     Case: 18-50850      Document: 00515268838         Page: 1    Date Filed: 01/13/2020




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

                                                                            FILED
                                                                       January 13, 2020
                                        No. 18-50850                     Lyle W. Cayce
                                                                              Clerk

UNITED STATES OF AMERICA,

               Plaintiff - Appellee

v.

JOSE ONESIMO LUNA,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:18-CR-205-1


Before DAVIS, HAYNES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Jose Luna appeals his conviction for possessing methamphetamine with
intent to distribute and aiding and abetting such possession. We AFFIRM.

                                   I.     Background
       Luna, along with codefendant Hector Mora, was charged with, inter alia,
possessing methamphetamine with intent to distribute in violation of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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21 U.S.C. § 841(a)(1) and aiding and abetting such possession in violation of
18 U.S.C. § 2. Luna pleaded not guilty and proceeded to trial. Before trial, the
Government filed a notice of its intention to introduce under Federal Rule of
Evidence 404(b) photographs on Luna’s cell phone of money, guns, and bags of
purported methamphetamine taken or received within two weeks of the
underlying offense. Defense counsel moved in limine to exclude the evidence;
the district court agreed to rule on admissibility before allowing the
Government to present it.
      At trial, the Government introduced the following evidence of the
offense. Sergeant Kelly Kennedy testified that he stopped a pickup truck for a
traffic violation in January 2018. When Kennedy and another officer searched
the truck, they found a backpack containing packages of methamphetamine
totaling 1.3 kilograms. They arrested the truck’s driver, Hector Mora, and
passenger, Elias Sanjurjo.        Mora initially denied knowledge of the
methamphetamine and was released, but he was later arrested again and
charged in the same indictment as Luna. He pleaded guilty to the charges
days before Luna’s trial began.
      Mora testified at Luna’s trial and claimed that Luna, through Mora’s
girlfriend, had asked Mora to pick up Sanjurjo at a bus stop. According to
Mora, Luna told him that Sanjurjo would be carrying methamphetamine.
Mora admitted that he was hoping for a reduced sentence in return for
testifying against Luna. Another witness, Melissa Gonzalez, also had been
charged in a federal indictment, but said she did not expect a reduced sentence
in return for testifying. Gonzalez testified that a few days before Mora and
Sanjurjo were arrested, Luna told her that he was expecting a shipment of
methamphetamine soon.
      Additionally, Drug Enforcement Administration Agent Drew Walker
testified that he had reviewed Sanjurjo’s cell phone after his arrest. Sanjurjo
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had texted with a person whose phone number was linked to the Facebook
account of Robert Quintero.            In her closing argument, defense counsel
identified Quintero as the likely source of the methamphetamine. Quintero
texted Luna’s phone number to Sanjurjo and said that it was the number of a
friend who would pick Sanjurjo up at the bus stop. Luna and Sanjurjo texted
and called each other regarding the pick-up. Agent Walker testified that Mora
and Luna had been communicating by phone when Mora and Sanjurjo were
arrested and that Luna wiped his phone five days after the arrests. Agent
Walker also testified that when he arrested Luna in connection with the
offense, Luna waived his Miranda 1 rights and explained that Quintero had
asked him to house a friend who was coming to town for work. Luna had
agreed but needed someone to pick up the friend.                   Mora’s girlfriend had
volunteered Mora for the task.
      During Agent Walker’s testimony, the Government sought to introduce
photographs that had been deleted from Luna’s phone but found in his cloud-
based storage. Luna objected to the photos under Rule 404(b) (implicating Rule
403) as unduly prejudicial and not sufficiently related to him or the offense.
The district court determined that the photos were admissible under Rule
404(b) as evidence of Luna’s intent to commit the offense.
      Four photos were admitted into evidence. One photograph (“Exhibit 8”),
taken by Luna’s phone six days before Mora and Sanjurjo’s arrest, depicted
four rifles and four rifle magazines. Agent Walker testified that such weapons
were “tools of the trade” of drug trafficking.
      The other three photographs were sent to Luna’s phone by an unknown
sender or senders. Agent Walker believed that the pictures had been sent to
Luna’s phone three to six days before Mora and Sanjurjo’s arrest. Exhibit 9


