          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                 November 20, 2008
                                No. 08-40081
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

PAUL GENE YAGER

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:07-CR-306-1


Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Paul Gene Yager appeals his jury conviction for possession of marijuana
with intent to distribute. He argues that the district court abused its discretion
by allowing Special Agent Carlos Lavastida to testify regarding the contents of
Yager’s logbook because Agent Lavastida was not an expert and had no
specialized knowledge of applicable Department of Transportation (DOT)
regulations. Yager also argues that the Government committed prosecutorial



      *
      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should not be published and is not precedent except under the limited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. 08-40081

misconduct by commenting in its closing argument about Yager’s failure to
testify at trial.
       This court reviews a district court’s evidentiary rulings for abuse of
discretion subject to harmless-error analysis. United States v. Cantu, 167 F.3d
198, 203 (5th Cir. 1999). The requirements of the Federal Rules of Evidence
governing expert testimony apply only to testimony from a witness tendered as
an expert. United States v. Allard, 464 F.3d 529, 533 (5th Cir. 2006). A court
may allow expert testimony if the expert’s “scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue.” FED. R. EVID. 702. However, if a witness is not
presented as an expert but instead provides lay opinion testimony, the testimony
must satisfy the requirements of FED. R. EVID. 701. “[T]he distinction between
lay and expert witness testimony is that lay testimony ‘results from a process of
reasoning familiar in everyday life,’ while expert testimony ‘results from a
process of reasoning which can be mastered only by specialists in the field.’”
United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quoting FED.
R. EVID. 701, Advisory Committee Notes to 2000 Amendments).
       In the instant case, Agent Lavastida’s testimony was admissible as lay
witness testimony under FED. R. EVID. 701. Agent Lavastida’s testimony about
the logbooks represented his opinion about matters with which he had
meaningful experience, and was based on personal knowledge derived from his
investigation into potential inconsistencies between the logbook and Yager’s bill
of lading. Moreover, Agent Lavastida’s testimony was based upon facts that
were readily apparent from the logbook entries, and his opinions were consistent
with those that a normal person easily could form from reviewing the same
information. See Yanez Sosa, 513 F.3d at 200. Accordingly, Yager has not
shown that the district court abused its discretion by permitting Lavastida to
testify about the content of Yager’s logbooks.



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                                  No. 08-40081

      Yager also has not shown that the Government committed prosecutorial
misconduct by improperly referring to his failure to testify at trial. A violation
of the Fifth Amendment occurs either if the prosecutor's “manifest intent” was
to comment on the defendant’s failure to testify or if a jury would “naturally and
necessarily” interpret the prosecutor’s remarks as a comment on the defendant’s
failure to testify. United States v. Collins, 972 F.2d 1385, 1406 (5th Cir. 1992).
The prosecutor’s intent is not “manifest” if some other equally plausible
explanation exists for the remark. Id. Further, the question is not whether a
jury possibly or probably would view the prosecutor’s remark as a comment on
the defendant’s silence, but whether a jury “necessarily” would construe the
remark in such a way. Id.
      In the instant case, the prosecutor neither explicitly referenced Yager’s
refusal to testify, nor did he instruct the jury to draw any conclusion from Yager’s
failure to testify. Instead, the prosecutor’s statements merely delineated the
evidence that was presented and identified for the jury the inferences and
conclusions that he wanted the jury to draw from that evidence. The prosecutor’s
statements furthermore were intended to emphasize to the jury that the defense
had failed to counter or explain the inculpatory evidence that had been presented
at trial. Thus, the prosecutor’s statements did not improperly comment on
Yager’s failure to testify and did not violate his Fifth Amendment rights. See
United States v. Munoz, 150 F.3d 401, 414-15 (5th Cir. 1998); United States v.
Guzman, 781 F.2d 428, 432 (5th Cir. 1986).
      AFFIRMED.




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