

States2).

580

F.3d 2747

274, 278 (5th Cir. 2009); see

see also

also Oti, 872 F.3d at 690 (describing plain

plain

error review).

review).

GovernmentCs above-quoted

above-quoted remarks

remarks are

are impermissible

impermissible under

under

The Government's

the Fifth Amendment's

AmendmentCs Self-Incrimination Clause $!

$/# -D/#

0/*-Cs

if either

"the+-*.

prosecutor's

manifest intent was to comment on the defendant's

defendantC..$'

) E at trial or

*-D/#

silence"

"the

character of

of the

the remark was such that the jury would naturally and necessarily

necessarily

construe it as

as aa comment on the defendant's

defendantC..$'

) 7EMurra,

Murra, 879

879 F.3d

F.3d at

silence."

683. This test is strict. Regarding

Regarding the first prong, DN$Of

an 'equally

Bequally

" [i]f there is an

plausible explanation

explanation for

for the

the remark,'

remark,C the

the prosecutor's

prosecutorCs intent

intent is

is not

not

manifest.EUnited

v. Green,

Green, 324 F.3d 375, 382 (5th Cir. 2003) (quoting

manifest." United States

States2).

(quoting

United

v. Grosz,

Grosz, 76

76 F.3d 1318,

1318, 1326

1326 (5th Cir. 1996)).

1996)). Further, D[t]he

United States 2).

" [t]he

defendant bears the burden of proving the prosecutor's

prosecutorC.$)/

)/7EMurra,

879

intent."

Murra, 879

F.3d at 683. Regarding

R "-$)"/#

*)+-*)"6Dthe

the

the.second

prong, " the question is not whether the

possibly or

or even

even probably

probably would

would view

view the

the challenged

challenged remark

remark in this

this

jury possibly

manner, but whether the jury necessarily

necessarily would have done so.EUnited

so." United States

States

Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996) (citation omitted). When making

2).Grosz,

making

these determinations,

determinations, we

we must

must examine

examine the

the prosecutor's

prosecutorC.remarks

- (-&. "D$)

*)/

3/E-/#

States 2).

v. Weast,

Weast, 811

811 F.3d 7437

743, 753

753

context"

rather-/#)D$.*'/$*)7EUnited

than "isolation." United States

(5th Cir. 2016).

2016).

GovernmentCs remarks

remarks in

in its

its opening

opening statement

statement were

were not

not

The Government's

constitutionally impermissible.

impermissible. In context,

context, it does

does not seem

seem likely that the

prosecutor was intending to comment on the Laras'

LarasC decision

decision not to testify.

testify.

Rather, the

the Government

Government was

was apparently

apparently providing

providing aa list

list ooff rhetorical

rhetorical

questions for the jury to keep in mind when they evaluated the defendantsC

defendants'

&)*2'

" based

. on

*) the

/# evidence.

1$ ) 7An

ʫ) "attorney

D//*-) 4 is

$.entitled

)/$/' to

/*urge

0-" the

knowledge

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conclusions which

which the

the attorney

attorney thinks

thinks the

the jury

jury should

should draw

draw from

from the

the

1$ ) 7EUnited

United States 2).

v. Allen,

Allen, 588

588 F.2d

F.2d 1100,

1100, 1108

1108 (5th

(5th Cir. 1979).

1979). In

evidence."

doing so,

so, the

the Government

Government may

may utilize

utilize rhetorical

rhetorical questions

questions that

that are

are

D$)!

- )/$'$).0./)

7EUnited

v. Sorzano, 602 F.2d 1201, 1202 (5th

"inferential

in substance."

United States

States2).

(5th

Cir. 1979). Such questions are not impermissible comments on a defendantCs

defendant's

right to remain silent. See

See id.

id.

GovernmentCs remarks in its closing argument are more difficult.

The Government's

difficult.

One could

could plausibly

plausibly view

view the

the prosecutor's

prosecutorCs assertions

assertions that

that "You

DYou have

have no

evidence of any statements from Ms. Mary Ann Lara or Ms. Melissa LaraE

Lara"

and that the

/# Laras

-.(

/.//

( )/.E.*((

)/*)/#

-.C

madeD)*$" no direct

statements"

as a comment

on the Laras'

decision not to testify. However, reviewing for plain error only, we pretermit

pretermit

confirming whether the

the challenged

challenged remarks

remarks were

were necessarily

necessarily aa comment

comment on

the Laras'

LarasC decisions

decisions not to testify, as

as opposed

opposed to part of an argument

argument that

even though the Government had not introduced any evidence showing that

that

either Lara

Lara had

had ever

ever made

made aa single

single statement

statement to law enforcement,

enforcement, Flores,

Flores,

Ramirez, or Trinidad directly indicating that she

she knew the truck contained

contained

methamphetamine, the jury should nonetheless

nonetheless infer their knowledge from

from

circumstantial evidence. See

See United

v. Pando

Pando Franco, 503 F.3d 389, 394

United States

States2).

394

(5th Cir. 2007)

2007) ("

(DNO$-0(./)/$'

1$ ) is

$.often

*!/ )used

0. to

/*establish

./'$.# the

[C]ircumstantial evidence

k)*2'

" element

' ( )/!*-+*..

..$*)*-$(+*-//$*)*!-0".7E);

knowledge

for possession

or importation of drugs."); United States

States

Zanabria674

khF.3d

7g590,

imd6593

img(5th

Li/# Cir.

$-71996)

emmjM ("The

LD# [F]ifth

NO$!/# [A]mendment

NʫO( )( )/

2).Zanabria,

protects against

against compelled

compelled self-incrimination

self-incrimination but

but does

does not,

not, as

as Zanabria

Zanabria

suggests, preclude

preclude the

the proper

proper evidentiary

evidentiary use

use and

and prosecutorial

prosecutorial comment

comment

about every communication or lack thereof

thereof by

by the defendant which may give

give

-$.

- ) 7EM. Instead, we decide only that even if the

rise/*)$)-$($)/$)"$)!

to an incriminating inference.").

the

Government erroneously commented on the Laras'

LarasC decision

decision not to testify,

testify,

the Laras have not met their plain error burden of

of showing

showing that such an error

error

in the

the context

context of a case

case built on

on circumstantial

circumstantial evidence

evidence rather

rather than

than

was, in

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direct admissions of

See Oti,

of guilt,

guilt, both obvious and substantially prejudicial. See

Oti,

872 F.3d at 690.

690.

