                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                       April 19, 2004
                                FOR THE FIFTH CIRCUIT
                                                                                 Charles R. Fulbruge III
                                 _________________________                               Clerk
                                        No. 03-40246
                                   SUMMARY CALENDAR
                                 _________________________

UNITED STATES OF AMERICA,

                      Plaintiff - Appellee,

   v.

JESUS MUNOZ-HERNANDEZ,

                      Defendant - Appellant.

______________________________________________________________________________

                 On Appeal from the United States District Court for the
                              Southern District of Texas
                                (L-02-CR-1280-ALL)
______________________________________________________________________________

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

        In this appeal, we review Defendant - Appellant, Jesus Munoz-Hernandez’s (hereinafter,

“Munoz”), conviction for possession with intent to distribute more than five kilograms of cocaine

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). For the following reasons, we uphold the

conviction.




        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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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                                                 I.

                                   FACTUAL BACKGROUND

       Munoz was stopped by United States Customs Enforcement officers at the primary

inspection point at International Bridge II in Laredo, Texas when a drug-detecting dog alerted an

officer to the vehicle driven by Munoz. Munoz told the officer that he was going to an auto parts

store in Laredo and that the vehicle he was driving belonged to his wife. The officer testified that

when Munoz handed him his resident alien card, he noticed that Munoz’s hand was shaking.

Based upon this evidence, the officer sent Munoz to the secondary inspection area. After

inspecting the vehicle, officers found 33 kilograms of cocaine hidden beneath a trap door in the

rear cargo area of the vehicle. The officers also found tools in the vehicle’s center console that

could be used to access the hidden compartment.

       Munoz allegedly told the officers that a woman named Catalina had initially approached

him and asked him to smuggle vehicles with marijuana hidden in them, but that he had said no.

Munoz said that the woman later approached him again and asked him to drive a vehicle to

Laredo and buy auto parts. Munoz also allegedly told the officers that another man would meet

him at the auto parts store, and that the man would keep the vehicle after dropping Munoz off at

the International Bridge.

       At trial, Munoz denied telling the officers that he was supposed to leave the vehicle with a

man in Laredo. He also denied knowing that there were drugs hidden in the vehicle. However,

the jury found Munoz guilty, and the district court sentenced him to 151 months’ imprisonment,

five years’ supervised release, and a $100 special assessment. Munoz timely appealed.




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                                                II.

                                 SUFFICIENCY OF THE EVIDENCE

       Munoz first argues that the evidence was insufficient to support his conviction, but his

argument is without merit. The foregoing evidence supports the jury’s reasonable inference that

Munoz was aware of the drugs found in the vehicle, and thus, the evidence is sufficient to support

his conviction. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also United States v.

Villareal, 324 F.3d 319, 324 (5th Cir. 2003).

       Munoz also argues that the evidence was insufficient because the Government was

required to prove that he knew the drug type and quantity of the controlled substance found in the

vehicle. Munoz bases his argument on the instruction provided to the jury, which he contends

imposed such a requirement.

       We disagree. The jury instruction, when read as a whole and in the context of the trial,

does not require the jury to find that Munoz had knowledge of the drug type and quantity. Such

knowledge is not ordinarily an element of the offense under 21 U.S.C. § 841. See United States

v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir.), cert. denied, 123 S. Ct. 2241 (2003); United

States v. Fotovich, 885 F.2d 241, 242 (5th Cir. 1989). Further, the purported additional

knowledge element was not alleged in Munoz’s indictment. See United States v. Taylor, 933

F.2d 307, 310 (5th Cir. 1991).

                                                III.

                                 PROSECUTORIAL MISCONDUCT

       As previously stated, Munoz and the testifying customs officer gave different accounts of

what Munoz told the officers when he was arrested. Munoz argues for the first time on appeal


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that the Government committed reversible plain error by asking him under cross-examination

whether the officer lied about statements he claimed Munoz made when he was arrested. Munoz

also argues that the prosecutor committed error by reasserting during closing arguments that

Munoz was calling the customs officer a liar, and that the jury should determine which witness

they found credible.

       It is improper for the Government to cross-examine witnesses in such a way as to force

the witness to call other witnesses liars, and we have determined that such questioning is

prosecutorial misconduct. See United States v. Williams, 343 F.3d 423, 437 (5th Cir.), cert.

denied, 123 S. Ct. 966 (2003); United States v. Thomas, 246 F.3d 438, 439 n.1 (5th Cir. 2001).

However, because Munoz is raising the argument for the first time on appeal, we review for plain

error. See United States v. Tomblin, 46 F.3d 1369, 1386 (5th Cir. 1995). Under the plain error

standard, Munoz must show that (1) there is an error; (2) the error is plain; and (3) the error

affects his substantial rights. See United States v. Olano, 507 U.S. 725, 732 (1993).

       Because the Government concedes that the prosecutor’s statements were improper and

plain error, we move to the next step in our analysis, which is to determine whether the

prosecutor’s statements affected Munoz’s substantial rights. See Williams, 343 F.3d at 437.

       The prejudicial effect of the prosecutor’s statements was small in light of the fact that the

statements came after Munoz had already contradicted the officer’s testimony. Implicitly, Munoz

had already called the officer a liar, and the prosecutor’s statements only verbalized that fact to

the jury. The district court properly instructed the jury that they were to determine the credibility

of the witness’ testimony, thus militating against a finding of reversible error. See id. at 438.

       As the evidence is sufficient to support Munoz’s conviction, Munoz has failed to


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demonstrate that the prosecutor’s statements affected his substantial rights and amounted to plain

error. See id.

                                               IV.

                         CONSTITUTIONALITY OF 21 U.S.C. § 841

       Finally, in order to preserve the issue for further review, Munoz raises the argument that

21 U.S.C. § 841 is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). We

have rejected that argument and will not reconsider it here. United States v. Slaughter, 238 F.3d

580, 581-82 (5th Cir. 2000).

                                                V.

                                         CONCLUSION

       For the foregoing reasons, we affirm the conviction.




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