        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                                  No. 06-50949
                                                                      September 11, 2007

                                                                    Charles R. Fulbruge III
UNITED STATES OF AMERICA,                                                   Clerk

                                            Plaintiff-Appellee
v.

JOSE ABRAHAM ESPINO-RANGEL;
HECTOR ALEJANDRO BENAVIDES-CARRASCO,

                                            Defendants-Appellants



                Appeals from the United States District Court
                      for the Western District of Texas


Before HIGGINBOTHAM, WIENER, and GARZA, Circuit Judges.
WIENER, Circuit Judge.
      Defendants-Appellants Jose Abraham Espino-Rangel (“Espino”) and
Hector Alejandro Benavides-Carrasco (“Benavides”) (collectively, “Defendants”)
appeal their jury-trial convictions on one count each of conspiring to possess 100
kilograms of marijuana and on a second count each for possessing 100 kilograms
or more of marijuana with intent to distribute. We affirm.
      On appeal, Defendants seek reversal of their convictions on two principal
grounds: insufficiency of the evidence to support their convictions and reversible
plain error for the un-objected to admission of opinion testimony from two
government agents. As to the first ground, our close review of the record on
appeal, especially the trial transcript and documentary evidence, satisfies us
                                       No. 06-50949

that there is a surfeit of evidence and reasonable inferences to be drawn
therefrom to support the jury’s conviction of both Defendants. In arguing before
us, counsel for the Defendants sought to characterize the evidence as “close” or
essentially in equipoise, especially counsel for Benavides who portrayed his
client as nothing more than Espino’s pull-toy, merely being in Espino’s presence
at all times during the hours of their association with the tractor-trailer rig in
which the marijuana was loaded and eventually discovered: We reject that
portrayal. Although the evidence might be stronger against Espino than it is
against Benavides, there is a plethora of evidence regarding both Defendants in
support of the jury’s factual determination of knowledge and intent to possess,
transport, and distribute the contraband in question.
      Neither do we perceive reversible error in the district court’s admission of
the opinion testimony of Border Patrol Agent Tabor and Drug Enforcement
Administration (“DEA”) Agent Shea. First, the appropriate standard of review
here is plain error, because there were no objections from defense to the
questioning or the responses of the agents. The well-known plain error standard
allows us to reverse a criminal conviction on appeal only if there was error that
was plain and obvious affecting a substantial right of the defendant; and, of
course, we will exercise discretion to reverse only if the error seriously affects the
fairness, integrity, or public reputation of the proceedings.1 Moreover, even if we
were to find the existence of plain error, we could find it harmless if there is
sufficient evidence, aside from any potentially impermissible testimony, from
which the jury could find the Defendants guilty.2


      1
          United States v. Jimenez, 256 F.3d 330, 340 (5th Cir. 2001).
      2
          United States v. Gutierrez-Farias, 294 F.3d 657, 663-64 (5th Cir. 2002).

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                                       No. 06-50949

      Before reaching the question of plain error in light of the absence of a
defense objection to the questioning of the agents, we briefly note the applicable
law on this variety of opinion testimony. As the agents who testified in this case
were not offered as experts, Federal Rule of Evidence (FRE) 701 allows non-
expert testimony in the form of an opinion or inference if that testimony is (1)
rationally based on his perception, (2) helpful to achieving a clear understanding
of the testimony or the determination of a fact issue, and (3) not based on
scientific, technical, or other specialized knowledge.3 Even though a non-expert
witness may not offer legal conclusions, testimony in the form of an opinion or
inference otherwise admissible is not objectionable simply because it embraces
an ultimate fact issue to be determined by the factfinder.4 For example, a
narcotics agent may testify about the significance of particular conduct or
methods of operation unique to the drug business as long as the testimony is
helpful and its relevance is not substantially outweighed by the possibility of
unfair prejudice or confusion.5 FRE 704(b) does not permit an expert witness in
a criminal case to testify whether a defendant did or did not have the mental
state or condition constituting an element of the crime charged; but neither
Agent Tabor nor Agent Shea was called as an expert witness, so FRE 704(b) has
no application in the instant case.
      The Defendants’ primary authority for arguing that the agents’ testimony
was impermissible is United States v. Gutierrez-Farias.6 That case is inapposite

      3
          United States v. Parsee, 178 F.3d 374, 379 (5th Cir. 1999).
      4
          Fed.R.Evid. 704(a); United States v. Izydore, 167 F.3d 213, 218 (5th Cir. 1999).
      5
          United States v. Garcia, 86 F.3d 394, 400 (5th Cir. 1996).
      6
          294 F.3d at 663-64.

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here, however, as the federal agent who testified in it was called as an expert
witness on narcotics trafficking, and his testimony suggested that, inasmuch as
most drivers know when they are smuggling drugs in their vehicles, the
defendant must have known that he was smuggling drugs. We held that those
statements were the equivalent of a direct comment on the defendant’s state of
mind and thus were in violation of FRE 704(b). The court in Gutierrez-Farias
nevertheless classified the error as harmless and affirmed the defendant’s
convictions, concluding that the evidence against the defendant, excluding the
improper testimony, was more than sufficient to support the jury’s findings.
      In the instant case we perceive no error at all, much less plain error. The
agents’ testimony was rationally based on their interviews with Espino and the
employees at the transfer company where the trailer was loaded; the agents’
opinions were helpful to the jury and not based on any scientific, technical, or
specialized knowledge. Furthermore, in light of the amount of other evidence
against the Defendants, any potential error was harmless. The same conclusion
applies to an even greater extent under the plain-error analysis, which is
appropriate here in the absence of defense objections during the trial. In sum,
(1) there was no error; (2) even if there was error, it was harmless; (3) even if
there was error and it was not harmless, the error was not plain; and (4) even
if there was non-harmless plain error, it did not affect any substantial rights of
the Defendants, given the plethora of other evidence adduced at trial in support
of the jury’s verdict.
      Thus, with or without the testimony of the federal agents, the evidence
heard and seen by the jury and the fair inferences therefrom are more than
sufficient to support the verdict; and —— in the final analysis —— the admission
of the non-expert testimony of the federal agents does not seriously affect the

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fairness, integrity, or public reputation of the proceedings. The Defendants’
convictions and sentences are, in all respects,
AFFIRMED.




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