     Case: 10-40651       Document: 00511539532          Page: 1    Date Filed: 07/13/2011




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

                                                                               FILED
                                                                              July 13, 2011

                                         No. 10-40651                        Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee
v.

ROBERTO HUERTA SANCHEZ, III,

                                                     Defendant - Appellant



                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 5:09-CR-2147


Before JOLLY and HAYNES, Circuit Judges, and VANCE,* District Judge.
PER CURIAM:**
        Roberto Huerta Sanchez, III (“Sanchez”) was convicted by a jury of
conspiracy to possess with intent to distribute more than 1,000 kilograms of
marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and of
possession with intent to distribute more than 1,000 kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2. In
addition to challenging the admission of certain expert testimony, Sanchez

       *
            Chief Judge of the Eastern District of Louisiana, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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argues that the district court erred in overruling his post-trial motion for a
judgment of acquittal because he argues that the evidence was insufficient to
support his conviction. Sanchez also challenges this ruling based upon the fact
that a judge other than the judge who tried the case ruled upon this motion.
Finding no reversible error, we AFFIRM.
                                     I. FACTS
      Sanchez was arrested after Border Patrol agents found approximately
1,950 kilograms of marijuana in a tractor-trailer Sanchez was driving at a
checkpoint north of Laredo, Texas. The agents found a number of documents in
the cab of the tractor-trailer, including a bill of lading that listed Sanchez as the
only driver and described the contents of the tractor-trailer as braided polyester
textile. The purchasing director of the company listed on the bill as the recipient
of the tractor-trailer’s contents testified that the company had never done
business with either the carrier or the shipper listed on the bill; that the terms
of the shipment were inconsistent with how the company operates; that the
company name was misspelled; and that the textiles in the tractor-trailer were
not the type used by the company.
      Following his arrest, Sanchez waived his right to remain silent. Although
the bill of lading listed Dallas as the destination for the contents of the tractor-
trailer, Sanchez told agents that a man named Thomas Martinez had paid him
$250 to pick up the tractor-trailer and drive it to a mile marker near San
Antonio. He was to meet another driver, whose name he did not know, at a
truck stop. According to Sanchez, that driver was to change the tires on the
tractor-trailer and then drive it the rest of the way to Dallas. Sanchez also
stated that he was to receive a phone call about an hour and a half after leaving
Laredo with instructions for meeting the unknown driver. Sanchez could not
provide an exact street address where he picked up the tractor-trailer, but stated



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that it was located on a road with several warehouses. He also told agents that
the tractor-trailer had already been loaded by Martinez when he arrived.
      A Drug Enforcement Administration agent who conducted the post-arrest
interview and was admitted as an expert in commercial trucking told the jury
that the manner in which Sanchez picked up the tractor-trailer was uncommon.
The agent testified that it was unusual for a commercial truck driver to
relinquish control of a tractor-trailer at a truck stop and to take cargo to an
address not listed on the bill of lading.     The agent also testified about
inconsistencies in Sanchez’s explanation of when he received the phone in his
possession.   According to the agent, that phone rang continuously during
Sanchez’s interview and initially displayed an “unknown number” on the caller
ID. Eventually, when the number came through, Sanchez exclaimed, “Oh, my
God. It’s my girlfriend. How did she get this number?” Sanchez agreed to have
the telephone call recorded and immediately asked his girlfriend how she got the
number. When asked for his girlfriend’s name, Sanchez responded, “I don’t want
to get her involved.” Sanchez eventually gave the agents the name of the
girlfriend’s apartment building. However, Sanchez told them he did not know
her apartment number, despite also stating that they had been dating for nine
months. The jury also heard testimony from another DEA agent, who was
offered as an expert on the price of marijuana. That agent testified that the
amount of marijuana discovered in the tractor-trailer would sell for between
$1,505,500 and $1,823,250 in San Antonio.
      After the Government presented its case, defense counsel moved for a
judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29,
arguing that the Government failed to prove Sanchez’s knowledge of the
contents of the tractor-trailer. The trial was conducted by Judge Ellison, a




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                                      No. 10-40651

judge from the Houston Division who was specially sitting in Laredo.1 The judge
stated that he thought the Government met the Rule 29 burden, but he agreed
to carry the motion to the close of all the evidence. The defense then rested
immediately without calling additional witnesses. The jury convicted Sanchez
on both counts alleged in the indictment.
       After the conclusion of the trial, Judge Alvarez, then resident in Laredo,2
resumed the handling of the case. Sanchez filed a renewed motion for judgment
of acquittal, arguing that the Government failed to prove Sanchez’s knowledge.
Sanchez further asserted error in the Government’s elicitation from witnesses,
over defense counsel’s objection, that the value of marijuana led to an inference
of Sanchez’s knowledge. Judge Alvarez denied the motion on February 18, 2010.
The trial transcript was filed on June 20, 2010. Five days later, Sanchez moved
for reconsideration of the denial of his motion for acquittal, requesting that the
order denying the motion be rescinded so that Judge Ellison could reconsider the
motion.
       During sentencing, which took place on June 28, defense counsel raised
the motion for reconsideration. Judge Alvarez denied the motion. Although she
had not had the transcript of the trial at the time of her original denial, she
explained that she familiarized herself with the record at that time.3 Sanchez
was then sentenced to 120 months imprisonment for both counts, to run
concurrently. Sanchez appealed.



