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

                                                                            FILED
                                                                           June 19, 2013
                                       No. 12-50021
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

versus

ELADIO CLARK-GONZALEZ, III, Also Known as Eladio Clark;
JUAN CARLOS AGUILAR-DIAZ, Also Known as Juan Aguilar-Diaz,

                                                  Defendants–Appellants.




                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 1:11-CR-26-10




Before SMITH, HAYNES, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Eladio Clark-Gonzalez (“Clark”) and Juan Aguilar-Diaz (“Aguilar”) contest
the sufficiency of the evidence supporting their convictions of conspiracy to man-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50021

ufacture and possess with intent to distribute one hundred or more marihuana
plants. They also contend that the district court erred by failing to declare a
mistrial over the introduction of improper evidence. Moreover, Aguilar main-
tains that the court plainly erred by allowing testimony that implied he had
exercised his right to remain silent. Finding no reversible error, we affirm.


                                        I.
      Clark and Aguilar were charged, along with several others, including Abel
Aguilar-Otano (“Abel”) and Lazaro Ruiz-Ruiz (“Ruiz”), with conspiracy to possess
with intent to distribute and to manufacture one hundred or more marihuana
plants, 21 U.S.C. §§ 841(b)(1)(B), 846. Clark, Aguilar, and Ruiz were tried
together. Following a five-day jury trial, all three were found guilty of conspir-
acy, and the jury found that the conspiracy involved at least one hundred mari-
huana plants.
      Abel was a fugitive in Cuba at the time of trial. Sariel Enriquez-Otano
(“Sariel”), Abel’s cousin, testified that in June or July 2010, he became involved
in a marihuana-grow operation with Abel. The two men set the operation up in
the garage of a house on Disraeli Street in Pflugerville, Texas, and Sariel resided
in the house. Sariel conducted two grows at the Disraeli address and was start-
ing a third crop when the house was raided in December 2010.
      During the raids, marihuana-grow operations were found at three houses,
and the components for another operation were found at a fourth house. Law
enforcement officers found grow operations taking place at a house on Quail
Creek that had been occupied by Ruiz and his girlfriend, Yamila Mateos, and at
a house on Tuffit owned by Heber Morales. Sariel knew that Morales was
conducting a marihuana grow at the Tuffit address and had seen Morales and
Abel together several times there. Mateos testified that Abel had been a fre-
quent visitor to the Quail Creek house. Extra cooling systems and specialized

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                                    No. 12-50021

electrical systems had to be set up to sustain the grow operations. At all three
locations, there were similar air-conditioning systems, and the electrical systems
had the same schemes, breaker boxes, and timers, which had been mounted on
boards that could be pulled off the walls. Similar types of fertilizers, high-
intensity light bulbs, reflective paneling, plant stakes, plant pots, and plant-
cloning operations were found at each of those three locations.


                                        II.
      Clark and Aguilar moved for a judgment of acquittal at the close of the
government’s case-in-chief and after the close of all evidence, pursuant to Fed-
eral Rule of Criminal Procedure 29. They appeal the denial of those motions,
arguing that the evidence was not constitutionally sufficient to support their
convictions.
      “We review de novo the denial of a Rule 29 motion for a judgment of
acquittal.” United States v. Xu, 599 F.3d 452, 453 (5th Cir. 2010). “In determin-
ing if there was sufficient evidence to support a conviction, the ‘relevant question
is whether, after viewing the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). In our review of sufficiency, the “only question” before us is
whether the jury’s “finding was so insupportable as to fall below the threshold
of bare rationality.” Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012). “Direct
and circumstantial evidence are given equal weight, and the evidence need not
exclude every reasonable hypothesis of innocence.” United States v. Gonzales,
79 F.3d 413, 423 (5th Cir. 1996).
      To prove a conspiracy under § 846, the government must show (1) the exis-
tence of an agreement between two or more persons to violation federal narcotics
laws, (2) the defendant’s knowledge of the agreement, and (3) the defendant’s

