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

                                                 FILED
                                                                           March 30, 2009

                                       No. 08-40191                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

PAULINA GARCIA-GRACIA

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
       Appellant Paulina Garcia-Gracia (Garcia) was convicted by a jury of
conspiracy to possess with intent to distribute cocaine and conspiracy to import
cocaine. On appeal, Garcia challenges the district court’s denial of her motion for
judgment of acquittal, the court’s admission of prior acts evidence, and whether
remarks made by the prosecutor require reversal. Alternatively, Garcia seeks a
remand by this court for a new trial. For the foregoing reasons, we affirm the
judgment of Garcia’s conviction.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40191

                  I. Factual and Procedural Background
      On February 5, 2007, Garcia arrived at a checkpoint at the United States
border, entering from Mexico. Garcia was driving a Chevrolet Monte Carlo.
Anastacio Hurtado-Torres (Torres), her boyfriend’s brother, was the only
passenger. During a preliminary inspection, Garcia told Custom and Border
Patrol (CBP) Officer Fransisco Urbina that she had been in Matamoros, Mexico,
for a dentist appointment and was on her way to Corpus Christi, Texas, where
she lived. Garcia told Urbina that the Monte Carlo belonged to her. The Monte
Carlo generated a Treasury Enforcement Communication System (TECS) hit
and was referred to secondary for further inspection. At secondary, Garcia told
CBP Officer Jose Leal that the Monte Carlo belonged to her boyfriend, Fransisco
Hurtado (Hurtado), and that he was currently incarcerated. Garcia also told Leal
she was traveling to Corpus Christi because she lived there. During the
inspection of the Monte Carlo, CBP Officer Jaime Gonzalez noticed that the rear
floor of the Monte Carlo appeared to be raised four to five inches higher than
normal. Officers removed the back seat, carpet, and drain plugs on the floor of
the car, and discovered a hidden compartment. A narcotics dog alerted to silver
packages that were visible in the hidden compartment on the passenger side of
the car. The officers were unable to access the packages through the floor.
Officers struck the rocker panels on the side of the car, revealing a non-factory
“trap-door” on both the driver and passenger sides of the car, which provided
access to the compartment. No drugs were recovered from the driver’s side of
the car. The packages were covered in plastic, wet mustard, and metal tape, and
contained what was later confirmed as cocaine. In total, 19.85 kilograms of
cocaine were recovered from the car.
      Garcia was taken into custody; she waived her Miranda rights, and was
questioned by Immigration and Customs Enforcement (ICE) Special Agent
Maria Bernal. Garcia denied knowledge of the hidden compartment and the

                                       2
                                     No. 08-40191

drugs. Garcia told Bernal that she had not had access to the Monte Carlo since
Hurtado’s arrest during a January 5, 2007 border crossing.1 Garcia said she took
the car to Hurtado’s father’s house in Matamoros, Mexico, then took a bus back
to Corpus Christi where she stayed for two or three weeks. Garcia stated that
she did not use the Monte Carlo again until the date of her arrest. For the first
time, Garcia stated that she was going to Corpus Christi to visit her daughter
in the emergency room. She told Bernal that she had originally planned to take
the bus to Corpus Christi that day, but had changed her mind and agreed to ride
with Torres in the Monte Carlo. She could not recall whose idea it was to travel
in the Monte Carlo. At the time of her arrest, Garcia had two pre-paid cell
phones and $2,390 in cash on her person, which she told Bernal was for the
February 5, 2007 dentist appointment in Matamoros.
       On February 20, 2007, Garcia was indicted on four counts: (1) conspiracy
to possess with intent to distribute more than 5 kilograms of cocaine, in violation
of 21 U.S.C. §§ 846, 841(a)(1); (2) knowingly and intentionally possessing with
intent to distribute more than 5 kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A); (3) conspiracy to import more than 5 kilograms of
cocaine, in violation of 21 U.S.C. §§ 963, 960; and (4) knowingly and intentionally
importing more than 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 952(a),
960.
       At trial, Garcia testified that she lived in Matamoros with Hurtado
approximately eighty percent of the time, spending the remainder of her time in
Corpus Christi, where she rented an apartment. Garcia testified that she had,
in fact, driven the Monte Carlo before her February 5, 2007 arrest, as evidenced
by a border crossing in the car on January 14, 2007. Garcia testified that the


       1
         Hurtado and Garcia crossed the border on January 14, 2007. Hurtado was driving and
Garcia was the sole passenger. Hurtado was arrested on an outstanding warrant for a parole
violation.

