     Case: 09-60382         Document: 00511134516         Page: 1     Date Filed: 06/07/2010




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

                                                    FILED
                                                                                June 7, 2010

                                           No. 09-60382                        Lyle W. Cayce
                                                                                    Clerk

UNITED STATES OF AMERICA

                                                       Plaintiff - Appellee
v.

DAVID WALLACE GARRISON

                                                       Defendant - Appellant




                        Appeal from the United States District Court
                          for the Northern District of Mississippi
                                    No. 2:08-CR-00058


Before JOLLY and GARZA, Circuit Judges, and MILLER * , District Judge.
PER CURIAM:**
        David Wallace Garrison was convicted of one count of smuggling
counterfeit goods in violation of 18 U.S.C. § 545 and five counts of trafficking in
counterfeit goods in violation of 18 U.S.C. § 2320(a). Garrison appeals his
conviction on three grounds: (1) the evidence was insufficient to sustain a
conviction as to any count; (2) the district court erred in admitting evidence of



        *
             District Judge of the Southern District of Texas, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60382

some of the counterfeit shirts; and (3) the district court erred in failing to grant
a mistrial. For the reasons stated below, the conviction is AFFIRMED.
                                           I.
      Garrison owned a clothing store named “Gambles” with locations in
Batesville and Robinsonville, Mississippi. On June 1, 2007, upon information
from the clothing company Lacoste, a counterfeit specialist went to the
Batesville store to investigate whether Garrison was selling counterfeit Lacoste
shirts. Upon his arrival, the investigator found more than six hundred
counterfeit Lacoste, Polo/Ralph Lauren, and Abercrombie & Fitch shirts. The
investigator then proceeded to the Robinsonville store, where he found more
than thirteen hundred counterfeit shirts. The shirts from both stores were seized
by police. During the seizure, the police also discovered shipping documents
dated September 27, 2006, September 12, 2006, and November 27, 2005, which
indicated that Garrison had imported the same or similar shirts from abroad at
a wholesale price of $2 or $3 per shirt.
      After the seizure, Garrison was interviewed by Immigration and Customs
Enforcement agents. During the interview, Garrison admitted that on February
9, 2006, U.S. Customs agents at JFK airport had seized a shipment of shirts he
was importing on the basis that they were counterfeit. After having been sent
notice of the seizure, Garrison was given the opportunity to contest the seizure
if he believed the shirts were legitimate. Garrison chose not to do so.
      Garrison was charged with one count of fraudulently receiving, concealing,
and selling merchandise after importation (“smuggling”) in violation of 18 U.S.C.
§ 545 and five counts of trafficking in counterfeit goods in violation of 18 U.S.C.
§2320(a). The trafficking counts related to the June 1, 2007, seizures at his
stores, the shipping documents found in the stores, and the seizure at JFK
airport. At trial, Garrison was convicted by jury verdict on all counts.



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      Garrison appeals his conviction on three grounds. First, Garrison contends
the evidence was insufficient to sustain a conviction as to any count. Second, the
district court erred in allowing evidence of counterfeit shirts absent the
presentation of those goods at trial. And last, the district court erred in not
granting a mistrial after a jury poll reflected a lack of unanimity in the verdict.
                                        II.
      When a challenge to the sufficiency of the evidence is properly preserved
by a motion for judgment of acquittal at the close of the government’s case and
at the close of all the evidence, review is de novo. See United States v. Shum, 496
F.3d 390, 391 (5th Cir. 2007). In reviewing such a challenge, the court looks at
the evidence in the light most favorable to the verdict to determine whether a
rational trier of fact could find every element of the offense beyond a reasonable
doubt. Id. “The intent necessary to support a conviction can be demonstrated by
direct or circumstantial evidence that allows an inference of unlawful intent, and
not every hypothesis of innocence need be excluded.” United States v. Aggarwal,
17 F.3d 737, 740 (5th Cir. 1994) (citing United States v. McAfee, 8 F.3d 1010,
1014 (5th Cir. 1993)). If, however, the challenge to the sufficiency of the evidence
is not properly preserved, the review is to determine “whether there was a
manifest miscarriage of justice.” See United States v. Burton, 324 F.3d 768, 770
(5th Cir. 2003) (quoting United States v. Galvan, 949 F.2d 777, 783 (5th Cir.
1991)). This standard requires a showing that either (1) the record is devoid of
evidence pointing to guilt or (2) the evidence on a key element of the offense is
so tenuous that a conviction would be shocking. See Burton, 324 F.3d at 770
(citing United States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002)).
      At the conclusion of the government’s case, Garrison moved pursuant to
Federal Rules of Criminal Procedure 29(a) for a judgment of acquittal as to all
counts of the indictment due to the insufficiency of the evidence to sustain a
conviction as to any counts. This motion was denied by the district court in its

