     Case: 12-40470         Document: 00512304633          Page: 1     Date Filed: 07/11/2013




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

                                                                               FILED
                                                                              July 11, 2013

                                         No. 12-40470                         Lyle W. Cayce
                                                                                   Clerk

UNITED STATES OF AMERICA,

                                                     Plaintiff–Appellee
v.

CAROLINA AVILA,

                                                     Defendant–Appellant



                     Appeal from the United States District Court
                          for the Southern District of Texas
                               U.S.D.C. No. 7:11-CR-592


Before OWEN and HAYNES, Circuit Judges, and LEMELLE, District Judge.*
PER CURIAM:**
       Carolina Avila appeals her convictions for conspiring to and substantively
importing and possessing with the intent to distribute more than 500 grams of
methamphetamine. She contends that insufficient evidence supported her
convictions, that the jury improperly received a “deliberate ignorance”
instruction, that the prosecutor made prejudicial closing remarks, and that the
cumulative effect of these errors rendered her trial unfair. We AFFIRM.


       *
           District Judge of the Eastern District of Louisiana, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40470

                       I. Facts and Procedural History
      Avila attempted to enter the United States by vehicle at the Hidalgo Port
of Entry near McAllen, Texas. She was accompanied by her year-and-a-half-old
daughter and Santos Lozano. Avila and her daughter are United States citizens,
and Lozano is a legal permanent resident. Avila drove, while Lozano occupied
the passenger seat. An opened case of twelve, forty-ounce Corona beer bottles
sat in the back of the vehicle. Avila was nineteen years old.
      Avila’s minivan proceeded to the inspection checkpoint. Customs and
Border Protection Officer Ezequiel Mendoza asked her a series of routine
questions and checked the passengers’ identification documents. Avila stated
that she had recently flown in from Illinois to visit family in Reynoso, Mexico,
and was staying in Mission, Texas. Avila declared the case of Corona.
      Instead of waving Avila through to another station where Lozano, who was
over twenty-one, could pay excise taxes on the beer, Mendoza decided to inspect
the bottles. As he lifted a bottle out of the case, he noticed “particles” floating in
the liquid. Because it was dark, he used a flashlight to take a closer look.
Although the bottle and its contents appeared to be just like any other bottle of
Corona beer, Mendoza observed fragments of a solid substance dispersed
throughout the liquid. He removed several other bottles from the case, all
containing the same unknown substance. Mendoza called a “K9” officer to the
scene. The dog alerted to the case of beer.
      Mendoza ordered Avila to proceed to a secondary screening area, where
Avila related the same story of her visit to Customs Officer Tricia Aguon. Aguon
asked Avila about her relationship to Lozano, and she identified him as a family
friend. Aguon then inspected the bottles of beer and found the same floating
particles as Mendoza.       A field test returned a positive identification for
methamphetamine. Avila also possessed $457 in cash. Lozano had none.



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                                  No. 12-40470

      The officers then turned Avila over to United States Immigration and
Customs Enforcement (“ICE”) Agents Jeffrey Kicklighter and J.J. Flores. Under
ICE policy, Kicklighter and Flores interviewed Avila together. They took notes,
but made neither a video nor audio recording of the interrogation.
      Avila retold her story, this time adding that she had taken a cab from
Harlingen to Hidalgo and then crossed the border to meet her father, a Mexican
citizen who had traveled to Reynoso from Nuevo Laredo to see her. Avila also
told the agents that, in addition to seeing her father and uncle, she intended to
visit Laredo—a three-hour drive away—so that she could see her mother, who
was scheduled for surgery the next morning. Avila again described Lozano as
a family friend, and she stated that he and his Corona were en route to a fish-fry
in Mission.
      Kicklighter and Flores then interviewed Lozano. After finding unspecified
discrepancies between his and Avila’s version of events, the agents returned to
ask Avila additional questions. This time she told a much different story.
      Avila shared that her father had a history of drug trafficking and that he
had asked her to take the beer bottles across the border. Although Avila
disavowed any knowledge of the bottles’ contents, she related that her father had
described the bottles using Spanish slang that she associated with illegal
substances. Her father also allegedly told her that he would ensure that she
received proper compensation for her efforts and that the bottles were ultimately
destined for Dallas. Instead of a longstanding family friend, Lozano turned out
to be an individual that Avila had met just hours before, when she picked him
up at La Plaza Mall in McAllen per her father’s instructions. Avila denied ever
touching or examining the beer bottles.
      Avila subsequently was charged with (1) conspiring to import 500 grams
or more of methamphetamine, (2) importing 500 grams or more of
methamphetamine, (3) conspiring to possess with intent to distribute 500 grams

