     Case: 10-31198     Document: 00511561959         Page: 1     Date Filed: 08/04/2011




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

                                                                            FILED
                                                                           August 4, 2011

                                       No. 10-31198                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

MIRANDA SIERRA, also known as Mandi,

                                                  Defendant-Appellant



                   Appeals from the United States District Court
                       for the Western District of Louisiana
                             USDC No. 5:09-CR-202-1


Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        Miranda Sierra was convicted of one count of conspiracy to possess with
intent to distribute methamphetamine and possession with intent to distribute
methamphetamine. She timely appeals her conviction, and we AFFIRM.
                           FACTS AND PROCEEDINGS
        Sierra was charged in an indictment with one count of conspiracy to
possess with intent to distribute fifty grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and two counts of possession with

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-31198

intent to distribute five grams and fifty grams of methamphetamine,
respectively, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The
indictment alleged that Sierra conspired with her co-defendants, Susan
Underwood and Jimmie Underwood (“Susan” and “Jimmie” respectively, and
“the Underwoods” collectively), and “other persons known and unknown to the
grand jury.” The Underwoods pleaded guilty, but Sierra proceeded to trial. A
jury convicted Sierra on all three counts.
       On appeal, Sierra raises three arguments: (1) the evidence was insufficient
to support her convictions; (2) the district court plainly erred in admitting
evidence regarding the drug ledgers found in her car; and (3) the district court
plainly erred in admitting photographs depicting a syringe recovered from her
car.
                                 DISCUSSION
I. Sufficiency of the Evidence
       Sierra contends that the evidence was insufficient to show that she
conspired to possess with intent to distribute fifty grams or more of
methamphetamine or that she possessed methamphetamine with intent to
distribute it on the dates charged in the indictment.
       A. Standard of Review
       After the government presented its case in chief, Sierra moved for a
judgment of acquittal under Federal Rule of Criminal Procedure 29, but she
failed to renew that motion after presenting her defense. “Where a defendant
fails to renew his motion at the close of all the evidence, after defense evidence
has been presented, he waives his objection to the earlier denial of his motion.
In this circumstance, appellate review is limited to determining whether there
was a manifest miscarriage of justice, that is, whether the record is devoid of
evidence pointing to guilt.” United States v. Daniel, 957 F.2d 162, 164 (5th Cir.
1992) (internal citations and quotation marks omitted).

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       B. Evidence of a Conspiracy
       To    prove    a     conspiracy    to   possess    with     intent    to   distribute
methamphetamine, the government must show: (1) the existence of an
agreement between two or more persons to possess with intent to distribute
methamphetamine; (2) that the defendant knew of the conspiracy and intended
to join it; and (3) that the defendant participated in the conspiracy. United States
v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007). “Direct evidence of a conspiracy
is unnecessary; each element may be inferred from circumstantial evidence,” and
an “agreement may be inferred from a concert of action.” Id. at 768-69 (internal
citations and quotation marks omitted).
       Sierra argues that, at most, the government demonstrated that she
associated with individuals involved in a conspiracy, but that there is no
evidence that she knowingly and voluntarily joined the conspiracy. We conclude
that the record is far from devoid of evidence demonstrating that Sierra
conspired with her co-defendants. The government introduced evidence of
continued cooperation between Sierra and the Underwoods. Sierra sold the
Underwoods substantial amounts of drugs on several occasions over an extended
period of time, and, in turn, the Underwoods resold the drugs for profit. Susan
testified that Sierra was the Underwoods’ sole drug supplier from August 2008
through July 2009.1 The Underwoods and Sierra coordinated their drug sales in
advance; to conduct drug purchases from Sierra, either the Underwoods would
travel to Dallas, Georgia to meet Sierra or Sierra would travel to Bossier City,

       1
         Sierra asserts that the primary evidence supporting her conspiracy conviction is
Susan Underwood’s testimony, which Sierra asserts is unreliable due to Susan’s history of
drug use and motive to lie. Uncorroborated testimony from a co-conspirator, including one who
has agreed to testify in exchange for leniency, may be constitutionally sufficient evidence to
convict, provided the testimony is not factually insubstantial or incredible. United States v.
Westbrook, 119 F.3d 1176, 1190 (5th Cir. 1997). Sierra has not demonstrated that Susan’s
testimony is factually insubstantial or incredible.