Of course,

course, in

in addition

addition to

to prohibiting

prohibiting comment

comment on

on aa defendant's

defendantCs

decision not

not to

to testify,

testify, the

the Constitution

Constitution also

also prohibits

prohibits prosecutors

prosecutors from

from

commenting on aa defendant's

defendantCs silence

silence in certain other contexts.

contexts. The

The Laras

Laras

argue that

that even

even if the challenged

challenged remarks

remarks from

from the

the Government's

GovernmentCs

briefly argue

closing argument were not an impermissible comment on their decision not

not

to testify, they were an impermissible comment on their post-arrest silence,

silence,

in violation of

v. Ohio, 426 U.S. 610 (1976). Indeed, Dthe

of Doyle

Doyle2).

"the prosecutionCs

prosecution's

introduction at trial of evidence of the accused's

accusedCs silence

silence after being

being given

given

warnings following

following arrest

arrest violates

violates the

the due

due process

process clause."

clause.E

Miranda warnings

517 F.3d

F.3d at

at 266

266 (citing

(citing Doyle,

Doyle, 426

426 U.S.

U.S. 610)

610) (emphasis

(emphasis

Martinez-Larraga, 517

omitted). However, in this case, both Laras voluntarily waived their Miranda

Miranda

rights and

and talked

talked with

with law

law enforcement

enforcement after

after their

their arrest.

arrest. "[E]vidence

DNOvidence of

defendantCs

silence and

and refusal

refusal t to

answer post-arrest

post-arrest questions

questions i sis

defendant's silence

o answer

admissibleE$!$/$.DBpart

conversationC pursuant

pursuant

admissible" if it is "' part of

of an

an otherwise admissible conversation'

to defendantCs

v. Pando

Pando Franco, 503 F.3d 389,

defendant's Miranda waiver7EUnited

waiver." United States

States2).

3897

397

States 2).

v. Burns,

Burns, 276

276 F.3d 4397

439, 442 (8th

(8th

397 (5th Cir. 2007) (quoting United States

Cir. 2002)).

2002)M7ʫ!/

defendant cannot have

have it both ways.

ways. If he talks,

talks,

After-''6DNO

all, " [a] defendant

says or omits is to be judged on its merits or demerits, and

and not on

what he says

some artificial standard that only the part that helps him can be later referred

referred

to.EId.

v. Goldman, 563 F.2d 5017503

501, 503 (1st Cir. 1977)).

to." Id. (quoting United

United States

States2).

1977)).

GovernmentCs remarks did not violate Doyle.

Accordingly, the Government's

Doyle.

The Laras

Laras argue

argue that

that during

during its

its rebuttal

rebuttal closing

closing argument,

argument, the

the

Government improperly alluded to evidence not in the record and implied

implied

that the

the Laras

Laras destroyed

destroyed evidence.

evidence. The

The Government

Government responds

responds that

that the

the

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prosecutorCs

remarks were

were aa fair

fair and

and direct

direct response

response to

to defense

defense counsel's

counselCs

prosecutor's remarks

closing

closing arguments.

arguments.

Dʫ+-*.

0/*-(4)*/$/'4-refer

! -/**-

1 )''0

1$ ) /#/

"A prosecutor

may not directly

to or even

allude/*

to evidence

that

2.)*/0

//-$'7EUnited

v. Murrah,

Murrah, 888 F.2d 24, 26 (5th Cir.

was

not adduced

at trial." United States

States2).

Cir.

1989). Likewise, prosecutors

+-*. 0/*-.Dmay

suggest that evidence which was

was not

"may not suggest

not

presented at trial provides additional grounds

grounds for finding defendant guilty."

guilty.E

United

v. Garza, 608 F.2d 659,

663 (5th Cir.

1979). Rather, prosecutors

UnitedStates

States2).

659,663

Cir.1979).

prosecutors

closing argument

argument to

to discussing

discussing properly

properly admitted

admitted evidence

evidence

areDconfined

"confined in closing

and

any reasonable

reasonable inferences

inferences or

or conclusions

conclusions that

that can

can be

be drawn

drawn from

from that

that

and any

evidence.E

Vargas, 580

580 F.3d at 278. In doing

doing so,

so, aa prosecutor

prosecutor may

may directly

directly

evidence." Vargas,

respond

of the evidence offered by defense counsel. See

See id. at 279.

respond to theories of

279.

a prosecutor's

prosecutorCs allegedly improper

And of

ofcourse, as stated above, we examine a

improper

remarks D$)*)/

3/E-/#

Weast, 811 F.3d at 753.

"in context"

rather-/#)D$.*'/$*)7E

than "isolation." Weast,

753.

During closing

closing arguments,

arguments, defense

defense counsel

counsel for

for Mary Ann

Ann Lara

Lara and

and

defense

argued that the Facebook

Facebook Messenger

defense counsel for Melissa Lara both argued

Messenger

transcript shows

shows lack

lack of

of knowledge

knowledge of

of methamphetamine

methamphetamine because

because the

the

transcript shows

shows that

that Flores

Flores repeatedly

repeatedly told

told Mary

Mary Ann

Ann Lara

Lara that

that nothing

nothing

illegal was

was in

in the

the truck.

truck. Melissa

Melissa Lara's

LaraCs counsel

counsel also

also indicated

indicated that

that all

all the

the

conversations between

between Mary

Mary Ann

Ann Lara

Lara and

and Flores

Flores were

were depicted

depicted in

in the

the

Facebook

Messenger transcript.

transcript. In

In its

its rebuttal

rebuttal closing

closing argument,

argument, the

the

Facebook Messenger

Government then made the following remarks:

remarks:

I want to make another point. We don't

donCt know what was

was

said

said between these individuals in person. We donCt

don't know what

what

was said

said between

between these

these individuals

individuals when

when they

they call each

each other

other

was

of audio calls on the

on the telephone. There are even a couple of

the

Facebook

message.

donCt

know

whatCs

said

then.

donCt

Facebook

don't know what's

don't

know

what was

was said

said in

in WhatsApp,

WhatsApp, but

but they

they sure

sure went

went and

and

know what

talked there. She told him to.

to.

Why is

is that

that important?

important? Because

Because the

the information

information you

you

have, government

government -- or the Defendant's

DefendantCs Exhibit Number One,

One,

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is a very small selection of

of Facebook messages that were pulled

pulled

in February.

February. There's

ThereCs aa date

date on

on there.

there. February

February 2019.

2019. This

This

happened in April of 2018. Those were the messages

messages that still

existed in Facebook

Facebook on

on February

February of 2019. Those

Those aren't

arenCt the

the

TheyCre a good start and they still donCt

whole story. They're

don't show that

that

the defendant had absolutely no knowledge.

knowledge. It shows that the

the

defendant didn't

didnCt delete any

any messages

messages when

when he's

heCs saying,

saying, No,

no, there's

thereCs nothing in the car. Don't

DonCt worry about it.

