     Case: 15-41637      Document: 00514000830         Page: 1    Date Filed: 05/19/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 15-41637                                 FILED
                                                                               May 19, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

              Plaintiff - Appellee

v.

VALENTIN MUNIZ-SAAVEDRA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:13-CR-736-1


Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       On August 31, 2013, Defendant-Appellant Valentin Muniz-Saavedra
(“Muniz”) drove across the Mexico-United States border crossing at
Brownsville, Texas. Law enforcement found approximately 18 kilograms of
cocaine and 5.5 kilograms of methamphetamine concealed in his vehicle. The
drugs were worth several hundred thousand dollars. Muniz’s defense was that
he did not know that drugs were concealed inside the vehicle.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41637
      At trial, Oscar Lara, a special agent with the Department of Homeland
Security testified, over objection, that he observed Muniz snorting, sniffing,
and wiping his nose. Lara testified that, in his experience, Muniz’s conduct
indicated cocaine use. Further, Lara testified that, when confronted, Muniz
admitted to using cocaine. At that point, Muniz successfully moved for a
limiting instruction that the evidence was “not to be considered for general
character or trustworthiness of the witness and it’s solely for the issue of
motive in this case.” Muniz later testified that he last used cocaine on July 8
or 9, 2013, when he purchased a small amount from a neighbor.
      Later in the trial, Louis Mihalos, another agent with the Department of
Homeland Security, testified that Muniz had not been truthful during his
initial questioning. Mihalos testified that Muniz was dishonest about his
phone communications with the alleged mastermind trafficker. Mihalos told
the jury, over objection, that Muniz “was not being truthful.”
      Muniz was convicted by a jury of possession with intent to distribute
cocaine, possession with intent to distribute methamphetamine, importation
of cocaine, and importation of methamphetamine. He appealed, principally
arguing that (1) the district court erred by admitting evidence that Muniz
personally used cocaine and (2) the district court erred by permitting an agent
to testify that Muniz was untruthful. We affirm.
                                       I
      Muniz first argues that the district court erred by allowing the
Government, under Rule 404(b) of the Federal Rules of Evidence, to introduce
evidence of Muniz’s personal use of cocaine. We hold that any error was
harmless; but note that the threshold question of whether personal drug use,
standing alone, is relevant to show motive, intent, or knowledge in a drug
importation or trafficking case has received unsettled treatment by our court.
Compare United States v. McDonald, 905 F.2d 871, 875 (5th Cir. 1990)
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                                 No. 15-41637
(“[T]here is a large leap from evidence that McDonald in the past used cocaine
and speed to an inference that he therefore likely knew his car contained
marijuana that day. The leap is too large.”), with United States v. Gadison, 8
F.3d 186, 192 (5th Cir. 1993) (“A prior conviction for possession of cocaine is
probative of a defendant’s intent when the charge is conspiracy to distribute.”).
Other circuits have also split on the issue. See, e.g., United States v. Davis,
726 F.3d 434, 445 (3d Cir. 2013) (joining the Sixth, Seventh, and Ninth Circuits
in holding that a possession conviction is inadmissible to prove intent to
distribute and explicitly disagreeing with this court’s opposite conclusion in
Gadison, the Eighth, and Eleventh Circuits); United States v. Haywood, 280
F.3d 715, 721 (6th Cir. 2002) (rejecting Gadison). Other circuits have operated
under the assumption that we follow the Gadison rule that prior drug use is
relevant. See, e.g., Davis, 726 F.3d at 445; Haywood, 280 F.3d at 721; United
States v. Butler, 102 F.3d 1191, 1196 (11th Cir. 1997). This assumption may
be based on the fact that we appear to follow Gadison more than we follow
McDonald. See, e.g., United States v. Brumfield, 615 F. App’x 177, 178 (5th
Cir. 2015) (unpublished); United States v. Wallace, 759 F.3d 486, 494 (5th Cir.
2014); United States v. Ordonez, 286 F. App’x 224, 231 (5th Cir. 2008)
(unpublished); United States v. Duffaut, 314 F.3d 203, 209 (5th Cir. 2002).
Because we find that any error here was harmless, we need not address these
legal complexities; down the line, however, this apparent conflict will require
resolution.
      “In a harmless error examination, we view the error in relation to the
entire proceeding, not merely in isolation.” United States v. Hawley, 516 F.3d
264, 268 (5th Cir. 2008) (citing United States v. Williams, 957 F.2d 1238, 1244
(5th Cir. 1992)).    “Reversal is not required unless there is a reasonable
possibility that the improperly admitted evidence contributed to the
conviction.” Id. “Put another way, we will not reverse a conviction if beyond a
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                                 No. 15-41637
reasonable doubt the error complained of did not contribute to the verdict
obtained.” United States v. El-Mezain, 664 F.3d 467, 526 (5th Cir. 2011)
(internal quotation marks omitted) (quoting United States v. Hall, 500 F.3d
439, 443 (5th Cir. 2007)).
      Any error in admitting the personal-cocaine-use evidence was harmless
because the Government presented overwhelming evidence of Muniz’s
knowledge of the drugs. See United States v. Ramos-Rodriguez, 809 F.3d 817,
824 (5th Cir. 2016) (finding that any 404(b) error in admitting evidence of the
defendant’s past personal drug use was harmless because of the Government’s
“overwhelming evidence”). Indeed, the evidence here mimicked the evidence
in a number of cases where we found that admitting evidence of prior bad acts
was harmless. For example, Muniz was found with a large quantity of drugs
(18 kilograms of cocaine and 5.5 kilograms of methamphetamine), see id. at
824, was nervous during his initial questioning, see Hawley, 516 F.3d at 268
(citing Williams, 957 F.2d at 1243), gave inconsistent statements to the
investigating officers, see United States v. Garcia-Gracia, 324 F. App’x 286, 294
(5th Cir. 2009) (unpublished), ultimately presented an implausible explanation
of his conduct to the jury, see id., and had a number of suspicious connections
to the person Muniz claims masterminded the trafficking (including renting a
house for the alleged mastermind trafficker). Moreover, the risk that the jury
may have impermissibly relied on the personal-drug-use evidence was lessened
by the district court’s giving limiting instructions, both when the drug-use
evidence was admitted and before closing arguments began. See United States
v. Gordon, 780 F.2d 1165, 1174 (5th Cir. 1986). Finally, that the jury rendered
a particularized verdict convicting on only some counts suggests that the jury
did not harbor improper animus toward Muniz. Accordingly, viewing the trial
evidence as a whole, we hold that admitting the evidence that Muniz had
previously used cocaine was harmless.
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                                  No. 15-41637
                                        II
      Muniz next argues that the district court erred by allowing an agent to
testify that Muniz did not truthfully respond to the agent’s questions regarding
Muniz’s prior communications with the alleged mastermind trafficker. Muniz
argues that the district court erred by either allowing the agent to express an
unhelpful opinion to the jury or allowing the lay, agent witness to testify as an
expert in credibility.
      As we previously explained, the Government adduced overwhelming
evidence of Muniz’s guilt. Moreover, the agent’s statement to the jury that
Muniz was being dishonest was cumulative. “Where objected to testimony is
cumulative of other testimony that has not been objected to, the error that
occurred is harmless.” United States v. Griffin, 324 F.3d 330, 348 (5th Cir.
2003). Here, the agent testified about both the dishonest statements that
Muniz made and the underlying facts demonstrating the dishonesty. That is,
“[t]he record contained enough other information for the jurors to reach the
same conclusion” about Muniz’s dishonesty as the agent did. United States v.
Churchwell, 807 F.3d 107, 119 (5th Cir. 2015). Accordingly, the agent’s opinion
testimony concerning Muniz’s dishonesty was “merely cumulative of what was
already showcased in the record.” Id.
                                        III
      We have considered Muniz’s remaining arguments and find them
without merit. We AFFIRM.