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                                   No. 12-50021

voluntary participation in the conspiracy. United States v. Thomas, 690 F.3d
358, 366 (5th Cir.), cert. denied, 133 S. Ct. 673 (2012), and cert. denied, 133 S. Ct.
1281, and cert. denied, 133 S. Ct. 1743 (2013). “[K]nowledge of a conspiracy and
voluntary participation may be inferred from a collection of circumstances.”
United States v. Watkins, 591 F.3d 780, 788 (5th Cir. 2009) (marks and citation
omitted). “While mere presence at the scene or association with co-conspirators
is insufficient, they are factors that may be considered in finding conspiratorial
activity.” Thomas, 690 F.3d at 366 (internal quotation marks and citation
omitted). “[P]lacing a defendant in a climate of activity that reeks of something
foul is not enough to support a conspiracy conviction,” and “while circumstantial
evidence may be particularly valuable in proving the existence of the
conspiratorial agreement, we have repeatedly stressed that we will not lightly
infer a defendant’s knowledge of and participation in a conspiracy.” United
States v. Dean, 59 F.3d 1479, 1485 (5th Cir. 1995) (quotation marks and citation
omitted).
      Neither defendant disputes the existence of a conspiracy to manufacture
and possess with the intent to distribute marihuana. At issue is whether Clark
and Aguilar knew of and voluntarily participated in the conspiracy.


                                         A.
      Viewing the evidence in a light most favorable to the prosecution, a
rational jury could have found Clark guilty beyond a reasonable doubt. First, he
was given unusual access to the garage at the Quail Creek house, which was
ultimately found to contain a marihuana grow. Mateos testified that Ruiz kept
the garage under lock and key and never let her enter it, although he went in
every few days. When she asked about the garage, Ruiz told her not to “put [her]
nose in it.” The first few times the co-conspirators arrived to go to the garage,
Ruiz instructed Mateos to go upstairs, to the second floor of the house. After

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                                        No. 12-50021

that, she knew to go upstairs on her own. Abel visited the Quail Creek location
“twenty, thirty, fifty times” during the six- to eight-month period Mateos lived
there with Ruiz. Clark visited three or four times and was permitted to go into
the garage at least once. Clark’s presence at Quail Creek was corroborated by
neighbors who saw his pickup there and wrote down its license plate number.
A rational fact-finder could conclude that Ruiz allowed only members of the con-
spiracy to enter the garage, because he was growing, or setting up to grow, mari-
huana there.1
       Second, the evidence at trial, though not conclusive, was at least consistent
with the government’s theory that Clark installed air-conditioning and electrical
wiring in some of the grow houses.2 The jury heard that Clark had the ability
to perform that type of work, that he was seen going into the garage at Quail
Creek, that the AC and electrical systems in the three grow houses were similar,
and that law enforcement had received information “that [Clark] had done work
in the marihuana grow.”3
       Clark contends that the evidence presents a stronger case that William
Martin installed the AC and electrical systems observed in the Quail Creek gar-
age on December 21, 2010. In particular, Martin had relevant work experience,


       1
         Clark contends that the evidence did not prove that a marihuana-grow operation
existed at the house on Quail Creek before 2010, and his access to the garage in 2008 cannot,
therefore, be connected to the grow operation. A rational jury could have inferred that there
was a grow operation, perhaps at an early stage, in 2008 from the facts that Ruiz kept the gar-
age locked during that time and that neighbors first reported suspicious activity there in early
2008.
       2
         Sariel testified that he and Abel installed the air conditioning and specialized electri-
cal wiring in the garage on Disraeli.
       3
          Detective Dean Peterson testified to that fact on cross-examination. The foundation
for his testimony was a post-arrest statement from Clark, which had been excluded by the dis-
trict court based on Bruton v. United States, 391 U.S. 123 (1968). Because Peterson’s testi-
mony was directly responsive to a question of opposing counsel, it was not objected to on hear-
say grounds.

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                                       No. 12-50021

stayed with Mateos in the Quail Creek house, had a Texas Hydroponics business
card, and had equipment in his residence similar to that used in the three grow
houses. None of that evidence makes it more plausible that Martin rather than
Clark installed the AC and electrical systems. Both were capable and had access
to the Quail Creek garage. The remaining evidence may indicate that Martin
built the actual grow systems, but it has nothing to do with the AC and electrical
systems.      In any event, the “jury is free to choose among reasonable
constructions of the evidence.” United States v. Pigrum, 922 F.2d 249, 254 (5th
Cir. 1991).
       Third, a rational factfinder could conclude that Clark was compensated for
his role in the conspiracy. When law enforcement officers raided the Tuffit
house, they discovered a paper, which appeared to be a drug-tally sheet, indicat-
ing that “Lallin”—Clark’s nickname—was owed $1000. Clark offers a number
of reasons to discount the evidence—the price and quantity seem too low, several
of the notations did not refer to known members of the conspiracy, and one of the
notations might refer to an aquarium—but this court must view the evidence in
a light most favorable to the government. Additionally, Mateos, possibly at
Ruiz’s behest, wrote a $2000 check for cash in July 2010, which Clark endorsed.
Mateos testified that it was not a rent payment.
       Fourth, the government presented evidence that Clark made purchases far
in excess of his apparent income. In 2010, he owned two 2009 vehicles and two
residences, one of which was worth $145,000. The jury heard that Clark’s sole
source of income was his work as lead maintenance man at an apartment com-
plex and could reasonably infer that he supplemented his income illicitly.4
       Fifth, Clark had numerous associations with the conspirators. He allowed
Mateos, Ruiz, and Martin to use his address for vehicle registrations and bank