But compare that to what Ashley Trinidad told you. She

She

told you she asked Carla multiple times, [a]re there going to be

drugs in the truck ICm

I'm taking? And Carla told her several times,

times,

[n]o. Before finally saying, [a]ll right, there's

thereCs one kilo of coke.

coke.

Read those messages in progress -- progression just like

defense asked

asked you

you to.

to. .Y. o. YouCll

see

that

after

while,

the

u ' l l see that after a while, the

questions about what's

whatCs in the car stop. And

And it's

itCs after they've

theyCve

picked up the truck and

and met with him for an

an hour

hour and

and eight

eight

minutes in person, the truck the old man drops off and doesnCt

doesn't

talk to them about.

about.

Laras argue

argue that the prosecutor's

prosecutorCs statement

statement that the Facebook

Facebook

The Laras

.. )" - transcript

/-).-$+/ admitted

($// at

/ trial

/-$'was

2. a "very

D1 -4 small

.(''selection

. ' /$*) of

Messenger

**&messages

( .." . that

/#/were

2 - pulled

+0'' in

$)February"

-0-4Eimplied

$(+'$ d that

that aa larger

larger

Facebook

selection of

of messages

messages existed.

existed. They

They further

further argue

argue that

that the

the prosecutor's

prosecutorCs

comparison of

of Mary Ann

Ann Lara's

LaraCs conversation

conversation with

with Flores

Flores to

to Trinidad's

TrinidadCs

conversations with

with Carla

Carla Lara

Lara implied

implied that

that these

these messages

messages were

were

incriminating. Finally, the Laras contend that the prosecutor's

prosecutorCs remark,

- (-&6DIt

"It

shows that the defendant didnCt

saying,

didn't delete any messages when [Flores is] saying,

[n]o, no, there's

thereC.)*/#$)"$)/#

-'4$(+'$

-*-

nothing in the-6E'

car," clearly

implies./#/-4ʫ))

that Mary Ann Lara

Melissa Lara deleted incriminating evidence.

evidence.

However, we read the above remarks as

as simply emphasizing that the

the

Facebook Messenger transcript does not definitively show lack of

of knowledge

knowledge

and does not contain all the conversations that occurred between Mary Ann

Ann

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Lara and

and Flores.

Flores. The

The Government

Government was

was arguing

arguing that

that because

because there

there is

is no

evidence of (1) what

what was

was said

said between

between Mary Ann

Ann Lara,

Lara, Melissa

Melissa Lara,

Lara, and

and

Flores in person

person or on the phone,

phone, (2) what was

was said

said during the audio calls

calls

between Mary Ann Lara and Flores referenced in the Facebook Messenger

Messenger

transcript, or (3) what was said on WhatsApp between Mary Ann Lara and

and

Flores, the

the jury

jury could

could reasonably

reasonably infer

infer that

that the

the Facebook

Facebook Messenger

Messenger

transcript was

was not

not aa complete

complete record

record of

of the sisters'

sistersC conversations

conversations with

with

Flores. To further support the inference that Flores may

may have revealed the

the

truckCs

truck's contents to the Laras in one of

of these conversations not in the record

record

despite not

not having

having done

done so

so in

in the

the Facebook

Facebook Messenger

Messenger conversation,

conversation, the

the

Government reminded

reminded the

the jury

jury that

that (4)

(4) Carla

Carla Lara

Lara had

had not

not revealed

revealed to

Trinidad that the truck she would be driving would contain drugs until after

after

had asked

asked several

several times

times and

and (5)

(5) the

the Laras

Laras stopped

stopped asking

asking Flores

Flores

Trinidad had

about the contents of the truck after they met with him in person.

person.

Prosecutors can

can discuss

discuss such

such reasonable

reasonable inferences

inferences during

during closing

closing

arguments. See

See Vargas, 580

580 F.3d at 278. Even if the prosecutor did mean to

imply that Mary Ann Lara may have deleted some of

of the more incriminating

incriminating

messages, this

this argument

argument would

would be

be an

an appropriate

appropriate response

response to

to defense

defense

counselCs

counsel's statement that the Facebook Messenger transcript was a complete

complete

record of any conversations

conversations with

with Flores.

Flores. See

See id.

id. at

at 279.

279. Accordingly,

Accordingly, the

the

GovernmentCs

Government's remarks in its rebuttal closing argument were not improper. 77

7The Laras also argue that the Government's

indirectly

GovernmentCs rebuttal closing argument indirectly

have

commented on their Fifth Amendment right to remain silent because only they could have

the

answered the rhetorical questions that the Government asked in the first paragraph of the

ask

above-quoted remarks. However, as explained in supra Part II.C, the Government may ask

"inferential in substance"

rhetorical questions that are

ar Dinferential

substanceE when

when urging "the

Dthe conclusions it

thinks the jury should draw from the evidence."

Sorzano, 602 F.2d at 1202.

1202.

evidence.ESorzano,

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III.

and

Lara and

Ann Lara

raised by both Mary Ann

issues raised

above issues

the above

In addition to the

Melissa Lara, Melissa Lara independently raises the following three issues.

issues.

The Government called Agent Katherine Leonard to testify regarding

regarding

and

between what Priscilla Ramirez had told agents and

alleged inconsistencies between

Ramirez

stand. In her testimony at trial, Ramirez

had said on the witness stand.

she had

what she

truck;

the truck;

with the

issues with

had issues

sisters had

Lara sisters

the Lara

whether the

knowing whether

(1) denied knowing

the truck during the trip to

was in the

about what was

concerns about

having concerns

(2) denied having

Mexico because she had asked Mary Ann Lara, prior to the trip, whether the

the

and (3) denied being nervous at the border

truck was stolen or a drug truck; and

border

checkpoint for any reason other than her daughter getting out of

of her car seat.

seat.

her

told her

previously told

had previously

Ramirez had

that Ramirez

testified that

Leonard testified

Agent Leonard

However, Agent

was

something was

her that something

had told her

Lara sisters had

the Lara

during a debriefing that (1) the

vehicle

wrong with the truck; (2) she had tried to put distance between her vehicle

/#/

2*--$ that

2.worried

)was

! '$)"Eand

D feeling"

# a "bad

.# had

0. she

/-0&because

/# truck

)

and the

she

she had felt nervous when she

and (3) she

something was wrong with the truck; and

saw

saw that Melissa Lara had pulled the truck directly behind her vehicle at the

the

told her

had told

Ramirez had

testified that Ramirez

also testified

Leonard also

Agent Leonard

border checkpoint. Agent

(4) that the Laras were following her because they did not know the way back

back

faster.

drive faster.

Laras to drive

the Laras

encouraged the

had encouraged

she had

(5) that she

and (5)

Antonio and

San Antonio

to San

are

testimony are

LeonardCs testimony

portions of Agent Leonard's

these portions

that these

argues that

Lara argues

Melissa Lara

inadmissible hearsay evidence.

evidence.

