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

                                                                            FILED
                                                                         February 9, 2009

                                       No. 07-50822                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

RUDY NARANJO

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:05-CR-134-1


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
       A jury convicted Rudy Naranjo of four counts of conspiracy to distribute
and possess cocaine and cocaine base, and one count of using a semi-automatic
weapon in furtherance of a drug trafficking crime.                  Naranjo appeals his
conviction. He contends that the district court erred in denying: his motion to
suppress; his request that the Government produce debriefing notes from its
interviews with cooperating witnesses; his request for a jury instruction on
third-party guilt; and his motion for a mistrial after a witness referred to his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50822

prior incarceration. He further argues that the Government used perjured
testimony against him and impermissibly commented on his failure to testify.
For the reasons stated below, we find no error and therefore affirm all
convictions.
                                       I.
        The facts of this case necessarily begin with Frank Mora, the
Government’s informant. In January 2005, Mora was a state fugitive. On
January 28, he called DEA Agent Nancy Sanford, whom he knew, and told her
that a black truck traveling from San Antonio to Houston was carrying cocaine
and marijuana.      Agent Sanford informed officers in Welder, Texas, who
identified the black truck and, because it was speeding, stopped it.      They
arrested the driver, Robert Torres, because he had no liability insurance. A
search of the truck turned up 11 kilograms of cocaine and more than 68 pounds
of marijuana.
        Meanwhile, Sergeant Robert Perez of the San Antonio Police Department
received a call from a confidential informant who told him where Mora was
hiding. Officers then located and arrested Mora, who told them he wanted to
talk.   Sergeant Perez and Detective Val Lopez interviewed Mora, and he
repeated the information he had previously given Agent Sanford. He also told
them that Rudy Naranjo and Juan Losoya were trafficking large amounts of
narcotics, and that he had seen bundles of narcotics at their apartments at the
Enclaves apartment complex in San Antonio.
        Sergeant Perez knew from his own experience that Naranjo and Losoya
were involved in drug trafficking and, because Mora’s information was so
detailed, he believed it to be credible. He confirmed that one of the apartments
was leased to Donna Hull, Naranjo’s common-law wife. On the basis of his prior
knowledge and Mora’s information, Sergeant Perez prepared an affidavit and
obtained a warrant to search apartments 905 and 1601 and a garage.


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      In apartment 1601, officers found cocaine, clear plastic wrappings with
cocaine residue, a money-counting machine, loose marijuana, a safe with $5,000
cash, and an SKS assault rifle with thirty live rounds in it. They also found
evidence establishing that Naranjo lived there with Donna Hull, their baby
daughter, and Jason Martinez, his nephew. Officers found a hotel receipt and
a prescription pill bottle with Naranjo’s name on it, documents related to Bad
Boy Audio, Naranjo’s business, and an application for Medicaid for Naranjo’s
daughter.
      In apartment 905, officers found cocaine and a money-counting machine,
as well as a security badge, handcuffs, a hat labeled “narcotics officer,” and a
bullet-proof vest. Evidence established that Losoya lived in apartment 905.
      In the garage, officers found 7.6 kilograms of bundled cocaine and 728
grams of bagged cocaine base, also known as crack. There was also a one-gallon
plastic bucket holding approximately 1,010 grams of loose cocaine, and a plastic
bag holding a brick of cocaine weighing 1,048 grams. Fingerprints lifted from
the bucket matched Losoya’s. Documents found in the garage bore Naranjo’s
and Bad Boy Audio’s names.
      A title search of the black truck eventually linked it to Naranjo. A man
identified as Naranjo’s nephew later visited Torres, the truck’s driver, while he
was in jail. That man drove a sedan that was registered to Donna Hull.
      Naranjo was indicted in March 2005 on four counts of conspiracy to
distribute and possess cocaine and cocaine base, and one count of using,
carrying, and possessing a semi-automatic assault weapon in furtherance of a
drug trafficking crime.1

      1
           Specifically, Naranjo was charged with:

Count 1:       Conspiracy to distribute and possess with intent to distribute 5 kilograms or
               more of cocaine. 28 U.S.C. §§ 841(a)(1), 841 (b)(1)(A), & 846.

