     Case: 11-50906     Document: 00511980469         Page: 1     Date Filed: 09/10/2012




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

                                                                            FILED
                                                                        September 10, 2012
                                     No. 11-50906
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JUAN L. GARCIA, also known as Juan Garcia,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CR-708-2


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
        A jury convicted Juan L. Garcia of: conspiring to possess, with intent to
distribute, one kilogram or more of heroin; possessing, with intent to distribute,
one kilogram or more of heroin; and carrying a firearm during, and in relation
to, a drug-trafficking crime. He was sentenced, inter alia, to 211-months’
imprisonment. Garcia, who testified at trial, raises numerous issues regarding
his convictions. Each lacks merit.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50906

      Garcia first contends the Government did not prove beyond a reasonable
doubt that he carried a firearm during, and in relation to, a drug-trafficking
crime. Because Garcia moved for judgment of acquittal at the close of the
Government’s case and at the close of all the evidence, this sufficiency-of-the-
evidence contention is reviewed de novo. E.g., United States v. Mudekunye, 646
F.3d 281, 285 (5th Cir. 2011). Accordingly, the verdict will be upheld if a
reasonable juror could conclude from the evidence that the Government
established all elements of the offense beyond a reasonable doubt. Id. Along
that line, the evidence is viewed, and all reasonable inferences drawn, in the
light most favorable to the verdict. Id.
      To establish guilt, the Government was required to prove, beyond a
reasonable doubt, that Garcia: (1) committed a drug-trafficking crime; and (2)
knowingly carried a firearm, (3) during, and in relation to, that crime. E.g.,
United States v. Franklin, 561 F.3d 398, 402 (5th Cir. 2009). Garcia contests the
second and third elements.
      Regarding the second element, trial evidence established that, after Garcia
was stopped for committing traffic violations, police officers found a handgun in
the center console of his vehicle. They also found thousands of dollars in cash,
which Garcia admitted belonged to him. Some of the cash was found in the
center console along with the firearm, which suggests Garcia knew the firearm
was in the vehicle and it was not placed there without his knowledge, as he
maintains on appeal. Moreover, a police officer testified that, when Garcia was
stopped, he was sweating and glanced suspiciously at the console. Thus, a
reasonable juror could have found Garcia knowingly carried the firearm.
      In order to satisfy the “in relation to” (third) element, the Government
must prove the firearm had “some purpose or effect with respect to the drug
trafficking crime”; the presence of the firearm “cannot be the result of accident
or coincidence”. United States v. Smith, 481 F.3d 259, 264 (5th Cir. 2007)

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(internal quotation marks omitted). The Government need not prove defendant
actively used the firearm, but it must put forward “evidence that the firearm was
available to provide protection to . . . defendant in connection with his
engagement in drug trafficking”. Id. (internal quotation marks omitted).
      Trial evidence showed Garcia regularly sold significant quantities of
heroin and handled substantial amounts of cash—approximately $11,000 for a
typical ten-ounce sale. The handgun was readily accessible to Garcia in the
center console. Officers found a magazine and ammunition along with the
firearm; and a reasonable juror could have inferred that it was loaded, or at the
very least that Garcia could have loaded it quickly and easily, based on a
photograph taken at the time it was found.           The Government presented
evidence, including testimony of one of Garcia’s customers, from which a
reasonable juror could have found that the large amount of cash represented the
proceeds of drug sales. Moreover, the Government presented evidence that
Garcia, using his vehicle, participated in a drug transaction on the day the
firearm was found. Accordingly, a reasonable juror could have found that Garcia
carried the firearm during, and in relation to, a drug-trafficking crime.
      Garcia contends for the first time in his reply brief that his customer’s
testimony was unreliable and should be disregarded. Garcia did not object to
that testimony at trial and, as noted, did not raise this issue in his opening brief.
“For obvious reasons, our court generally will not consider an issue raised for the
first time in a reply brief.” United States v. Rodriguez, 602 F.3d 346, 360 (5th
Cir. 2010).
      Garcia next contends the district court improperly admitted into evidence
a report of data files stored on one of his cellular telephones. Evidentiary rulings
are reviewed for abuse of discretion, but a harmless error will not be reversed.
E.g., United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011); Fed. R. Evid.
103(a). Even if the admission of this evidence was erroneous, the error would

