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


                                      No. 17-50338
                                                                                FILED
                                                                            July 23, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

GUILLERMO RODRIGUEZ-SANCHEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:16-CR-474-1


Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:*
       Guillermo Rodriguez-Sanchez (“Rodriguez”) appeals his jury conviction
for knowingly, intentionally, and unlawfully importing cocaine and heroin into
the United States from Mexico in violation of 21 U.S.C. §§ 952(a), 960(a)(1),
and 960(b)(2).      He argues we should overturn his conviction because of
(1) insufficient evidence, (2) improper expert testimony, (3) improper closing
remarks by the prosecutor, and (4) the district court’s refusal to give an


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50338
adverse-inference spoliation jury instruction. For the reasons that follow, we
affirm Rodriguez’s conviction.
                                        I.
      On March 14, 2016, Rodriguez traveled 13 hours in his Toyota Tundra
truck from his home in Mexico City, Mexico, to Piedras Negras, Mexico, for his
work as a bank auditor. He stayed in Piedras Negras for about two days,
visiting with his sister and her family while his truck stayed parked on a public
street. From there, he planned to go to an outlet mall in San Marcos, Texas,
so he headed towards the Eagle Pass, Texas Port of Entry.
      On March 16, 2016, at Eagle Pass, officers inspected Rodriguez’s truck.
They ultimately found five packages hidden in the engine’s air-intake
manifold.    Those packages contained cocaine and heroin worth roughly
$200,000. In the passenger compartment of the truck, officers found a pair of
boots, a small piece of luggage, a single key in the ignition, and a manila folder
containing a picture of a forklift and a Dallas address; otherwise, the truck
appeared noticeably clean.
      Rodriguez explained to authorities that he was the only one who had
driven the truck, he was single, and he kept only his truck key—and not a
house key—on his person because he lived with his parents so someone was
always around to let him in his house. When asked about the drugs, Rodriguez
calmly denied any knowledge.        As for the contents of the manila folder,
Rodriguez said he had no plans to go to the Dallas address, but intended to
price forklifts for a friend somewhere along the way to and from San Marcos.
Rodriguez also told officers that he had previously crossed the border in
September 2015 in a Toyota Sequoia and had returned to Mexico in that
vehicle, where he later sold it.
      The government charged Rodriguez with knowingly, intentionally, and
unlawfully importing cocaine and heroin into the United States from Mexico.
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                                  No. 17-50338
After a two-day trial, Rodriguez unsuccessfully moved for acquittal at the close
of evidence, and a jury convicted Rodriguez on both counts. He now appeals
that conviction.
                                        II.
      Rodriguez first contends that the government’s evidence was insufficient
for any reasonable jury to convict him of knowingly importing controlled
substances. To sustain Rodriguez’s conviction, the government must prove,
beyond a reasonable doubt: “(1) [he] played a role in bringing a quantity of a
controlled substance into the United States from outside of the country; (2) [he]
knew the substance was controlled; and (3) [he] knew the substance would
enter the United States.” United States v. Lopez-Monzon, 850 F.3d 202, 206
(5th Cir. 2017).     Rodriguez challenges only the third element.         Because
Rodriguez unsuccessfully moved for a judgment of acquittal at trial, we review
the evidence de novo. Id.
      “Our review of the sufficiency of the evidence is highly deferential to the
verdict.” United States v. Gulley, 526 F.3d 809, 816 (5th Cir. 2008). We do not
re-weigh the evidence, but instead ask “whether the evidence, when reviewed
in the light most favorable to the government with all reasonable inferences
and credibility choices made in support of a conviction, allows a rational fact
finder to find every element of the offense beyond a reasonable doubt.” United
States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002).
      Although Rodriguez was driving his truck when authorities discovered
the drugs in it, his control over the truck alone is not enough for a jury to infer
that he knew about the drugs. We require “additional evidence because it is
at least a fair assumption that a third party might have concealed the
controlled substance in the [truck] with the intent to use the unwitting
defendant as the carrier in a smuggling enterprise.” United States v. Moreno,
185 F.3d 465, 471 (5th Cir. 1999).
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                                 No. 17-50338
      Two items of evidence rebut the possibility that a third party concealed
the drugs without Rodriguez’s knowledge. First, the government presented
evidence of the “high value” of the hidden drugs—approximately $200,000—to
show that only someone clued into the scheme would have been trusted with
the drugs’ transportation. Rodriguez’s counterargument that the drugs’ value
allows a jury to infer knowledge only where such value is much higher than
$200,000 is unavailing. See, e.g., United States v. Amador-Juarez, 399 F. App’x
882, 883 (5th Cir. 2010) (holding that, combined with other evidence, “the value
of the [drugs], between $52,500 and $140,000, rendered it reasonable for the
jury to deduce that [the defendant] would not have been entrusted with that
extremely valuable cargo if he was not part of the trafficking scheme”). The
government’s evidence is probative of knowledge.           See United States v.
Villarreal, 324 F.3d 319, 324 (5th Cir. 2003).
      Second, the government presented testimony from Agent Goldberg that
Rodriguez explained that his plan was to simply “find a place” to stop along the
way to and from San Marcos to price forklifts for his friend. According to the
government, this unpredictable route and erratic stopping schedule would
make it nearly impossible for a nefarious third party to later track down the
truck to retrieve the drugs without Rodriguez’s knowledge. See United States
v. Walczak, 85 F. App’x 986, 987 (5th Cir. 2004) (holding a jury could infer
knowledge where the defendant’s story “offered no reasonable time or
opportunity for the allegedly unknown smugglers to retrieve the marijuana
from his truck within the United States”). We hold that here a reasonable
juror could agree that Rodriguez’s story that a third party hid the drugs in his
car without his knowledge was a ruse.
      The government also adduced additional circumstantial evidence to
support its contention that Rodriguez knew he was carrying drugs in his truck.
The government points to Rodriguez’s implausible explanations regarding his
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                                      No. 17-50338
trip,     which   “provide[   ]   persuasive     circumstantial      evidence    of   [his]
consciousness of guilt.” United States v. Diaz-Carreon, 915 F.2d 951, 955 (5th
Cir. 1990).       The government’s first implausibility characterization is for
Rodriguez’s initial explanation for his trip into the United States. According
to the government, upon arriving at the checkpoint, Rodriguez told the
primary-inspection officer that he was traveling to the outlet mall in San
Marcos, which is a three-hour drive from the Eagle Pass Port of Entry, to
return a single pair of boots. The government acknowledges, though, that
Rodriguez also explained to the secondary-inspection officers that he was
traveling to the outlet mall to return the boots and for additional shopping. 1
The government does not argue that Rodriguez’s later explanation was
implausible or that the two explanations are inconsistent.
         We do not resolve whether, in general, traveling three hours into the
United States from Mexico to return boots at a large outlet mall is implausible,
or whether that explanation was inconsistent with his later, slightly longer list
of planned activities. 2 The government did not seek to discredit that Rodriguez


