                      Revised April 16, 2001

                  UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                           No. 99-41077


                    UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,


                              VERSUS


                   LUCIO ARTURO GARCIA-FLORES,

                                                Defendant-Appellant.




           Appeal from the United States District Court
                for the Southern District of Texas


                          March 27, 2001
Before GARWOOD, PARKER, and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

     Appellant Lucio Arturo Garcia-Flores contests his conviction

under 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2 for

possession with the intent to distribute over one hundred kilograms

of   marijuana.   Appellant   argues   that    the   record   contains

insufficient evidence to support his conviction, that the jury

panel was prejudiced by the comments of a prospective juror, and


                                   1
that the prosecutor committed reversible error by commenting on

post-Miranda warning silence.

                                      I.

     On February 19, 1999, Garcia-Flores stopped his tractor-

trailer at a border patrol checkpoint on Interstate 35, north of

Laredo, Texas.    After a canine alerted the border patrol officials

to the possibility of drugs in the trailer, the agents directed

Garcia-Flores    to   the    secondary     inspection    area.     The    agents

searched the trailer.        The trailer contained vehicle fuse boxes,

which   were   more   than   five   years    old   and   no   longer     sold   by

dealerships. Amongst the electrical supplies, the agents found 343

pounds of marijuana.         Garcia-Flores told the agents that his

destination     was   Dallas,   and   he     did   not   know    that    he     was

transporting the marijuana.         The evidence suggests that Garcia-

Flores did not appear nervous during the search.

     Gordon Jarrell, a Drug Enforcement Administration official,

took custody of Garcia-Flores along with several items found in the

tractor-trailer, including bills of lading and a driver’s log book.

A bill of lading dated February 18, 1999 showed that Garcia-Flores

was transporting cargo for A.M. Logistics Services of Laredo.                   The

bill of lading did not distinctly describe the amount or price of

the cargo and did not have the correct A.M. Logistics stamp.                    The

president of A.M. Logistics testified that there never was a

shipment of goods in connection with Garcia-Flores on February 18.



                                      2
Jarrell also discovered a bill of lading dated February 5, 1999

from Falcon Logistics of Houston.            The owner of Falcon Logistics

testified that he had never done business with Garcia.

     Fritz Company, a Laredo business, owned the trailer in which

the agents found the marijuana.              The manager of Fritz Company

testified that Garcia-Flores worked as an independent transfer

carrier and had used Fritz Company’s trailers in the past.                   He

claimed that he did not authorize the use of the trailers on

February 18.

     Garcia Flores’ wife claimed that she received a call the

evening prior to the arrest from a man named Ramon, who instructed

Garcia-Flores to pick up the trailer at A.M. Logistics Services in

Laredo.   Garcia Flores told Agent Jarrell during his interrogation

that he retrieved the trailer from A.M. Logistics and was on his

way to Dallas when he stopped at the checkpoint.

     Garcia-Flores was indicted in Laredo on March 9, 1999 and

charged with possession with intent to distribute marijuana.                  A

jury failed to reach a unanimous verdict in his first trial.                 On

July 13, 1999, a second jury found Garcia-Flores guilty.                He was

sentenced   to    serve     sixty-five   months   in    prison,   a   five-year

supervised release term, and a special assessment of $100.

                 II.    Sufficiency of the Evidence

     Appellant         argues   that   the   record    contains   insufficient

evidence to support the jury’s verdict.           We review the evidence in

the light most favorable to the prosecution, and determine whether

                                         3
any reasonable jury could have found the essential elements of the

crime beyond a reasonable doubt.                  See United States v. Jones, 185

F.3d 459, 463 (5th Cir. 1999) (citing Jackson v. Virginia, 443 U.S.

307, 317-18 (1979)).             The jury is free to choose among reasonable

inferences, but, if the evidence gives “equal or nearly equal

circumstantial support to a theory of guilt and a theory of

innocence,      we       must    reverse    the    conviction,   as    under    these

circumstances        a    reasonable       jury   must   necessarily   entertain   a

reasonable doubt.”              United States v. Reveles, 190 F.3d 678, 686

(5th Cir. 1999) (quoting United States v. Lopez, 74 F.3d 575, 577

(5th Cir. 1996)) (citations omitted; emphasis in original).

     To prove that Garcia-Flores was guilty of possessing marijuana

with the intent to distribute, the government was required to prove

beyond a reasonable doubt that Garcia-Flores (1) knowingly (2)

possessed the marijuana in his trailer (3) with the intent to

distribute it.           See United States v. Ortega Reyna, 148 F.3d 540,

543-44   (5th    Cir.       1998).         Garcia-Flores    contests    the    jury’s

determination concerning only the knowledge element of the crime.