./$!4$)"/

'-)/*

( )/./#/DLeM/#

Statements

that "(1) the

declarant

does.)*/(&

not make2#$'

while/testifying

evidence to prove the

and (2) aa party offers in evidence

hearing; and

the current trial or hearing;

Evid.

R. EVID.

-.47Fed.

( )/E-/ $)/#

truth

of the(//

matter-..

asserted

in the.//

statement"

are#

hearsay.

FED. R.

/-0/#*!/#

Because

802. Because

Evid. 802.

R. EVID.

See Fed.

generally inadmissible. See

Hearsay is generally

801(c). Hearsay

FED. R.

yet

we yet

at trial, we

testimony at

LeonardCs testimony

Agent Leonard's

object to Agent

not object

did not

Lara did

Melissa Lara

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plain

admission of the testimony only for plain

courtCs admission

again review the district court's

As stated above, to prevail under plain error

See Oti, 872 F.3d at 690. As

error. See

error

--*-

--*-8LfM/#

- 2.)

a++ '')/(0./.#*2/#/9DLeM/#

review, the appellant

must show that: " (1) there

was an error;

(2) the error

and

was

was clear or obvious; (3) the error affected his or her substantial rights; and

(4) the error seriously affects the fairness, integrity, or public reputation of

1 -. 7E

/$*)/*3 -$. *0-$.2 .#*0'

judicial proceedings such that we

should exercise

our discretion

to reverse."

Id.

court

argument that the district court

conceded at oral argument

Government conceded

The Government

clearly erred by admitting the relevant portion of

of Agent LeonardCs

Leonard's testimony

testimony

evidence

the evidence

consider the

not consider

could not

that iitt could

jury that

the jury

instructing the

without instructing

out-of-court

LeonardCs testimony contained out-of-court

Agent Leonard's

substantively. We agree. Agent

prior

2$/) ..C prior

*! a witness'

DN O1$ ) of

#*0"# "[e]vidence

($- 57Though

4Ramirez.

( by

( )/.made

.//

statements

United

..6EUnited

#/#/2$/)

/*$(+

( )/.(4

)/.//

$)*).$./

inconsistent

statements

may be($//

admitted

to impeach

that witness,"

not

did not

court did

the court

2013), the

Cir. 2013),

(5th Cir.

202 (5th

193, 202

F.3d 193,

739 F.3d

Junius, 739

St. Junius,

v. St.

States 2).

States

out-of-court

RamirezCs out-of-court

consider Ramirez's

only consider

could only

that iitt could

jury that

the jury

instruct the

the

instruction, the

an instruction,

such an

Without such

purposes. Without

impeachment purposes.

for impeachment

statements for

error.

obvious error.

and obvious

clear and

was aa clear

testimony was

LeonardCs testimony

Agent Leonard's

of Agent

admission of

Accordingly, we proceed to the third prong of

of plain

plain error review.

review.

N# -O

*) [her]

!! / on

) effect

# an

--*-had

) error

/#/ an

(*)./-/ . that

! ))/demonstrates

Dʫ

"A defendant

the jury,

probability that the

reasonable probability

shows aa reasonable

[s]he shows

when [s]he

rights when

substantial rights

693. As

at 693.

F.3d at

872 F.3d

Oti, 872

N# -O7EOti,

,0$// [her]."

#1 acquitted

2*0'have

--*-6would

/# error,

)/the

absent

LeonardCs testimony contained five relevant hearsay

explained above, Agent Leonard's

hearsay

Agent Schreiner also testified that

statements. Regarding the first statement, Agent

that

the

Melissa Lara told him the truck was driving funny and shaking. Regarding the

distance

Ramirez tried to put distance

why Ramirez

reasons why

the reasons

remaining four statements, the

border

the border

at the

nervous at

felt nervous

she felt

why she

truck, why

the truck,

and the

vehicle and

her vehicle

between her

and why the Laras were following her are minimally relevant to

checkpoint, and

the

is the

as is

truck, as

the truck,

in the

methamphetamine in

of methamphetamine

knowledge of

LaraCs knowledge

Melissa Lara's

question of whether Ramirez encouraged the Laras to drive faster. For these

these

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reasons, Melissa Lara has not shown that the jury would have acquitted her

her

but for the admission

admission of Agent Leonard's

LeonardCs hearsay

hearsay testimony. Accordingly,

Accordingly,

she

she cannot prevail on this issue under plain error review.

review.

Melissa Lara

Lara argues

argues that

that the cumulative

cumulative effect

effect of the claimed

claimed trial

trial

errors described above resulted in the denial of her right to a fair trial. D#

"The

cumulative error

error doctrine

doctrine provides

provides that

that an

an aggregation

aggregation of non-reversible

non-reversible

errors (i.e., plain

plain errors failing to necessitate

necessitate reversal

reversal and

and harmless

harmless errors)

errors)

can yield

yield aa denial

denial of the constitutional

constitutional right to aa fair trial, which

which calls

calls for

-reversal."

1 -.'7EUnited

States 2).

v. Delgado,

Delgado, 672 F.3d 3207

320, 343-44 (5th Cir. 2012) (en

(en

United States

.6E$).

banc) (cleaned up). We apply this doctrine D*)'4$)-" only in rare$)./)

instances,"

in cases

where "errors

Derrors 'so

Bso fatally

fatally infect[ed]

infect[ed] the

the trial

trial that

that they

they violated

violated the

the trial's

trialCs

fundamental fairness."

fairness.CEId.

Id. at

at 344

344 (citation

(citation omitted).

omitted). In

In other

other words,

words, the

the

cumulative error doctrine Djustifies

"justifies reversal only in the unusual case in which

which

synergistic or repetitive error violates the defendant's

defendantCs constitutional right to

aa fair trial.E

trial." Id.

This case

case does

does not

not present

present such

such aa rare

rare situation.

situation. Melissa

Melissa Lara

Lara has

has

demonstrated that errors occurred at trialAnotably,

trial—notably, the admission of

of Agent

Agent

HuertaCs

testimony that

that load

load drivers

drivers generally

generally know

know that

that they're

theyCre

Huerta's testimony

transporting narcotics

narcotics and

and the

the admission

admission of

of Agent

Agent Leonard's

LeonardCs testimony

testimony

regarding Ramirez's

RamirezCs out-of-court statements. However, as

as explained above,

above,

Agent HuertaCs

Huerta' s testimony does not justify reversal under plain error review,

review,

and Agent LeonardCs

Leonard's testimony was either cumulative or minimally relevant

relevant

to the question of

of whether Melissa Lara knew that the truck contained drugs.

drugs.