         1One officer testified that it was his understanding that Rodriguez’s reason for
traveling to the United States was “[t]o go shopping and return his boots in San Marcos.”
Another officer testified that when he asked Rodriguez what the purpose of his trip was,
Rodriguez “indicated that he was going to San Marcos to go do some shopping and return
some boots[.]”
        2 The record and briefing are inconsistent on this issue. The government asked the

primary-inspection officer to summarize his first conversation with Rodriguez. The officer
replied, “I just asked him where he’s going. He told me he was going to San Marcos. I asked
for what. He said to go exchange some boots that he had purchased on, I believe it was a
Black Friday sale.” On cross examination, though, defense counsel asked the officer whether
it was correct that Rodriguez told him that he was going to the San Marcos outlets “to do
some shopping and return some boots.” The officer replied “Yes.” Rodriguez testified that at
the primary station, his stated purpose for going to San Marcos was to shop and to exchange
boots. But in an earlier response to counsel asking why he was going to San Marcos,
Rodriguez stated “[e]xchange – exchange some – a pair of boots.” And like his testimony,
Rodriguez’s briefing is also inconsistent. On one hand, Rodriguez asserts that when the
primary-station officer asked where he was going, he “explained that he was going to San
Marcos to exchange some boots.” On the other hand, Rodriguez contends that he told the
officer “he was going to San Marcos to shop and exchange some boots.”
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                                    No. 17-50338
purchased the boots at the San Marcos outlet mall. Nor did it question the
legitimacy of the receipts from stores at the outlet mall that Rodriguez offered
at trial. That Rodriguez purchased the boots at the outlet mall that he said
was his destination and also provided receipts validating that he had
previously traveled there is not obviously implausible.
      Looking beyond the reason for the travel, though, we find Rodriguez did
venture into implausible storytelling.         In response to an agent’s inquiry
regarding the forklift photograph, Rodriguez explained that he planned to stop
along the way to and from San Marcos to price similar forklifts for a friend; but
he did not identify any specific destination or a plan to locate such forklifts.
And finally, Rodriguez said he carried only one key on his body because he
lived with his parents and would simply call every time he needed to enter the
shared residence. 3 We have held that jurors may infer a defendant’s guilty
knowledge in the face of “less-than-credible explanation[s]” such as these. Id.
      The government also presented evidence that Rodriguez gave
inconsistent statements to authorities during questioning. “Such statements,
whether inconsistent with previous statements or with other evidence, are
circumstantial evidence of knowledge.” Lopez-Monzon, 850 F.3d at 207. First,
in September 2015, a Toyota Sequoia registered to Rodriguez crossed the
border into the United States. During questioning, Rodriguez told authorities
he had returned in that Sequoia to Mexico and later sold it there.                 But
according to the government, there is no record that Sequoia re-entered
Mexico. Instead, it was registered to another person in the United States five
days after Rodriguez entered the United States in 2015. Second, Rodriguez




