     Case: 10-41185     Document: 00511679443         Page: 1     Date Filed: 11/29/2011




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

                                                                            FILED
                                                                        November 29, 2011

                                       No. 10-41185                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

ALBERT ADDISON BUSH,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:10-CR-549-1


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Following a two-day trial, a jury convicted Albert Bush of two related drug
offenses: conspiracy to possess with intent to distribute over 1,000 kilograms of
marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A); and
possession of over 1,000 kilograms of marijuana with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. On appeal,
Bush argues that numerous errors at trial warrant reversal of his conviction.
We AFFIRM.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-41185

                                     FACTS
      On the morning of February 22, 2010, Albert Bush, a former Marine,
drove a truck and trailer from Roma, Texas north towards Hebbronville, Texas.
His route took him through a border patrol checkpoint. There, a trained dog
detected the scent of illegal contraband coming from the trailer. The dog’s alert
led the agents to search Bush’s trailer. Quickly, they discovered a large metal
container that had been hidden by stacks of wood. Inside it were approximately
1,895 kilograms (about 4,000 pounds) of marijuana.
      The agents placed Bush under arrest, apprised him of his rights, and took
him to a detention facility. During interrogation, Bush told the agents that he
was innocent and had been hired by a Raul Ruiz-Trevino to haul wood. He
explained that he had transported wood for Ruiz-Trevino in the past.
      Later in the interview, the agents told Bush that there was over 1,000
pounds of marijuana in the container. According to the agents, Bush responded
by saying, “I f**ked up. If I knew there was going to be that much marijuana,
I would have asked for more money.”
      Bush’s truck was searched. Among the discoveries were a notebook and
a cigarette box containing a small amount of methamphetamine. The entries in
the notebook were in Bush’s handwriting and outlined the need to maintain
some sort of operational security. There were references to border security,
possible electronic surveillance of his hotel room, and the need to remain out-of-
sight during his trip. It concluded, “Tactical Assessment: Very poor cover.”
      Bush was questioned about the notebook. He admitted to writing the
entries, but he maintained that he transcribed a conversation he heard between
two men who were staying in the hotel room next to his.             At trial, the
Government introduced into evidence hotel records and unimpeached testimony
establishing that no one stayed next to Bush during his time at the hotel.



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        When first confronted with the methamphetamine, Bush denied knowing
about it. Later, Bush admitted the methamphetamine was his, but insisted that
a friend had given it to him.          Before trial, Bush moved to exclude the
methamphetamine, arguing it was unfairly prejudicial. The district court denied
the motion. Nevertheless, while the methamphetamine was mentioned during
the Government’s opening statement, no evidence of the drug was offered during
its case in chief. Bush’s attorney was the first to mention the drug during trial,
questioning a DEA agent about the field test of the drug. The defense also asked
Bush about the drug on direct examination.
        At the close of trial, the defense requested a jury instruction on third-party
guilt, as part of its strategy to say that Ruiz-Trevino tricked Bush into hauling
the marijuana. The court denied the request, noting that the court’s instructions
were sufficient because they informed the jury that both the crimes charged
required Bush to take part “knowingly.” Bush also objected to the district court’s
instruction that the jury could find Bush guilty if it determined he was
deliberately indifferent to the presence of the marijuana.
        Bush timely appealed, raising five issues.
                                    DISCUSSION
I.      Admitting Evidence of Methamphetamine
        Bush complains the district court violated Rule 404(b) when it admitted
into evidence the fact that Bush was in possession of methamphetamine. Rule
404(b) generally prohibits “[e]vidence of other crimes, wrongs, or acts” except to
prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b).
        The parties dispute whether we should review the district court’s decision
for invited error, plain error, or abuse of discretion. We need not resolve the
dispute due to our conclusion that, under the most demanding of the three
standards, namely, abuse of discretion, we find no error.