       4
        See United States v. Gonzales, 79 F.3d 413, 424 (5th Cir. 1996) (noting that inconsis-
tency between reported income and expenditures “suggest[ed] income from illicit sources”).

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                                       No. 12-50021

statements. Ruiz and Mateos lived at his ranch. Clark worked with and super-
vised Martin and knew and visited Abel. Shortly before the raids, a black SUV
registered to Clark was seen arriving at the house on Tuffit. Clark’s close associ-
ation with the conspirators, standing alone, might not be sufficient to support
his conviction,5 but “presence or association is one factor that the jury may rely
on, along with other evidence, in finding conspiratorial activity by a defendant.”
United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991) (quotation marks and
citation omitted). The evidence of Clark’s close associations with the conspira-
tors, access to the locked garage at Quail Creek, specialized skills that would
have been useful to the conspirators, purchases in excess of legitimate income,
and possible payment for services rendered allowed a rational trial of fact to find
Clark guilty of conspiracy beyond a reasonable doubt.


                                             B.
       The evidence of Aguilar’s knowledge of and voluntary participation in the
conspiracy sufficiently supports the verdict.            Aguilar was pulled over and
arrested in July 2008 while transporting over thirty pounds of high-potency
marihuana through Mississippi in a recreational vehicle (“RV”). Although he
asserts there was no evidence he had knowledge of the marihuana, a jury could
reasonably infer that he did.
       Aguilar made a call on his cell phone while seated in the back of the patrol
car after being pulled over. During the call, he stated that the vehicle was being
checked, that he was in the back seat of a patrol car, and that “they’re going to
get me for sure.” Although it is unclear from Aguilar’s cell phone records to
whom he was speaking during that conversation, the records show that he
received around ten brief calls from Ruiz on the day of the arrest. The jury

       5
       See, e.g., United States v. Maltos, 985 F.2d 743, 747 (5th Cir. 1992); United States v.
Gardea Carrasco, 830 F.2d 41, 45 (5th Cir. 1987).

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                                       No. 12-50021

heard that this pattern of short calls is common when a supplier is checking on
his drug carrier’s trip. Also, cell phone records for Aguilar and Ruiz revealed
that they frequently communicated with Abel and that the three talked on the
day of Aguilar’s arrest.
       Additionally, a reasonable jury could have connected the marihuana dis-
covered in Aguilar’s RV to the conspiracy in two ways. First, the jury heard from
an officer, who observed both, that the marihuana found with Aguilar appeared
similar to the marihuana seized from the grow houses.6 Second, although Agui-
lar lived in Florida, he rented the RV in Austin and paid cash. As the govern-
ment notes, a jury could reasonably infer that Aguilar rented the trailer in Aus-
tin so he could load it with marihuana grown in or near Austin and then trans-
port it to the Eastern United States.
       The government contends that this incident alone would allow a reasona-
ble inference of Aguilar’s knowledge of and voluntary participation in the
broader conspiracy.
       [C]onduct consisting only of involvement in a single transaction may
       nevertheless be treated as rationally permitting the inference of
       knowledge of the broader conspiracy where the single act itself
       shows so much familiarity with or high-level participation in the
       overall conspiracy as to be in and of itself indicative of the broader
       conspiracy.

United States v. Hawkins, 661 F.2d 436, 454 (5th Cir. Unit B Nov. 1981). In
Hawkins, we held that the defendant’s knowledge of the broader conspiracy
could be inferred from his awareness of the use of private planes to transport
drugs and from his personal contact and involvement with other members of the


       6
         Aguilar contends that any link between the two is pure speculation and without any
foundation, given that all marihuana looks the same. The officer acknowledged that his
testimony was not conclusive—he testified immediately beforehand that he was “not a
horticulturist”—still, in connection with the phone calls and other evidence, the testimony as
to similarity, in appearance and grade, could have been helpful to the jury.

