     Case: 11-50684     Document: 00511851092         Page: 1     Date Filed: 05/10/2012




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

                                                                            FILED
                                                                           May 10, 2012
                                     No. 11-50684
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MARTIN GARDEA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:10-CR-294-2


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Martin Gardea challenges his jury-trial conviction for conspiring to
distribute 500 grams or more of cocaine and 50 kilograms or more of marijuana.
(He was sentenced, inter alia, to 97-months’ imprisonment.) Gardea contends the
conviction should be vacated because: the evidence establishing venue was
insufficient; the evidence establishing the elements of a conspiracy was
insufficient; the Government improperly offered evidence of coconspirator guilt;



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50684

and his counsel was ineffective for failing to object to that evidence or to request
a limiting instruction concerning it.
      Gardea waived his venue contention by failing to raise it pre-trial, or in his
motion for judgment of acquittal, or in a request for a jury instruction on venue.
See United States v. Carbajal, 290 F.3d 277, 288-89 & n.19 (5th Cir. 2002).
      Gardea moved for a judgment of acquittal at the close of the Government’s
case (Gardea did not present evidence) on the basis that evidence of a conspiracy
was insufficient. Therefore, review of this claim is de novo. E.g., United States
v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000). Viewing the evidence in the
requisite light most favorable to the verdict and drawing all reasonable
inferences in support of it, there was sufficient evidence to sustain Gardea’s
conspiracy conviction. See id. For example, Gardea explained to the undercover
Officers why he and a coconspirator were seeking to sell drugs and provided
information regarding their suppliers; he offered his opinion on operational
details of the proposed drug deal, such as where the actual delivery of drugs
should take place; and he reassured those Officers that he and his coconspirator
would follow through on their promise to sell the drugs. Gardea’s statements,
and the undercover Officers’ interpretation of them, permitted the jury to infer
reasonably that he was a knowing and active participant in the conspiracy. See
United States v. Bradfield, 113 F.3d 515, 525-26 (5th Cir. 1997).
      Gardea also claims error because the district court allowed evidence on the
guilt of his coconspirators. Evidentiary rulings are reviewed for an abuse of
discretion if the admission of the evidence was objected to in district court. E.g.,
United States v. King, 541 F.3d 1143, 1146 (5th Cir. 2008). But, because Gardea
did not preserve this claim in district court, review is only for plain error. E.g.,
Puckett v. United States, 129 S. Ct. 1423, 1428-29 (2009); United State v.
Dunigan, 555 F.3d 501, 506 (5th Cir. 2009); United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007). To establish reversible plain error, Gardea must
show a clear or obvious error affecting his substantial rights. E.g., Puckett, 129

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S. Ct. at 1429. Even if such reversible error is shown, our court retains
discretion to correct the error and generally will do so only if it “seriously affects
the fairness, integrity or public reputation of judicial proceedings”. Id.
      The Government introduced evidence of the coconspirators’ guilty pleas,
elicited testimony that all persons involved in the offense had been held
accountable, and reiterated that point in closing. But, Gardea raised the issue
of the coconspirators’ guilt first and continued to do so after the Government
introduced evidence of the guilty pleas. Therefore, it is arguable he waived his
claim. In any event, Gardea has failed to show the admission of this evidence
constitutes error, much less plain error. See United States v. Setser, 568 F.3d
482, 493-94 (5th Cir. 2009).
      Gardea also contends his counsel was ineffective for failing: to object to
the evidence regarding his coconspirators’ guilt; and to request a limiting
instruction. An ineffective-assistance-of-counsel claim generally “cannot be
resolved on direct appeal when the claim has not been raised before the district
court since no opportunity existed to develop the record on the merits of the
allegations”. United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
Gardea did not raise these claims in district court. The record does not reveal
counsel’s awareness of these issues or his reasons for neither objecting nor
requesting a limiting instruction. Because the record is insufficiently developed,
these claims will not be considered. They can, of course, be pursued through a
motion under 28 U.S.C. § 2255.
      AFFIRMED.




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