We therefore review the evidence to ascertain whether the jury

could conclude beyond a reasonable doubt that Garcia-Flores knew

the trailer contained the marijuana.

     A jury may infer knowledge from the defendant’s control over

a vehicle containing contraband unless the drugs are hidden in

compartments, in which case proof of the defendant’s knowledge


                                             4
depends on inference and circumstantial evidence.               See United

States v. Miller, 146 F.3d 274, 280-81 (5th Cir. 1998); United

States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995).           Because

the   border   patrol   agents   found   the   drugs   hidden   underneath

electrical supplies in the trailer, there is a “fair assumption

that a third party might have concealed the [marijuana] in the

[trailer] with the intent to use [Garcia-Flores] as [a] carrier .

. ..”    United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir.

1990).    We therefore look to circumstantial evidence to determine

whether the record supports the jury’s verdict.

      Garcia-Flores notes that the record fails to show he was

nervous during the initial search of the trailer.          The government

suggests that Garcia-Flores’ immediate voluntary response and his

lack of nervousness is evidence of his guilt.          This Court has held

that both nervousness and the absence of nervousness could lead the

jury to infer knowledge of the contraband when combined with other

facts.    See Jones, 185 F.3d at 464; Resio-Trejo, 45 F.3d at 913.

Because under these facts Garcia-Flores’ demeanor during the search

could be as consistent with a finding of innocence as with guilt,

we will not place any weight on the defendant’s temperament during

the search.    See Ortega Reyna, 148 F.3d at 545-46.

      The government introduced evidence at trial to conclusively

show that the bills of lading found in the tractor-trailer were

fabricated.    The bill of lading dated February 18 identified A.M.


                                    5
Logistic Services as the source of the cargo in the trailer.      The

bill of lading did not correctly identify the company or reveal the

appropriate business stamp.     The government also introduced a bill

of lading involving a shipment of goods to Houston dated February

5.       The president of the Houston business testified that his

company never exchanged goods with Garcia-Flores and that this bill

of lading was also false.1

         The government claims that Garcia-Flores lied about acquiring

the trailer at A.M. Logistics.     Garcia-Flores told a Border Patrol

agent at approximately 12:30 a.m. that he had just procured the

trailer.       The president of A.M. Logistics testified that the

business rarely loads trailers after 11:00 p.m. and that the gates

are shut and locked between 11:00 p.m. and 11:30 p.m.        The U.S.

Customs records show that Garcia-Flores did not even enter the

United States until 10:11 p.m., after A.M. Logistics finished

loading trailers during the business day.


     1
   Appellant argues that the trial court erred by allowing the
admission of extrinsic acts pertaining to the February 5 bill of
lading. Rule 404(b) prohibits the admission of evidence of other
crimes, wrongs or acts to prove character and conformity therewith.
See FED. R. EVID. 404(b).     Evidence of extrinsic acts may be
admitted to establish knowledge or absence of mistake.          The
government’s evidence concerning the forged bill of lading suggests
that Garcia-Flores knew both bills of lading were contrived and
that he or someone else forged the documents to conceal the origin,
destination and description of the cargo. Because the evidence is
probative of the defendant’s knowledge of the drugs found in the
trailer and is not outweighed by undue prejudice, the trial court
did not err in allowing the government to admit evidence of the
extrinsic act. See United States v. Beechum, 582 F.2d 898, 911
(5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920 (1979).

                                    6
     The government also points to the quantity of drugs found in

the trailer, asserting that drug dealers would not entrust over 300

pounds of marijuana with an unsuspecting driver.          This Court has

recognized that a jury may infer a defendant’s guilty knowledge

based on the quantity of drugs, as long as other evidence supports

the inference.    See United States v. Ramos-Garcia, 184 F.3d 463,

466 (5th Cir. 1999); United States v. Del Aguila-Reyes, 722 F.2d

155, 157 (5th Cir. 1983).

     In response to the government’s evidence, Garcia-Flores argues

that he   was   simply   following   the   instructions   that   his   wife

received from a telephone conversation with a man named Ramon

around 8:00 p.m. on February 8.      Garcia-Flores told Agent Jarrell

that he left his house in Nuevo Laredo, Mexico around 9:30 p.m. and

crossed the border into the United States, where he proceeded to

A.M. Logistics’ address.       At A.M. Logistics, he attached the

trailer and began his journey to Dallas on Interstate 35.        He notes

that the president of A.M. Logistics did not know how many people

had access to the property after business hours.      He also presented

the testimony of a shipping business owner who claimed that most

drivers are not involved in loading cargo and many do not check

their cargo before leaving.