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                                       No. 12-50021

conspiracy. Id. Aguilar argues that Hawkins is distinguishable, because his
transporting nearly $100,000 worth of high-potency marihuana did not make
him a high-level participant in the overall conspiracy.
       Regardless of whether the jury could have rationally found Aguilar guilty
based on his arrest alone, it heard much more evidence. In particular, it heard
of Aguilar’s connections and associations with the conspirators that rivaled or
exceeded Clark’s. For instance, Abel and other conspirators made use of a black
BMW, registered to Aguilar. Abel once used it to retrieve a package from an
unlocked, parked vehicle that was in front of a house the DEA had been watch-
ing. The jury heard a DEA task force officer testify that he inferred, therefore,
that Abel was involved with drugs. Abel also drove Aguilar’s BMW to meet with
Ruiz, and the car was spotted at the Quail Creek house. Aguilar was also linked
to Mateos, Ruiz, and Morales.
       Furthermore, the jury heard that Aguilar met with Morales at one point
in a parking lot, where the two exchanged a small object hand-to-hand. Morales
came to the meeting from the Tuffit house, where investigators would shortly
find marihuana. Aguilar notes that there was no direct evidence that the small
object had to do with marihuana, but the jury could have rationally inferred that
it had something to do with the conspiracy and therefore that it demonstrated
Aguilar’s knowledge of and participation in the conspiracy. Based on this evi-
dence, a rational jury could find beyond a reasonable doubt that Aguilar was
guilty of conspiracy.7




       7
         Aguilar asserts, in the alternative, that the district court should have granted judg-
ment of acquittal as to the greater offense and should have allowed the jury to consider only
the lesser included offense of fewer than one hundred plants. Aguilar offers no arguments or
citations to support that assertion, which is without merit—during the 2010 raids, officers
found thirty-four marihuana plants growing at the Tuffit house and another seventy-four on
Disraeli.

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                                        No. 12-50021

                                              III.
       Clark and Aguilar contend that the district court erred by failing to
declare a mistrial after the introduction of improper evidence.8 “When improper
evidence is introduced to the jury but a defendant’s subsequent motion for mis-
trial is denied, we review the denial for abuse of discretion and, if we find error,
we apply harmless error review.” United States v. Lucas, 516 F.3d 316, 345 (5th
Cir. 2008) (internal citation omitted).
       At the end of the second day of trial, Mateos testified that she had moved
with Ruiz from Florida to Austin. When the prosecutor asked why they had
done so, Ruiz’s counsel objected, anticipating her testimony that Ruiz had been
involved in a marihuana-grow operation. After the jury had been dismissed for
the evening, Mateos stated that Ruiz had been growing marihuana in Florida.
       The next morning, Mateos testified, over defense counsel’s objection, that
Ruiz was “clearly” growing marihuana when the two lived in Florida. Upon fur-
ther questioning, Mateos clarified that she had never seen Ruiz growing mari-
huana but assumed he had been because he palled around with a known mari-
huana grower and would not allow her into a locked area of his house. Ruiz’s
counsel moved to strike Mateos’s testimony, because she had no personal knowl-
edge that Ruiz grew marihuana. Joined by counsel for Aguilar and Clark, Ruiz’s
counsel also moved for a mistrial because the jury had heard Mateos testify that
Ruiz was growing marihuana in Florida.
       The court denied the motion for a mistrial but agreed to strike Mateos’s
testimony. The court informed the jury that it was striking the testimony

       8
          Clark adopted the portion of Aguilar’s brief making this argument by a Federal Rule
of Appellate Procedure 28(i) letter. This court has “previously held that an appellant may not
raise fact-specific challenges to his own conviction or sentence, such as sufficiency-of-the-
evidence challenges or challenges to the application of the sentencing guidelines, by merely
referring to similar challenges in another appellant’s brief.” United States v. Alix, 86 F.3d 429,
434 n.2 (5th Cir. 1996). Because this is not a fact-specific challenge, Clark’s letter suffices to
raise it.