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                                   No. 15-41637
JAMES E. GRAVES, JR., Circuit Judge, dissenting in part:
      The district court erred in admitting evidence of Muniz-Saavedra’s
personal use of cocaine. This error was not harmless. Because I would reverse
the district court in part, I respectfully dissent in part.
      Rule 404(b)(1) states: “Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Fed. R. Evid.
404(b)(1).   However, the evidence may be admissible for other reasons,
including “proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
      This court applies the test outlined in United States v. Beechum, 582 F.2d
898, 911 (5th Cir. 1978), to determine the admissibility of evidence under Rule
404(b). The evidence must be relevant to an issue other than character and
the probative value cannot be substantially outweighed by the undue
prejudice. Id. The test for relevancy follows the standard set out in Rule 401.
Fed. R. Evid. 401. Relevant evidence may be excluded if there is a danger of
“unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence” substantially
outweighing the probative value. Fed. R. Evid. 403.
      This court’s precedent clearly supports the conclusion that Muniz-
Saavedra’s personal use of cocaine was not relevant to his intent and its
probative value was substantially outweighed by undue prejudice. See United
States v. McDonald, 905 F.2d 871 (5th Cir. 1990). Further, as this court said
in McDonald, “[w]e think this evidence was only truly probative of McDonald’s
character – i.e., a drug user is more likely to be involved in a deal like this than
a non-drug user.” Id. at 875. That is exactly what the government argued here
at trial – that Muniz-Saavedra was more likely to be involved in this because
he had used cocaine, saying: “[O]ur position is that if he’s a user of cocaine,
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                                    No. 15-41637
well, then he necessarily has to possess that cocaine to use that cocaine. If he
possesses that cocaine, well, he possesses it in violation of law.”
       Notwithstanding that someone may ingest drugs without prior
possession, there is no evidence here indicating that Muniz-Saavedra was
receiving any cocaine pursuant to this incident or had used cocaine for nearly
two months. Further, the government acknowledged at trial that, “[t]here are
no other statements from the Defendant anywhere indicating or – to agents
that he knew about the cocaine in the vehicle.”
       With regard to whether the cocaine use was relevant to show his
financial motive for committing the offenses, this court follows the test in
United States v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013).
       We consider several factors in determining whether the prejudicial
       effect of the extrinsic evidence substantially outweighs its
       probative value: (1) the government's need for the extrinsic
       evidence, (2) the similarity between the extrinsic and charged
       offenses, (3) the amount of time separating the two offenses, and
       (4) the court's limiting instructions.