Because the

the errors

errors were

were unrelated

unrelated to

to each

each other,

other, and

and because

because one

one of the

the

errors is extremely unlikely to have influenced the jury's

juryCs verdict, we

we cannot

cannot

say

say that this is the rare case in which individual errors do not justify reversal

reversal

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defendantCs

but the synergistic combination of multiple errors violated the defendant's

right to a fair trial.

trial.

.6DIf

'$) ..//

)/ )$)"0$

Section 3B1.4 *!/#

of the

Sentencing

Guidelines

states,

" If the defendant

defendant

age to commit

used or attempted to use a person less than eighteen years of age

commit

the offense or assist in avoiding detection of, or apprehension for, the offense,

offense,

erred by

argues that the district court erred

Melissa Lara argues

levels.EMelissa

increase by 2 levels."

applying this enhancement to her sentence.

sentence.

use a minor to assist in

Dused or attempted to use

Whether a defendant "used

3B1.4 is a conclusion of law that

avoiding detection within the meaning of § 3B1.4

that

of that

support of

in support

made in

fact made

of fact

findings of

any findings

while any

novo, while

de novo,

review de

we review

F.3d

624 F.3d

Mata, 624

v. Mata,

States 2).

United States

error7E United

we review for clear error."

determination we

clearly

is clearly

finding of fact is

courtCs finding

sentencing court's

A sentencing

2010). A

Cir. 2010).

(5th Cir.

175 (5th

170, 175

!/2$/#

erroneous if, after reviewing all the evidence, the reviewing *0-/D$.'

court "is left

with

7EId.

)*(($//

!$)$/ )!$-(*)1$/$*)/#/($./&

the

definite

and firm conviction that a mistake#.

has been

committed."

Id. at

so long as

M7DA

(citatio)*($//

173

173 (citation

omitted).

"A factual finding is not clearly erroneous so

it is Bplausible

' plausible in light of

of the

the record as a whole.CEId.

whole." Id. (citation omitted).

omitted).

DAbsent

"Absent other evidence, the mere presence of

of aa minor at the scene of

F.3d

624 F.3d

Mata, 624

app'$/$*)*!\gʪe7h7E

aa crime is insufficient to support the application

of § 3B1.4." Mata,

-6Dthe

L' ) 0+M7/#

176 (5th Cir. 2010) (cleaned

at 176

up). Rather,

"the defendant must take some

some

*2 1 -6DN2Ohen

offense7EId.

affirmative action to involve the minor in the offense."

Id. However,

" [w]hen

leaves

she leaves

example, she

plannedAwhen, for example,

previously planned—when,

crime is previously

defendantCs crime

aa defendant's

act of

. . tAthe

drugs .—

smuggle drugs

to smuggle

way to

her way

on her

is on

she is

knowing she

house knowing

the house

h e act

affirmative

bringing the child along instead of leaving the child behind is an affirmative

./$).

/'least

act that involves the minor in the offense,E

offense," at

in cases.Dwhere

"where additional

additional

the

brought the

defendant brought

the defendant

that the

confirm that

to confirm

tends to

evidence tends

circumstantial evidence

Accordingly,

at 176-77. Accordingly,

detection7EId.

avoid detection."

as aa decoy and to avoid

minor along as

Id. at

the

during the

along during

minor along

bring aa minor

to bring

decision to

makes aa decision

"a defendant

who makes

defendant who

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commission of a previously planned crime as

as aa diversionary

diversionary tactic or in an

effort to reduce suspicion is subject to having her sentence enhanced under

under

§§3B1.4."

3B1.4.EId.

Id. at 175.

175.

When Melissa

Melissa Lara

Lara was

was apprehended

apprehended at the border

border driving aa truck

containing methamphetamine,

methamphetamine, aa child

child was

was in

in the

the car.

car. At

At sentencing,

sentencing, the

the

district court rejected Melissa LaraCs

Lara's argument that she had brought the child

child

with her to Mexico so that the child could visit his father, finding instead that

that

'$..Lara

-had

#used

0. /#

#$'.

Dcover

*1 -./*-47E

A variety

variety of evidence

Melissa

thechild

as "a

story." A

evidence

supported this

this finding:

finding: the

the child

child had

had been

been sitting

sitting i in

the backseat,

backseat,

n the

unrestrained by a car seat or seat belt; Flores had told Mary Ann Lara to tell

border agents that she and Melissa Lara had come to Mexico so that the child

child

could see his dad; the government had stated at sentencing that Melissa Lara

Lara

and Mary

Mary Ann

Ann Lara

Lara told

told border

border agents

agents that

that they

they had

had taken

taken the

the child

child to

Mexico to see

see his

his father, and

and neither Lara objected

objected to this statement;

statement; and

and

Huerta had

had testified

testified that

that drug

drug traffickers

traffickers commonly

commo)'4"bring

D-$)"kids

&$.to

Agent Huerta

$./-//#

/$*)O*!!$

-7E Because

Because the district

distract theN0./*(.)ʪ*-

[Customs and Border--*/

Protection]

officer."

courtCs

finding is

is plausible

plausible based

based on

on this

this record,

record, its

its finding

finding is

is not

not clearly

clearly

court's finding

erroneous. Additionally,

Additionally, because

because Mary

Mary Ann

Ann Lara

Lara and

and Flores

Flores planned

planned the

the

truckCs

crossing the previous

previous day,

day, the

the district court could have

have reasonably

reasonably

truck's crossing

inferred that Melissa LaraCs

See United

Lara' s crime was previously planned. See

United States

States

)/ )$)"

2).Caldwell, 448 F.3d 287, 292 (5th Cir. 2006) (explaining that a D.

" sentencing

court is permitted to make common-sense inferences from the circumstantial

circumstantial

1$ ) E).

evidence").

By thus using a

a child as a diversionary tactic during the commission of

aa previously planned crime, Melissa Lara committed an affirmative act that

involved the child in drug trafficking. Accordingly,

Accordingly, the

the district court did not

err by

by applying

applying the

the § 3B1.4 enhancement

enhancement to

to Melissa

Melissa Lara's

LaraCs sentence.

sentence. See

See

Mata, 624 F.3d at 175.

175.

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IV.

Iv.

Mary Ann Lara was sentenced to 288 months in prison, a downward

downward

She

months to life imprisonment. She

variance from her guidelines range of

of 360 months

argues that her prison sentence was substantively unreasonable. Specifically,

Specifically,

evolved

has evolved

Guideline has

methamphetamine Guideline

the methamphetamine

because the

that because

contends that

she

she contends

Sentencing

the Sentencing

through the

than through

rather than

mandates rather

congressional mandates

through congressional

CommissionCs

Commission's examination of empirical data, national expertise, and expert

expert

ranges

guidelines ranges

opinion, the Guideline lacks an empirical basis, results in guidelines

and

necessary to determine the appropriate sentence, and

that are greater than necessary

produces overly severe sentences.

sentences.

