     Case: 10-40538     Document: 00511708186         Page: 1     Date Filed: 12/28/2011




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

                                                                            FILED
                                                                        December 28, 2011
                                     No. 10-40538
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JORGE HERNANDEZ, also known as Jorge Alberto Hernandez-Jaramillo, also
known as Jorge A. Hernandez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:09-CR-34-3


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jorge Hernandez appeals his jury trial conviction and 155-month sentence
for conspiracy to possess with intent to distribute and dispense five kilograms
or more of cocaine. He argues that the evidence was insufficient to sustain his
conviction and that several comments by the prosecutor and Government
witnesses rendered his trial unfair.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-40538

      Hernandez moved for a judgment of acquittal at the close of the
Government’s case-in-chief but failed to renew the motion at the close of all
evidence. Therefore, our review of his sufficiency challenge is limited to whether
there has been a “manifest miscarriage of justice,” which occurs when the record
is devoid of evidence of guilt or if the evidence on a key element of the offense is
so tenuous that a conviction would shock the conscience. See United States v.
Miller, 576 F.3d 528, 529-30 & n.2 (5th Cir. 2009) (internal quotation marks and
citations omitted); United States v. Rodriguez-Martinez, 480 F.3d 303, 307 (5th
Cir. 2007).
      Hernandez argues that the evidence was insufficient to establish his
identity as a co-conspirator; he argues that the crucial factor of the
Government’s case was proving that an individual known as “D-Town” was
Hernandez but that the Government’s only two eyewitnesses did not positively
identify him at trial. He also argues that the Government failed to prove his
knowledge of the conspiracy and his voluntary participation in same. Contrary
to Hernandez’s assertions, the record demonstrates that a co-conspirator, Jose
Pedraza, unequivocally identified Hernandez as the individual he met with to
discuss the transaction and who later delivered the cocaine to him and also that
a Drug Enforcement Administration agent identified Hernandez’s voice as
belonging to the same person he spoke to when calling the D-Town phone. The
evidence also included substantial corroborating evidence, such as (1) the arrest
of Hernandez and his friend Ricardo Garcia, whose fingerprint was on the
cocaine packaging, as the two men were following a truck to the purported payoff
locale; (2) the recovery of the D-Town phone in close proximity to Hernandez; (3)
Garcia’s statement that Hernandez “gets the phone calls”; (4) the record of phone
calls between the D-Town phone and Pedraza’s phone; and (5) the recovery of
phone numbers for Pedraza, the Mexican cocaine suppliers, Hernandez’s friend,
and his wife’s best friend from the directory of the D-Town phone.



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                                  No. 10-40538

      Hernandez’s concerted actions with other known members of the
conspiracy rose to a level of more than just mere association or mere presence
in an unsavory atmosphere. See United States v. Garcia Abrego, 141 F.3d 142,
155 (5th Cir. 1998). The record contains ample direct and circumstantial
evidence of Hernandez’s involvement in the drug conspiracy; accordingly, he has
failed to demonstrate that the record is devoid of evidence of his guilt or that the
evidence on a key element of his offense is so tenuous that his conviction should
shock the conscience. See Rodriguez-Martinez, 480 F.3d at 307; see also United
States v. Ramirez-Velasquez, 322 F.3d 868, 881 (5th Cir. 2003) (affirming
conspiracy conviction, under a less strict standard, where the “aggregation of
circumstances” supported jury’s verdict).
      Hernandez also argues that the prosecutor and certain Government
witnesses made improper statements during trial, closing argument, and
rebuttal closing argument. Because he did not object to the remarks at trial,
review is for plain error. United States v. Dunigan, 555 F.3d 501, 508 (5th Cir.
2009).   Hernandez first challenges the prosecutor’s statements during the
rebuttal closing argument, urging the jury to consider the facts, not “trial
tactics,” “character assassination,” or “trickery.” However, viewed in context, the
prosecutor’s comments were directed to defense counsel’s arguments, not the
integrity of defense counsel. Even assuming that the prosecutor’s remarks
constituted obvious error, Hernandez has not shown that they had the “probable
effect” of preventing the jury from “judg[ing] the evidence fairly.” United States
v. Young, 470 U.S. 1, 12 (1985).        The evidence against Hernandez was
“substantial,” id. at 20, and Hernandez points to no reason why the jury should
not be presumed to have heeded the district court’s instructions that remarks of
counsel are not evidence. See United States v. Gallardo-Trapero, 185 F.3d 307,
321 (5th Cir. 1999).
      Another comment during closing argument about which Hernandez
complains – that he was the nephew of Nene, the Mexican source of the drugs

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                                  No. 10-40538

– was not improper because the prosecutor was merely urging those inferences
and conclusions she wished the jury to draw from the evidence. See United
States v. Machuca-Barrera, 261 F.3d 425, 436 (5th Cir. 2001). Consequently,
there was no prosecutorial misconduct in this regard.           Hernandez next
complains that the prosecutor and Government witnesses made repeated
misleading statements during trial that the D-Town phone was taken from his
person. It is not necessary to decide the question of the propriety of those
comments as Hernandez cannot demonstrate any prejudice. That is, the record
shows that several law enforcement agents testified explicitly that the D-Town
phone was recovered from the front dashboard area of the vehicle at issue, not
from Hernandez’s person. Because he cannot demonstrate that the comments
prejudiced his substantive rights and in light of the overwhelming evidence of
his guilt (including his responsibility for the D-Town phone), Hernandez has not
shown plain error. See United States v. Thompson, 482 F.3d 781, 785 (5th Cir.
2007).
      Hernandez additionally argues that the prosecutor, in challenging his
theory of defense during closing argument, improperly commented on his right
to remain silent and his failure to testify on his own behalf. There is no error,
however, as the complained-of comments simply pointed out the lack of evidence
in support of the defense theory that Hernandez was in the Dallas area
searching for vehicles to purchase and resell. See United States v. Mackay, 33
F.3d 489, 495-96 (5th Cir. 1994). Finally, Hernandez contends reversal is
required due to cumulative error of the prosecutor’s comments.            “Having
determined . . . that none of his claims warrant reversal individually, we decline
to employ the unusual remedy of reversing for cumulative error.” United States
v. Fields, 483 F.3d 313, 362 (5th Cir. 1995).
      AFFIRMED.




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