Count 2:       Conspiracy to distribute and possess with intent to distribute 50 grams or

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      At trial, the Government offered the testimony of four cooperating
witnesses. Israel Soto testified that he had purchased cocaine from Naranjo on
two separate occasions, and that Naranjo had showed him his AK 47 assault
rifle. Mario Fuentes, who was present when Naranjo showed Soto his gun,
corroborated Soto’s testimony. Pedro Ramos testified that he once lent $20,000
to Naranjo, who paid him back in cocaine. Ramos said that in 2004 Naranjo sent
cocaine to Louisiana and Mississippi on a weekly basis; he identified Torres as
Naranjo’s drug courier. Finally, Chris Barron testified that while he and
Naranjo were in jail together, Naranjo told him about his case and asked for
Barron’s help in having Mora killed so that he could not testify at trial.
      Naranjo called his own witnesses. Nate Nichols testified that Mora called
him on January 27, 2005, to ask him to steal cocaine from the Enclave
apartments. That call, which was recorded, was introduced into evidence.
Robert Torres testified that Mora recruited him to drive the black truck to
Houston, and that Mora helped him load the drugs into the truck. He testified
that Mora was working with Losoya and Martinez, and that Naranjo was not
involved in that transaction. Robert Fernandez testified that he once purchased
an assault rifle from Mora, and that the assault rifle found in apartment 1601
looked like a rifle he had seen in Mora’s possession.



            more of cocaine base. 28 U.S.C. §§ 841(a)(1), 841 (b)(1)(A), & 846.

Count 3:    Conspiracy to distribute and possess with intent to distribute 5 kilograms or
            more of cocaine within 1,000 feet of an elementary school. 28 U.S.C. §§
            841(a)(1), 841 (b)(1)(A), 846, & 860(a).

Count 4:    Conspiracy to distribute and possess with intent to distribute 50 grams or
            more of cocaine base within 1,000 feet of an elementary school. 28 U.S.C. §§
            841(a)(1), 841 (b)(1)(A), 846, & 860(a).

Count 5:    Using, carrying, and possessing a semi-automatic assault weapon during, in
            relation to and in furtherance of a drug trafficking crime. 18 U.S.C. §
            924(c)(1)(B)(I).

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                                  No. 07-50822

      A jury found Naranjo guilty on all five counts. He was sentenced to 360
months of imprisonment for each of the first four counts, to run concurrently,
and 120 months of imprisonment for the fifth count, to run consecutively.
Naranjo now appeals his conviction, arguing that the district court erred in
denying: his motion to suppress the evidence seized from his apartment; his
request for debriefing notes from the Government’s interviews with cooperating
witnesses; his request for a jury instruction on third-party guilt; and his motion
for mistrial after a witness referred to his prior incarceration. He also insists
that the Government used perjured testimony against him and impermissibly
commented on his failure to testify. We address each alleged error in turn.
                                        II.
      We first consider the argument that the affidavit supporting the warrant
to search Naranjo’s apartment was misleading because it omitted material
information. Specifically, Naranjo complains that Sergeant Perez did not tell the
issuing magistrate that Mora was a known con man with a criminal record who
had previously acted as an informant. Naranjo argued at a suppression hearing,
as he does here, that in the light of those omissions officers could not have relied
on the warrant in good faith, and that any evidence seized under the warrant
should have been suppressed. The district court denied his motion to suppress.
For the reasons stated, we find no error in the denial.
      When reviewing a district court’s denial of a motion to suppress, this court
reviews factual findings for clear error and legal conclusions de novo. United
States v. Cherna, 184 F.3d 403, 406 (5th Cir. 1999). When reviewing factual
findings based on live testimony at a suppression hearing, this court considers
the evidence in the light most favorable to the prevailing party, here the
Government. United States v. Garza, 118 F.3d 278, 282 (5th Cir. 1997).
      “The bulwark of Fourth Amendment protection, of course, is the Warrant
Clause,” which requires that “police obtain a warrant from a neutral and