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      To determine whether it was an abuse of discretion to admit evidence
under Rule 404(b), we employ a two-part test. See United States v. Olguin, 643
F.3d 384, 389 (5th Cir. 2011). First, we determine if the evidence is relevant to
an issue other than character. Id. Second, we see whether the probative value
of the evidence was substantially outweighed by unfair prejudice and if it can
pass through the Rule 403 filter. Id. The second step “involves a commonsense
assessment of all the circumstances surrounding the extrinsic offense.” United
States v. Templeton, 624 F.3d 215, 221 (5th Cir. 2010) (quotation marks and
citation omitted).
      A precedent both parties argue to us is United States v. Williams, 957 F.2d
1238 (5th Cir. 1992). There, the district court had admitted evidence that a
person who was being prosecuted for smuggling cocaine in his checked luggage
also had a marijuana cigarette in his wallet at the time of the arrest. Id. at
1240. We concluded that the marijuana had probative value and was relevant,
because the evidence made it more likely that Williams knew about the cocaine
in his suitcase.     Id. at 1244.   For similar reasons, we conclude that the
methamphetamine was relevant and had some probative value.
      Regardless, Bush argues the evidence should have been excluded because
its unfair prejudice substantially outweighed any probative value. We consider
no substantial and unfair prejudice to arise in a prosecution for possessing so
substantial a quantity of one drug by revealing to jurors that the defendant also
possessed a small quantity of another drug. The probative value of the latter
possession to prove the former may be minimal, but so is the prejudice.
      In addition, unfair prejudice can be “greatly minimized” by a district
court’s limiting instruction. United States v. Cooks, 589 F.3d 173, 183 (5th Cir.
2009). We once stated that if the instruction is clear that the jury should
consider the evidence for a specific, proper purpose, “there is little danger that
presentation of the extrinsic evidence will cause unfair prejudice or confusion of

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the issues or will mislead the jury.” United States v. Williams, 900 F.2d 823, 827
(5th Cir. 1990). Here, the district court gave an admonition about the use of
evidence about methamphetamine immediately after the drug was first
discussed during trial. It was reiterated by the court at the close of trial. These
affirmative steps made it much less likely that the evidence would be unduly
prejudicial. Accordingly, even if the methamphetamine were only slightly
probative, it was not substantially outweighed by any unfair prejudice.                   See
United States v. Garcia Mendoza, 587 F.3d 682, 689 (5th Cir. 2009). The district
court did not abuse its discretion.
II.      Erroneous Jury Instruction
         Bush claims the district court erred by refusing to offer his requested jury
instruction. He argues that a defendant is entitled to receive an instruction on
his theory of the case. See United States v. Simkanin, 420 F.3d 397, 410 (5th
Cir. 2005). At one point, caselaw went so far as to state that a defendant is
entitled to an instruction that “precisely and specifically, rather than merely
generally or abstractly, points to his theory of defense.” Perez v. United States,
297 F.2d 12, 16 (5th Cir. 1961). Such an emphasis has disappeared. A district
court’s refusal of a defense instruction will be reversed as an abuse of discretion
“only if the requested instruction (1) was a substantially correct statement of the
law, (2) was not substantially covered in the charge as a whole, and (3)
concerned an important point in the trial such that the failure to instruct the
jury on the issue seriously impaired the defendant’s ability to present a given
defense.” United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (quotation
marks and citation omitted).
         Bush requested the following instruction:
         You have heard evidence that Raul Trevino-Ruiz1 previously
         committed an act similar to the ones charged in this case. This

         1
             At trial, the parties referred to Raul Ruiz-Trevino as Raul Trevino-Ruiz.

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      evidence is to be considered in deciding whether Raul Trevino-Ruiz,
      rather than Mr. Bush, committed the crimes with which Mr. Bush
      is now charged. If you have a reasonable doubt that Mr. Bush is the
      person who committed the offenses charged, you must give him the
      benefit of that doubt and find him not guilty.

Rather than give that instruction, the district court explained that the jury
“must be convinced” beyond a reasonable doubt:
      that two or more persons, directly or indirectly, reached an
      agreement to possess with intent to distribute a controlled
      substance; second, that the defendant knew of the unlawful purpose
      of the agreement; third, that the defendant joined in the agreement
      willfully, that is, with intent to further its unlawful purpose; and,
      fourth, that the overall purpose of the conspiracy involved at least
      1,000 kilograms of marijuana.