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                                  No. 10-31198
Louisiana to meet them. After Sierra was detained by police on May 26, Sierra
and the Underwoods arranged an elaborate means of repayment to avoid police
attention. For several months, the Underwoods wired money to Sierra via Wal-
Mart MoneyGrams, sometimes addressing the MoneyGram to Sierra’s son
instead of Sierra, dividing a larger payment into two smaller payments, and
using a false address to avoid detection.
      In July 2009, Susan traveled to Georgia to meet Sierra and her son. Once
there, the three acquired some methamphetamine, and Sierra and her son
concealed the drugs inside a tire. Sierra, her son, and Susan then traveled to
Bossier City to deliver the tire filled with methamphetamine to Jimmie. After
police uncovered a substantial amount of cash in Sierra’s possession, Susan
executed an affidavit in which she falsely stated that she had given Sierra
$1000.
      Moreover, Sierra routinely fronted methamphetamine to the Underwoods.
Fronting is “strong evidence of membership in a conspiracy because it indicates
a strong level of trust and an ongoing, mutually dependent relationship.” United
States v. Posada-Rios, 158 F.3d 832, 860 (5th Cir. 1998) (internal quotation
marks omitted). The record is not devoid of evidence supporting Sierra’s
conspiracy conviction, and she has not demonstrated “a manifest miscarriage of
justice.” Daniel, 957 F.2d at 164.
      C. Evidence of Possession
      Sierra contends that her convictions for possession with intent to
distribute on May 12 and May 26 are unsupported by the evidence. To establish
possession of methamphetamine with intent to distribute, the government must
prove that the defendant (1) knowingly (2) possessed methamphetamine (3) with
intent to distribute it. United States v. Medina, 161 F.3d 867, 873 (5th Cir.
1998).



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      Susan testified that the Underwoods purchased drugs exclusively from
Sierra during the relevant period. Susan attested that Sierra traveled to the
Underwood residence in Bossier City to sell methamphetamine to the
Underwoods on two separate occasions in May, although she did not recall the
exact dates. Twice in May, once on May 12 and once on May 26, Jimmie
contacted an undercover agent and relayed to the agent that he had
methamphetamine available for purchase. From this testimony, the jury could
infer that on or about May 12 and May 26, Sierra traveled to the Underwood
residence with methamphetamine that she intended to sell to the Underwoods,
who in turn sold it to the undercover agent.
      This conclusion is further supported by other evidence in the record. On
May 12, the undercover agent arrived at the Underwood residence to purchase
methamphetamine. Outside the residence, he observed a car with Georgia
license plates and stated that a young man with red hair and “spacer earrings”
answered the door. This person matches the description of Sierra’s son, who
frequently accompanied her on her drug dealing trips to Bossier City. There was
no evidence that Sierra’s son had ever traveled alone to sell methamphetamine
to the Underwoods.
      Moreover, on May 26, when the agent arrived at the Underwood residence,
a car registered to Sierra was parked in front of the house and the agent
observed Sierra inside the house. The undercover agent paid the Underwoods
for the methamphetamine that he purchased using $4000 in marked bills. After
Sierra left the Underwood residence on the evening of May 26, she was detained
by police for speeding. Sierra consented to a search of her car, and police found
$7886 in cash in her purse, among other items. Nearly $4000 of the money
discovered in Sierra’s car was later identified as the same marked money used
by the undercover agent to purchase methamphetamine from the Underwoods