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reason she was traveling to Corpus Christi on February 5, 2007, was to visit her
daughter in the emergency room, and that Torres had offered her a ride in the
Monte Carlo because he was also traveling to Corpus Christi. Garcia testified
that Torres had been driving the car, but asked Garcia to drive just before they
crossed the border because he was high on crack cocaine. Garcia denied all
knowledge of the hidden compartment and the cocaine.
      On July 18, 2007, a jury found Garcia guilty of the conspiracy counts.
Garcia was sentenced to 121 months in prison, five years of supervised release,
and a $200 special assessment. The district court denied Garcia’s motion for
judgment of acquittal. Garcia timely filed a notice of appeal.
                                  II. Analysis
A.    Sufficiency of the evidence
      Garcia preserved her challenge to the sufficiency of the evidence, thus we
review her motion for judgment of acquittal de novo. See United States v.
Anderson, 174 F.3d 515, 522 (5th Cir. 1999). “In reviewing the sufficiency of the
evidence, we view the evidence and the inferences drawn therefrom in the light
most favorable to the verdict, and we determine whether a rational jury could
have found the defendant guilty beyond a reasonable doubt.” United States v.
Mitchell, 484 F.3d 762, 768 (5th Cir. 2007). “The evidence need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, and the jury is free to choose among reasonable
constructions of the evidence.” Anderson, 174 F.3d at 522 (quotations omitted).
      To sustain Garcia’s conspiracy convictions, the government must establish
(1) an agreement between two or more persons to violate the narcotics law; (2)
that Garcia knew of the conspiracy agreement; and (3) that Garcia voluntarily
participated in the conspiracy. See United States v. Thomas, 348 F.3d 78, 82 (5th
Cir. 2003) (quoting United States v. Booker, 334 F.3d 406, 409 (5th Cir. 2003)).
“Direct evidence is not required; each element may be inferred from

                                       4
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circumstantial evidence.” United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir.
1993). Garcia challenges the sufficiency of the evidence to establish that she had
the requisite knowledge. “Knowledge of the conspiracy may be inferred from a
collection of circumstances.” Id. at 1157 (quotations omitted).
      Garcia was in control of the vehicle containing the cocaine at the time the
car was stopped. Generally, a jury may infer a defendant knows about the
presence of drugs if she exercises control over a vehicle containing controlled
substances. See United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995).
However, when drugs are hidden in a vehicle, control of the vehicle alone is
insufficient to prove knowledge. United States v. Gonzalez-Lira, 936 F.2d 184,
192 (5th Cir. 1991). Because of the possibility that a defendant may be an
unwitting carrier, “this court has normally required additional circumstantial
evidence that is suspicious in nature or demonstrates guilty knowledge.”
Resio-Trejo, 45 F.3d at 911 (quoting United States v. Anchondo-Sandoval, 910
F.2d 1234, 1236 (5th Cir. 1990)). Circumstantial evidence of guilty knowledge
may include inconsistent statements, implausible explanations, possession of a
large sum of money, and obvious or remarkable alterations to a vehicle. United
States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998) (citations omitted).
      “Perhaps the strongest evidence of a criminal defendant’s guilty knowledge
is inconsistent statements to federal officials.” United States v. Diaz-Carreon,
915 F.2d 951, 954-55 (5th Cir. 1990). “Inconsistent statements are inherently
suspicious; a factfinder could reasonably conclude that they mask an underlying
consciousness of guilt.” Id. at 955. Garcia gave multiple inconsistent statements
to border patrol officers at the initial stop and secondary inspection, to Agent
Bernal during her interrogation, and during her trial testimony. Garcia told the
agents at primary and secondary inspection that the purpose of her visit was to
pay the rent and other bills at her apartment in Corpus Christi. It was not until