Id.
       The government had no need for the evidence of drug use because they
had other evidence – the line of credit at the furniture store 1 – which they claim
shows financial motive. The cocaine use was only truly probative of Muniz-
Saavedra’s character, “i.e., a drug user is more likely to be involved in a deal
like this than a non-drug user.” McDonald, 905 F.2d 875. Further, there is no
indication of whether the limiting instruction diminished the prejudicial effect
or to what extent. Kinchen, 729 F.3d at 474. As for the amount of time
separating the offenses, Muniz-Saavedra said that he had last used cocaine on
July 8 or 9, 2013, on the anniversary of his brother-in-law’s death. He was


       1Muniz-Saavedra had a less than $200 monthly payment that had been consistent for
some three years.
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                                 No. 15-41637
arrested at the border check point on August 31, 2013. All of these factors
support the conclusion that that the probative value was substantially
outweighed by undue prejudice. See also Fed. R. Evid. 403.
      For these reasons, I would conclude that the district court erred in
allowing the admission of evidence of Muniz-Saavedra’s personal use of
cocaine. Further, I would conclude that the error was not harmless.
      An error is harmless unless it affects a defendant’s substantial rights.
See Fed. R. Crim. P. 52(a); see also McDonald, 905 F.2d at 876. “An error
affects substantial rights if there is a reasonable probability that the
improperly admitted evidence contributed to the conviction.” United States v.
Sumlin, 489 F.3d 683, 688 (5th Cir. 2007). Muniz-Saavedra’s testimony and
assertions were much more credible and plausible than McDonald’s.
      “The leap is too large” between evidence that Muniz-Saavedra used
cocaine in the past and “an inference that he therefore likely knew [the van]
contained drugs.” See McDonald, 905 F.2d at 875. Based on all of this, there’s
a reasonable probability that the improperly admitted evidence of cocaine use
contributed to Muniz-Saavedra’s conviction. Accordingly, the error was not
harmless.
      Thus, I respectfully dissent in part.




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