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                                  No. 07-50822

disinterested magistrate before embarking upon a search.” Franks v. Delaware,
438 U.S. 154, 164 (1978). The Fourth Amendment instructs that “no warrants
shall issue, but upon probable cause, supported by oath or affirmation.” U.S.
CONST. amend. IV.
      The exclusionary rule, when properly invoked, operates to suppress
evidence seized in violation of the Fourth Amendment. See, e.g., United States
v. Calandra, 414 U.S. 338, 347 (1974). The exclusionary rule is “a judicially
created remedy designed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal constitutional right of the
party aggrieved.”    See United States v. Leon, 468 U.S. 896, 906 (1984).
Accordingly, a good-faith exception has been carved into the exclusionary rule.
Evidence seized in violation of the Fourth Amendment will not be suppressed
“where probable cause for a search warrant is founded on incorrect information,
but the officer’s reliance upon the information’s truth was objectively
reasonable.” United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002) (citing
Leon, 468 U.S. at 919-20).
      Our review of the denial of a motion to suppress evidence seized under a
search warrant is a two-step process. United States v. Sibley, 448 F.3d 754, 757
(5th Cir. 2006) (citing Cherna, 184 F.3d at 407). We first ask whether a good-
faith exception to the exclusionary rule applies. Id. If a good-faith exception
applies, we affirm the denial of the motion to suppress. Id. If it does not, we
necessarily proceed to the second step of the two-step process, which asks
whether, nevertheless, there existed a substantial basis for the issuing
magistrate to find probable cause. Id.
      Naranjo argues a good-faith exception does not apply in his case because,
according to him, Sergeant Perez intentionally omitted material information
from his affidavit such that he furnished an incomplete picture of Mora’s
credibility. Naranjo is correct that a good-faith exception does not apply “if the

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warrant affidavit contains a false statement that was made intentionally or with
reckless disregard for the truth.” Cavazos, 288 F.3d at 709-10 (citing Franks,
438 U.S. at 155-56); see also Sibley, 448 F.3d at 757 (listing circumstances in
which good-faith exception will not apply).       Naranjo bears the burden to
establish that the omissions were intentional or reckless. Id. (citing United
States v. Wake, 948 F.2d 1422, 1428-29 (5th Cir. 1991)).
      The affidavit here omitted both that Mora was a con man with a criminal
record and that he had previously acted as a government informant. Although
the district court initially ruled that Sergeant Perez’s omissions were made in
reckless disregard for the truth, after it heard testimony from Sergeant Perez it
reconsidered its ruling and decided that Sergeant Perez had prepared the
affidavit in good faith. The district court found that Sergeant Perez had not
omitted the information to mislead the magistrate, but rather had believed at
the time that the information was not critical to a finding of probable cause.
Sergeant Perez had explained in his affidavit that the informant knew that if the
information he provided was incorrect it would be brought to the attention of the
authorities handling the case against him. Sergeant Perez also told the district
court that the detail of Mora’s information led him to believe Mora was credible,
notwithstanding his criminal record. Moreover, as the Government points out,
the fact that Mora had previously acted as a government informant in fact would
have supported probable cause; if Sergeant Perez had felt it necessary to mislead
the magistrate into believing there was probable cause, he would not have
omitted that fact. Given these considerations, the district court’s finding was not
clearly erroneous.    Naranjo has not established that the omissions were
intentional or reckless, such that a good-faith exception does not apply.
      Nevertheless, even if Naranjo had established that the omissions were
intentional or reckless, we would still ask, as did the district court, whether the
omitted information would have affected probable cause. See Sibley, 448 F.3d