For the other charge, possession with intent to distribute, the court instructed:
      you must be convinced that the government has proved each of the
      following beyond a reasonable doubt: First, that the defendant
      knowingly possessed a controlled substance; second, that the
      substance was, in fact, marijuana; third, that the defendant
      possessed the substance with intent to distribute it; and, fourth,
      that the quantity of marijuana was at least 1,000 kilograms.

The instruction continued, “before any defendant may be held criminally
responsible for the acts of others, it is necessary that the accused deliberately
associate himself in some way with the crime and participate in it with intent
to bring about the crime.” Reiterating the point, it said, “you may not find any
defendant guilty unless you find beyond a reasonable doubt that . . . the
defendant voluntarily participated in [the crime’s] commission with the intent
to violate the law.” The court then instructed the jury that it could not convict
“if the defendant had no knowledge of the principal’s criminal venture.”
      Bush seizes on the fragment of the jury instruction that the jurors should
not consider the guilt of others “except as you are otherwise instructed.” He
asserts that this charge prevented the jurors from considering Ruiz-Trevino’s

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guilt. Not so. If the jury believed that Ruiz-Trevino was the mastermind and
Bush an unwitting accomplice, the instructions mandated acquittal.
       The charge, taken as a whole, substantially covers Bush’s requested
instruction. See United States v. Ortiz-Mendez, 634 F.3d 837, 839 (5th Cir.
2011). The core of Bush’s argument is that he should be found not guilty
because Ruiz-Trevino could have done everything without Bush’s knowledge.
The jury instruction given by the district court said the same thing, only it used
different words. It mandated acquittal if Bush “had no knowledge of the
principal’s criminal venture.” Therefore, the district court did not abuse its
discretion by refusing to give the requested jury instruction.
III.   Deliberate Indifference Jury Instruction
       Bush argues that the district court erred by giving an instruction on
deliberate indifference. While the district court has substantial latitude in
deciding which instructions to give, it “may not instruct the jury on a charge that
is not supported by the evidence.” United States v. Mendoza-Medina, 346 F.3d
121, 132 (5th Cir. 2003) (quotation marks and citation omitted). Any error is
reviewed under the harmless error doctrine. Id. When there is substantial
evidence of actual knowledge, any error is harmless. United States v. McElwee,
646 F.3d 328, 341 (5th Cir. 2011).
       The Government concedes that the district court erred by giving the
deliberate indifference instruction because the trial evidence did not raise the
required inference. We must determine whether that error was harmless.
       Bush argues there was not substantial evidence of his knowledge of the
marijuana. He claims that there was no direct evidence of his knowledge and
there was only limited circumstantial evidence. It is worth noting this court has
previously rejected the Government’s assertion that these types of instructions
are harmless as a matter of law. See Mendoza-Medina, 346 F.3d at 134.
Therefore, we must consider whether there was substantial evidence.

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       The substantial evidence standard is met when the record contains a
confession and circumstantial evidence. Id. at 134-35. Both are present here.
The prosecution introduced evidence Bush admitted to the agents that he knew
about the marijuana. He said, “I f**ked up. If I knew there was going to be that
much marijuana, I would have asked for more money.” Bush had a contrary
explanation of what those words meant, but the jury did not have to accept it.
Circumstantial evidence of his knowledge exists due to the entries in his
notebook regarding the security on the border and the need to maintain
operational security. Moreover, when there is supportive evidence, knowledge
may be inferred when the defendant is found to be transporting a large quantity
of drugs. See, e.g., United States v. Garcia-Flores, 246 F.3d 451, 455 (5th Cir.
2001) (holding that 300 pounds of marijuana was enough to infer knowledge).
Bush was caught with over 4,000 pounds of marijuana hidden in his trailer.
      There was substantial evidence that Bush had actual knowledge of the
marijuana. The error was harmless.
IV.   The Propriety of the Prosecutor’s Closing Statement
      Bush argues that the prosecutor impermissibly injected his personal
opinion into the Government’s closing argument by describing Bush’s story
about the hotel as ridiculous, absurd, and insulting and by saying Bush lied on
the stand like he lied to the DEA. Additionally, Bush alleges the prosecutor
brought evidence from outside the record when he discussed the common
practices of drug cartels and said that Bush worked for the drug cartels.
      A prosecutor’s closing remarks are reversible error when they “cast serious
doubt on the correctness of the jury’s verdict.” United States v. Mares, 402 F.3d
511, 515 (5th Cir. 2005) (quotation marks and citation omitted). Among the
factors this court considers are: “(1) the magnitude of the prejudicial effect of the
prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge,
and (3) the strength of the evidence supporting the conviction.” Id. (quotation