"0$ '$) .

'0'/ guidelines

/# calculated

'*2 the

*-below

2$/#$) or

. )/ ) . within

+- .0( sentences

"Wepresume

557 (5th Cir.

796 F.3d 548, 557

Simpson, 796

v. Simpson,

United States

.*)' 7E United

-)"

rangeare-reasonable."

States2).

the

which the

in which

United States, in

v. United

Kimbrough 2).

on Kimbrough

relies on

Lara relies

Ann Lara

Mary Ann

2015). Mary

discretion by

its discretion

abuse its

not abuse

did not

court did

district court

that aa district

held that

Court held

Supreme Court

concluding that the disparity between guidelines ranges for crack and powder

powder

crack

the crack

that the

given that

sentence, given

excessive sentence,

an excessive

in an

resulted in

offenses resulted

cocaine offenses

ordinary

CommissionCs ordinary

Sentencing Commission's

the Sentencing

reflect the

not reflect

did not

Guideline did

cocaine Guideline

552 U.S.

U.S.

methods of relying on empirical evidence and national experience. 552

disturb

does not disturb

Kimbrough does

we have held that Kimbrough

However, we

109-10 (2007). However,

85, 109-10

not

is not

Guideline is

relevant Guideline

the relevant

even iiff the

presumption, even

reasonableness presumption,

the reasonableness

Mondragon-Santiago, we

v. Mondragon-Santiago,

States 2).

empirically based. For example, in United States

'$) Dis

)/-40$

)//#//#

the-"0(

argument

that the0)'2!0'

unlawful entry

Guideline

"is not empiricallyempirically% / /#

-rejected

presumption of

appellate presumption

the appellate

afforded the

be afforded

not be

should not

therefore should

and therefore

based, and

Ddistrict courts, in

3+'$)$)"/#/2#$'

reasonableness6E

reasonableness," explaining

that whileKimbrough

Kimbrough allows "district

Guidelines,

the Guidelines,

behind the

decisions behind

policy decisions

the policy

consider the

to consider

discretion, to

their discretion,

3553(a)

as part of

including the presence or absence of empirical data, as

of their

their § 3553(a)

presumption [of

the presumption

discarding the

require discarding

not require

Ddoes not

decision "does

the decision

analyses6E

analyses," the

based o on

sentences based

reasonableness] f ofor

r sentences

n n non-empirically-grounded

o n -empirically-grounded

366 (5th Cir. 2009). Similarly, in United States v.

Guidelines.E564

Guidelines."

564 F.3d 357, 366

2).

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that

we held that

case involving the unlawful entry Guideline, we

another case

Duarte, another

piece-by-piece

DKimbrough

"Kimbrough does not force district or appellate courts into a piece-by-piece

sentencing

of the sentencing

part of

each part

behind each

grounding behind

empirical grounding

of the empirical

analysis of

569 F.3d 528, 530 (5th Cir. 2009). Rather, Dthe

guidelines.E

guidelines." 569

" the thrust of

of recent

recent

entrustment of

been to affirm the traditional entrustment

has been

Supreme Court decisions has

sentencing to the discretion of

of district

district courts, close to the ground and more

cognizant of

of the details of

of offender

offender and offense that should be determinative

determinative

of sentence7EId.

sentence." Id. at 530-31.

530-31.

entry

unlawful entry

the unlawful

involved the

Duarte involved

and Duarte

Mondragon-Santiago and

Both Mondragon-Santiago

and

reasoning of Mondragon-Santiago and

no part of the reasoning

However, no

Guideline. However,

Lara

Ann Lara

Mary Ann

as Mary

Indeed, as

Guideline. Indeed,

that Guideline.

specific tto

was specific

Duarte was

o that

these

that these

opinions that

unpublished opinions

in unpublished

concluded in

have concluded

we have

acknowledges, we

reasonableness of the

substantive reasonableness

the substantive

to the

challenges to

control challenges

also control

decisions also

the

734 F.

Labrador, 734

v. Labrador,

States 2).

United States

e.g., United

See, e.g.,

Guideline. See,

methamphetamine Guideline.

Mondragon(concluding that Mondragon(unpublished) (concluding

2018) (unpublished)

271 (5th Cir. 2018)

AppCx 270, 271

App'x

sentence is

)//#/Dwithin-guidelines

D!*- '*. N.OE/#

Santiago "foreclose[s]"

the-"0(

argument

that a "within-guidelines sentence

because the methamphetamine Guideline is not

unreasonable because

substantively unreasonable

United States v.

(citing 564 F.3d at 366-67)); United

evidenceE (citing

based on empirical evidence"

2).

MLD-*3/*)Cs

gfk6gflLi/#$-7fdekML0)+0'$.#

AppCx 327,

693 F. App'x

Croxton, 693

328 (5th Cir. 2017) (unpublished)

("Croxton's

the

account the

into account

taken into

have taken

should have

court should

district court

the district

that the

contention that

L$/$)"

!*- '*. 7E(citing

$.foreclosed."

0$ '$) is

( /#(+# /($) Guideline

!*-/#

.$.for

(+$-$'basis

empirical

themethamphetamine

Duarte, 569 F.3d at 530-31)). Accordingly, we hold that Mondragon-Santiago

Mondragon-Santiago

the

because the

that because

argument that

LaraCs argument

Ann Lara's

Mary Ann

foreclose Mary

Duarte foreclose

and Duarte

below-guidelines

methamphetamine Guideline is not empirically-based, her below-guidelines

sentence was substantively unreasonable.

unreasonable.

district

the judgment of the district

AFFIRM the

For the foregoing reasons, we AFFIRM

court.

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CassEC2Ceal1132cr-OGRE01011911t129.5~9213B

Zintteb Iltatel

nppeall

United

States (Court

Court of Appeals

for the Ifitth

Fifth Circuit

Circuit

United States Court of Appeals

Appeals

Fifth Circuit

FILED

___________

January 11, 2022

2022

No. 20-50112

20-50112

___________

Lyle W. Cayce

Cayce

Clerk

United

States OF

of AMERICA,

America,

UNITED STATES

Plaintiff@Appellee,

Plaintiff—Appellee,

versus

Melissa

Janet [ARA,

Lara,

MELISSA JANET

Defendant@Appellant.

Defendant—Appellant.

____________________________

Appeal from the United States District Court

Court

for the Western District of

of Texas

Texas

USDC No. 2:18-CR-859-1

2:18-CR-859-1

____________________________

Before King,

Higginson, and

and WILSON,

Wilson, Circuit

Circuit Judges.