                                        5
                                  No. 08-40191

Bernal questioned Garcia after her arrest that she stated that she was traveling
to Corpus Christi to visit her daughter in the emergency room.2
      Garcia also told Bernal that she had picked up Torres before driving to the
border, but could not remember whose idea it was to travel in the Monte Carlo,
despite the fact that they had left Matamoros only a few hours prior. At trial,
Garcia denied that she had picked up Torres, claiming that she was planning to
take the bus and was offered to ride to Corpus Christi with Torres, who was
planning to drive to Corpus Christ to visit his daughter. Garcia said that she
took over driving just before the border crossing because Torres was high on
crack cocaine and could no longer drive safely.
      Garcia also made inconsistent statements regarding her access to the
Monte Carlo. During Bernal’s questioning, Garcia stated that following
Hurtado’s arrest, she had driven the car back to Hurtado’s father’s house in
Matamoros where she left the car, and took a bus back to Corpus Christi where
she stayed for two or three weeks. This was inconsistent with a border crossing
Garcia made in the Monte Carlo on January 14, 2007, a time when she initially
claimed no access to the car. Garcia’s trial testimony contradicted these
statements. Garcia testified that after Hurtado was arrested, she left the car in
the United States, walked across the border, and was picked up once she entered
Mexico. Garcia testified that she used the car once on January 14, 2007, and
then had no access to the car again until the day of her arrest.
      Garcia also offered an implausible explanation for her visit to Mexico on
February 5, 2007. “A less than credible explanation” may be part of the overall
circumstantial evidence upon which the jury can infer guilty knowledge. See
Diaz-Carreon, 915 F.2d at 955. Garcia told CBP officers that she had been in
Matamoros for a dentist appointment on the day in question. However she was

      2
       The record shows that Garcia’s daughter was admitted to the emergency room on
February 5, 2007, complaining of a headache and was released a few hours later.

                                         6
                                  No. 08-40191

unable to recall even a single detail about her dentist, including the name or
location of her dentist. This explanation is further questionable considering that
she had lived in Matamoros eight months, spent the majority of her time there,
and had been to the dentist over five times since June 2006, including a visit on
February 2, 2007, and again allegedly on February 5, 2007, the date of her
arrest. Garcia was also in possession of a large amount of cash, which she had
claimed was, in part, to pay for the dental work allegedly performed earlier that
day.
       Other circumstantial evidence also supports the jury’s verdict. There were
obvious alterations to the vehicle. An officer noticed that the transmission hump
in the back of the car was raised only three inches from the floor, rather than the
usual five to six inches. Officer Leal testified that this discrepancy would cause
the seat of the driver to sit higher than normal. In fact, officers that sat in the
seat had to crouch forward so their heads did not hit the roof of the car. See
United States v. Casilla, 20 F.3d 600, 607 (5th Cir. 1994) (“[A]n average person
would have realized that the flooring in the van had been altered because it was
raised over four inches and the back seats were above the top of the front seats,
stadium-style.”). Garcia was in possession of two pre-paid cell phones, which she
said belonged to Hurtado, and the jury heard testimony from Agent Bernal that
this was consistent with drug trafficking because they are untraceable. Garcia’s
posession of a large amount of cash is also common with drug traffiking. See
Ortega Reyna, 148 F.3d at 544 (noting that in hidden compartment cases,
possession of large amounts of cash by a defendant may be considered
circumstantial evidence of guilt). Bernal also testified that smugglers are often
given cash in advance in order to pay for expenses. Garcia was in posession of
$2,390, while Torres was in possession of only $300.The mustard found on the
outside of the cocaine packaging was still wet, indicating recent application.
After Garcia was told that the drugs had been found, she never implicated

