     Case: 10-40649 Document: 00511497554 Page: 1 Date Filed: 06/03/2011




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

                                                 FILED
                                                                             June 3, 2011
                                     No. 10-40649
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

RENE RUIZ,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 5:09-CR-1668-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Rene Ruiz challenges his convictions for conspiracy to possess with intent
to distribute, possession with intent to distribute, and importation of less than
50 kilograms of marijuana. He argues that the evidence adduced at trial was not
sufficient to support his convictions because the Government failed to prove that
he knew of the marijuana hidden in compartments inside of the vehicle that he
was driving. Because he moved for a judgment of acquittal at the close of all
evidence, our standard of review of this claim is “whether, considering all 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40649

evidence in the light most favorable to the verdict, a reasonable trier of fact could
have found that the evidence established guilt beyond a reasonable doubt.”
United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000); see Fed. R. Crim.
P. 29(a). “All credibility determinations and reasonable inferences are to be
resolved in favor of the verdict.” United States v. Resio-Trejo, 45 F.3d 907, 911
(5th Cir. 1995). Given the evidence adduced at trial, including but not limited
to Ruiz’s inconsistent statements to law enforcement officers, the apparent
alterations that had been made to the van to secret the marijuana, and the value
of the marijuana, we conclude that the jury could have found beyond a
reasonable doubt that Ruiz knew that the van contained marijuana. See United
States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998).
      We review for plain error Ruiz’s argument that his Miranda rights were
violated when a law enforcement officer testified that Ruiz accused officers of
planting drugs in the van. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007). Even if Ruiz was in custody at the time that he made the statement
in question, his utterance is not subject to suppression since it was not made in
response to interrogation; rather, it was a voluntary and spontaneous statement.
See Rhode Island v. Innis, 446 U.S. 291, 299-301 (1980); Miranda v. Arizona, 384
U.S. 436, 478 (1966); United States v. Baldwin, 644 F.2d 381, 384 (5th Cir.
1981).
      We also review for plain error Ruiz’s argument that the prosecutor
engaged in misconduct during closing arguments by mischaracterizing Ruiz’s
testimony. See Peltier, 505 F.3d at 391-92. Even if Ruiz is correct that the
prosecutor engaged in misconduct, he fails to show that his substantial rights
were affected. See United States v. Davis, 609 F.3d 663, 682 (5th Cir. 2010). As
for Ruiz’s contention that the prosecution improperly engaged in sexual
innuendo, the district court implicitly sustained Ruiz’s objection to the lone
instance of such argumentation cited by Ruiz; he does not explain what more the
district court should have done, and his argument that he was denied a fair trial

                                         2
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                                  No. 10-40649

due to the prosecutor’s broaching of this subject is entirely conclusory. Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (finding that mere conclusory
statements on a critical issue are insufficient to raise a constitutional claim).
      AFFIRMED.




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