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marks and citation omitted). The burden is on the defendant and, even when
the objection is timely, it is a substantial burden. Id. When an objection is not
timely, this court reviews only for plain error. Id.
      Counsel has “wide latitude” in closing arguments.        United States v.
Thompson, 482 F.3d 781, 785 (5th Cir. 2007) (quotation marks and citation
omitted). Even so, a prosecutor may only discuss “properly admitted evidence
and any reasonable inferences or conclusions that can be drawn from that
evidence.”   United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010)
(quotation marks and citation omitted). When reviewing the propriety of the
closing remarks, the court considers the comments in the context of the trial as
a whole. Thompson, 482 F.3d at 785.
      One of our decisions sets out the principles governing statements in which
prosecutors mention their personal opinions. “Except to the extent he bases any
opinion on the evidence in the case, he may not express his personal opinion on
the merits of the case or the credibility of witnesses.” United States v. Garza,
608 F.2d 659, 663 (5th Cir. 1979). For this reason, it is proper for a prosecutor
to refer to the defendant’s dishonesty when such a characterization is reasonably
seen as drawing conclusions from, and is actually supported by, the evidence.
See United States v. Tullos, 868 F.2d 689, 696 (5th Cir. 1989).
      Bush admitted on the stand that he lied to the DEA. The fact that he lied
was already in the record. The prosecutor was permitted to call Bush a liar.
      Bush further argues that the prosecutor gave his personal opinion when
he described Bush’s theory as ridiculous, absurd, and insulting. Just as we give
wide latitude during closing regarding the substance of the remarks, we permit
“a bit of oratory and hyperbole.” Thompson, 482 F.3d at 786. Prosecutors may
use expressive language when emphasizing the weakness of a defendant’s
defense so long as it is clear to the jury that the conclusions he is making are
based on the evidence. See Foy v. Donnelly, 959 F.2d 1307, 1318 (5th Cir. 1992).

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        During the Government’s closing argument, the prosecutor first reminded
the jury that Bush’s notebook contained an entry regarding the formulation of
a believable cover story. He then summarized Bush’s testimony and asserted
that the jury should reach specific conclusions. This was all permissible. A
prosecutor may argue that the jury should draw certain conclusions from the
evidence.     United States v. Binker, 795 F.2d 1218, 1224 (5th Cir. 1986).
Moreover, a prosecutor does nothing wrong when he emphasizes apparent
vulnerabilities in the defendant’s arguments. Foy, 959 F.2d at 1318. That is
what happened here. When reviewing the comments in the context of the entire
closing statement, there was no error.
        Last, Bush argues that the prosecutor erred by discussing the practices of
the drug cartels. He asserts that the comments were not based on the evidence.
The Government counters that the statements were grounded either in the
evidence or common sense. Although some portions of the statements may not
have been explicitly supported by the evidence, the prosecutor is allowed to
appeal to common sense. See United States v. Holmes, 406 F.3d 337, 351 (5th
Cir. 2005).    Undoubtedly the jurors, as members of the general public, were
familiar with the fact that drug smuggling is a violent business. For this reason,
the statement was permissible.
V.      The Possibility of Cumulative Error
        Finally, Bush argues that reversal may still be warranted under the
cumulative error doctrine. Under that doctrine, an accumulation of otherwise
non-reversible errors can yield a denial of a constitutional right to a fair trial.
United States v. Ned, 637 F.3d 562, 571 (5th Cir. 2011). The doctrine is
inapplicable here, where there was only one error.
        AFFIRMED.




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