                                        7
                                  No. 08-40191

Torres, but rather stated that it must have been Hurtado because of his past
conviction of smuggling, despite the fact that he had been incarcerated since
January 5, 2007. Garcia did not tell Bernal that she lived in Matamoros, rather
she stated only that she lived in Corpus Christi. This court has recognized that
it is unlikely that an unknowing, innocent driver would be entrusted with a
large amount of narcotics with a high value because the risk is high that an
unknowing smuggler would discover the drugs, inform the authorities, or try to
sell the drugs, depriving the dealer of the profits. See United States v.
Martinez-Moncivais, 14 F.3d 1030, 1035 (5th Cir. 1994). The jury heard
testimony that the value of the cocaine found in the Monte Carlo was in excess
of $300,000. The jury could reasonably rely on this other circumstantial evidence
to infer Garcia’s knowledge of the cocaine’s existence.
      Garcia argues that these inconsistencies and implausibilities can be
attributed to equally credible innocent explanations, specifically asserting
miscommunication between herself and the officers. However, the jury had the
benefit of hearing Garcia testify in her own defense and was able to draw all
reasonable inferences and make credibility determinations. The jury was
entitled to reject the explanations of the her involvement in, and knowledge
about, the drugs. Garcia’s mere presence at the center of the criminal activity
does not stand alone as the only evidence of her knowing participation in the
conspiracy. Because there are several other facts that, when added to her
presence and control of the vehicle, provide ample evidence to support the jury’s
verdict finding her guilty, we affirm the district court’s order finding sufficient
evidence.
B.    Admission of prior acts
      The district court admitted evidence of a border checkpoint stop in which
Garcia had been involved on December 24, 2006. On that day, Garcia was a
passenger in a Nissan Altima, which she owned. Hurtado was driving the car.

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CBP Officer Daniel Saenz testified that during an inspection he discovered a
hidden compartment under the rear seat cushion. The compartment was empty
and Garcia and Hurtado were allowed to continue into the United States. The
officers did not tell Garcia that they had found the compartment. Rather, when
Garcia asked why they were paying so much attention to her vehicle, Saenz
responded, “You know what’s in that vehicle. You know why we’re paying so
much attention to it.” Garcia’s name and the vehicle information were flagged
and entered into the TECS system.3 Garcia asserted at trial that she did not
know the Altima had a hidden compartment. The district court expressed
concern that there was little evidence to establish Garcia’s knowledge of the
hidden compartment in the Altima but ultimately admitted the evidence over
Garcia’s objection and gave the jury a limiting instruction before Saenz was
dismissed and again in the jury charge.4
       “We review the district court’s admission of extrinsic over a [Federal Rule
of Evidence] 404(b) objection under a heightened abuse of discretion standard.”
United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003) (internal quotation
marks omitted). “Evidence in criminal trials must be strictly relevant to the
particular offense charged.” Id.
       Evidence of other crimes, wrongs, or acts are inadmissible to show that the
defendant acted in conformity with his or her bad character. F ED. R. E VID.


       3
        It was this TECS entry that led to Garcia being sent to secondary inspection when she
drove the Monte Carlo across the border on February 5, 2007.
       4
         The court gave the following limiting instruction: “You’ve heard the testimony of
Daniel Saenz, Chris Bernal, and Paulina Garcia-Gracia concerning the defendant’s Nissan
Altima and the compartment that was found in that vehicle. Ms. Garcia-Gracia has denied
knowledge of the existence of that compartment. You must not consider this evidence in
deciding if the defendant committed the acts charged in the indictment. However, you may
consider it for other limited purposes. If you find beyond a reasonable doubt from other
evidence in this case that the defendant did commit the acts charged in the indictment, then
you may consider this evidence to determine whether the defendant had the knowledge or
intent to commit the acts charged in the indictment.”

