United States v. Salazar

Decision Date02 May 2014
Docket NumberNo. 13–20162.,13–20162.
Citation751 F.3d 326
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Juan Agudin SALAZAR, Also Known as Juan Fondin Salazar, Defendant–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

OPINION TEXT STARTS HERE

Jeffery Alan Babcock, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for PlaintiffAppellee.

Yolanda Evette Jarmon, Esq., Law Office of Yolanda Jarmon, Houston, TX, for DefendantAppellant.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH, CLEMENT, and HIGGINSON, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Juan Salazar was charged with multiple drug and gun violations. At trial, the government presented overwhelming evidence of guilt; against the advice of counsel, Salazar decided to testify and confessed to all of the crimes charged. At the trial's conclusion, believing no factual issue remained for the jury, the district court instructed the jury to go back and find the Defendant guilty. Because the Sixth Amendment safeguards even an obviously guilty defendant's right to have a jury decide guilt or innocence, we vacate the conviction and remand.

I.

The indictment charged (1) conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846; (2) aiding and abetting attempted possession with intent to distribute five kilograms or more of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(A); (3) conspiracy to possess a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) and ( o); and (4) aiding and abetting possession of a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A). Two co-conspirators—Jose Aquino and Robert Torres—were charged in connection with the conspiracy and pleaded guilty.

Trial evidence established the following: A confidential informant (CI) advised Agent Carlos Valles of the Bureau of Alcohol, Tobacco, Firearms, and Explosives that multiple persons were interested in committing a home-invasion-style armed robbery. The CI introduced Valles, acting as an undercover agent, to Torres for the purpose of participating in a robbery of a drug stash house.

Over the next few months, several phone calls and in-person meetings, which were either audio- or video-recorded or both, occurred between Valles, Torres, and others. Valles met face-to-face with Torres, Aquino, and Salazar at a gas station to discuss logistics for the home invasion; two days later, the group met there again, and Salazar confirmed that they were ready and had their tools with them. The group then drove to a warehouse staging area. Salazar balked at entering the premises, argued with Torres, and departed quickly in a separate vehicle. Torres and Aquino tried to leave and were arrested; Salazar was arrested later that day.

From the beginning of trial, defense counsel's theory was that Salazar had engaged in but ultimately withdrew from the two conspiracies. Against the advice of counsel, Salazar decided to testify and, on cross-examination, confessed to all of the crimes charged. Per his own testimony, he did not attempt to withdraw from either conspiracy until after the conspirators arrived at the staging area, shortly before they were going to complete the job, in possession of firearms, ammunition, and other tools.

At the trial's conclusion, defense counsel requested a jury instruction on withdrawal. The district court refused, believing that even if Salazar's actions constituted withdrawal he did not withdraw early enough. In light of Salazar's confession and the inapplicability of the withdrawal defense, the court thought no factual issue remained, so it instructed the jury to go back and find the Defendant guilty. Minutes later, the jury did so.

Salazar brings two challenges on appeal. First, he claims the district court erred in not instructing the jury on withdrawal. Second, he contends that the court violated his Sixth Amendment right to a jury trial by directing a guilty verdict.

II.

Salazar points to four events that demonstrate his withdrawal from the conspiracy: (1) Because Valles did not appear transparent, Salazar angrily told Torres that he would not go through with the job (which Salazar claims the other co-conspirators would have overheard); (2) Salazar did not go all the way inside the warehouse; (3) he left the staging area; and (4) after leaving, he refused to answer his phone or meet with Torres. In light of this evidence, Salazar believes the district court erred by not submitting an instruction to the jury on the issue of withdrawal.

The government offers three reasons why the failure to instruct on withdrawal was not error: (1) Salazar did not engage in any definitive, decisive, or affirmative act to disavow or defeat the purpose of the charged conspiracies; (2) alternatively, Salazar's conduct was not sufficient to raise the issue of withdrawal; and (3) assuming arguendo that his evidence adequately raised the issue of withdrawal, Salazar's conduct came too late to absolve him of the liability for the conspiracy.