     After reviewing the record and placing all the evidence and

inferences in the light most favorable to the government’s case, we

are persuaded that there is sufficient evidence in the record for


                                     7
the jury to conclude beyond a reasonable doubt that Garcia-Flores

knew the trailer contained illegal drugs.

    III. Comments Involving Defendant’s Post-Miranda Silence

     In Doyle v. Ohio, the Supreme Court held that the Due Process

Clause prohibits the government from using a defendant’s post-

arrest, post-Miranda silence to create an inference of guilt.                See

426 U.S. 610 (1976); Chapman v. United States, 547 F.2d 1240 (5th

Cir.), cert. denied, 431 U.S. 908 (1977); United States v. Carter,

933 F.2d 1449, 1462 (5th Cir. 1992).        We review Doyle violations

under the doctrine of harmless error by determining whether the

error was harmless beyond a reasonable doubt.        See United States v.

Moreno, 185 F.3d 465, 472 (5th Cir. 1999).                 “We also seek to

determine whether the remark was a spontaneous comment by the

witness or a comment prompted by the prosecutor.”               Id. (citing

United States v. Smith, 635 F.2d 411, 413 (5th Cir. 1981).                  This

Court has set out three categories to help determine whether a

constitutional violation has occurred:

     (1) When the prosecution uses defendant’s post arrest

     silence   to   impeach   an    exculpatory    story    offered   by

     defendant at trial and the prosecution directly links the

     implausibility     of    the    exculpatory     story     to     the

     defendant’s ostensibly inconsistent act of remaining

     silent, reversible error results even if the story is

     transparently frivolous.

                                      8
     (2) When the prosecutor does not directly tie the fact of

     defendant’s silence to his exculpatory story, i.e., when

     the prosecutor elicits that fact on direct examination

     and refrains from commenting on it or adverting to it

     again, and the jury is never told that such silence can

     be   used   for    impeachment    purposes,    reversible     error

     results     if    the   exculpatory   story     is   not   totally

     implausible or the indicia of guilt not overwhelming.

     (3) When there is but a single reference at trial to the

     fact of defendant’s silence, the reference is neither

     repeated nor linked with defendant’s exculpatory story,

     and the exculpatory story is transparently frivolous and

     evidence     of    guilt   is    otherwise    overwhelming,     the

     reference to defendant’s silence constitutes harmless

     error.

Chapman, 547 F.2d at 1249-50 (citations and footnote omitted).

     Garcia-Flores points to two instances, which taken together

allegedly constitute a Doyle violation.           The first occurred during

the government’s direct examination of Gordon Jarrell, the DEA

agent who questioned Garcia-Flores during the morning of his

arrest.

     Q:    Okay. And did you ask him from whom he picked [the

           trailer] up –-

     A:    I did.


                                       9
     Q:   –- at 502 Enterprise?    You did?

     A:   I did.

     Q:   And what did he say?

     A:   From the man.

     Q:   Okay.     And did you ask him, of course, the next

          question would be what man did you ask him what?

     A:   I did.

     Q:   Okay. And what did he say?

     A:   That he wanted an attorney.

     Q:   Okay.     Well as far as his statement that he made,

          what was his statement as far as the man?

     A:   From the man.

     Q:   Okay.    That was it?

     A:   The man that was there that’s –-

     Q:   Okay.

     A:   –- all that he would say.

     Q:   Okay.    Now did you ask for a name?

     A:   I did.

     Q:   Okay.    Did you ask for a description of this man?

     A:   I did.

     Q:   Were you given one?

     A:   No sir.

The second alleged error occurred during the government’s closing

statement.

          . . . He says, I just picked it up.    And who did you

                                  10
     pick it up from?    I just picked it up.    And who did you

     pick it up from?    I just picked it up from the man that

     was there.    All right.    Agent Jarrell being the good DEA

     investigator that he is, says well, what man?       The man

     that was there.     Can I have a description of the man?

     The man that was there.       That is another circumstance.

     Because if you closely examine that, that doesn’t mean

     much.     Is it something that’s consistent with somebody

     that really doesn’t know that he was carrying marijuana

     in the trailer or is it something consistent with someone

     that does know and doesn’t want to say anything about

     where he picked it up.

                                  * * *

             Now the important thing about that is that Mr.

     Garcia doesn’t mention any Ramon at the checkpoint.      If

     he really didn’t know about this marijuana being in the

     trailer, that’s probably one of the first red flags that

     would pop in the mind as an experienced truck driver.