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not warrant reversal because it was harmless. The other evidence against
Garcia was strong: the customer testified to the multitude of drug deals in
which Garcia engaged; police officers testified about the firearm and large sums
of cash found in Garcia’s vehicle; the testimony of both the customer and the
officers, along with other evidence, could have led a reasonable juror to
determine that Garcia participated in a drug transaction at a motel on the day
of his arrest; and a bulletproof vest and a page from a drug ledger were found in
Garcia’s home. In the light of this evidence, the contents of Garcia’s cellular
telephone did not impact the verdict. Because there is no reasonable probability
that the report contributed to Garcia’s conviction, his substantial rights were not
affected by its admission. E.g., United States v. Sumlin, 489 F.3d 683, 688 (5th
Cir. 2007).
      Listing several claimed errors made by his trial attorney, Garcia next
claims ineffective assistance of counsel (IAC). Except in rare circumstances, an
IAC claim not preserved in district court will not be addressed on direct appeal.
E.g., United States v. Montes, 602 F.3d 381, 387 (5th Cir. 2010). Garcia presents
no reason to deviate from that general rule in this instance. The record does not,
inter alia, reveal the reasons for his attorney’s decisions. Accordingly, Garcia’s
contentions are premature. Of course, he may raise them in a 28 U.S.C. § 2255
motion. Id. at 388.
      Garcia also challenges the district court’s denying him a continuance to
secure the presence of a witness—a detective involved in his investigation—who
was on vacation at the time of trial. At trial, a police officer testified that, while
conducting surveillance of a club with the detective, the detective reported that
Garcia entered the club carrying a satchel. The officer did not personally see
whether Garcia was carrying anything. Garcia contends that the court’s denial
of a continuance to secure the presence of the detective resulted in the denial of
Garcia’s right to confront adverse witnesses.

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      Defense counsel did not raise a Confrontation Clause objection in district
court; thus, review is only for plain error. E.g., United States v. Martinez-Rios,
595 F.3d 581, 584 (5th Cir. 2010). To show reversible plain error, Garcia must
show a clear or obvious error that affected his substantial rights. E.g., Puckett
v. United States, 556 U.S. 129, 135 (2009). Even if he makes this showing,
however, our court retains discretion whether to correct the error but generally
will do so only if it seriously affects the fairness, integrity, or public reputation
of the proceedings. Id.
      The Confrontation Clause prohibits the admission of an out-of-court
testimonial statement unless the declarant is unavailable and defendant had a
prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36,
59 (2004). Even assuming the detective’s statement that Garcia carried a
satchel into the club was testimonial and that its admission amounted to clear
or obvious error, Garcia cannot succeed because he has not shown his
substantial rights were affected.
      To make such a showing, Garcia must show a reasonable probability that,
but for the violation, the outcome of the trial would have been different.
Martinez-Rios, 595 F.3d at 587. The Government’s case centered around the
drug transactions Garcia engaged in, drugs found in a hotel room where Garcia
had been earlier on the day of his arrest, and the firearm and cash found in his
vehicle. In short, whether Garcia carried a bag into a club did not affect the
outcome of the trial. Accordingly, he has failed to show reversible plain error.
      Garcia contends the district court should have granted him a continuance
to give him time to review telephone records and photographs that the
Government produced five days before trial. Denial of a continuance is reviewed
for abuse of discretion. E.g., United States v. Stalnaker, 571 F.3d 428, 439 (5th
Cir. 2009).   Garcia must demonstrate the denial “resulted in specific and
compelling or serious prejudice”. United States v. Barnett, 197 F.3d 138, 144