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at 757. Probable cause is a “practical, common-sense determination as to
whether, given all of the circumstances set forth in the affidavit, there is a fair
probability that contraband or evidence will be found in a particular place.”
Cavazos, 288 F.3d at 710 (quoting United States v. Byrd, 31 F.3d 1329, 1340 (5th
Cir. 1994)). The district court concluded the omitted information, had it been
made known, would not have adversely affected probable cause. We agree.
      We have already stated that the fact that Mora had previously acted as a
government informant would have supported, not detracted from, a finding of
probable cause. And the fact that Mora was a con man with a criminal record
would not have been fatal to a finding of probable cause, especially in the light
of other factors. It was clear from the affidavit that the informant’s tip was not
anonymous. Sergeant Perez represented that he had spoken with the informant
and believed him to be credible. He represented that the informant was aware
that if the information he provided was incorrect, the authorities handling the
case against him would be notified. The informant had provided detailed
information, based on his personal first-hand knowledge, and his descriptions
were consistent with Sergeant Perez’s own experience. Finally, the affidavit
indicated that Sergeant Perez had prior knowledge of Naranjo’s involvement in
drug trafficking.    Even had the magistrate been made aware of Mora’s
reputation and record, the affidavit nevertheless established a sufficient basis
for probable cause to search Naranjo’s apartment.
      In sum, we conclude not only that Naranjo has failed to establish that the
omissions were intentional or reckless, but also that the omitted information
would not have adversely affected probable cause in this circumstance. The
district court did not err in denying Naranjo’s motion to suppress evidence seized
under the warrant.




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                                  No. 07-50822

                                       III.
      Naranjo next complains that the district court erred in denying his request
that the Government produce debriefing notes from its interviews with
cooperating witnesses. We find no merit in this claim.
      In a pretrial motion he filed with the district court, Naranjo asked that the
district court either compel the Government to produce all of its debriefing notes,
or review the notes in camera to determine whether they contained any material
that must be disclosed under either Brady v. Maryland, 373 U.S. 83 (1963)
(evidence favorable to the accused or useful to the defense for impeachment must
be produced), or Giglio v. United States, 405 U.S. 150 (1972) (same). The district
court did not compel the Government to produce the notes, but did review in
camera the notes from interviews with each of the four cooperating witnesses
who testified at trial. The district court concluded that none of the notes
contained Brady-Giglio material. Later, upon Naranjo’s request, the district
court reviewed the same notes again for so-called Jencks statements and found
none. 18 U.S.C. §§ 3500(b), (e)(1) (statements made by witnesses that relate to
the subject matter on which the witness has testified must be produced).
      We review Brady determinations de novo. East v. Johnson, 123 F.3d 235,
237 (5th Cir. 1997). We review a district court’s rulings regarding discovery
under the Jencks Act for clear error. United States v. Brown, 303 F.3d 582, 591
(5th Cir. 2002).
      Naranjo complains that although the district court reviewed the notes in
camera, it “refused to tender the notes to Appellant for review and use for cross
examination of the witnesses.” But Naranjo does not point to any portion of the
notes that he alleges contained Brady-Giglio material or Jencks statements.
Instead, he asserts generally that he had a right to view all of the notes.
Naranjo, however, cites no authority that supports that defendants generally are
entitled to the Government’s notes, and the authority that he does cite does not

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support his position. In United States v. Thomas, 12 F.3d 1350 (5th Cir. 1994),
it was unclear whether the district court had reviewed all or only portions of the
debriefing notes at issue for Brady material. We remanded so that the district
court could review the notes in their entirety. Id. at 1365. In United States v.
Carreon, 11 F.3d 1225, 1238 (5th Cir. 1994), we remanded so that the district
court could review a presentence report for Brady material. Id. at 1238.
         Here the district court has already reviewed all of the notes for each of the
four cooperating witnesses who testified at trial. Naranjo does not allege that
any portion of the notes contained Brady-Giglio material or Jencks statements,
nor that the district court’s review was incomplete such that remand is
necessary for additional review. We need not dwell further on this issue. The
district court properly reviewed the notes in camera, and Naranjo has shown no
error.
                                          IV.
         Naranjo next contends that the district court erred in denying his proposed
jury instruction on third-party guilt. The Government contends that Naranjo’s
instruction was an incorrect statement of the law.              We agree with the
Government.
         Naranjo requested the following instruction:
               Evidence has been introduced tending to establish the
               criminal responsibility of another, Frank Mora, and
               that the defendant was not present at the time when, or
               at the place where, the defendant is alleged to have
               committed the offenses charged in the indictment. It is
               of course the Government’s burden to establish beyond
               a reasonable doubt each of the essential elements of the
               offense, including the involvement of the defendant;
               and if after consideration of all of the evidence in the
               case, you have a reasonable doubt as to whether the
               defendant was present at the time or place alleged in the
               indictment, you must find the defendant not guilty.