Because [d]istrict courts enjoy substantial latitude in formulating a jury charge, we generally review all challenges to, and refusals to give, jury instructions for abuse of discretion. United States v. Webster, 162 F.3d 308, 321–22 (5th Cir.1998). We review de novo a district court's refusal to offer an instruction for a criminal defense that, if credited, would preclude a guilty verdict. United States v. Theagene, 565 F.3d 911, 917 (5th Cir.2009).

A refusal to give a requested instruction constitutes reversible error only if the proposed instruction (1) is substantially correct, (2) is not substantively covered in the jury charge, and (3) pertains to an important issue in the trial, such that failure to give it seriously impairs the presentation of an effective defense.

Webster, 162 F.3d at 322. We review the record in the light most favorable to the defendant in determining whether the record contains sufficient evidence for the jury to find Salazar withdrew from the conspiracy in a timely fashion. Theagene, 565 F.3d at 917–18.

Focusing on the government's third theory, a conspirator can choose to withdraw from a conspiracy at any point. Because the timing of the withdrawal determines which crimes a conspirator remains liable for, we distinguish between timely and untimely withdrawals. An untimely withdrawal does not negate liability on the conspiracy charge1 but instead helps a defendant guard against post-withdrawal acts done by other co-conspirators and thereby serves to minimize his liability on subsequent crimes.

To be timely, the withdrawal must precede the commission of an overt act. See United States v. Heathington, 545 F.2d 972, 973 (5th Cir.1977). In essence, the government must not be able to show a completed conspiracy. For purposes of absolving liability for the conspiracy charge, withdrawal is impossible once an overt act has been committed.2 If the conspiracy does not even require the commission of an overt act, a defendant can never timely withdraw and can never negate liability as to the conspiracy charge. See, e.g., United States v. Francis, 916 F.2d 464, 466 (8th Cir.1990).

Salazar relies extensively on United States v. Schorovsky, 202 F.3d 727 (5th Cir.2000). The defendant challenged her sentence, contending that, because she withdrew from the conspiracy, the district court clearly erred in attributing more than 200 grams of heroin to her as relevant conduct in the calculation of her base offense level. Id. at 728. We agreed she had withdrawn, so the court had erred in basing its sentence on the amount of drugs trafficked by the conspirators after she effectively withdrew. Id. at 729.

That case has no bearing here. A withdrawal from a drug conspiracy may limit the amount of drugs a district court can rely on as relevant conduct for purposes of sentencing. Salazar does not, however, challenge his sentence calculation. And Schorovsky does not stand for the proposition that withdrawal following an overt act absolves the defendant of liability as to the underlying conspiracy charge.3

We assume both of the charged conspiracies required overt acts. Per his own testimony, however, Salazar did not attempt to withdraw until after the conspirators had arrived at the staging area in possession of firearms, ammunition, and other necessary tools. By that point, several overt acts in furtherance of both conspiracies had occurred.4 Salazar's withdrawal was therefore not timely and cannot absolve him of liability on either conspiracy.5 Accordingly, the district court did not err in declining to instruct on withdrawal.

III.

We must determine the appropriate standard of review to assess the Sixth Amendment challenge. The government presses us to review either as invited error or under the plain-error standard. Salazar maintains that trial counsel preserved this error for appeal.

A defendant may not complain on appeal of errors that he himself invited or provoked the [district] court ... to commit. United States v. Wells, 519 U.S. 482, 487–88, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (citations and internal quotation marks omitted). Invited error applies, however, only where the error can be attributed to the actions of the defense. United States v. Green, 272 F.3d 748, 754 (5th Cir.2001). Invited error imposes an even higher standard than does plain-error review: We will not reverse on the basis of invited error, absent manifest injustice. United States v. Pankhurst, 118 F.3d 345, 359 (5th Cir.1997).

The government argues that defense counsel invited this error by lamenting on the futility of closing arguments. Specifically, the government points to defense counsel's statement, Well, what am I going to argue? That he wasn't there? That he didn't complete the conspiracy? The...

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