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                                 No. 12-40470

or more of methamphetamine, and (4) possessing with intent to distribute more
than 500 grams of methamphetamine. At trial, the Government introduced
testimony from Mendoza, Aguon, and Kicklighter, as well as an expert who
testified that the beer bottles contained approximately 7.5 kilograms of
methamphetamine, worth at least a quarter-million dollars in South Texas and
much more in Dallas. Avila did not testify, and the defense rested without
calling witnesses or introducing evidence. The jury convicted Avila on all four
counts, and the district court sentenced her to 121 months in prison and to five
years of supervised release.
      Avila raises four issues on appeal. She contends that insufficient evidence
supports each count of conviction. She further argues that the district court
abused its discretion by issuing a “deliberate ignorance” instruction, which she
claims allowed the jury to conclude that the Government satisfied its mens rea
burden without showing actual knowledge.          Avila also asserts that the
prosecutor made comments during closing arguments that improperly bolstered
Kicklighter’s testimony. Finally, in Avila’s view, the cumulative effect of the
deliberate ignorance instruction and the prosecutor’s remarks caused her to
receive an unfair trial. We reject each of these arguments below.
                      II. Sufficiency of the Evidence
      Avila first objects to the sufficiency of the evidence underlying her
convictions. At trial, Avila contended that the evidence showed only that she
unwittingly played into a plan hatched by her father and carried out by Lozano.
Avila argues on appeal that, at most, the evidence stands in equipoise, obviating
the possibility that a rational jury could have determined that the Government
proved the elements of each count beyond a reasonable doubt.
      We disagree.    Avila essentially asks us to ignore virtually all trial
testimony in the Government’s favor. The Government introduced direct and
circumstantial evidence—primarily, but not exclusively, from Kicklighter and

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                                  No. 12-40470

an expert—that rationally supported each element of each charged offense. The
Government specifically presented evidence suggesting that, among other
things, Avila admitted that she agreed to transport an illegal substance across
the border for monetary compensation at the behest of her drug-trafficker father,
that she knew the contraband would be further distributed at least as far as
Dallas, and that the timing of her and Lozano’s border crossings coincided with
the second version of events she related to Agent Kicklighter. This evidence
satisfied the Government’s burden. See, e.g., United States v. Ojebode, 957 F.2d
1218, 1223-28 (5th Cir. 1992) (discussing the elements for conspiracy to import,
importation, conspiracy to possess with intent to distribute, and possession with
intent to distribute a controlled substance).
      Avila cross-examined the Government’s witnesses about this evidence and
presented an alternative version of events during closing arguments. The jury
carried out its role as factfinder and found Avila guilty on each count. Viewed
in the light most favorable to the jury’s verdict, the evidence as a whole
supported Avila’s convictions beyond a reasonable doubt. See, e.g., Jackson v.
Virginia, 443 U.S. 307, 319 (1979); United States v. Miller, 146 F.3d 274, 281
(5th Cir. 1998).
                             III. Jury Instruction
      In its instructions to the jury, the district court defined the term
“knowingly” as an “act [that] was done voluntarily or intentionally, not because
of mistake or accident.”     Following the Fifth Circuit’s pattern deliberate
ignorance instruction, the court then instructed the jury that it could
      find that [Avila] had knowledge of a fact if [it found] that [she]
      deliberately closed her eyes to what would otherwise have been
      obvious to her. While knowledge on the part of [Avila] cannot be
      established merely be demonstrating that [she] was negligent,
      careless, or foolish, knowledge can be inferred if [Avila] deliberately
      blinded herself to the existence of a fact.


