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

                                                                   FILED
                                                                December 7, 2007
                               No. 07-20068
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

NORA ALVARADO

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 4:06-CR-187-ALL


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
      A jury convicted Nora Alvarado (Alvarado) of violating 18 U.S.C. § 1071
by harboring and concealing Jacinto Simon Ramirez (Ramirez) and of violating
18 U.S.C. § 2 by aiding and abetting unnamed others in harboring and
concealing him. Ramirez, who was Alvarado’s ex-husband, had been wanted by
Texas authorities for aggravated assault and for parole violation and by federal
authorities for unlawful flight to avoid prosecution. 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should not be published and is not precedent except under the limited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.
                                    No. 07-20068

      A conviction under § 1071 ordinarily “requires proof beyond a reasonable
doubt that the defendant: (1) knew that a federal arrest warrant had been
issued; (2) engaged in physical acts that aided the fugitive in avoiding detection
and apprehension; and (3) intended to prevent the fugitive's discovery.” United
States v. Green, 180 F.3d 216, 220 (5th Cir. 1999). Any physical act of providing
aid in evading apprehension is a violation of § 1071. United States v. Stacey, 896
F.2d 75, 77 (5th Cir. 1990).
      Because Alvarado did not preserve her challenge to the sufficiency of the
evidence by renewing her acquittal motion after presenting her case, our review
is limited to deciding whether there was a manifest miscarriage of justice. See
United States v. Johnson, 87 F.3d 133, 136 (5th Cir. 1996). A miscarriage of
justice exists “only if the record is devoid of evidence pointing to guilt, or . . . the
evidence on a key element of the offense was so tenuous that a conviction would
be shocking.” United States v. Laury, 49 F.3d 145, 151 (5th Cir. 1995) (internal
quotation marks and citation omitted). In making this determination, we
consider the evidence in the light most favorable to the verdict, giving it the
benefit of all reasonable inferences and credibility choices. United States v.
McDowell, 498 F.3d 308, 312 (5th Cir. 2007).
      Alvarado does not dispute the fact that she knew that warrants had been
issued for Ramirez’s arrest.        Although she swore that she had done no
affirmative act to aid Ramirez, there was evidence from which the jury could
have concluded that she had assisted him in avoiding detection. Providing food
and transportation to a fugitive from justice constitutes an act of harboring.
United States v. Deaton, 468 F.2d 541, 545 (5th Cir. 1972). The jury heard
testimony that Alvarado admitted after her arrest that she had been meeting
with Ramirez about three weekends a month for several months and sometimes
took him to dinner and the movies. The jury also heard testimony that Alvarado
admitted taking Ramirez to get tacos on the night of their arrests. It was solely



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for the jury to resolve the conflicts in the testimony, United States v. Garcia, 995
F.2d 556, 561 (5th Cir. 1993), and we will not disturb its decision on this point.
      There was also evidence from which the jury could have concluded that
Alvarado possessed the requisite intent to harbor and conceal Ramirez. He and
Alvarado were arrested together when law-enforcement officials found them
near midnight in a small rental unit on property owned by Ramirez’s family in
Houston. When asked to explain how she came to be in the rental unit with
Ramirez, Alvarado, who had repeatedly denied having seen Ramirez until earlier
that evening, answered that he must have followed her inside after she had gone
in to use the bathroom. When pressed on cross-examination, however, she said
that Ramirez was no longer wearing a shirt at the moment of his arrest, a highly
improbable circumstance had he been in the building only for the brief time that
she was in the bathroom. In divining intent, the jury could have concluded that
Alvarado’s explanation was not truthful and that it pointed to a consciousness
of guilt on her part. See United States v. Sutherland, 463 F.2d 641, 646-47 (5th
Cir. 1972) (where jury could have found that defendant gave false explanation,
such circumstance “would evidence consciousness of guilt”).
      AFFIRMED.




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