       1
          Both the Laredo Division and the Houston Division are in the Southern District of
Texas, and both Judges Ellison and Alvarez are duly appointed district judges in the Southern
District of Texas.
       2
           Judge Alvarez has since moved her primary duty station to McAllen.
       3
          Of course, by the time of this exchange and the denial of the motion for
reconsideration, the transcript had been filed, and Sanchez does not contend that Judge
Alvarez had insufficient information about the case to preside over his sentencing.

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                                  II. DISCUSSION
       A. Ruling by a Judge Other than the Trial Judge
       Sanchez first contends that his due process rights were violated because
the judge who denied his post-trial motion for a judgment of acquittal was not
the same judge who presided over his trial. Sanchez argues that reassignment
to Judge Alvarez was unwarranted, and she did not receive the trial transcript
before deciding the motion. Sanchez requests that we remand to Judge Ellison
for reconsideration of his motion.
       We reject Sanchez’s arguments as they pertain to this alleged error in the
proceedings below. “The test applied to determine whether a trial error makes
a trial fundamentally unfair is whether there is a reasonable probability that the
verdict might have been different had the trial been properly conducted.” Styron
v. Johnson, 262 F.3d 438, 454 (5th Cir. 2001) (quoting Rogers v. Lynaugh, 848
F.2d 606, 609 (5th Cir. 1988) (quotations and citation omitted)). The Federal
Rules of Criminal Procedure provide that “[a]fter a verdict or finding of guilty,
any judge regularly sitting in or assigned to a court may complete the court’s
duties if the judge who presided at trial cannot perform those duties because of
absence, death, sickness, or other disability.” FED. R. CRIM. P. 25(b)(1). Even
assuming arguendo that Judge Ellison’s return to Houston did not make him
“absent” from Laredo,4 Sanchez has not shown a reasonable probability that the
outcome in this case would have been different if Judge Ellison had ruled on the
motion. First, the denial of a motion for judgment of acquittal is not a matter of
judicial discretion, but one reviewed de novo. United States v. Whitfield, 590
F.3d 325, 354 (5th Cir. 2009), cert. denied, 131 S. Ct. 136 (2010). Second, Judge
Ellison had already effectively denied the motion, as he stated that he thought
the Government had met the Rule 29 burden. Although the judge carried the

      4
         Sanchez does not dispute that Judge Alvarez was a “judge regularly sitting” in the
court in Laredo.

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                                 No. 10-40651

motion to the end of the evidence, defense counsel rested without presenting any
additional evidence. Third, Judge Alvarez denied the motion twice—once before
the transcript was filed but after she had familiarized herself with the facts of
the case and once after the transcript was filed. Finally, in this opinion, we
review the sufficiency of the evidence de novo, representing the fourth time such
sufficiency has been reviewed. Sanchez has received more than adequate due
process on this point. Because Sanchez has not shown a reasonable probability
that the outcome of his case would have been different had the presiding trial
judge considered his post-trial motion for acquittal, we find no error warranting
reversal.
      B. Sufficiency of the Evidence
      We next turn to the propriety of the denial of the post-trial motion for
acquittal. As mentioned above, because Sanchez moved for a judgment of
acquittal, we review his sufficiency of the evidence claim de novo. United States
v. Frye, 489 F.3d 201, 207 (5th Cir. 2007) (citation omitted).        We must
“determine whether . . . a rational jury could have found the essential elements
of the offense beyond a reasonable doubt.” Id. (internal quotation marks and
citation omitted). “We review ‘the evidence and the reasonable inferences which
flow therefrom in the light most favorable to the verdict.’” Id. (quoting United
States v. Jones, 185 F.3d 459, 464 (5th Cir. 1999)). To sustain a conviction for
possession of marijuana with intent to distribute, the Government must prove
beyond a reasonable doubt that the defendant (1) knowingly possessed (2)
marijuana (3) with intent to distribute. United States v. Ramos-Cardenas, 524
F.3d 600, 605 (5th Cir. 2008). “Conspiracy to possess marijuana with intent to
distribute requires proof beyond a reasonable doubt additionally of (1) the
existence of an agreement to possess with intent to distribute; (2) knowledge of
the agreement; and (3) voluntary participation in the agreement.” Id.



