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United States v. Hernandez, 00-50064 (2000)

Court: Court of Appeals for the Fifth Circuit Number: 00-50064 Visitors: 15
Filed: Jul. 26, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-50064 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FELICIANA HERNANDEZ, Defendant-Appellant. - Appeals from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1051-2-DB - July 24, 2000 Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges. PER CURIAM:* Feliciana Hernandez appeals the jury verdict finding her guilty of (1) conspiracy to import marijuana; (2) importation
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 00-50064
                           Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

FELICIANA HERNANDEZ,

                                          Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                   USDC No. EP-99-CR-1051-2-DB
                       --------------------
                           July 24, 2000

Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

     Feliciana Hernandez appeals the jury verdict finding her

guilty of (1) conspiracy to import marijuana; (2) importation of

marijuana; (3) conspiracy to possess marijuana with intent to

distribute; and (4) possession of marijuana with intent to

distribute, in violation of 21 U.S.C. §§ 841(a), 846, 952, 963.

We affirm.

     Hernandez failed to renew her motion for judgment of

acquittal at the close of all the evidence, or within seven days

of the jury’s discharge.    FED. R. CRIM. P. 29(a), (c).   Therefore,

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 00-50064
                                 -2-

our review is limited to the “manifest miscarriage of justice”

standard, under which we determine whether the record is so

devoid of evidence of guilt or the evidence is so tenuous on an

essential element as to render the verdict shocking.    See United

States v. Galvan, 
949 F.2d 777
, 783 (5th Cir. 1991).

     We do not infer lightly a defendant’s knowing participation

in a drug conspiracy.    See United States v. Dean, 
59 F.3d 1479
,

1485 (5th Cir. 1995).   In addition, the marijuana was hidden in

the vehicle, and Hernandez was a passenger and did not exercise

control over the vehicle.   Thus additional evidence of guilt is

required.    See United States v. Reyna, 
148 F.3d 540
, 544 (5th

Cir. 1998); United States v. Moreno-Hinojosa, 
804 F.2d 845
, 847

(5th Cir. 1986).    However, Hernandez’ demeanor during her post-

arrest interview and her implausible story to the Customs agents

that she was going to purchase materials despite having no

currency or wallet with her, support an inference of guilty

knowledge.

     Further, Adame’s testimony demonstrated that Hernandez was

familiar with the drug suppliers who paid her to accompany Adame,

and that she had made similar trips before.   Although Adame

admittedly hoped to receive leniency in sentencing as a result of

his testimony, and although his testimony does contain some

inconsistencies, these facts do not render his testimony as a

whole incredible.    See United States v. Westbrook, 
119 F.3d 1176
,

1190 (5th Cir. 1997).   When viewed through the prism of the

manifest miscarriage of justice standard, we cannot say that the

evidence is insufficient to support the jury’s verdict.
                             No. 00-50064
                                  -3-

     We also reject Hernandez’ claim that the district court

erred in admitting Adame’s plea agreement and in failing to give

a cautionary instruction.     Hernandez failed to object, and her

counsel concurred in the admission of the plea agreement,

limiting review to either the plain error standard or the invited

error doctrine.     See United States v. Lemaire, 
712 F.2d 944
, 948-

49 (5th Cir. 1983); United States v. Mattoni, 
698 F.2d 691
, 694-

95 (5th Cir. 1983).    Hernandez’ conclusional allegation that the

admission of the agreement prejudiced her is unsupported, and we

note that the government did not attempt to use the agreement as

substantive evidence of Hernandez’ guilt.     Further, Hernandez

herself was able to use the agreement to attack Hernandez’

credibility.     The admission does not rise to the level of plain

error, much less require reversal under the more stringent

invited error doctrine.     See 
Mattoni, 698 F.2d at 694-95
; United

States v. Gray, 
626 F.2d 494
, 501 n.2 (5th Cir. 1980).

     As for Hernandez’ contention that a limiting instruction

should have been given at the time the agreement was introduced,

Hernandez requested no such instruction, limiting our review

again to plain error.     See United States v. Waldrip, 
981 F.2d 799
, 805 (5th Cir. 1993).     The district court charged the jury in

its general instructions that the plea agreement could not be

considered as evidence of Hernandez’ guilt, and the government

made no attempt to use the plea agreement to demonstrate that

Hernandez was guilty.     The district court did not plainly err.

See 
id. AFFIRMED. No.
00-50064
     -4-

Source:  CourtListener

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