      1   See Miranda v. Arizona, 384 U.S. 436 (1966).
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                                   No. 18-50850
depicted a pocketknife, a hammer, a pair of handcuffs, and guns. Agent Walker
testified that it depicted “something that a drug dealer might use.” Exhibit 10
showed approximately thirteen $100 bills.         Agent Walker stated that it
depicted “bulk cash derived from narcotics proceeds.”        Finally, Exhibit 11
showed baggies containing “a crystal like substance.” Agent Walker testified
that it appeared to depict “four cellophane bags of crystal methamphetamine”
containing dealer amounts of the drug.       Neither the prosecution nor the
defense mentioned the pictures during closing arguments.
      The jury found Luna guilty of possessing methamphetamine with intent
to distribute and aiding and abetting. The district court sentenced Luna to 286
months’ imprisonment and five years of supervised release.           Luna timely
appealed.

                          II.    Standard of Review
      We review evidentiary rulings for abuse of discretion. United States v.
Gutierrez-Mendez, 752 F.3d 418, 423 (5th Cir. 2014).

                                III.   Discussion
      Luna claims that the district court erred when it admitted Exhibits 8
through 11 into evidence. He argues that the photos were not admissible
intrinsic evidence, see United States v. Sumlin, 489 F.3d 683, 689 (5th Cir.
2007), or extrinsic evidence, see United States v. Beechum, 582 F.2d 898, 911
(5th Cir. 1978) (en banc). He also argues that, even if relevant, the photos fail
the Federal Rule of Evidence 403 balancing test.
      We conclude that it is unnecessary to decide whether the admission of
these photos was error. Even if the district court abused its discretion in
admitting the photos, we conclude that any such error was harmless. An
evidentiary error is harmless if it “does not affect substantial rights.” FED.
R. CRIM. P. 52(a). “An error affects substantial rights if there is a reasonable
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probability that the improperly admitted evidence contributed to the
conviction.” Sumlin, 489 F.3d at 688.
      Luna argues some facts that undermine the Government’s evidence
against Luna such that the photos may have contributed to his conviction. See
id. The evidence largely depended on the testimony of Mora and Gonzalez,
who were both under federal indictments. Mora admitted that he was hoping
for a reduced sentence in exchange for testifying against Luna. The timing of
Mora’s guilty plea, days before Luna’s trial, may have diminished his
credibility in the eyes of the jury. Moreover, none of Luna’s text and phone
communications with Sanjurjo and Mora were proven to involve discussion of
illegal activities or drug trafficking.
      But more facts weigh in favor of concluding that the district court’s error
was harmless. Importantly, the Government never mentioned any of the
photographs in its closing arguments to the jury. See United States v. Brito,
136 F.3d 397, 413 (5th Cir. 1998) (holding that erroneous admission of extrinsic
evidence was harmless error in part because the government did not refer to
the evidence in its closing argument). Luna also did not mention any of the
photographs in closing.            Additionally, there was significant evidence
supporting Luna’s conviction. For example, he wiped his phone five days after
the methamphetamine seizure, suggesting knowledge. When texting Sanjurjo,
Luna used the pseudonym “Joe.” 2 After Mora and Sanjurjo were arrested,
there were a number of missed calls from Luna and Quintero to Sanjurjo.
Finally, even though Mora and Gonzalez were under felony indictments, they
still testified that Luna knew about the methamphetamine package. While
Mora admitted that he hoped for a reduced sentence in return for testifying




      2   Mora stated that at that time “[e]verybody was calling [Luna] Joe Black.”
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against Luna, Gonzalez did not. Thus, there was significant evidence beyond
the photographs to support Luna’s conviction.
      Based on the foregoing evidence, there is not a “reasonable probability”
that the photographs “contributed to the conviction.” Sumlin, 489 F.3d at 688.
Accordingly, any error was harmless.
AFFIRMED.




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