KING, HIGGINSON,

Judges.

N TT

JU DG M

This causewas considered on the record on appeal and was argued by

counsel.

IS ORDERED

ORDERED and

and ADJUDGED

ADJUDGED that

that the

the judgment

judgment of

of the

the

IT IS

District Court is AFFIRMED.

APPENDIX B

Pagelimo

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Case 2:18-cr-00859-AM

2:18-cr-00859-AM Document

Document 198 FFiled

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

UNITED STATES OF AMERICA

FEB 03, 9»69-0

CLERKU.S.DISTRI L E R K

WESTERNDIST T E X A S

DEPUTY

Number: DR:18-CR-00859(2)-AM

USM Number: 05427-480

(2) MARY ANN LARA

Defendant

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

The defendant, (2) MARY ANN LARA, was represented by Alberto M. Ramon.

On motion of the United States, the Court has dismissed the Original Indictment and acquitted of Count Five

of the Superseding Indictment by a Jury.

The defendant was found guilty on Count(s) One, Two, Three, and Four of the Superseding Indictment by a

jury verdict on July 17, 2019. Accordingly, the defendant is adjudged guilty o f such Count, involving the following

offense:

Title & Section

N a t u r e

Offense Ended

of Offense

21 U.S.C. § 846

Conspiracy to Possess with Intent to Distribute

More Than 500 Grams of Methamphetamine

Between on or about April O n e

11, 2018 and on or about

April 18, 2018

21 U.S.C. § 841

Possession with Intent to Distribute More

Than 500 Grams of Methamphetamine

Between on or about April T w o

11, 2018 and on or about

April 18, 2018

21 U.S.C. § 963

Conspiracy to Import More Than 500 Grams

of Methamphetamine

On or about April 11, 2018 T h r e e

21 U.S.C. § 960

Importation of More Than 500 Grams of

Methamphetamine

Between on or about April F o u r

11, 2018 and on or about

April 18, 2018

As pronounced on January 28, 2020, the defendant is sentenced as provided in pages 2 through 7 o f this

Judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.

It is further ordered that the defendant shall notify the United States Attorney for this district within 30 days

of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by

this Judgment are fully paid. I f ordered to pay restitution, the defendant shall notify the Court and United States Attorney

of any material change in the defendant's economic circumstances.

Signed this 3rd day of February, 2020.

Arresting Agency: HSI - Eagle Pass

ALIA MOSES

UNITED STATES DISTRICT JUDGE

AO245B (Rev. TXW 1Case

9 9 6 52:18-cr-00859-AM

9 Z 11 9 11 W I l l a r l d

DEFENDANT:

( 2 )

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MARY ANN LARA

CASE NUMBER: D R : I 8-CR-00859(2)-AM

IMPRISONMENT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a

term of 288 months on each of counts One, Two, Three, and Four to run concurrently with each other, with credit for

time served since April 11, 2018, pursuant to 18 U.S.C. 3584(a).

The Court makes the following recommendation to the Bureau of Prisons:

That the defendant serve this sentence at F. C. I. Bryan, if possible.

The defendant shall remain in custody pending service of sentence.

RETURN

I have executed this Judgment as follows:

Defendant delivered on

at ,

with a certified copy of this Judgment

United States Marshal

By:

Deputy Marshal

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AO245B (Rev. D M 11/16) Judgment in a Criminal Case

P a g e 3 (17

DEFENDANT: ( 2 ) MARY ANN LARA

CASE NUMBER: DR:18-CR-00859(2)-AM

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term o f Five (5) years on

each of counts One, Two, Three, and Four to run concurrently with each other.

While on supervised release, the defendant shall comply with the mandatory, standard and i f applicable, the

special and/or additional conditions on the attached pages that have been adopted by this Court.

X T h e defendant shall reside in a residential reentry center for a term of six (6) months. The defendant shall follow

the rules and regulations of the center. Further, once employed the defendant shall pay 25% of his/her weekly

gross as long as it does not exceed the contract rate.

X T h e defendant shall participate in a mental health treatment program and follow the rules and regulations of that

program. The probation officer, in consultation with the treatment provider, shall supervise participation in the

program (provider, location, modality, duration, intensity, etc.). The defendant shall pay the costs of such

treatment if financially able.

X T h e defendant shall take all mental health medications that are prescribed by the treating physician, as

prescribed.

X T h e defendant will attend and participate in a General Equivalency Diploma Program while incarcerated or under

Supervised Release.

02/03/20

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AO245B (Rev. TXW 1Case

P 1 - 5 9 22:18-cr-00859-AM

- O r k g " 11 4 5 1 9 FA t i l d DDocument

o c u m e n t 198

1 9 8 F Filed

iled 0

2 / 0 3 / 2 0 PPage

age 4

DEFENDANT: ( 2 ) MARY ANN LARA

CASE NUMBER: D R : I 8-CR-00859(2)-AM

MANDATORY CONDITIONS

1. T h e defendant shall not commit another federal, state or local crime during the term of supervision.

2. T h e defendant shall not unlawfully possess a controlled substance.

3. T h e defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug

test within 15 days of release on probation or supervised release and at least two periodic drug tests thereafter (as

determined by the court), but the condition stated in this paragraph may be ameliorated or suspended by the court if

the defendant's presentence report or other reliable sentencing information indicates low risk of future substance

abuse by the defendant.

4. T h e defendant shall cooperate hi the collection of DNA as instructed by the probation officer, i f the collection of

such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C.

§ 14135a).

5. I f applicable, the defendant shall comply with the requirements of the Sex Offender Registration and Notification

Act (34 U.S.C. § 20901, et. seq.) as instructed by the probation officer, the Bureau o f Prisons, or any state sex

offender registration agency in which the defendant resides, works, is a student, or was convicted of a qualifying

offense.

6. I f convicted of a domestic violence crime as defined in 18 U.S.C. § 3561(b), the defendant shall participate in an

approved program for domestic violence.

7. I f this judgment imposes a fine or restitution, it is a condition of supervision that the defendant pay in accordance

with the Schedule of Payments sheet of this judgment.

8. T h e defendant shall pay the assessment imposed in accordance with 18

3013.

9. T h e defendant shall notify the court of any material change in defendant's economic circumstances that might affect

the defendant's ability to pay restitution, fines, or special assessments.

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2:18-cr-00859-AM Document

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AO245B (Rev. D M 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment Page 5 of 7

(2) MARY ANN LARA

DR:18-CR-00859(2)-AM

STANDARD CONDITIONS OF SUPERVISED RELEASE

1. T h e defendant shall report to the probation office in the federal judicial district where he or she is authorized to reside within 72

hours o f release from imprisonment, unless the Court or probation officer instructs the defendant to report to a different

probation office or within a different time frame. The defendant shall not leave the judiial district without permission o f the

court or probation officer.

