IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50017

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIA BARRON-BANDA,

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Texas (DR-99-CR-325-2)

March 2, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Maria Barron-Banda appeals from a judgment entered after a

jury convicted her of conspiracy to transport illegal aliens.

Barron-Banda argues that the government presented insufficient

evidence to prove that she was part of a conspiracy and that the

prosecutor’s reference in his closing argument to extra-record

evidence deprived her of a fair trial.

I

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Barron-Banda argues that the evidence was insufficient to

establish the existence of an agreement to transport illegal aliens

between between Barron-Banda and anyone else. In assessing the

sufficiency of the evidence, this court views the evidence, and all

reasonable inferences that may be drawn from it, in the light most

favorable to the jury verdict, and then decides whether a rational

trier of fact could have found each essential element of the

offense beyond a reasonable doubt.1 We have reviewed the entire

trial record, and find that the evidence, although not

overwhelming, was sufficient for a rational jury to conclude beyond

a reasonable doubt that Barron-Banda and her husband had conspired

together.

Her husband was traveling with her when the Border Patrol

spotted them. When they pulled over, and a Border Patrol officer

stopped and questioned them, Barron-Banda and her husband gave

conflicting stories, and the officer testified that her husband’s

story was false.2 A rational jury could conclude that the husband

would only fabricate a story if he was knowingly involved in the

transportation of aliens with his wife. At trial, Barron-Banda

offered no plausible, competent explanation for his conduct. Also,

another agent testified at trial that Barron-Banda had admitted to

“them coming down to Mexico, to pick up illegal aliens”—referring

1 United States v. Prieto-Tejas,

(5th Cir. 1986). 2 The officer testified that her husband claimed to be looking for deer to hunt, but that at the time of the stop, it was not deer season.

2 to herself and another person. There is thus sufficient evidence

of conspiracy.

II

Barron-Banda also argues that the prosecutor deprived her of

a fair trial by referring to evidence not presented at trial.

Barron-Banda did not object to the prosecutor’s statements, so we

review for plain error only. Barron-Banda must show (1) an error,

(2) that is “plain,” “clear,” or “obvious,” (3) that affected her

substantial rights.3 When these three elements are satisfied, a

court should correct plain error when the error “seriously

affect[s] the fairness, integrity, or reputation of judicial

proceedings.”4 In the context of the record as a whole, the

prosecutor’s reference to extra-record evidence does not rise to

the level of plain error. Barron-Banda has not shown that the

claimed error was “plain,” nor did the error seriously affect the

fairness, integrity, or reputation of judicial proceedings.

The prosecutor’s reference to other evidence was a response to

the defense argument that the various overt acts charged in the

indictment of Barron-Banda and her husband were never proved to the

jury. The prosecutor’s point was that since only Barron-Banda was

3 United States v. Olano,

(1993). 4 United States v. Young,

(1985).

3 on trial, “only the evidence necessary against her” was presented.5

Thus, it is not even clear that the prosecutor was referring to

extra-record evidence against Barron-Banda; he may have been

defending the omissions identified by the defense by claiming that

the evidence not presented to the jury was not evidence relevant to

Barron-Banda. Of course, evidence useful against others might also

have been useful against Barron-Banda; but whether the prosecutor’s

statement refers to extra-record evidence against Barron-Banda is

not “plain” or “obvious.” Further, given that the prosecutor was

responding to the defense’s argument and that the court

specifically instructed the jury to consider only the evidence

presented, we cannot conclude that the prosecutor’s statements

seriously affected the fairness of the trial.

III

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

5 The prosecutor stated, “You noticed there wasn’t anyone else on trial here yesterday and today. Just her. And so, we limited and we present only the evidence necessary against her. And, ladies and gentlemen, that’s where all the other evidence is. She’s the one on trial, and that’s the evidence against her.”

4