     Case: 12-40299       Document: 00512152154         Page: 1     Date Filed: 02/22/2013




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

                                                                            FILED
                                                                         February 22, 2013
                                     No. 12-40299
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ENRIQUE VEGA-MILIAN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-553-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Enrique Vega-Milian appeals his conviction of
possession with intent to distribute marijuana. Vega-Milian, a truck driver,
contends that his wife’s proffered testimony that he told her he planned to
return to a truck stop should have been admitted pursuant to Rule 803(3) of the
Federal Rules of Evidence to bolster his testimony that he in fact returned to the
truck stop to pick up a legitimate load of merchandise. He argues that the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40299

district court deprived him of his right to present a defense by sustaining the
government’s hearsay objection.
      Vega-Milian raised the hearsay argument in the district court. He did not
raise the constitutional argument. We review the hearsay argument for abuse
of discretion, see United States v. Narviz-Guerra, 148 F.3d 530, 536 (5th Cir.
1998), and the constitutional argument under the plain error standard, see
United States v. Ferguson, 211 F.3d 878, 886 (5th Cir. 2000).
      Any error in sustaining the government’s hearsay objection was harmless.
See United States v. El-Mezain, 664 F.3d 467, 526 (5th Cir. 2011), cert. denied,
133 S. Ct. 525 (2012). Vega-Milian was stopped with two tons of marijuana
worth over $3.3 million in the trailer portion of his truck, which took a team of
agents between three and four hours to unload. He had a bogus bill of lading,
and he either tampered with his logbooks as he testified he did or testified
falsely about doing so. As he was alone in the vehicle when he was stopped, the
jury could have inferred that Vega-Milian possessed the marijuana in the trailer.
See United States v. Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992). The jury could
also have inferred from the massive quantity and value of the marijuana that
Vega-Milian intended to distribute the drug, see id., and that it would be most
unlikely for a drug-distribution ring to trust an unknown driver with such a
large cargo, see United States v. Gonzalez-Rodriguez, 621 F.3d 354, 362 (5th Cir.
2010). And the jury could have inferred Vega-Milian’s guilty intent from the
bogus bill of lading and the testimony about the logbooks.
      In the face of this strong evidence of Vega-Milian’s guilt, testimony from
his wife that he told her he intended to return to the truck stop, to which, he
testified, he actually returned, would not have affected the outcome of the trial.
Any error in sustaining the government’s objection, therefore, was harmless. See
El-Mezain, 664 F.3d at 526.       For the same reasons, Vega-Milian cannot
demonstrate the prejudice necessary to prevail on his constitutional claim on
plain error review. See Puckett v. United States, 556 U.S. 129, 135 (2009).

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                                  No. 12-40299

      Finally, Vega-Milian contends that the evidence was insufficient to
support his conviction because the government was obliged to prove his
knowledge of the type and quantity of the drug he carried. He concedes that this
issue is foreclosed by United States v. Betancourt, 586 F.3d 303 (5th Cir. 2009),
but he raises it to preserve it for further review. Vega-Milian is correct that his
contention is foreclosed. See id. at 308-09.
      AFFIRMED.




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