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404(b). Such evidence may be admissible, however, “for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. The purpose of Rule 404(b) is to “guard
against the inherent danger that the admission of ‘other acts’ evidence might
lead a jury to convict a defendant not of the charged offense, but instead of an
extrinsic offense.” United States v. Crawley, 533 F.3d 349, 353 (5th Cir.), cert.
denied 129 S. Ct. 522 (2008) (quotations omitted). “Where the extrinsic activity
did not result in a conviction, this danger is particularly great.” Id. The district
court found that the extrinsic evidence was relevant and probative of Garcia’s
knowledge and intent for the charged crimes. This court uses the two step
approach set forth in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en
banc), to determine whether extrinsic evidence was admissible. “First, it must
be determined that the extrinsic offense evidence is relevant to an issue other
than the defendant’s character. Second, the evidence must possess probative
value that is not substantially outweighed by its undue prejudice and must meet
the other requirements of [Federal Rule of Evidence] 403.” Id. at 911.
      We find that the district court abused its discretion in admitting the
evidence of the prior act because this evidence was not strictly relevant to the
offense with which Garcia was charged. The government argues that the facts
of the December 24, 2006 stop and the February 5, 2007 arrest are sufficiently
similar, pointing to the following: on both occasions Garcia was stopped at a
border checkpoint arriving from Mexico; Garcia was the owner of the vehicle
stopped on December 24, 2006, and was the operator of the vehicle stopped on
February 5, 2007; and both cars had hidden compartments. The government
argues that this evidence is relevant to show Garcia had the requisite knowledge
and intent to commit the crimes with which she was charged.
      Evidence of prior bad acts “must first have crossed a threshold
requirement of relevancy: the prior bad acts to be laid before the jury must be

                                        10
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shown to be relevant to the defendant. That is, there must be some proof that it
was the defendant who committed those acts. In the absence of such proof, the
evidence of those acts is of no help to the jury, as it is not possible to say that
those acts reflect anything at all about the defendant. As this Court has
previously put it, ‘[t]he predicate to relevance of an extrinsic offense is proof that
the defendant actually committed the offense.’” Gonzalez-Lira, 936 F.2d at 189
(quoting United States v. Jimenez, 613 F.2d 1373, 1376 (5th Cir. 1980)); see also
Beechum, 582 F.2d at 911 (“[T]he relevancy of the extrinsic offense derives from
the defendant’s indulging himself in the same state of mind in the perpetration
of both the extrinsic and charged offenses. The reasoning is that because the
defendant had unlawful intent in the extrinsic offense, it is less likely that he
had lawful intent in the present offense.”). “[T]he government must at least
provide some evidence that the defendant committed the prior bad act.”
Gonzalez-Lira, 936 F.2d at 189-90 (emphasis in original).
      The government failed to establish that Garcia had any knowledge of the
hidden compartment in the Altima. See United States v. Greenfield, 554 F.2d
179, 186 (5th Cir. 1977) (stating that “[t]he weakness lies in the circumstance
that the evidence shows no contemporaneous knowledge or intent” during the
prior act); see also Jimenez, 613 F.2d at 1376 (finding extrinsic evidence of prior
possession where defendant denied knowledge of possession should not have
been admitted because under the circumstances, “no reasonable jury could have
found appellant guilty of the alleged cocaine possession”). We fail to see how the
introduction of a prior act of which there is no evidence of knowledge or intent
can be offered specifically to show the element of a defendant’s knowledge or
intent to commit the present offense. Without any evidence that Garcia actually
knew that the Altima had a hidden compartment, it simply cannot be relevant