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      After reviewing the record in this case, we find sufficient evidence to
sustain Sanchez’s conviction both for possession with intent to distribute and
conspiracy. Sanchez was in control of the vehicle transporting the drugs.
Although “[w]hen drugs are hidden in a secret compartment . . ., guilty
knowledge may not be inferred solely from the defendant’s control of the
vehicle,” control is still a factor the jury may consider.      United States v.
Gonzalez-Rodriguez, 621 F.3d 354, 361 (5th Cir. 2010), cert. denied, 131 S. Ct.
1508 (2011). Sanchez made inconsistent statements during his interview, and
the suspicious circumstances attending this case allowed the jury to infer that
Sanchez knew of the presence of drugs in the tractor-trailer. For example,
although Sanchez possessed a commercial trucking license for eleven years,
testimony at trial established that Sanchez’s explanation of how he came to
control the tractor-trailer was unusual. See United States v. Richardson, 848
F.2d 509, 513 (5th Cir. 1988) (stating that “‘a less-than-credible explanation’ is
‘part of the overall circumstantial evidence from which possession and
knowledge may be inferred’” (citation omitted)). Further, the jury could infer
that Sanchez would not be entrusted with such a large amount of drugs unless
he knew he was part of the drug trafficking scheme. United States v. Villarreal,
324 F.3d 319, 324 (5th Cir. 2003) (stating that the jury could reasonably infer
knowledge from the presence of drugs worth $300,000). As for the conspiracy
charge, the jury could infer the existence of an agreement given the difficulty in
loading the amount of marijuana involved and Sanchez’s relationship with
Martinez, who hired him, gave him a phone, and told him to meet another
driver. See United States v. Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir. 2002)
(finding sufficient evidence to support a conspiracy conviction based on the large
quantity and value of the marijuana involved and the difficulty of secreting it in
tires, as well as the defendant’s reluctance to give identifying information about
others and the fact that the defendant lied about his employment).

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      C. Admission of Expert Testimony
      Finally, we reject Sanchez’s argument that the district court erred in
allowing the Government’s expert witnesses to present evidence regarding how
drug cartels operate. We review a district court’s evidentiary decisions for abuse
of discretion. Gutierrez-Farias, 294 F.3d at 662 (citation omitted). We conduct
a heightened review of evidentiary rulings in a criminal case. Id. (citation
omitted). “Any error in admitting the evidence is subject to harmless error
review.” United States v. Mendoza-Medina, 346 F.3d 121, 127 (5th Cir. 2003).
Thus, “[u]nless there is a reasonable possibility that the improperly admitted
evidence contributed to the conviction, reversal is not required.” Id. (quoting
United States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992) (citation
omitted)). Further, “[a] defendant may not complain on appeal that he was
prejudiced by evidence relating to a subject which he opened up at trial.” United
States v. Carey, 589 F.3d 187, 193 (5th Cir. 2009) (quoting United States v.
Wilson, 439 F.2d 1081, 1082 (5th Cir. 1971)), cert. denied, 130 S. Ct. 1930 (2010).
      We find it unnecessary to determine whether such evidence would have
been admissible without any “door-opening,” as we conclude that defense counsel
opened the door to this testimony by his line of questioning during cross-
examination of the expert witnesses. See United States v. Jimenez, 509 F.3d
682, 691 (5th Cir. 2007) (rejecting a Confrontation Clause challenge to admission
of certain testimony, as defense counsel opened the door by asking the witness
on cross-examination for the basis of his suspicions about the defendant); see
also United States v. Taylor, 716 F.2d 701, 710 (9th Cir. 1983) (finding that
defense counsel opened the door to a line of questioning about whether drug
manufacturers used “innocent” third parties to pick up chemicals). Even if any
alleged error was not invited, the circumstantial evidence in this case supports
the conclusion that such error was not harmful. See Williams, 957 F.2d at 1243
(“Because the evidence bearing on [the defendant’s] guilt is overwhelming, . . .

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testimony that [the defendant’s] behavior matched a drug courier profile did not
substantially influence the jury.”).5
       AFFIRMED.




       5
        Here, the district court also instructed the jury that the witnesses could not testify
to Sanchez’s mental state, further buttressing our determination that any alleged error in the
admission of this testimony was harmless. See Gutierrez-Farias, 294 F.3d at 663 (finding
harmless error in admission of expert testimony; noting that the district court attempted to
cure defects in that testimony by instructing the jury that it could not rely on that testimony
alone as proof of the defendant’s guilty knowledge).

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