United States v. Trevino

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 23, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41607
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN LUCIO; ARMANDO TREVINO,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-778-3
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Armando Trevino and Juan Lucio appeal their convictions for
conspiracy to possess with intent to distribute over 100
kilograms of marijuana. They argue: (1) the evidence was
insufficient to support their convictions; (2) the district court
erred in allowing a federal agent’s testimony about a co-
defendant’s admission in violation of Bruton v. United States,
391 U.S. 123, 126-27 (1968), and FED. R. EVID. 803(b)(3); (3) the
district court abused its discretion in allowing expert testimony

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No. 02-41607
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that amounted to impermissible opinion evidence; and (4) the
prosecutor commented on the defendants’ failure to testify.
Viewing the evidence in a light most favorable to the jury’s
verdict, there was sufficient evidence that both Lucio and
Trevino knowingly participated in the marijuana conspiracy. See
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998);
United States v. Dean, 59 F.3d 1479, 1485 (5th Cir. 1995); United
States v. Inocencio, 40 F.3d 716, 720-21, 26 (5th Cir. 1994).
Agent Michael Rubalcaba’s testimony about co-defendant Juan
Escamilla’s confession, as redacted, did not pose a Bruton
violation. Richardson v. Marsh, 481 U.S. 200, 211 (1987). Also,
the testimony was admitted as evidence against only Escamilla and
not Lucio or Trevino. See United States v. Sarmiento-Perez, 633
F.2d 1092, 1096 (5th Cir. 1981).
Agent Rubalcaba and Agent Ruben Garza’s testimony about
their experience with drug traffickers and the scout-car-cargo-
car scenario did not amount to inadmissible opinion evidence and
the district court did not abuse its discretion in allowing the
testimony. See United States v. Riddle, 103 F.3d 423, 429 (5th
Cir. 1997); see also United States v. Gutierrez-Farias, 294 F.3d
657, 662-63 (5th Cir. 2002), cert. denied, 537 U.S. 1114 (2003).
Lastly, the prosecutor did not impermissibly comment on the
appellants’ failure to testify. See United States v. Dula, 989
F.2d 772, 776 (5th Cir. 1993).
AFFIRMED.

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