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                                  No. 07-50822

(Emphasis added.)
      Naranjo claims to have patterned the instruction after an alibi instruction
approved by this court. Naranjo argues that the instruction was critical to his
defense.
      We review asserted error in jury instructions for abuse of discretion. See
United States v. Lucas, 516 F.3d 316, 324 (5th Cir. 2008). A district court abuses
its discretion by refusing a defense theory instruction only if the requested
instruction: “(1) is substantively correct; (2) is not substantially covered in the
charge given to the jury; and (3) concerns an important point in the trial so that
the failure to give it seriously impairs the defendant’s ability to present
effectively a particular defense.” Id. (quoting United States v. Simkanin, 420
F.3d 397, 410 (5th Cir. 2005)).
      As the Government points out, Naranjo’s instruction tells jurors to acquit
him if they find he was not present at a specified place and time. A defendant,
however, need not be present at a specified place and time to be convicted of
conspiracy; presence at a specified place and time is not an element of that
offense. See United States v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003) (elements
of conspiracy under 21 U.S.C. § 846 are “(1) an agreement between two or more
persons to violate the narcotics laws; (2) the defendant’s knowledge of the
agreement; and (3) the defendant’s voluntary participation in the conspiracy”)
(internal quotation marks and citations omitted). Nor is presence at a specified
place and time an element of possession with intent to distribute. See United
States v. Garcia, 917 F.2d 1370 (5th Cir. 1990) (elements of possession with
intent to distribute are “the defendant (1) knowingly (2) possessed contraband
(3) with the intent to distribute”; possession “may be either actual or
constructive, and may be proven by either direct or circumstantial evidence”).
Naranjo’s instruction would have misled jurors to believe that if he were not



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                                 No. 07-50822

present at a specified place and time, he could not be convicted of conspiracy to
distribute and possession with intent to distribute narcotics.
      The instruction would have misled jurors further to conclude that they
must acquit Naranjo if they found Mora criminally responsible. It should go
without saying that criminal responsibility on Mora’s part would not require the
acquittal of Naranjo, especially where, as here, conspiracy has been charged.
      Because of its misleading nature, the requested instruction was not
substantively correct. Lucas, 516 F.3d at 324. The district court did not abuse
its discretion in denying the instruction.
                                       V.
      Naranjo next asserts that the district court erred in denying his motion for
a mistrial after witness Robert Fernandez referred to Naranjo’s prior
incarceration. We disagree.
      Naranjo called Fernandez to testify that he had purchased an assault rifle
from Mora. On cross-examination, the Government asked Fernandez how long
he had known Naranjo:
            Q:    So, you – And just kind of going back through to
                  the – to the beginning, you’ve known the Naranjo
                  family about sixteen years.

            A:    Yes.

            Q:    Used to be kind of brothers-in-law with Joe. How
                  long have you known Rudy Naranjo?

            A:    Through his brother.

            Q:    Okay. That whole time pretty much?

            A:    No. He was incarcerated for a while and then
                  when he got out that’s when I got to know him.




