United States v. Garcia-Perez

United States Court of Appeals
for the Fifth Circuit

No. 19-40659

United States of America,

Plaintiff—Appellee,

versus

Arturo Javier Garcia-Perez,

Defendant—Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:19-CR-123-1

Before Jones, Haynes, and Ho, Circuit Judges.
Per Curiam:*
Arturo Garcia-Perez argues that his convictions for transporting an
illegal alien within the United States and conspiring to do the same should be
reversed for two reasons. First, he claims that the verdicts rest on insufficient
evidence. Second, he claims that his right to due process was violated under
Doyle v. Ohio, 426 U.S. 610, 618 (1976)—that there was a “fundamentally

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 27, 2020

Lyle W. Cayce
Clerk
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unfair” use of his “silence” notwithstanding the Miranda warning’s
“express assurance” that silence “will carry no penalty.” For the reasons
below, we affirm.
I.
A.
In January 2019 Luis Romero-Mendez was asked if he could pick up
“an illegal” in McAllen, Texas. Once Luis was told that the alien’s family
would pay, Luis and his cousin Regulo made their way over to the home of
Garcia-Perez. Luis asked Garcia-Perez if he wanted to get paid to go pick up
“an illegal.” When Luis said he wasn’t sure how much they’d be paid,
Garcia-Perez responded, “Okay. That’s fine.” Garcia-Perez then drove
Luis and Regulo from Houston to McAllen in his Chevy Silverado—a
distance of about 350 miles.
Once in McAllen, the trio pulled into a gas station, where an alien—
Eduin Garcia-Padilla—was waiting. Luis confirmed that Eduin was the
designated pickup, Eduin got in the truck, and the four started back for
Houston.
When they reached a checkpoint, Luis told Garcia-Perez to stop.
Luis, Regulo, and Eduin then jumped out of the vehicle and spent the next
40 minutes moving through the brush to get around the checkpoint. It was
1:13 a.m. when Garcia-Perez drove through the checkpoint alone. Luis,
Regulo, and Eduin rejoined Garcia-Perez in his truck once they had made it
around.
Around 3:30 a.m., the four passed a police officer on the highway
outside Robstown, Texas. In part because Garcia-Perez had quickly slowed
the truck to around 55 mph (the speed limit was 75 mph), the officer stopped
the party for two traffic violations. Garcia-Perez provided the officer his
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driver’s license, but simply looked to Luis when the officer asked where
Garcia-Perez was coming from and where he was going. The officer then
asked the passengers for identification. Realizing that Eduin had only
“papers from Honduras” and noticing some muddy shoes beneath the front
seats, the officer began to suspect that Eduin was “possibly here illegally.”
Garcia-Perez initially claimed that Eduin was a stranger he had picked
up at a fast-food restaurant in a nearby town. But the police officer knew that
there were no such restaurants in that town. Garcia-Perez then claimed that
Eduin was a cousin of his that they had come down from Houston to pick
up—but he did not know his cousin’s name. Garcia-Perez further insisted
that he was not being paid to transport Eduin. The police officer eventually
called Border Patrol because he felt that he was dealing with “four people
with four different stories.”
The border patrol officer interviewed the four men and arrested
Garcia-Perez for alien smuggling. He then took the group to the border patrol
station, where they were each read their rights. Garcia-Perez signed a form
indicating that he understood his rights but also said that he was willing to
make statements and answer questions. After reaffirming the wavier that he
had signed, Garcia-Perez told a second border patrol officer that he was from
Houston, that he was coming from McAllen, and that he, Luis, and Regulo
had come to pick up Eduin. Garcia-Perez also confirmed that his companions
had walked around the checkpoint while he drove through alone.
Garcia-Perez then began recording a video statement. However, he soon said
that he “[did]n’t want to talk anymore” and the officer ended the interview.
Garcia-Perez was subsequently indicted on one count of conspiracy to
transport an illegal alien within the United States and one count of
transporting an illegal alien within the United States. He pleaded not guilty
and proceeded to trial.
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B.
At trial the government sought to introduce the videotaped statement.
Defense counsel objected, arguing that the video “would be cumulative and
. . . prejudicial in the sense that it’s attracting attention towards
[Garcia-Perez’s] right to remain silent.” Counsel suggested that playing the
video “would be the same thing as having [Garcia-Perez] take the stand . . .
in front of the jury[,] say[], ‘I invoke my right to remain silent,’ and then
step[] down.” The government countered that the video showed
Garcia-Perez being Mirandized and that including Garcia-Perez’s last
statement was necessary for the jury to understand why the interview had
ended. Defense counsel then clarified that he was not objecting to the border
patrol officer testifying about the interview or Garcia-Perez’s invocation of
his right to remain silent, but rather “to the video being played for the jury.”
The district court overruled the objection and preadmitted the video exhibit.
During his opening statement, the prosecutor briefly mentioned that
Garcia-Perez was “given the opportunity to make a video statement. He did
so and under questioning he eventually asked that he no longer answer any
questions. You’ll get to see that video by the way.”
Defense counsel did not object to the prosecutor’s statement. During