                                         11
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to establish her knowledge or intent in the present matter.5 Because we find that
the evidence of the prior act is not relevant to the present matter, we need not
determine whether the probative value of the evidence outweighed the
prejudicial effect of its admission.
       We must next determine whether the admission of the evidence was
harmless error. Erroneous admissions under Rule 404(b) are subject to a
harmless error analysis. Crawley, 533 F.3d at 353. An error is harmless when
it does not affect the substantial rights of a party. Id. The government has the
burden of establishing harmlessness beyond a reasonable doubt. United States
v. Nguyen, 504 F.3d 561, 571 (5th Cir. 2007).
       When other evidence of guilt is overwhelming and the error does not
substantially influence the jury’s verdict, the error is harmless. United States v.
Hawley, 516 F.3d 264, 268 (5th Cir. 2008), cert. denied, 129 S. Ct. 994 (2009); see
also United States v. Hare, 150 F.3d 419, 424 (5th Cir. 1998) (stating that the
erroneous admission of 404(b) evidence will be rendered harmless if the
overwhelming evidence points to the defendant’s guilt); United States v.
Tomblin, 46 F.3d 1369, 1388 (5th Cir. 1995); United States v. Williams, 957 F.2d


       5
         The district court admitted the evidence under the “theory of probability,” also known
as the “doctrine of chances,” which states that “[t]he prosecution need not prove the defendant
guilty of the prior offense so it would seem to be enough if the circumstances of the prior
incident are such as to increase the probability of knowledge in the instant case. If, however,
the prior crime is apparently unwitting, its admissibility can be justified only on a theory of
probability; that is, either that [it] is unlikely that the defendant could have been an innocent
participant in two crimes or that it is likely that in some unprovable fashion he would have
received notice.” 22 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM , JR ., FEDERAL PRACTICE
AND PROCEDURE § 5245 (1978 & Supp. 2008). Applying this theory, juries may make the logical
inference that successive, similar events are not attributed to chance, but to intentional
design. 2 WIGM ORE ON EVIDENCE § 302 (3d ed. 1940). This court has recognized this approach
on at least two occasions when determining whether a prior act should be admitted to show
intent. See Beechum, 582 F.2d at 911; United States v. Kirk, 528 F.2d 1057, 1060 n.2 (5th Cir.
1976). However, we are not persuaded that the circumstances presented in this case allow for
the admission of the extraneous evidence under the theory of probability to show knowledge
or intent. One prior act with only a few similarities is simply not enough to establish that the
prior act was more than mere coincidence.

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1238, 1244 (5th Cir. 1992). We have also held that “the improper admission of
. . . evidence [under Rule 404(b)] may be cured by appropriate limiting
instructions.” United States v. Gordon, 780 F.2d 1165, 1174 & n.4.; see also
Jimenez, 613 F.2d at 1377 (limiting jury instructions may ameliorate the
prejudicial nature of the admission of the prior act evidence).
      We find that the erroneous admission of the prior act evidence does not
warrant reversal. The evidence supporting Garcia’s conviction is substantial.
Garcia’s multiple inconsistent statements to CBP and ICE officers and during
her trial testimony regarding the purpose of her visit to Matamoros on the day
in question, the purpose of her trip to Corpus Christi, her access to the Monte
Carlo, and the reason for the large amount of cash on her person supports the
jury’s guilty verdict beyond a reasonable doubt. Garcia also gave implausible
explanations regarding her knowledge of the dentist and whose idea it was to
drive the Monte Carlo across the border. Alterations to the vehicle were obvious
and readily noticeable by the CBP officers. Garcia was in possession of two pre-
paid cell phones belonging to her incarcerated boyfriend, and the large amount
of narcotics and the high value of the drugs she was entrusted with make it less
likely that she was an unknowing smuggler. Because of the overwhelming
evidence of Garica’s guilt presented by the government and the appropriate
limiting instruction twice given by the district court, any error committed by the
district court in admitting evidence of Garica’s prior act was harmless beyond a
reasonable doubt.
C.    Allegations of prosecutorial misconduct
      When objected to, this court reviews allegedly improper comments for
abuse of discretion. United States v. Gracia, 522 F.3d 597, 600 n.2 (5th Cir.
2008). When not objected to, comments are reviewed for plain error. Id. “To
demonstrate reversible plain error, [Garcia] had to show that (1) there is error;
(2) it is plain; and (3) it affected [her] substantial rights.” Id. at 600. Even if