2. A f t e r initially reporting to the probation office, the defendant will receive instructions from the court or the probation officer

about how and when to report to the probation officer, and the defendant shall report to the probation officer as instructed. The

defendant shall report to the probation officer in a manner and frequency directed by the court or probation Officer.

3. T h e defendant shall not knowingly leave the federal judicial district where he or she is authorized to reside without first getting

permission from the court.

4. T h e defendant shall answer truthfully the questions asked by the probation officer.

5. T h e defendant shall live at a place approved by the probation officer. I f the defendant plans to change where he or she lives or

anything about his or her living arrangements (such as the people the defendant lives with), the defendant shall notify the

probation officer at least 10 days before the change. I f notifying the probation officer in advance is not possible due to

unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or

expected change.

6. T h e defendant shall allow the probation officer to visit the defendant at any time at his or her home or elsewhere, and the

defendant shall permit the probation officer to take any items prohibited by the conditions of the defendant's supervision that

are observed in plain view.

7. T h e defendant shall work full time (at least 30 hours per week) at a lawful type o f employment, unless the probation officer

excuses the defendant from doing so. I f the defendant does not have full-time employment, he or she shall try to find full-time

employment, unless excused from doing so. I f the defendant plans to change where the defendant works or anything about his

or her work (such as the position or job responsibilities), the defendant shall notify the probation officer at least 10 days before

the change. I f notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, the

defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change.

8. T h e defendant shall not communicate or interact with someone the defendant knows is engaged in criminal activity. I f the

defendant knows someone has been convicted of a felony, the defendant shall not knowingly communicate or interact with that

person without first getting the permission of the Court.

9. I f the defendant is arrested or questioned by a law enforcement officer, the defendant shall notify the probation officer within 72

hours.

10. T h e defendant shall not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e.,

anything that was designed, or was modified, for the specific purpose of causing bodily injury or death to another person such as

nunchakus or tasers).

11. T h e defendant shall not act or make any agreement with a law enforcement agency to act as a confidential human source or

informant without first getting the permission of the court.

12. I f the probation officer determines that the defendant poses a risk to another person (including an organization), the Court may

require the defendant to notify the person about the risk and the defendant shall comply with that instruction. T h e probation

officer may contact the person and confirm that the defendant has notified the person about the risk.

13. T h e defendant shall follow the instructions of the probation officer related to the conditions of supervision.

14. I f the judgment imposes other criminal monetary penalties, it is a condition of supervision that the defendant pay such penalties

in accordance with the Schedule of Payments sheet of the judgment.

15. I f the judgment imposes a fine, special assessment, restitution, or other criminal monetary penalties, it is the condition o f

supervision that the defendant shall provide the probation officer access to any requested financial information.

16. I f the judgment imposes a fine, special asses§ment, restitution, or other criminal monetary penalties, i t is a condition o f

supervision that the defendant shall not incur any new credit charges or open additional lines of credit without the approval of

the probation officer, unless the defendant is in compliance with the payment schedule.

17. I f the defendant is exluded, deported, or removed upon release on probation or supervised release. the term of supervision shall

be a non-reporting term o f probation or supervised release. The defendant shall not illegally re-enter the United States. I f the

defendant is released from confinement or not deported, or lawfully re-enters the United States during the term of probation or

supervised release, the defendant shall immediately report in person to the nearest U.S. Probation Office, or as ordered by the

Court.

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A024.5B (Rev. TXW 11/16) Judgment in a Criminal Case

DEFENDANT: ( 2 ) MARY ANN LARA

CASE NUMBER: DR:18-CR-00859(2)-AM

CRIMINAL MONETARY PENALTIES I SCHEDULE

The defendant shall pay the following total criminal monetary penalties in accordance with the schedule of

payments set forth. Unless the Court has expressly ordered otherwise, i f this judgment imposes imprisonment, payment

of criminal monetary penalties is due during the period o f imprisonment. Criminal Monetary Penalties, except those

payments made through Federal Bureau of Prisons' Inmate Financial Responsibility Program shall be paid through the

Clerk, United States District Court, 111 E. Broadway Ste. MO, Del Rio, Texas 78840.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties

imposed.

TOTAL:

Assessment F i n e

$400.00 $ 6 , 0 0 0 . 0 0

Restitution A V A A Assessment * „ T W A Assessment**

$0.00 $ 0 . 0 0

$ 0 . 0 0

Special Assessment

It is ordered that the defendant shall pay to the United States a special assessment of $400.00. The debt is

incurred immediately.

Fine

The defendant shall pay a fine of $6,000.00. The Court finds the defendant has the present and future ability

to pay a reduced fine. This is the total of the fines imposed on individual counts, as follows. $1,500.00 on count 1,

$1,500.00 on count 2, $1,500.00 on count 3, and $1,500.00 on count 4.

Schedule of Payments

Payment shall be made at the rate of no less than $130.00 per month, due by the third day of each month

beginning no earlier than 60 days after release from imprisonment. The Court imposed payment schedule shall not

prevent statutorily authorized collection efforts by the U.S. Attorney. The defendant shall cooperate fully with the U.S.

Attorney and the U.S. Probation Office to make payment in full as soon as possible.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage

payment column above. However, pursuant to 18 U.S.C. § 3664(i), all non-federal victims must be paid before the United States is paid.

['the fine is not paid, the court may sentence the defendant to any sentence which might have been originally imposed. See 18 U.S.C. §3614.

The defendant shall pay interest on any fine or restitution of more than $2,500.00, unless the fine or restitution is paid in full before the fifteenth day after the date of the

judgment, pursuant to 18 U.S.C. §3612(f). All payment options may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. §3612(g).

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA assessment, (5) fine principal, (6) fine interest,

(7) community restitution, (8) JVTA Assessment, (9) penalties, and (10) costs, including cost of prosecution and court costs.

Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but

before April 23, 1996.

* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299

** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22

Case 2:18-cr-00859-AM DDocument

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DEFENDANT: ( 2 ) MARY ANN LARA

CASE NUMBER: D R : ! 8-CR-00859(2)-AM

DENIAL OF FEDERAL BENEFITS

(For Offenses Committed On or After November 18, 1988)

FOR DRUG TRAFFICKERS PURSUANT TO 21 U.S.C. § 862a

IT IS ORDERED that the defendant shall be ineligible for all federal benefits for a period of Five (5) years

ending January 28, 2025.

The Clerk is responsible for sending a copy of this page and the first page of this judgment to: U.S. Department of Justice,

Office of Justice Programs, Washington, DC 20531

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.