     Case: 15-40670      Document: 00513509520         Page: 1    Date Filed: 05/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 15-40670                                    FILED
                                  Summary Calendar                              May 17, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MONROE EMMANUEL LEE, III,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:14-CR-549


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Monroe Emmanuel Lee, III, was charged in a three-count indictment
with transporting undocumented aliens within the United States for financial
gain and conspiring to do the same. The jury convicted Lee on all counts. The
district court sentenced Lee to 36 months of imprisonment and three years of
supervised release on each count, to run concurrently.                  On appeal, Lee
challenges the sufficiency of the evidence. He also argues that the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40670

court erred in admitting a recorded telephone conversation because it was
hearsay. Finally, he contends that the admission of that recorded conversation
prejudiced him and was reversible error.
      Lee’s reliance on the “equipoise rule” in arguing that the evidence was
insufficient is misplaced, as the rule has been abandoned by this court. See
United States v. Vargas-Ocampo, 747 F.3d 299, 301-02 (5th Cir. 2014) (en
banc). Rather, we will uphold the jury’s verdict if a reasonable trier of fact
could conclude from the evidence that the elements of the offense were
established beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). This court reviews the evidence, both direct and circumstantial, as well
as all reasonable inferences from that evidence, in the light most favorable to
the verdict. United States v. Rose, 587 F.3d 695, 702 (5th Cir. 2009). Moreover,
we determine only whether the jury made a rational decision, not whether its
verdict was correct on the issue of guilt or innocence. See United States v.
Dean, 59 F.3d 1479, 1484 (5th Cir. 1995).
      Lee disputes that he knew there were undocumented aliens in his truck
or that he knew they had no legal standing to enter the United States.
However, guilty knowledge “may be inferred from the development and
collocation of circumstances.” United States v. Maltos, 985 F.2d 743, 746 (5th
Cir. 1992) (internal quotation marks and citations omitted). Based on the
evidence adduced at trial, the jury was free to conclude that it was
unreasonable for anyone but a knowledgeable participant to be in Lee’s
situation. See United States v. Martinez, 190 F.3d 673, 676 (5th Cir. 1999).
Likewise, although largely circumstantial, the jury was free to conclude based
on the evidence that Lee intended to further the aliens’ unlawful presence. See
Rose, 587 F.3d at 702; Dean, 59 F.3d at 1484. Finally, Lee’s challenge to the
sufficiency of the evidence related to the conspiracy charge is also unavailing.



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                                  No. 15-40670

The evidence adduced at trial, as well as the testimony of the material
witnesses, established a “concert of action” sufficient to allow a jury to convict
Lee for conspiracy to transport undocumented aliens. See United States v.
Chon, 713 F.3d 812, 818 (5th Cir. 2013); see also United States v. Thomas, 690
F.3d 358, 367-68 (5th Cir. 2012).
      The Government is correct in its assertion that Lee has waived the issue
of whether the district court erred in admitting the recorded telephone
conversation. See United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010)
(stating that merely listing a point of error without further argument or
explanation constitutes waiver for failure to brief); see also FED. R. APP. P.
28(a)(8)(A) (requiring an argument to contain the “appellant’s contentions and
the reasons for them, with citations to the authorities and parts of the record
on which the appellant relies”). Because Lee is represented by counsel, he is
not entitled to the benefit of liberal construction. See Beasley v. McCotter, 798
F.2d 116, 118 (5th Cir. 1986).      As to whether Lee was prejudiced by the
admission of the recorded telephone conversation, Lee’s argument is again
inadequately briefed and therefore also deemed abandoned. See FED. R. APP.
P. 28(a)(8)(A); see also see also United States v. Cothran, 302 F.3d 279, 286 n.7
(5th Cir. 2002).
      AFFIRMED.




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