     Well I don’t know - I don’t know it - I didn’t know that

     there was 345 pounds of marijuana.       Ramon called me at

     home.    Did he say that?   No, he doesn’t say that, but now

     they want this - officer . . ..

In both instances, counsel for the defendant failed to object or

move for a mistrial.



                                    11
     When a defendant fails to object to a prosecutor’s alleged

unconstitutional comment on a defendant’s silence, we review the

record for plain error.   See Carter, 953 F.2d 1449, 1463; Cardenas

Alvarado, 806 F.2d at 573.   “Plain error occurs when the error is

so obvious and substantial that failure to notice and correct it

would affect the fairness, integrity, or public reputation of

judicial proceedings and would result in manifest injustice.”

United States v. Mizell, 88 F.3d 288, 297 (5th Cir.), cert. denied,

519 U.S. 1046 (1996).     “[A] conviction can be reversed only if

there was a ‘manifest miscarriage of justice,’ which would occur if

there is no evidence of the defendant’s guilt or ‘the evidence on

a key element of the offense was so tenuous that a conviction would

be shocking.’” United States v. Villasenor, 236 F.3d 220, 222 (5th

Cir. 2000) (quoting United States v. McCarty, 36 F.3d 1349, 1358

(5th Cir. 1994)).

     The gravamen of Garcia-Flores’ alleged Doyle violation focuses

on a portion of the government’s closing statement, which fits into

the first category set out in Chapman.   The government alluded to

Agent Jarrell’s testimony concerning Garcia-Flores’ refusal to

describe the man from whom he received the cargo.   The comment by

the government in its closing statement pertaining to Garcia-

Flores’ failure to describe the man from whom he obtained the cargo

fits into the first category set out in Chapman.        The reason

Garcia-Flores did not describe the man in detail was because,


                                 12
according to the testimony of Agent Jarrell, he asserted his right

to counsel.   A Doyle violation occurs when the government comments

on the defendant’s silence to rebut the defendant’s exculpatory

story.   Clearly the intent of the government in its closing

statement was to create an inference from Garcia-Flores’ refusal to

accurately describe the man.   See United States v. Shaw, 701 F.2d

367, 381 (5th Cir. 1983), cert. denied, 465 U.S. 1067 (1984).

However, in light of the strength of the government’s remaining

evidence and the limited context in which the violation occurred,

we do not think that failure to correct the error will result in a

manifest miscarriage of justice or will affect the fairness,

integrity, or public reputation of judicial proceedings.        We

therefore choose not to correct the error on appeal.

               IV. Prejudicial Comments in Voir Dire

     Appellant’s final point of error raises the issue of whether

comments by a prospective juror had a prejudicial affect on the

jury panel that could not be cured by a judge’s instruction.

Garcia-Flores complains that a prospective juror declared that he

was a truck driver and could not believe that another driver would

fail to check his cargo or notice such a large amount of marijuana.

The record shows that there was laughter among members of the jury

panel in response.   When the judge excused the prospective juror,

several members of the panel applauded.   Defense counsel moved for

a mistrial.


                                 13
     The judge then issued a lengthy curative instruction in which

he assured the jurors that cases involving knowledge of drugs

within vehicles often result in differing verdicts.                   He asked the

jury panel whether any of them believed that a truck driver should

know exactly what he is hauling at all times.                   The prospective

jurors gave no response. The judge reminded the prospective jurors

that they were under oath and asked the question again.                       No one

responded.      The judge proceeded to explain how it is possible that

a driver could not know the character of his cargo.                   After asking

the prospective jurors once more and receiving no response, the

judge continued with the jury selection process.                     At the end of

voir dire, counsel for the defendant resubmitted his motion for

mistrial, which the court denied.

     We have recognized that a district court has broad discretion

to conduct the voir dire examination of a jury panel.                   See United

States   v.     Posada-Rios,    158    F.3d   832,    873     (5th    Cir.     1998).

“[A]bsent an abuse of discretion and showing that the rights of the

accused have been prejudiced thereby, the scope and content of voir

dire will not be disturbed on appeal.”          United States v. Black, 685

F.2d 132, 134 (5th Cir. 1982).         The district judge was in the best

position   to    evaluate    the   reaction    of    the    jury     panel    to   the

prospective     juror’s     comments   and    the    affect    of    his     curative

instruction.      We find that the district judge’s thorough curative

instruction adequately ensured the integrity of the jury pool.                      We


                                       14
therefore deny Garcia-Flores’ relief sought on appeal and affirm

his conviction.

AFFIRMED




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