     Case: 16-41097      Document: 00514171291         Page: 1    Date Filed: 09/26/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                           United States Court of Appeals

                                    No. 16-41097
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                        September 26, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

FEATHER J. SALDANA; SHAWNA P. JOHNSON,

                                                 Defendants-Appellants


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 5:15-CR-1268-1
                            USDC No. 5:15-CR-1268-2


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Feather J. Saldana and Shawna P. Johnson, mother and daughter, were
convicted by a jury of conspiracy to import five kilograms and more of a mixture
and substance containing a detectable amount of cocaine and of importation of
five kilograms and more of a mixture and substance containing a detectable
amount of cocaine. Saldana was sentenced to statutory-minimum concurrent



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41097

120-month terms of imprisonment and to concurrent five-year periods of
supervised release. Johnson was sentenced at the bottom of the guidelines
range to concurrent 135-month terms of imprisonment and to concurrent five-
year periods of supervised release.
      Saldana asserts that the evidence of her guilt was insufficient. She
contends that the Government failed to prove the guilty knowledge elements
of the conspiracy and importation offenses. See also United States v. Vargas-
Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc) (listing elements of drug
conspiracy offense); United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999)
(listing elements of drug importation offense).
      We view the evidence in the light most favorable to the Government.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The evidence is sufficient if “any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. Knowledge can be inferred from control of a
vehicle in which controlled substances are found. United States v. Vasquez,
677 F.3d 685, 694 (5th Cir. 2012). When drugs are concealed in a hidden
compartment, as in this case, this court has “required additional
circumstantial evidence that is suspicious in nature or demonstrates guilty
knowledge.” Id. (internal quotation marks and citation omitted).
      Three co-conspirators testified for the Government about the details
Saldana’s involvement in the drug conspiracy, including her acquisition of and
participation in the modifications to a vehicle for her to use in the smuggling
operation.   Saldana was arrested when she attempted to drive Johnson’s
vehicle into the United States from Mexico.           The vehicle contained a
substantial amount of cocaine in a hidden compartment. The Government’s
evidence was sufficient for a rational juror to find that Saldana knowingly




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                                  No. 16-41097

participated in the drug conspiracy and importation offenses. See Jackson, 443
U.S. at 319; Vasquez, 677 F.3d at 694-95.
      Johnson contends that the district court erred in denying her motion for
a new trial, which complained of violations of her Sixth Amendment rights to
a fair trial and to effective assistance of counsel. We review the district court’s
denial of that motion for an abuse of discretion. See United States v. Pratt, 807
F.3d 641, 645 (5th Cir. 2015).
      She complains that her attorney and Saldana’s attorney repeatedly
violated the district court’s in limine orders and were rebuked by the district
court during bench conferences. Their unprofessional behavior, she contends,
“discredited both counsel in the jury’s eyes.” Johnson asserts that it should be
presumed that the jury could hear the district court’s admonishments during
the bench conferences and was influenced by them.
      Johnson does not have standing to complain of the unprofessional acts of
Saldana’s attorney except insofar as his behavior affected her right to a fair
trial. See Texas v. Cobb, 532 U.S. 162, 172 n.2 (2001). A criminal defendant’s
Sixth Amendment right to a fair trial is not violated where a district court’s
criticisms of defense counsel occur outside the presence of the jury and where
challenged actions of the district court do not amount to intervention that could
have led the jury to a predisposition of guilt by improper confusion of the
functions of the judge and the prosecutor. See United States v. Abrams, 568
F.2d 411, 423-25 (5th Cir. 1978). The district court found in this case that its
bench conferences were not audible to the jury. Johnson has not shown that
her Sixth Amendment right to a fair trial was denied. See id.
      Because Johnson’s claim of ineffective assistance of counsel was litigated
below, we may address it at this juncture. See United States v. Fuchs, 467 F.3d
889, 910 n.15 (5th Cir. 2006). Johnson must show both that (1) her lawyer’s



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                                 No. 16-41097

performance was deficient because it fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the defense by
rendering the verdict unreliable or the proceedings fundamentally unfair.
Strickland v. Washington, 466 U.S. 668, 689-94 (1984). As the district court
reasoned, Johnson cannot show that counsel’s conduct affected the outcome of
the trial as there was substantial evidence of her guilt. See Lafler v. Cooper,
566 U.S. 156, 163 (2012).
      Because Johnson has not shown that her right to a fair trial was denied
or that she received ineffective assistance of counsel, she cannot show that that
the district court abused its discretion in denying her motion for a new trial.
See Pratt, 807 F.3d at 645. The judgment is
      AFFIRMED.




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