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                                   No. 07-50822

      The district court immediately interjected, instructing the jury to ignore
Fernandez’s testimony and striking the testimony from the record. Later,
outside the presence of the jury, Naranjo objected to the testimony and moved
for a mistrial. The district court denied his motion, but offered to give an
additional curative instruction:
            I’ve already told the jury to disregard that testimony.
            I don’t want to talk about the testimony again, but I’m
            here to – I’m going to use . . . part of the charge that’s
            normally given to them again. I will tell them they are
            here to decide whether the Government has proved
            beyond a reasonable doubt that the defendant is guilty
            of the crime charged. The defendant is not on trial for
            any act, conduct, or offense not alleged in the
            indictment. . . . [R]emember that Mr. Naranjo is
            presumed innocent and cannot be convicted unless the
            Government proves every element of each of those
            crimes beyond a reasonable doubt.

      Naranjo, however, objected to further instruction, so none was given. He
now complains that the district court did not declare a mistrial.
      We review the district court’s denial of Naranjo’s motion for a mistrial for
abuse of discretion. United States v. Valles, 484 F.3d 745, 756 (5th Cir. 2007).
“A new trial is required only when, after a review of the entire record, it appears
that there is a significant possibility that the prejudicial evidence had a
substantial impact on the jury’s verdict.” Id. (citing United States v. Paul, 142
F.3d 836, 844 (5th Cir. 1998)). We give great weight to the district court’s
assessment of the subject testimony’s prejudicial effect. Id. We examine the
testimony in context to determine whether it was elicited by the Government,
or spontaneously uttered by the witness. Id. (citing United States v. Moreno, 185
F.3d 465, 472-73 (5th Cir. 1999)). In addition, we recognize that a curative
instruction from the district court can render prejudicial effect harmless. Id.
(citing United States v. Nguyen, 28 F.3d 477, 483 (5th Cir. 1994)).


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                                  No. 07-50822

      The district court did not abuse its discretion in denying Naranjo’s motion
for a mistrial. It is clear that Fernandez’s testimony was inadvertent, as
Fernandez was Naranjo’s witness and the Government’s line of questioning was
not formed to elicit testimony as to Naranjo’s prior incarceration. We have held
under similar circumstances that such testimony does not warrant a mistrial.
See United States v. Leonard, 386 F.2d 423, 425 (5th Cir. 1967) (“The
volunteered words were not responsive to the question, nor could they be
anticipated by the prosecuting attorney.”); United States v. Perez, 223 F. App’x
336, 347 (5th Cir. 2007) (unpublished). The inadvertent and fleeting reference
to Naranjo’s prior incarceration could not have had a substantial impact on the
jury, especially considering all of the testimony the jury heard over the course
of Naranjo’s trial, which lasted almost two weeks. Any prejudice was cured by
the district judge’s immediate interjection and curative instruction. The district
court did not err in denying Naranjo’s motion for a mistrial.
                                       VI.
      Naranjo next alleges error in that the Government knowingly presented
perjured testimony, thus denying his right to due process. He urges that
Sergeant Perez and Agent Sanford told conflicting accounts of how Mora became
a cooperating witness, and that the conflict is such that one of the officers
committed perjury.
      Naranjo points first to testimony Sergeant Perez gave at a suppression
hearing in which he stated that it “was just a coincidence” that he encountered
Mora on January 28, 2005. Naranjo asserts that there was no coincidence, as
evidenced by the fact that Agent Sanford testified that she called Detective Lopez
and advised him to talk to Mora, and Sergeant Perez contacted Detective Lopez
thereafter.
      Naranjo also points to testimony in which Sergeant Perez stated that he
did not speak with Agent Sanford until after he had interviewed Mora. Naranjo