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entirety. After the trial, Garrison filed a timely Rule 29(c) motion for a judgment
of acquittal as to all counts except for the trafficking count based on the JFK
seizure, and the district court again denied this motion. Thus, all counts except
the trafficking count based on the JFK seizure are reviewed de novo and that
count is reviewed for manifest miscarriage of justice.
      The indictment charged Garrison with smuggling counterfeit shirts from
November 27, 2005, to June 1, 2007. The government was required to prove that
Garrison imported counterfeit shirts, that the shirts copied or simulated a
registered trademark, and that the defendant knew the importation of those
shirts was contrary to law. 18 U.S.C. § 545; 15 U.S.C. § 1124. Garrison contends
that the government did not prove—for any given shirt—that he knowingly
imported the shirt, that the shirt was in fact counterfeit, and that Garrison knew
it was counterfeit. The evidence admitted at trial, however, although of a
circumstantial nature, was sufficient to enable a rational trier of fact to find each
of these elements beyond a reasonable doubt. Several shipping documents were
introduced that indicated that the same type of shirts, if not the exact shirts
seized, were imported from abroad. There was also clear testimony by the
counterfeit specialist that every shirt seized in both the Batesville and
Robinsonville stores was in fact counterfeit. Additionally, although Garrison
repeatedly stated that he had no knowledge the shirts were counterfeit, there
was sufficient evidence introduced at trial from which a jury could find that
Garrison was deliberately indifferent to the fact the shirts were counterfeit.
First, Garrison should have been put on notice of the likely counterfeit nature
of the shirts after he was informed by U.S. Customs agents in 2006 that at least
one shipment of shirts he was importing was counterfeit. See United States v. Yi,
460 F.3d 623, 630 (5th Cir. 2006) (selling merchandise after receiving a cease
and desist letter is some evidence that the defendant knew the goods were
counterfeit). Second, Garrison knew that a vendor must be licensed to sell Polo,

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Lacoste, and Abercrombie & Fitch shirts and he did not have a license. Third,
the jury was told that Garrison had been previously convicted in 1995 for
conspiracy to counterfeit. And last, the very low cost of the shirts themselves
should have raised Garrison’s suspicions. Thus, we affirm the smuggling count.
      For each of the trafficking counts, the government was required to prove
that (1) the defendant trafficked or attempted to traffic in goods; (2) such
trafficking, or attempt to traffic, was intentional; (3) the defendant used a
counterfeit mark on or in connection to the goods; and (4) the defendant knew
the mark was counterfeit. United States v. Hanafy, 302 F.3d 485, 487 (5th Cir.
2002). With respect to each of the trafficking counts, Garrison argues there was
no evidence he knew the shirts were counterfeit. Additionally, for the trafficking
counts based on the shipping documents found in the stores, Garrison contends
that only the shipping documents, and not the shirts themselves, were
introduced at trial; thus, there was insufficient evidence to prove the shirts were
in fact counterfeit. For the same reasons, however, that we find the evidence
sufficient to affirm the smuggling count, we find the evidence is also sufficient
to support the trafficking counts. There was sufficient evidence, albeit
circumstantial, for a rational finder of fact to conclude that Garrison knew the
shirts were counterfeit. See Aggarwal, 17 F.3d at 740. Additionally, the
overwhelming evidence that every shirt seized in both the Batesville and
Robinsonville stores on June 1, 2007—some two thousand shirts—was
counterfeit could lead a rational trier of fact to conclude that shipments of the
same or like shirts imported from abroad for only $2 or $3 a piece were also
counterfeit. These four trafficking convictions, therefore, are also affirmed.
      The trafficking count related to the seizure at JFK airport is also affirmed.
Because Garrison did not properly preserve this error for appeal, we review only
to determine whether there was a manifest miscarriage of justice. See Burton,
324 F.3d at 770. Although Garrison contends he could not have been put on