      3  That is, a jury could have reasonably disbelieved that Rodriguez’s parents were
available 24 hours a day, seven days a week, to let him into their house.
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                                      No. 17-50338
told authorities that he was not married, which is true, but his visa application
shows him as married.
       Although there is other evidence that the government argues tends to
show knowledge, we stop with the evidence we have detailed thus far.
Rodriguez attempts to undercut the government’s case by, for example,
offering hypothetical opportunities for a third party to hide the drugs in his
truck without his knowledge, but his arguments amount only to an assertion
that the jury should have accepted Rodriguez’s position over the government’s
position. The jury chose to credit the government’s evidence, which it was
entitled to do. When viewing the foregoing evidence in the light most favorable
to the government, as we must, we hold that a rational jury could have found
beyond a reasonable doubt that Rodriguez knew he was transporting drugs.
                                            III.
       Rodriguez also contends that the district court reversibly erred in
admitting an expert opinion on the ultimate issue of knowledge.                     Under
Federal Rule of Evidence 704(b), “an expert witness must not state an opinion
about whether the defendant did or did not have a mental state or condition
that constitutes an element of the crime charged.” Agent Morales’s testimony
violated this rule, according to Rodriguez, because it equated to his opinion
that Rodriguez knew about the drugs. 4
       At the start, we set out the standard controlling our review of the district
court’s admission of Agent Morales’s testimony.                  We review “preserved
objections to evidentiary rulings for abuse of discretion, subject to the harmless
error standard,” and non-preserved evidentiary issues for plain error. United
States v. Valas, 822 F.3d 228, 239–40 (5th Cir. 2016). When Agent Morales


       4It is undisputed that Agent Morales, a group supervisor with eight years’ experience
investigating “narcotics activities,” testified as an “expert on the narcotics trafficking
operation.”
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                                      No. 17-50338
offered the challenged testimony at trial, defense counsel objected—“Pretrial
motion in limine regarding commenting on veracity of a . . . witness”—and an
off-the-record bench conference followed before questioning resumed.                    The
objection made no reference to Rule 704(b), under which Rodriguez now claims
error. And the record is silent as to what counsel said at the bench. Because
the record is devoid of any indication that the district judge had an opportunity
to consider a Rule 704(b) objection in response to Agent Morales’s testimony,
we hold that plain-error review applies. 5
       Under plain error, Rodriguez must show “(1) error, (2) that is plain, and
(3) that affected his substantial rights” to warrant the reversal of his
conviction. United States v. Montes-Salas, 669 F.3d 240, 247 (5th Cir. 2012).
And even if he succeeds in carrying that burden, “this 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.” Id. We now turn to
apply that standard to the circumstances at hand.
       Rodriguez contends that the district court erred in permitting Agent
Morales to testify that (1) “most” of the drug couriers apprehended by Agent
Morales carry only one key, so a lone key is “an indicator” to “start looking at
[an individual] a little bit harder,” which Agent Morales did when he
discovered only one key in Rodriguez’s truck and (2) Rodriguez was “trying to
mislead” Agent Morales with his explanation for why he kept only his car key




       5 On this record, none of the motions in limine filed in advance of trial references
opinion testimony under Rule 704(b). And although, during a pretrial conference, the district
judge “caution[ed]” the government that its experts could “not give an opinion as to the
defendant’s state of mind,” Rodriguez’s objection referred to a motion in limine, and at that
point in the pretrial conference, the court had “move[d] on” from motions in limine. In any
event, Rodriguez’s objection made no reference to that pretrial admonition from the district
judge.
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                                       No. 17-50338
on his person. 6 According to Rodriguez, these statements, taken together,
amount to “impermissible drug courier testimony.” 7
       A qualified narcotics agent such as Agent Morales “may testify about the
significance of certain conduct or methods of operation unique to the drug
business,” but may not offer a drug-courier profile. United States v. Gonzalez-
Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010). “A drug courier profile is a
compilation of characteristics used by law enforcement officers to identify
individuals who might be involved in the trafficking of narcotics.” Id. So
“[a]lthough the Government may introduce evidence that the defendant
exhibited the individual behaviors that make up a drug courier profile, the
Government may not define the profile or suggest that the defendant’s
behavior in fact fit the profile” of a drug courier. Id. at 364.
       We will assume without deciding that the court plainly erred in
admitting Agent Morales’s testimony describing one key as an “indicator” to
identify drug couriers.          Under the third prong of plain-error review, “a
defendant generally must show that the error was prejudicial.                       Error is