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Avila contends that this instruction allowed the jury to convict her on an
inference of deliberate ignorance despite the Government’s having presented
only a direct-knowledge theory of guilt.
       The district court appropriately instructed the jury on deliberate
ignorance.      Contrary to Avila’s arguments, the record shows that the
Government presented direct and circumstantial evidence supporting both that
Avila actually knew of the drug scheme and that, at the least, she intentionally
limited her knowledge of certain details.1 For example, although she heard her
father describe the bottles with a slang term reserved for contraband, she
consciously avoided examining the bottles or further inquiring into their
contents.2 As the district court correctly recognized, this simply is not a case
where the evidence presents a binary choice between actual knowledge or mere
negligence. See, e.g., United States v. Mendoza-Medina, 346 F.3d 121, 133 (5th
Cir. 2003). Accordingly, the district court committed no error in giving a
deliberate ignorance instruction.3
                            IV. Prosecutorial Misconduct
       During closing argument, Avila’s attorney attacked the Government’s case
in part by insinuating that Kicklighter and Flores intentionally failed to make


       1
          See United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990) (“The
circumstances which will support the deliberate ignorance instruction are rare. The evidence
at trial must raise two inferences: (1) the defendant was subjectively aware of a high
probability of the existence of the illegal conduct; and (2) the defendant purposely contrived
to avoid learning of the illegal conduct.”).
       2
          See United States v. Restrepo-Granda, 575 F.2d 524, 529 (5th Cir. 1978) (holding, in
the context of a conviction for importing a controlled substance, that a deliberate ignorance
instruction is proper if “(1) [the defendant] knew he was importing . . . a controlled substance,
or (2) he believed he was importing a controlled substance and through willful blindness failed
to confirm that belief”).
       3
         Any error is harmless, in any case, given that the record contains evidence from which
the jury rationally could have found that Avila had actual knowledge. See, e.g., United States
v. Cartwright, 6 F.3d 294, 301 (5th Cir. 1993).

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                                  No. 12-40470

a written or video recording of Avila’s confession and that the Government kept
Flores from testifying because he would have materially contradicted
Kicklighter’s trial testimony. Construing this as a Brady-like argument made
directly to the jury, the prosecutor responded during her closing argument by
assuring the jury that “if there was any information that Agent Flores possessed
contradictory information about the interview, the Government would [have
been] required to disclose that to Defense Counsel, and Defense Counsel, if they
so chose to do so, could present that [at trial].” She also emphasized that the
Government had the burden of proof and that it “accept[ed] the burden gladly.”
      The prosecutor then segued into additional commentary and suggested
that either the Government had no reason to turnover Flores’s statements or
that the Government did so, but that Avila failed to call him as a witness. She
remarked to the jury:
      I would suggest to you that [Flores did not testify] because there
      was nothing different, nothing additional, that Agent Flores could
      have added to the testimony that would somewhat contradict what
      Agent Kicklighter told you. So when you heard from Agent
      Kicklighter[,] you got a summary of everything that came up during
      the interview, and I assure you that if there was anything that was
      contradicting what Agent Kicklighter had said, you would have
      heard that during the trial.
The prosecutor later circled back to rebut defense counsel’s attack on ICE’s two-
agent interview policy and told the jury that “[i]f there was anything else that
came up that was not truthful by Agent Kicklighter, it would have had to have
been disclosed to Defense Counsel. So there is a safeguard regardless of whether
or not . . . a recording [was] made.”
      Avila contends these comments impermissibly bolstered the Government’s
evidence and rendered her trial unfair. Because she did not contemporaneously
object, we review for plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009) (discussing four steps of plain-error review).