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Garcia meets this burden, we will generally not reverse unless the plain error
“seriously affected the fairness, integrity, or public reputation of the judicial
proceeding.” Id. (citing United States v. Mares, 402 F.3d 511, 515 (5th Cir.
2005)).
      When reviewing a charge of prosecutorial misconduct, this court must first
determine whether or not the prosecutor’s remark was, in fact, improper. See
United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007). If so, we must then
consider whether the remark prejudiced the defendant’s substantive rights. Id.
“[A] criminal defendant bears a substantial burden when attempting to
demonstrate that improper prosecutorial comments constitute reversible error.”
Diaz-Carreon, 915 F.2d at 956. Improper prosecutorial comments require
reversal only, when taken as a whole in the context of the entire case, the
comments substantially affected the defendant’s right to a fair trial. United
States v. Hitt, 473 F.3d 146, 161 (5th Cir. 2006). To make this showing, the court
focuses on three factors: (1) the magnitude of the prejudicial effect of the
prosecutor’s remarks; (2) the efficacy of any cautionary instruction by the judge;
and (3) the strength of the evidence supporting the conviction. United States v.
Lowenberg, 853 F.2d 295, 302 (5th Cir. 1988). Garcia asserts that the prosecutor
made improper remarks on four separate occasions, only one of which was
objected to.
      First, Garcia argues that the prosecutor “vouched” for Bernal’s testimony
when she was questioned about whether the prosecutor told her to tell the truth.
Because Garcia objected to the questioning, we review for abuse of discretion.
See Gracia, 522 F.3d at 600 n.2. A personal assertion by a prosecutor of a
government witness’s credibility is impermissible; however no personal opinion
or statement vouching for Agent Bernal’s credibility was made by the prosecutor.
Cf. United States v. Young, 470 U.S. 1, 18-19 (1985) (prosecutor vouched for the
credibility of witnesses and expressed his personal opinion concerning the guilt

                                       14
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of the accused). Rather, the prosecutor was merely rebutting Garcia’s
accusations that the agents had been lying. We find that the prosecutor’s line of
questioning was not improper and therefore there was no error.
      Second, Garcia challenges a line of questioning by the prosecutor during
her cross examination. During her direct testimony, Garcia had stated that the
testimony of Urbina and Bernal was inaccurate. The prosecutor asked Garcia
whether she though the agents were either “lying or mistaken.” Garcia did not
object to the questioning at trial. Garcia argues that the prosecutor was trying
to “force Garcia to accuse the witnesses of lying.” However, the prosecutor’s
questioning was intended as a response to Garcia’s effort to expose the
government witnesses as untruthful or at least inaccurate. See United States v.
Thomas, 12 F.3d 1350, 1367 (5th Cir. 1994). These remarks are not improper
and therefore there was no error.
      Third, Garcia asserts that during closing arguments, the prosecutor
encouraged the jury to find her guilty by way of her association with a family of
drug smugglers, specifically that: Hurtado was a former drug dealer; Torres
was high on crack cocaine as they approached the border checkpoint on February
5, 2007; and Hurtado was kidnapped was beaten by his other brothers because
they thought Garcia and Torres had stolen the drugs to sell themselves. Garcia
did not object at trial. “[E]vidence of guilt by association is extremely
prejudicial;” however an instruction to disregard is generally deemed sufficient,
unless the remark is so highly prejudicial that it is incurable by the court’s
admonition. United States v. Pando Franco, 503 F.3d 389, 395 (5th Cir. 2007).
Evidence of Hurtado’s criminal past and beating, and Torres’s drug use had
been introduced during trial and the Government drew reasonable inferences
therefrom in its closing argument. The jury had been instructed that statements
made during closing argument were not to be considered as evidence and the
remark was not so highly prejudicial so as to be incurable. “We presume that