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                                   No. 10-31198
on May 26. The record is not devoid of evidence supporting Sierra’s two
convictions for possession of methamphetamine with intent to distribute.
II. Evidence of Drug Ledgers
      Sierra contends that under Federal Rule of Evidence 404(b), the trial court
clearly erred in permitting the government to introduce into evidence two
notebooks found by police in Sierra’s car and expert testimony by a federal agent
that these notebooks were “drug ledgers” used by Sierra to record sales of illegal
drugs. According to Sierra, this evidence was extrinsic to the charged offenses
and constituted “improper evidence of alleged ‘other crimes’ [introduced by the
government] for the purpose of proving that Sierra acted in conformity
therewith.”
      As Sierra did not raise this argument in the district court, we review it for
plain error. FED. R. EVID. 103; United States v. John, 597 F.3d 263, 282 (5th Cir.
2010). Plain error review has four prongs: (1) there was an error; (2) the error is
clear or obvious; (3) the error affected the defendant’s substantial rights; and (4)
a court may exercise its discretion to correct the error “only if the error seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
John, 597 F.3d at 284 n.91 (alteration in original) (internal quotation marks
omitted).
      Rule 404(b) precludes the admission of evidence “of other crimes, wrongs,
or acts . . . to prove the character of a person in order to show action in
conformity therewith.” We note, however, that Rule 404(b) only limits the
admissibility of extrinsic evidence, not intrinsic evidence of the crime charged.
See United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007); see also United
States v. Garcia, 27 F.3d 1009, 1014 (5th Cir. 1994) (“The evidence admitted was
not extrinsic to the offenses charged, thus consideration of its admissibility
pursuant to Rule 404(b) is unnecessary.”). The admission of evidence tending to
prove the crime charged is not precluded by Rule 404(b) simply because it also

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implicates a defendant in other crimes. See, e.g., United States v. Lamp, 779 F.2d
1088, 1095 (5th Cir. 1986).
      Even assuming, however, that the district court plainly erred in admitting
the drug ledgers, Sierra has not shown that the error affected her substantial
rights. “To meet this standard the proponent of the error must demonstrate a
probability ‘sufficient to undermine confidence in the outcome.’” United States
v. Mares, 402 F.3d 511, 521 (5th Cir. 2005) (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004)). Considering the extent of the other evidence
presented against Sierra, she has not demonstrated that the outcome of her trial
would likely have been different had the drug ledgers not been admitted. See
United States v. Ricardo, 472 F.3d 277, 286 (5th Cir. 2006) (defendants’
substantial rights not affected where, “in light of the substantial amount of
evidence . . . presented against [them], . . . the outcome of the trial would not
have been different”). Because the alleged error did not affect Sierra’s
substantial rights, she is not entitled to relief on plain error review.
III. Photographs of Syringe
      Sierra asserts that the district court plainly erred in admitting
photographs depicting a syringe discovered by police in Sierra’s car on May 26.
Although the government had agreed not to introduce testimony regarding the
syringe, it nevertheless introduced into evidence two photographs depicting the
syringe: one photograph showing both the marked money and the syringe in
Sierra’s purse and a second photograph showing all of the items recovered from
Sierra’s car, including the money and the syringe. Neither party introduced any
testimony regarding the syringe.
      Since Sierra failed to object to the photographs in the trial court, the court
reviews this argument for plain error as well. FED. R. EVID. 103; John, 597 F.3d
at 284 n.91. Sierra contends that the photographs were unduly prejudicial under
Federal Rule of Evidence 403. As with the drug ledgers, even if we assume that

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                                  No. 10-31198
the admission of these photographs was clearly erroneous, Sierra is still not
entitled to relief under plain error review because she has not shown that the
admission of this evidence affected her substantial rights. After a review of the
record, we are satisfied that the introduction of these photographs does not
undermine confidence in the jury’s verdict. “Because the prosecution did not
emphasize [this evidence] in any way during trial and because the evidence
against [Sierra] was strong, the jury likely disregarded [this evidence], meaning
that the outcome of the trial would not have been different but for this error.”
Ricardo, 472 F.3d at 285. Sierra is therefore not entitled to relief.
                               CONCLUSION
      For the reasons stated above, we AFFIRM Sierra’s convictions.




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