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       Defense counsel’s baseless and inappropriate impugning of the
prosecutor’s and the agents’ integrity understandably provoked a strident
response.4 Thus, some response was appropriate.5 But the prosecutor strayed
from acceptably explaining her duties and the Government’s burden to
impermissibly testifying about Flores’s reports and interview records—which
were never before the jury—and vouching for Kicklighter’s truthfulness. Our
precedents forbid such commentary. See, e.g., United States v. Morris, 568 F.2d
396, 401-03 (5th Cir. 1978).
       Even so, we conclude that the comments did not impair Avila’s substantial
right to a fair trial. See Puckett, 556 U.S. at 135. In context, the prosecutor’s
remarks were a small part of her overarching closing arguments, and she made
them to dispel “‘any stigma cast upon [herself] or [her] witnesses’” by defense
counsel’s closing statement. See United States v. Thomas, 12 F.3d 1350, 1367
(5th Cir. 1994) (quoting United States v. Dorr, 636 F.2d 117, 120 (5th Cir. Unit
A Feb. 1981)).       Additionally, the district court moderately mitigated any
potential prejudice by including a general curative instruction in the jury charge.
See, e.g., United States v. Aguilar, 645 F.3d 319, 326 (5th Cir. 2011).
       Although the Government’s case rested heavily on Kicklighter’s testimony,
moreover, sufficient circumstantial evidence independently supported Avila’s




       4
         See, e.g., United States v. Montemayor, 684 F.2d 1118, 1124-26 (5th Cir. 1982)
(declining to vacate conviction where prosecutor made heated comments in response to defense
counsel’s claim that the Government was “cheating”).
       5
        See United States v. Medrano, 836 F.2d 861, 865-66 (5th Cir. 1988) (“We find that the
prosecutor’s remarks were made in direct response to defense counsel’s closing remarks, which
assailed the credibility of the prosecution’s witnesses. The prosecutor’s remarks implied that
defense counsel could have used the reports to impeach witnesses if their statements were
inconsistent. We find that the prosecutor’s remarks did not affect a ‘substantial right’ of [the
defendant], and there was no error.”).

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                                       No. 12-40470

convictions.6 For example, Avila’s and Lozano’s border-crossing histories belied
that the two had met in Reynoso shortly before crossing and suggested that
Lozano had been “scouting” the Hidalgo border crossing. Avila possessed a large
sum of cash despite being unemployed, and Lozano had none despite being the
only person capable of paying taxes on the beer. The jury learned that Avila’s
father in fact has a criminal record for drug trafficking, as well as the suspicious
circumstances of his travel from Nuevo Laredo to Reynoso to meet with Avila the
day before she ostensibly was to travel to Laredo—directly across the border
from Nuevo Laredo—to be with her mother. This evidence, as well as the value
and amount of recovered methamphetamine, all militates against Avila’s
prejudice-related arguments. See United States v. Gonzalez, 700 F.2d 196, 204
(5th Cir. 1983). Because the record as a whole sufficiently supports Avila’s
convictions, we conclude that the prosecutor’s remarks do not “cast serious doubt
on the correctness of the jury’s verdict,” United States v. Gracia, 522 F.3d 597,
603 (5th Cir. 2008) and that this issue does not meet the requirements for
reversal under plain-error review.
                                        Conclusion
       Sufficient evidence supported the jury’s verdict.                The district court
properly included a deliberate ignorance instruction in the jury charge. In
context, the prosecutor’s challenged comments responded to issues opened by
defense counsel and, although error, did not affect Avila’s substantial rights.
Accordingly, we conclude cumulative error doctrine does not apply and AFFIRM
Avila’s convictions.




       6
          See Morris, 568 F.2d at 402 (“Although the prosecutor’s statement constitutes error,
it is not reversible error. Error must be regarded as harmless if, upon an examination of the
entire record, substantial prejudice to the defendant does not appear.” (citing Berger v. United
States, 295 U.S. 78, 82 (1935))).

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