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(5th Cir. 1999) (internal quotation marks omitted). Garcia has not done so
because he does not explain what a longer period of time for review would have
produced or precisely how his defense suffered because counsel had only five
days to review this evidence.
      Garcia’s motion to suppress was denied as untimely. Garcia contends the
court should have held a hearing and decided the motion on its merits. The
court did not abuse its discretion. E.g., United States v. Oliver, 630 F.3d 397,
410 (5th Cir. 2011). It was authorized to set a deadline for filing pretrial
motions. Id. at 411; Fed. R. Crim P. 12(c). Garcia waived any issue not raised
by that deadline. Oliver, 630 F.3d at 410; Fed. R. Crim. P. 12(e). Garcia and his
counsel agreed in writing that pretrial motions were required to be filed within
40 days after the latest scheduled arraignment date. That date was 19 October
2010. Garcia did not move to suppress until 20 May 2011, seven months after
that date. Garcia does not explain either in the motion or here why he could not
meet the deadline.
      Garcia next contends the Government was permitted improperly to
introduce evidence of his ties to the “Mexican Mafia”. Evidence may be excluded
if its probative value is substantially outweighed by unfair prejudice. Fed. R.
Evid. 403. Obviously, defendant may not be convicted on the basis of his
association with “unsavory characters”. United States v. McCall, 553 F.3d 821,
826 (5th Cir. 2008) (internal quotation marks omitted). Re-stated, evidence that
defendant is associated with a criminal does not support an interference that he
is a criminal. Id. Both the Government and Garcia elicited testimony, to which
there was no objection, that witnesses were members of the gang and that others
with ties to Garcia were also members. During cross-examination, Garcia was
asked whether his father was a member of the gang and was “normally the
general” or an advisor to the current “general”. Over objection, Garcia responded



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that his father did not discuss the issue with him and that he did not know
whether his father was involved.
      As for the testimony to which defense counsel did not object, review is only
for plain error. E.g., United States v. Espino-Rangel, 500 F.3d 398, 399-400 (5th
Cir. 2007). Even if it was clear or obvious error to permit testimony as to the
gang affiliation of the witnesses and their associates, Garcia cannot show that
his substantial rights were affected because, as explained above, there was
sufficient other evidence of his guilt for conviction. See McCall, 553 F.3d at 827
(finding no plain error in district court’s failure to grant sua sponte mistrial on
basis of “guilt-by-association” testimony because of strong evidence of
defendant’s guilt).
      Garcia objected to the Government’s questions as to whether his father
was involved in the gang. The standard for assigning error under Rule 403
requires a showing of “a clear abuse of discretion”. United States v. Curtis, 635
F.3d 704, 716 (5th Cir.) (internal quotation marks omitted), cert. denied, 132 S.
Ct. 191 (2011). There was no clear abuse of discretion because the probative
value of the testimony outweighed any unfair prejudice. Garcia’s codefendant,
a witness for the defense, testified that he sold drugs but that Garcia did not.
In attempting to elicit testimony that the codefendant and Garcia’s father were
involved in the same gang and that Garcia’s father held a position of power, the
Government sought to call into question the veracity of the codefendant’s
testimony by implying that he had a reason to lie in support of Garcia. In any
event, any error in permitting unduly prejudicial testimony regarding the gang
was harmless because, in the light of the other evidence of Garcia’s guilt, there
is no reasonable probability that the evidence contributed to the conviction.
Sumlin, 489 F.3d at 688.
      Garcia also challenges the admission of two photographs as well as the
Government’s questions to his codefendant regarding whether the persons in the

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photographs, including Garcia, were members of the gang. Again, even if the
district court clearly abused its discretion in admitting the photographs and
allowing questions about them, the errors were harmless in the light of the other
evidence of Garcia’s guilt. Id.
      Finally, Garcia maintains the cumulative effect of the district court’s
claimed errors resulted in an unfair trial. The evidence showed that Garcia
frequently sold drugs to a drug dealer for resale and that Garcia carried a
firearm in his vehicle along with proceeds of drug sales. To the extent the court
committed errors, they did not “so fatally infect the trial that they violated the
trial’s fundamental fairness”. United States v. Fields, 483 F.3d 313, 362 (5th Cir.
2007) (internal quotation marks omitted).
      AFFIRMED.




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