       6Agent Morales viewed Rodriguez’s truck after Rodriguez had exited and the truck
had been moved to the import lot. At that time, Agent Morales “looked inside the cab area of
the truck” and “saw one key in the ignition.” He later questioned Rodriguez in a conference
room, specifically asking about the one key.
       7   Agent Morales testified:
       [Agent Morales:] With all my experience in -- in dealing with loads that are
       apprehended at . . . the ports of entries, for some reason, most of them have
       one key. And that’s an indicator to us, basically, they’re -- you know, you start
       -- you start looking at it a little bit harder when you see there’s one key, and
       everything’s clean in the truck and there’s no documents anywhere. And so
       when I saw the one key in the truck when I walked up, I kind of figured, okay,
       we got something -- we got something going on here.
       ....
       [Agent Morales:] [W]hen I got to the key, I could tell, you know, in my opinion,
       he was trying to mislead me by telling me, you know, his parents opened the
       house for him and stuff like that.
                                              9
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                                  No. 17-50338
prejudicial if there is a reasonable probability that the result of the proceedings
would have been different but for the error.” Montes-Salas, 669 F.3d at 247.
We hold that Agent Morales’s testimony did not prejudice the fairness of
Rodriguez’s conviction because the conviction is supported by other strong,
uncontested evidence to which we have earlier referred.
      Specifically, the value of the drugs and Rodriguez’s uncertain travel
plans allowed a reasonable jury to reject Rodriguez’s suggestion that a third
party stashed the drugs in his truck without his knowledge. Further, the jury
heard Rodriguez’s dubious explanations and inconsistent statements. He had
a picture of a forklift and a Dallas address for a forklift-sales business. He did
not explain the Dallas address other than to say he did not intend to go there.
He further explained, vis-à-vis the picture of the forklift, that part of his reason
for coming to the United States was that he planned to find forklifts along the
way, at some unspecific place, to price for an unspecified friend. Moreover,
Rodriguez’s statements regarding his previous trip into the United States were
untruthful; he said he entered and exited the United States in a Sequoia in
2015, but the government has no record of that Sequoia, which was
subsequently registered to another person in the United States, re-entering
Mexico. Furthermore, his actual marital status, i.e. single, conflicted with his
visa application showing him as married.
      Viewing this evidence as a whole, we hold that there is no reasonable
probability that Rodriguez’s conviction was dependent upon Agent Morales’s
challenged “one key” testimony. See Moreno, 185 F.3d at 471–72 (holding that
there was sufficient evidence to satisfy the knowledge element where the
defendant gave inconsistent statements and implausible explanations “which
could lead a reasonable trier of fact to doubt [her] credibility [which] likely
vitiated the effect of any favorable evidence, including her testimony”); United
States v. Gibson, 963 F.2d 708, 711 (5th Cir. 1992) (same).
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                                  No. 17-50338
                                       IV.
      Rodriguez next contends that the government made an improper
reference to a fact not in evidence when, in closing argument, the government
said that a blind mule—one who unknowingly transports drugs—“doesn’t
really exist.” Because Rodriguez did not object to this closing statement at
trial, we review for plain error. United States v. Vargas, 580 F.3d 274, 278 (5th
Cir. 2009).
      Although “[w]e accord wide latitude to counsel during closing argument,”
United States v. Thompson, 482 F.3d 781, 785 (5th Cir. 2007), “[a] prosecutor
is confined in closing argument to discussing properly admitted evidence and
any reasonable inferences or conclusions that can be drawn from that
evidence.” United States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008).
      As explained supra, to demonstrate plain error, Rodriguez must show
that the error is plain and that it affects his substantial rights. We will
assume, only for purposes of this appeal, that the prosecutor’s comment was
plain error and directly turn to whether the closing remark affected
Rodriguez’s substantial rights. See, e.g., United States v. Rosenthal, 805 F.3d
523, 534 (5th Cir. 2015). In doing so, we consider “(1) the magnitude of the
prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary
instruction by the judge, and (3) the strength of the evidence supporting the
conviction.” Thompson, 482 F.3d at 785.
Any prejudicial effect is “minimal at worst” where “(1) the prosecutor’s
putatively improper statements were based on and linked to evidence
presented during the trial, and (2) the evidentiary basis for those statements
was obvious to the jury.” Id. at 786. The relevant portion of the government’s
challenged remark stated:
      He’s a blind mule. They kept saying that. And that doesn’t really
      exist. Is -- is that -- you all have heard from the defense counsel