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                                  No. 12-50021

because Mateos lacked personal knowledge and that the jury was not to “con-
sider [it] for any person because you do not know what he did and we can’t spec-
ulate on it.” The court stressed that “it’s not admissible evidence, and you
shouldn’t consider it when you decide the innocence or the guilt of Mr. Ruiz or
any of the defendants, for that matter. So I’m just striking it entirely.”
      Aguilar and Clark assert that, because Mateos’s testimony was irreparably
prejudicial, the court abused its discretion by failing to declare a mistrial. “A
new trial is required only when, after a review of the entire record, it appears
that there is a significant possibility that the prejudicial evidence had a substan-
tial impact on the jury verdict.” United States v. Valles, 484 F.3d 745, 756 (5th
Cir. 2007). This court “give[s] great weight to the trial court’s assessment of the
prejudicial effect of the evidence, and prejudice may be rendered harmless by a
curative instruction.” Id. Where, as here, the court gives the jury a curative
instruction, we “presume that such instructions are followed unless there is an
overwhelming probability that the jury will be unable to follow the instruction
and there is a strong probability that the effect [of the improper statement] is
devastating.” United States v. Turner, 674 F.3d 420, 440 (5th Cir.) (internal quo-
tation marks and citation omitted; alteration in original), cert. denied, 133 S. Ct.
302 (2012).
      We find no merit in this challenge. Mateos testified that Ruiz was growing
marihuana in Florida, but she soon clarified that she merely assumed he was
doing so. Her testimony was objected to immediately, then was struck with
detailed curative instructions emphasizing that it was speculation with no foun-
dation in Mateos’s personal knowledge. Furthermore, the testimony concerned
Ruiz’s possible grow operation, not Aguilar’s and not Clark’s. The only, tenuous,
connection with Aguilar is Mateos’s later testimony that Aguilar and Ruiz were
co-workers, coupled with the fact that Aguilar is from Florida. Finally, neither
defendant disputes the existence of a conspiracy to grow and distribute mari-

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                                    No. 12-50021

huana; at issue is Aguilar’s and Clark’s knowledge of and voluntary participation
in that conspiracy. There is no significant possibility that Mateos’s testimony
had a substantial impact on the jury’s decision on that issue.


                                         IV.
      Aguilar maintains that the district court erred by admitting testimony
that implied he had exercised his right to remain silent. Because Aguilar failed
to object to the testimony, review is for plain error. See United States v. Garcia-
Flores, 246 F.3d 451, 457 (5th Cir. 2001). Aguilar must show a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has dis-
cretion to correct the error, but only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id.
      On cross-examination, Aguilar’s attorney asked the officer who stopped
Aguilar in Mississippi whether he or another officer had informed Aguilar of the
reason for his arrest. The officer replied, semi-responsively, “The investigator
would advise him of his rights, and I do know that the investigator put ‘refused’
on his rights.” Although Aguilar failed to object at the time, he now argues that
the officer improperly commented on his silence, violating his Fifth Amendment
right to be free from self-incrimination.
      Under the Fourteenth Amendment, the government may not use “a defen-
dant’s post-arrest, post-Miranda silence to create an inference of guilt.” Garcia-
Flores, 246 F.3d at 455 (citing Doyle v. Ohio, 426 U.S. 610 (1976)). The test for
a Doyle violation is “whether the ‘manifest intent’ of the remarks was to com-
ment on the defendant’s silence, or (stated another way) whether the character
of the remark was such that the jury would naturally and necessarily construe
it as a comment on the defendant’s silence.” United States v. Pennington, 20
F.3d 593, 599 (5th Cir. 1994). This court also seeks “to determine whether the

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                                 No. 12-50021

remark was a spontaneous comment by the witness or a comment prompted by
the prosecutor.” United States v. Moreno, 185 F.3d 465, 472 (5th Cir. 1999).
      Aguilar has not shown that there was an error, much less an obvious one.
First, the officer’s comment was not elicited by the prosecution during its case-
in-chief but by defense counsel on cross-examination. Aguilar points out that the
remark was unsolicited, as in fact it was, but there is no evidence that it was
anything other than spontaneous. Second, Aguilar’s silence did not come up
again; the prosecutor did not mention it in closing argument. There is no evi-
dence that the government intended to use his silence to create an inference of
guilt. Third, the remark was vague; the jury would not naturally construe it as
a comment on Aguilar’s silence. The officer did not say that Aguilar had exer-
cised his rights by refusing to speak but only that the investigator had written
“refused” on his rights. This could mean that Aguilar refused to sign the form
acknowledging his rights or perhaps even that he refused his right to counsel.
      Finally, even if there was plain error, Aguilar has not shown that it
affected his substantial rights. Given the other evidence of his guilt and the
vague nature of the comment, Aguilar has not show a reasonable probability
that, but for the error, the result of his trial would have been different. See
United States v. Martinez-Rios, 595 F.3d 581, 587 (5th Cir. 2010).
      AFFIRMED.




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