United States v. Ramirez-Enciso , 138 F. App'x 668 ( 2005 )

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                                                             United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                        July 7, 2005
Charles R. Fulbruge III
Clerk
No. 03-41740
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN FRANCISCO RAMIREZ-ENCISO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-771-2
Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Francisco Ramirez-Enciso (Ramirez) appeals from his
judgment of conviction for possession with the intent to distribute
in excess of five kilograms of cocaine.           21 U.S.C. § 841(a)(1),
(b)(1)(A).     Ramirez argues that the evidence was insufficient to
prove that he actually or constructively possessed the cocaine
found in the secret compartment in the vehicle in which he was a
passenger.
*
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opinion should not be published and is not precedent except under the limited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.
This court will affirm Ramirez’s conviction if, viewing
the evidence in the light most favorable to the Government, “a
rational trier of fact could have found the essential elements of
the   offense   beyond   a   reasonable     doubt.”    United   States   v.
Romero-Cruz,

201 F.3d 374

, 378 (5th Cir. 2000)(internal quotation
and citation omitted).       The evidence introduced at trial supports
the inference that Ramirez had knowledge of and access to the
contraband.     See United States v. Mergerson,

4 F.3d 337

, 348-49
(5th Cir. 1993); see also United States v. Diaz-Carreon,

915 F.2d 951

, 954-55 (5th Cir. 1990).
Ramirez argues that the district court erred in admitting
FED. R. CRIM. P. 404(b) evidence.        With respect to the testimony as
to events in April 2003, such testimony was “intrinsic” evidence
and does “not implicate Rule 404(b), and consideration of its
admissibility pursuant to Rule 404(b) is unnecessary.”          See United
States v. Coleman,

78 F.3d 154

, 156 (5th Cir. 1996) (internal
quotations and citation omitted).         With respect to events in 2000,
the district court did not abuse its discretion in admitting the
testimony because the evidence was admissible on the issues of
Ramirez’s knowledge and intent.          See e.g., United States v. Osum,

943 F.2d 1394

, 1404 (5th Cir. 1991); United States v. Elwood,

999 F.2d 814

, 815-16 & n.3 (5th Cir. 1993).           This evidence was more
probative than prejudicial.      See United States v. Harris,

932 F.2d 1529

, 1534 (5th. Cir. 1991).
2
Ramirez argues that the district court’s admission of
Diego Salas-Castillo’s testimony violated his right to confront and
cross-examine the witnesses against him.                 Because Ramirez has
failed to identify on appeal, by citation to the trial transcript
or otherwise, the specific testimony he seeks to challenge, he has
waived the issue by failing to adequately brief it on appeal.                See
Yohey v. Collins,

985 F.2d 222

, 224-25 (5th Cir. 1993).
Ramirez     argues   that    the    district     court   abused   its
discretion in denying his motion for a mistrial based on the
Government’s elicitation at trial of testimony of his post-arrest
silence. It is a violation of a defendant’s due process rights for
the Government to comment on a defendant’s postarrest, post-Miranda
warning silence.      See Doyle v. Ohio,

426 U.S. 610

, 617, 619 (1976).
The   record   does   not   establish       that   the   Government   exploited
Ramirez’s silence after inducing that silence by advising him of
his right to remain silent.       See Pitts v. Anderson,

122 F.3d 275