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                                     No. 17-50338
      asked our expert, Hey, we heard about this blind mule thingy. He
      said as long as he’s been doing it, he’s never seen it.
Viewed in context, it is clear the prosecutor explicitly linked his statement that
blind mules do not “really exist” to Detective Duran’s testimony offered at
trial. 8 So the prejudicial effect in this case, if any, is negligible.
      Turning to the remaining considerations, the court instructed the jury:
“The questions, statements, objections, and arguments made by the lawyers
are not evidence . . . . What the lawyers say is not binding on you.” That
instruction counters any potential prejudice that could have occurred from the
government’s allegedly improper remark. And as we have explained, there
was sufficient circumstantial evidence outside this closing remark that tended
to show Rodriguez knew the drugs were in his truck. Rodriguez has failed to
demonstrate that the complained-of remark affected his substantial rights.
                                           V.
      Finally, we get to Rodriguez’s claim of spoliation: the “destruction or the
significant and meaningful alteration” of evidence that a party has a duty to
preserve. Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015). Here, there is
an allegedly improper discarding of evidence.              On June 21, 2016, upon
Rodriguez’s motion, the district court ordered Rodriguez’s “2007 Toyota
Tundra seized in this case be preserved in its unaltered state.” Nevertheless,
the United States Customs and Border Protection sold the truck at an auction
on July 9, 2016, well before the criminal matter was resolved. As a result,
Rodriguez asked the district court to give the jury an adverse-inference



      8Detective Duran testified:
      [Defense     And sometimes the drug traffickers, or the narcos, they use blind mules,
      Counsel:]    correct?
      [Duran:]      In 11 and a half years, I can’t say that I ever found someone or dealt
                    with someone that didn’t know. What I can’t tell you -- I can’t testify
                    that I know at least of one person that was a blind mule.
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                                       No. 17-50338
instruction, permitting the jury “to infer that the [truck] would have been
unfavorable to the government.” The district court declined, citing a lack of
bad faith. We review that decision for an abuse of discretion. Valas, 822 F.3d
at 239.
       When confronted with a claim of spoliation, a court may give an adverse-
inference instruction similar to the one Rodriguez requested. See Rimkus
Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 611–20 (S.D. Tex.
2010) (providing a detailed analysis of spoliation sanctions). But a showing of
bad faith is required for such an instruction, even in the criminal context. See,
e.g., Valas, 822 F.3d at 239; United States v. Wise, 221 F.3d 140, 156 (5th Cir.
2000). “Bad faith, in the context of spoliation, generally means destruction for
the purpose of hiding adverse evidence.” Guzman, 804 F.3d at 713 (emphasis
added) (addressing spoliation in civil context). Mere negligence is not enough.
Vick v. Texas Emp’t Comm’n, 514 F.2d 734, 737 (5th Cir. 1975).
       Rodriguez contends bad faith exists here because Customs and Border
Protection sold the truck in violation of court order and “[t]he government
made no effort . . . to communicate the court’s order to its case agent despite
the potential for a forfeiture sale.” But Rodriguez offers no evidence that would
tend to show that Border Protection or the government acted, or failed to act,
“for the purpose of hiding adverse evidence.”               Guzman, 804 F.3d at 713.
Instead, Agent Morales, “the agent in charge of Rodriguez’s investigation,”
testified that he had “no idea” the truck was to be preserved.                     And the
government’s lack of “effort” to communicate from counsel to case agent does
not, in itself and without more, warrant an adverse-inference instruction.
Because Rodriguez failed to show bad faith, we find no abuse of discretion. 9



       9We decline Rodriguez’s invitation to consider whether a different bad-faith definition
should be employed in the criminal context. It is enough to say that spoliation is defined as
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                                       No. 17-50338
                                             VI.
       In sum, Rodriguez has not demonstrated any reversible error in
connection with his conviction. His conviction is
                                                                              AFFIRMED.




the “intentional destruction, mutilation, alteration, or concealment of evidence,” SPOLIATION,
Black’s Law Dictionary (10th ed. 2014), and here, there is no evidence of intent.
                                             14