a recess, however, counsel again objected to the upcoming video
presentation—this time expressly arguing that the video would be “some
implicit comment on [Garcia-Perez’s] invoking his right to remain silent.”
Defense counsel also presented Doyle case law. After some discussion, the
government withdrew the exhibit on its own motion. Defense counsel made
no further objections.
At the close of the government’s case, Garcia-Perez made two failed
motions for acquittal but presented no evidence. The court then instructed
the jury that it “must consider only the evidence presented during the trial”
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and that lawyers’ “questions, statements, . . . and arguments” are “not
evidence.” The court also told the jury it should not convict based solely on
the “unsupported testimony of an alleged accomplice unless [it] believe[d]
that testimony beyond a reasonable doubt” and that “[t]he fact that an
accomplice has entered a plea of guilty to the offense charged is not evidence
of the guilt of any other person.”
During its deliberations, the jury requested “to see the statement from
the Defendant taken at the . . . Border Patrol Station.” The court said that it
would tell the jury to “Please just consider the evidence that was presented,”
to which defense counsel responded: “That’s fine, Your Honor, yes.” The
court then said, “Right?” and defense counsel confirmed his approval:
“That’s perfect.”
The jury found Garcia-Perez guilty on both counts. Garcia-Perez
appealed.
II.
On appeal, Garcia-Perez argues that (A) the jury’s verdicts were based
on insufficient evidence and (B) that the actions of the district court and
prosecutor amounted to a reversible-error Doyle violation.
A.
Garcia-Perez preserved his insufficient-evidence challenges by
moving for acquittal under rule 29 of the Federal Rules of Criminal
Procedure. United States v. Scott, 892 F.3d 791, 796 (5th Cir. 2018). We
review such preserved claims de novo. Id. In so doing, “we view all evidence,
whether circumstantial or direct, in the light most favorable to the
government, with all reasonable inferences and credibility choices to be made
in support of the jury’s verdict.” Id. (quotations omitted). We will affirm a
verdict if “any rational trier of fact could have found the essential elements
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of the crime beyond a reasonable doubt.” Id. at 797. “Our inquiry is limited
to whether the jury’s verdict was reasonable, not whether we believe it to be
correct.” Id. (quotations omitted).
Garcia-Perez claims that the circumstantial evidence was lacking and
that the only direct evidence came from Luis, who “orchestrated the entire
affair” and presented “incredible” testimony. Specifically, Garcia-Perez
disputes that a jury could have found that (1) there was an agreement;
(2) Garcia-Perez acted with knowledge or in reckless disregard of the fact that
the alien’s presence in the United States was illegal; or (3) Garcia-Perez
acted in furtherance of the alien’s unlawful presence.
We find that there is more than enough evidence to uphold the jury’s
verdicts. To summarize, the evidence showed that Garcia-Perez agreed to
and in fact embarked on a 700-mile roundtrip drive in the middle of the night
to pick up a total stranger in McAllen, Texas. Once Garcia-Perez and his
passengers stopped at the border patrol checkpoint, the stranger exited the
vehicle with Garcia-Perez’s friends to spend over half an hour struggling
through the brush on the side of the road. And when Garcia-Perez was
stopped by the police officer, he initially failed to answer basic questions and
then gave inconsistent and inaccurate explanations about his connection to
the alien and what he was doing.
To be sure, much of this evidence was derived from the testimony of
a cooperating, formerly convicted co-conspirator. But “[t]he jury retains the
sole authority to . . . evaluate the credibility of witnesses.” Id. (quotations
omitted). In any event, “[a] conviction, especially one accompanied by an
accomplice instruction, may be sustained on the uncorroborated testimony
of an accomplice so long as the testimony is not incredible or otherwise
insubstantial on its face.” Id. (quotations omitted). And “[t]estimony is
incredible as a matter of law only if it relates to facts that the witness could
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not possibly have observed or to events which could not have occurred under
the laws of nature.” Id. Similarly, Luis’s testimony was not rendered
incredible by the fact that he had a “motive to testify against [Garcia-Perez]
for the possibility of a reduced sentence” because the jury was “adequately
informed” on this point. United States v. Bowen, 818 F.3d 179, 186 (5th Cir.
2016).
B.
1.
While Garcia-Perez preserved his insufficient-evidence claims,
Garcia-Perez did not preserve his Doyle objection to either the district court’s
decision to preadmit the video or the prosecutor’s reference to
Garcia-Perez’s statement in the video.
In fact, on appeal Garcia-Perez at times challenges the district court’s
evidentiary ruling as an abuse of discretion, seemingly acknowledging that he
initially opposed the video on rule 403 grounds—not Doyle grounds. In any
event, it is undisputed that Garcia-Perez failed to object to (a) the
prosecutor’s opening statement;
1
(b) the jury instructions; and (c) the
district court’s response to the jury’s request for the video statement. In fact,
Garcia-Perez called the district court’s actions on this last point “perfect.”
What’s more, Garcia-Perez’s brief combines his analysis of the district
court’s initial evidentiary ruling with his analysis of the prosecutor’s