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notice prior to the seizure at JFK airport in 2006, this argument is unavailing.
The customs agent testified that the shirts seized at JFK were in fact
counterfeit. Additionally, the agent testified that Garrison did not contest the
seizure. Although failure to contest a seizure is not in itself proof of guilt, this
information along with his prior conviction and the very low price he was paying
for the shirts does indicate that he knew or should have known that the shirts
were counterfeit. In light of this evidence, the record is not devoid of any
evidence of guilt nor is the evidence so tenuous as to make the conviction
shocking. Id.
                                       III.
      Garrison next appeals the district court’s decision to admit evidence of the
shirts that form the basis of four of the trafficking counts absent the
presentation of those goods at trial or any testimony that the shirts were in fact
counterfeit. Specifically, Garrison objects to the notice that was sent to him after
U.S. Customs seized the shipment of shirts at JFK airport. Garrison also objects
to the admission of several shipping documents that reflected purchases of Polo
t-shirts from India and Sri Lanka. In both cases, he argues that the evidence
was irrelevant or, in the alternative, that the probative value was outweighed
by the danger of unfair prejudice. Prior to trial, Garrison filed a motion in limine
seeking to exclude both sets of evidence, which the district court denied.
      With respect to the seizure notice, Garrison failed to contemporaneously
object to the introduction of this evidence at trial. The issue was therefore not
properly preserved for appeal and is reviewed only for plain error. United States
v. Graves, 5 F.3d 1546, 1551 (5th Cir. 1993). To establish plain error, the
defendant must show: (1) there was error; (2) that was plain; (3) the error
affected substantial rights; and (4) the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings. United States v. Redd, 562
F.3d 309, 314 (5th Cir. 2009). The district judge did not err in admitting the

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notice into evidence. The notice was relevant because it alleged that the shirts
seized at JFK were counterfeit. This evidence was bolstered by the U.S. Customs
agent’s testimony that the shirts seized were in fact counterfeit. Nor is the
probative value of the seizure notice outweighed by any danger of unfair
prejudice.
       Additionally, Garrison stipulated to the admission of the shipping
documents at trial. By stipulating to the admission of the evidence, Garrison has
arguably waived his appeal on this point. See United States v. Olano, 507 U.S.
725, 732–34 (1993) (discussing forfeiture versus waiver). However, even if, as
Garrison argues on appeal, he stipulated only to the authenticity of the
documents and intended to preserve his objections to the admissibility of the
evidence, we review only for plain error.1 Garrison contends the government
could not conclusively tie the shipping documents found in the store to the
counterfeit shirts that were seized at his stores on June 1, 2007, and, therefore,
the documents were irrelevant or in the alternative more prejudicial than
probative. Although it is true that the government was not able to conclusively
prove that the shipping documents related to the exact shirts found in Garrison’s
stores, this does not make the documents irrelevant. These were the only
shipping documents found in the stores during the seizure, and they describe
shirts exactly like some of the shirts seized in the stores. And, perhaps even
more compelling, every single shirt seized in both stores was determined to be
counterfeit. Moreover, the district court properly instructed the jury that they
could make deductions and reach conclusions that reason and common sense




       1
        A thorough review of the record does not indicate that Garrison preserved this issue
on appeal. The record reflects only that Garrison stipulated to these exhibits; it makes no
mention that the stipulation was only as to authenticity of the documents or that Garrison in
any way renewed his objections on the grounds of relevancy and the danger of possible
prejudice outweighing the probative value.

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would lead one to draw from the facts. Therefore, the district court did not
commit an error in admitting the shipping documents as evidence.
                                        IV.
      Lastly, Garrison argues the district court erred by not granting a mistrial
in the case after the jury initially returned a guilty verdict, but when polled, one
of the jurors stated that was not her vote. Rule 31(d) of the Federal Rules of
Criminal Procedure states that:
      After a verdict is returned, but before the jury is discharged, the
      court must on a party’s request, or may on its own, poll the jurors
      individually. If the poll reveals a lack of unanimity, the court may
      direct the jury to deliberate further or may declare a mistrial and
      discharge.

The district court’s decision is reviewed for abuse of discretion. United States v.
Jefferson, 258 F.3d 405, 410 (5th Cir. 2001).
      During deliberations, the jury sent a note to the judge because one juror
would not communicate in an effort to reach a verdict. The judge replied and
advised them to continue deliberations. The jury subsequently returned a verdict
of guilty, and during the district court’s poll of the jury, one of the jurors stated
that it was not her verdict. The judge then asked the jury to return to the jury
room and see if they could come back with a unanimous verdict. At this time,
Garrison moved for a mistrial based upon the danger of coercion, which the
district court denied. The jury again returned a verdict of guilty and when
polled, all jurors replied it was their verdict. Based on this sequence of events,
we do not believe the district court’s admonition to keep deliberating coerced the
jury into rendering a guilty verdict, and the district court did not abuse its
discretion by failing to declare a mistrial. See United States v. Warren, 594 F.2d
1046, 1049–50 (5th Cir. 1979).
                                         V.
     For the reasons stated above, Garrison’s conviction is AFFIRMED.

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