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                                   No. 07-50822

points to Agent Sanford’s phone records that show Sergeant Perez spoke with
Agent Sanford immediately after Mora’s arrest, earlier than he testified.
        To prove his right to due process has been violated by the use of perjured
testimony, Naranjo must show “(1) the actual falsity of a witness’s testimony, (2)
that the testimony was material, and (3) that the prosecution knew the witness’s
testimony was false.” Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001)
(citations omitted).
        Naranjo does not meet his burden because at best he shows only minor
inconsistencies that were not material to his guilt. “Perjury is material, and a
new trial is required ‘if there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.’” Creel v. Johnson, 162 F.3d 385, 391
(5th Cir. 1998) (quoting Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993)).
We cannot see how the very minor inconsistencies to which Naranjo points
affected the judgment of the jury. Accordingly, this issue is without merit.
                                        VII.
        Finally, Naranjo says that the Government impermissibly commented on
on Naranjo’s failure to testify, in violation of Naranjo’s Fifth Amendment right
to silence.
        In closing argument, the prosecutor for the Government told the jury:
              But there’s one person in this room who has told you
              more clearly than anyone else that Mora was telling the
              truth about those drugs and that person, ladies and
              gentlemen, is Rudy Naranjo.

        Naranjo objected, and the prosecutor explained that she intended only to
draw an inference from other evidence. The district court then instructed the
jury:
              Just remember, ladies and gentlemen, Mr. Naranjo is
              presumed innocent. Mr. Naranjo does not have to testify
              or give evidence of any kind. I will allow an inference –
              inferential argument, but you know of course, Ms.

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                                    No. 07-50822

            Carlisle, there can be no statement or inference that Mr.
            Naranjo needs to testify or has to give evidence or
            anything like that.

The prosecutor went on to state:
            [H]ere’s my point on this, ladies and gentlemen: Based
            on Chris Barron’s testimony, it was Rudy Naranjo who
            said Frank Mora can’t testify. Frank Mora can’t be
            allowed to testify. Because Rudy knew that Frank Mora
            was an eyewitness to that big load of drugs at the – that
            Rudy got at the apartment on January 27th. So these
            actions, ladies and gentlemen, tell you that the
            defendant believed that Frank Mora’s testimony was
            indeed very, very important. Critical. The eyewitness.

      Of course, it is well-established that the Government may not comment on
a defendant’s decision not to testify. See Doyle v. Ohio, 426 U.S. 610, 617-18
(1976). Not every comment, however, violates the Fifth Amendment. A comment
violates the Fifth Amendment only where the language used was (1) “manifestly
intended” or (2) “of such character that the jury would naturally and necessarily
take it to be a comment on the failure of the accused to testify.” United States v.
Wharton, 320 F.3d 526, 538 (5th Cir. 2003) (quoting United States v. Rocha, 916
F.2d 219, 232 (5th Cir. 1990)). We review such comments in context, and they
“must have a clear effect on the jury before reversal is warranted.” Rocha, 916
F.2d at 232. We apply the doctrine of harmless error: a comment will not
warrant reversal if, beyond a reasonable doubt, it did not contribute to the jury’s
verdict. United States v. Moreno, 185 F.3d 465, 475 (5th Cir. 1999). Finally, we
have recognized that a curative instruction can “militate against finding a
constitutional violation, or become central to the harmless error analysis.” Id. at
477 (citing Greer v. Miller, 483 U.S. 756, 764 (1987); United States v. Carter, 953
F.2d 1449, 1466 (5th Cir. 1999)).




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                                  No. 07-50822

      Our review of the prosecutor’s comment in context leads us to the
conclusion that she did not manifestly intend it to be an indirect comment on
Naranjo’s decision not to testify. We have held that “[t]he prosecutor’s intent is
not manifest if there is some other, equally plausible explanation for the remark.”
United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996). Here, the plausible
explanation for the prosecutor’s comment is that it sought to draw attention to
evidence that indicated Naranjo did not want Mora to testify. The prosecutor was
commenting on Chris Barron’s testimony as to statements Naranjo made to him,
not on Naranjo’s decision not to testify.
      Nor was the comment such that the jury would naturally and necessarily
interpret it to be a comment on Naranjo’s decision not to testify at trial. The
district court instructed the jury that Naranjo had no burden to testify or put on
evidence. Error, if any, was rendered harmless by the district court’s instruction.
                                       VIII.
      For the reasons we have stated, we find no error in the prosecution and
trial of this case. Accordingly, Naranjo’s convictions are, in all respects,
                                                                      AFFIRMED.




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