1
We recognize that under rule 103(b) of the Federal Rules of Evidence, “[o]nce
the court rules definitively on the record—either before or at trial—a party need not renew
an objection or offer of proof to preserve a claim of error for appeal.” But as noted above,
Garcia-Perez did not make a specific Doyle objection until the recess. It is therefore
significant that even once Garcia-Perez invoked Doyle and the court began to reconsider its
earlier evidentiary ruling, Garcia-Perez did not raise any concerns about the prosecutor’s
opening statement.
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comment, arguing that the actions together “released” “the proverbial
skunk . . . into the jury box.” Accordingly, we review the district court’s
initial evidentiary ruling and the prosecutor’s comment as a single,
unpreserved alleged Doyle violation.
2

2.
Because Garcia-Perez’s Doyle challenge is unpreserved, we review for
plain error. United States v. Andaverde-Tiñoco, 741 F.3d 509, 518 (5th Cir.
2013). Thus, Garcia-Perez “must show: (1) error; (2) that is plain; (3) that
affects substantial rights; and (4) that warrants discretionary review by this
court because the harm so severely affects the fairness of the proceedings.”
United States v. Broussard, 882 F.3d 104, 111 (5th Cir. 2018).
We decline to conduct a full plain-error analysis because any alleged
Doyle error in this case was far from “plain.” After all, “to determine
whether [a] prosecutor’s comments violate[] Doyle, th[e] comments must be
evaluated in context.” United States v. Wright, 777 F.3d 769, 779 (5th Cir.
2015). Here, Garcia-Perez repeatedly waived his rights in order to answer
law enforcement’s questions. He agreed to make a video statement. It was
only after the tape began rolling that he finally expressed a desire to stop
questioning. The government naturally sought to present all the evidence it
could to show both how often Garcia-Perez incriminated himself and how he
reacted under questioning. So there is nothing obviously nefarious about the
prosecutor noting, while previewing the government’s evidence, that “under

2
To the extent Garcia-Perez does raise a pure, preserved rule 403 challenge to the
district court’s evidentiary ruling, we agree with the government that no independent
analysis on this point is necessary. Even assuming arguendo that the district court erred in
preadmitting the video, the jury never saw the video because the government withdrew it.
Thus, the only impact the court’s ruling could have had on the proceedings was with
respect to the prosecutor’s reference to the video during his opening statement, which we
review below.
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questioning [Garcia-Perez] eventually asked that he no longer answer any
questions.” In context, the remark was arguably nothing more than a
preemptive explanation about why the anticipated video recording ended
when it did.
In short, we simply cannot say on the record before us that it is “clear
or obvious” that the “manifest intent” of the prosecutor’s remark was to
“comment on the defendant’s silence,” or that the statement’s character
was such that “the jury would naturally and necessarily so construe the
remark.” Andaverde-Tiñoco, 741 F.3d at 518, 520.
3

* * *
For the foregoing reasons, we affirm Garcia-Perez’s convictions.

3
Careful readers will note that Doyle “rests on the fundamental unfairness of
implicitly assuring a suspect that his silence will not be used against him and then using his
silence to impeach an explanation subsequently offered at trial.” United States v. Fambro, 526
F.3d 836, 841 (5th Cir. 2008) (emphasis added) (quotations omitted) (quoting Wainwright
v. Greenfield, 474 U.S. 284, 291 (1986)). So one might wonder why Doyle is implicated at
all in a case (like this one) where the defendant has not offered a subsequent explanation at
trial. But our court has held that “the principles of Doyle apply even if a defendant does
not take the stand in his own defense thereby subjecting himself to potential
impeachment.” Id. In short, “[a] defendant is entitled to rely on the assurance when he is
‘Miranda-ized’ that his silence will not be used against him.” Id.
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