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

                                                                            FILED
                                                                         October 24, 2008
                                     No. 08-10063
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

OSCAR JAVIER CABRERA-LOPEZ,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:07-CR-119


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Oscar Javier Cabrera-Lopez (Cabrera) appeals his jury conviction for
possession of cocaine with intent to distribute. He argues that the district court
abused its discretion in allowing Special Agent Joe Paggit to testify regarding
the authenticity of Cabrera’s Mexican driver’s license because Agent Paggit was
not an expert and had no special training regarding Mexican identification
documents. Cabrera also argues that the admission of Agent Paggit’s testimony
was not harmless as the testimony destroyed Cabrera’s credibility.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-10063

      Cabrera has not shown that the district court abused its discretion in
admitting Agent Paggit’s testimony concerning the authenticity of Cabrera’s
Mexican driver’s license. See United States v. Gutierrez-Farias, 294 F.3d 657,
662 (5th Cir. 2002). Agent Paggit testified that he had twenty-one years of
experience working as a border patrol agent in San Diego, CA and Amarillo, TX,
and that he had observed thousands of Mexican driver’s licenses. He testified
that he was familiar with driver’s licenses from Chihuahua, Mexico, both
authentic and counterfeit. He testified that he thought Cabrera’s Mexican
driver’s license was fraudulent.      Agent Paggit acknowledged on cross-
examination that he did not hold himself out as an expert and that he did not
have any certification in document examination or special training in Mexico.
He stated that he was relying on his twenty-one years of field experience.
      The district court specifically instructed the jury to determine the weight
to give to Agent Paggit’s opinion and that it could disregard the opinion if the
opinion was not based upon sufficient education and experience, the reasons
given for the opinion were not sound, or the opinion was outweighed by other
evidence. “[J]uries are presumed to follow their instructions.” Zafiro v. United
States, 506 U.S. 534, 540 (1993) (citation omitted). In view of Agent Paggit’s
acknowledgment that he was not an expert and that his testimony was based on
his experience, and the district court’s instructions to the jury, Cabrera has not
shown that the district court abused its discretion in admitting this evidence.
See Gutierrez-Farias, 294 F.3d at 662.
      Further, any error in the admission of Agent Paggit’s testimony was
harmless because it did not “affect[] the outcome of the district court
proceedings.” United States v. Harper, 527 F.3d 396, 408 (5th Cir. 2008), cert.
denied, No. 08-5037, 2008 WL 2717604 (U.S. October 6, 2008). Although Agent
Paggit’s testimony impugned Cabrera’s credibility, the Government presented
substantial circumstantial evidence that Cabrera knew that the drugs and
currency were hidden in the truck. See United States v. Diaz-Carreon, 915 F.2d

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                                  No. 08-10063

951, 954-55 (5th Cir. 1990) (nervous behavior, inconsistent statements to
customs officials, and a less-than-credible explanation for defendant’s actions are
part of overall circumstance evidence from which possession and knowledge may
be inferred).
      Texas State Trooper Jason Henderson stopped a 2005 white Nissan pickup
truck driven by Cabrera on Interstate 40 near McLean, Texas.              Cabrera
appeared nervous, and his hands and voice were shaking. Based on Henderson’s
observation of an overwhelming odor of spray paint and Bondo, Henderson asked
for and received Cabrera’s permission to search the truck. Henderson found a
secret compartment under the hood and asked Cabrera to follow the police car
to a garage in McLean. A drug-sniffing dog alerted Henderson to the presence
of drugs in the area of the suspected compartment. In the compartment,
Henderson found four bundles, one of which contained 987.7 grams of 80% pure
cocaine worth about $20,000. Henderson also found that the other three bundles
contained $99,020.
      Cabrera testified that he lives in Phoenix, Arizona, and that he purchased
the truck there for $10,000 from a man named Jaime Vasquez. Vasquez
borrowed the truck for a few days, drove it to Boston, MA, and left it there.
Vasquez agreed to give Cabrera $700 to drive the truck back to Phoenix, AZ.
Vasquez sent a man named “Jose,” and another man, whose name Cabrera did
not know, to drive Cabrera to Boston to get the truck. In Boston, they went to
a warehouse where Jose introduced Cabrera to a man identified as “El Maestro.”
El Maestro gave Cabrera the $700 promised by Vasquez. Cabrera was driving
the truck back to Phoenix when he was stopped by Henderson. Cabrera testified
that he was nervous because he was in the United States illegally. Cabrera also
testified that he did not know that drugs and cash were in the truck and that his
Mexican driver’s license was legitimate.
      The jury could infer that Cabrera had knowledge of the hidden drugs and
currency from Cabrera’s nervousness and implausible explanations for his

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                                  No. 08-10063

actions.   See Diaz-Carreon, 915 F.2d at 954-55.       In view of the evidence
presented at trial, Cabrera has not shown that the district court’s admission of
Agent Paggit’s testimony concerning Cabrera’s Mexican driver’s license “affected
the outcome of the district court proceedings.” See Harper, 527 F.3d at 408.
Therefore, any error in the district court’s admission of Agent Paggit’s testimony
was harmless. See id.
      AFFIRMED.




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