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such instructions are followed unless there is an overwhelming probability that
the jury will be unable to follow the instruction and there is a strong probability
that the effect [of the improper statement] is devastating.” United States v.
Gallardo-Trapero, 185 F.3d 307, 321 (5th Cir. 1999) (quotations omitted). There
was no reversible error.
      Fourth and finally, Garcia challenges the following statement made by the
prosecutor during closing argument: “[Are the discrepancies in Garcia’s
statements] because there’s a conspiracy between all these federal agents
against this defendant, or is it because this defendant keeps changing her lies
to get out of trouble as our investigation learns more and more? Somebody is
lying to you. Now, is it all those agents . . . have they all gotten together from
some reason, and a woman that they’ve never met before that day . . . decided
we’re going to put our careers on the line, we’re going to lie, and we’re going to
make sure she does something– she does time for something she doesn’t deserve?
Is that reasonable? Does that make common sense?” Garcia did not object at
trial. Garcia argues that the prosecutor was telling the jury that in order to find
her not guilty the jury would have to believe in a government conspiracy against
her. This court has “deemed improper an unequivocal statement by a prosecutor
that, for the jurors to believe the defense’s account, they would have to believe
in a government conspiracy.” Gracia, 522 F.3d at 601-02. We find that the
prosecutor’s remark was improper; however Garcia has failed to sufficiently
demonstrate that this comment requires reversal. The district court cautioned
the jury that statements made during closing arguments were not evidence.
There was no reversible error.
D.    Motion for new trial
      Finally, Garcia requests that this court remand the matter for a new trial
arguing that, at a minimum, the verdict was against the great weight of the
evidence. Garcia did not move for a new trial before the district court. Garcia’s

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argument for this court granting a new trial is premised on this court’s finding
enough doubt as to the defendant’s guilt, even if not sufficient to require
acquittal, such that a new trial is warranted. Assuming arguendo that this court
had the power to grant such a motion, we deny Garcia’s request as the evidence
supports her conviction beyond a reasonable doubt.6
                                      III. Conclusion
       For the foregoing reasons, we affirm the district court’s denial of Garcia’s
motion for judgment of acquittal, and find no reversible error in the district
court’s admission of prior acts evidence or the prosecutor’s remarks.
       AFFIRMED.




       6
          Garcia argues that when there is strong doubt as to the defendant’s guilt, a district
court is “obliged to grant a new trial,” citing to United States v. Morales, 910 F.2d 467, 468 (7th
Cir. 1990), for support. Garcia asserts that 28 U.S.C. § 2106, which grants appellate courts the
power to “remand the cause . . . as may be just under the circumstances,” extends the same
power of the district court to grant a new trial to an appellate court. In United States v.
Nguyen, 507 F.3d 836 (5th Cir. 2007), the defendant made a similar argument. Although
Nguyen recognized that other circuits had created an exception to the general rule that a
defendant must timely move for a new trial in the district court, it found that the Fifth Circuit
has never applied this exception and declined to do so in that case. Id. at 839-40.

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E. GRADY JOLLY, Circuit Judge, specially concurring:
      I concur in the panel’s thorough opinion, except insofar as it holds that
evidence of the December 24 border crossing was inadmissible under Rule 404(b)
to prove Garcia-Gracia’s knowledge of the Monte Carlo’s hidden compartments.
      There is no convincing reason why the December 24 crossing, when agents
discovered hidden compartments in the Altima that Garcia-Gracia had owned
for more than year, is not admissible to prove Garcia-Gracia’s knowledge of the
Monte Carlo’s hidden compartments. But for the fact that the Altima’s hidden
compartments were empty, the December 24 crossing was identical to the
February 5 crossing for which she is being tried. The mere fact that Garcia-
Gracia owned a car that had hidden compartments – a car that was given to her
by the Monte Carlo’s owner no less – is clearly relevant to her knowledge of the
Monte Carlo’s similar hidden compartments. That she denied knowledge of the
hidden compartments in a car she owned for a year is clearly a subject on which
to test her credibility that she was innocent of all knowledge of the drug
operation around her. Thus, the December 24 crossing was both highly relevant
to and probative of Garcia-Gracia’s knowledge, a permissible purpose under Rule
404(b), and I would hold that the district court did not abuse its discretion in
admitting it.




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