United States v. Cabello

Decision Date05 May 2022
Docket Number21-50083
Citation33 F.4th 281
Parties UNITED STATES of America, Plaintiff—Appellee, v. Juan Rojelio CABELLO, Defendant—Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Joseph H. Gay, Jr., Richard Louis Durbin, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for PlaintiffAppellee.

John Andrew Kuchera, Waco, TX, for DefendantAppellant.

Before Smith, Elrod, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:*

A jury convicted Juan Rojelio Cabello of aiding and abetting his codefendant's crime: the possession of methamphetamine with intent to distribute it. Cabello asks us to vacate his conviction for three reasons. But this case squarely implicates none of them. This is a case about plain error—and Cabello can't establish it, so we affirm.


Police arrested Cabello and his codefendant Cristoval Manuel Garcia in June 2020 for trying to sell drugs to an undercover police officer. After the arrest, law-enforcement officers interviewed Cabello. They recorded the interview. We base our summary of the facts on that recording. Cf. Scott v. Harris , 550 U.S. 372, 378–81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

In response to the officers' questions, Cabello told essentially the following story. Garcia, whom Cabello had first met just a few days earlier, asked for a ride in Cabello's truck. Cabello agreed. While in the truck, Garcia used Cabello's phone to contact people. It turns out that Garcia was arranging to sell crystal meth. After some errands not relevant here, the pair went to "Jorge's" house. While Cabello waited, Garcia went into the house and picked up some meth. The recording is ambiguous about whether Cabello knew what Garcia was doing before Garcia entered the house.

In any event, Cabello admitted that by the time the pair left Jorge's house, he knew Garcia had "at least a half [a gram]" of meth, or "a little bit more, maybe." At some point, Garcia told Cabello (in Cabello's words), "you're gonna get a hundred dollars." Cabello, who needed gas money at the time, then drove Garcia to the so-called "deal," where undercover officers arrested both men. Garcia had about six grams of meth on his person at the time of arrest, and there was some in the truck's console. Cabello did not have any meth on his person.


The Government charged Cabello and Garcia in a single-count indictment for violating 21 U.S.C. § 841(a)(1) and (b)(1)(B). Section 841(a)(1) makes it "unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." The elements of this offense are: "(1) knowledge, (2) possession, and (3) intent to distribute the controlled substance." United States v. Patino-Prado , 533 F.3d 304, 309 (5th Cir. 2008) (per curiam). Section 841(b) describes penalties for various forms of the basic § 841(a) offense. See 21 U.S.C. § 841(b)(1)(B)(viii) (concerning, relevant here, offenses involving "5 grams or more of methamphetamine").

Cabello's case went to trial. At the close of the Government's case, Cabello moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29(a). See ibid. ("After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction."). But he didn't reassert that motion at the close of all the evidence. See Blue Br. at 17 (conceding this).

The jury deliberated for approximately seven hours before convicting Cabello. It began deliberating on September 29, 2020, at 11:25 a.m. and returned its guilty verdict at 6:29 p.m. The record reflects that the jury sent six notes to the judge during its deliberations. Only the fourth and sixth are relevant here.

The fourth note read: "We are not going to be able to come up with a unanimous decision." The judge proposed responding with, "you have your instructions. Please continue to deliberate." Cabello's attorney said: "No [objection], your Honor. I'm good with that." The judge explained his view that "it's too early to Allen charge them or to propose that" and went on to give the instruction he'd originally proposed. See Allen v. United States , 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Cabello's attorney once again registered his agreement with the judge's response to the fourth note.

The jury sent its sixth and final note at 6:00 p.m. It said: "We cannot come to a unanimous decision."1 After this note, the judge suggested an Allen charge and asked the attorneys what they thought. The prosecutor floated the idea of waiting until the following day to give the charge. The judge said, "I thought we would just do it tonight" and asked Cabello's counsel what he thought. Cabello's counsel responded: "Do it tonight. They're here." The judge then double-checked, asking Cabello's counsel if he had "any objection." Counsel said, "no, sir."

The judge gave the jury a modified Allen charge that reminded them of the importance of the case, reiterated the reasonable-doubt standard, and asked all the jurors to think over their views carefully. Thirteen minutes after the Allen charge, at 6:29 p.m., the jury returned its guilty verdict.


Cabello raises three issues on appeal. First, he challenges the sufficiency of the indictment. Second, he challenges the sufficiency of the evidence underlying his conviction. And third, he argues the Allen charge coerced the jury into reaching a guilty verdict.

The parties correctly agree that plain-error review applies to all three issues. Cabello entirely failed to raise the first and third issues—the indictment's sufficiency and the Allen charge—in district court. See United States v. Muhammad , 14 F.4th 352, 363 (5th Cir. 2021) ("Muhammad makes this argument for the first time on appeal, so our review is for plain error."). As for the sufficiency-of-the-evidence challenge, Cabello did make a Rule 29 motion at the close of the Government's case-in-chief, but he concedes he did not reassert that motion at the close of all the evidence. So plain-error review applies there, too. United States v. Oti , 872 F.3d 678, 686 (5th Cir. 2017) ("Because Oti failed to renew her motion for judgment of acquittal after the jury's verdict, we review her sufficiency challenge for plain error."); cf. United States v. Dubin , 27 F.4th 1021, 1033–35 (5th Cir. 2022) (en banc) (Oldham, J., concurring).

Thus, to prevail, Cabello must satisfy the strictures of Federal Rule of Criminal Procedure 52(b). That requires a showing "(1) that the district court committed an error (2) that is plain and (3) affects his substantial rights and (4) that failure to correct the error would ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’ " United States v. Sanchez-Hernandez , 931 F.3d 408, 410 (5th Cir. 2019) (quoting Johnson v. United States , 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) ). "The fourth requirement ... is discretionary," and "only particularly egregious errors will meet [its] rigorous standard." Rosales-Mireles v. United States , ––– U.S. ––––, 138 S. Ct. 1897, 1912, 201 L.Ed.2d 376 (2018) (Thomas, J., dissenting) (quotation omitted).

In the sections that follow, we hold that Cabello cannot show plain error as to (II) the sufficiency of his indictment, (III) the sufficiency of the evidence, or (IV) the Allen charge.


The indictment first. We (A) explain the legal standards that govern the indictment in this case. Then we consider and reject Cabello's arguments that the indictment is insufficient because (B) it contains a typo and (C) it failed to allege mens rea.


"An indictment is sufficient if it [1] contains the elements of the charged offense, [2] fairly informs the defendant of the charges against him, and [3] ensures that there is no risk of future prosecutions for the same offense." United States v. Harms , 442 F.3d 367, 372 (5th Cir. 2006) (quotation omitted); see also Russell v. United States , 369 U.S. 749, 763–64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (explaining those requirements). As a corollary, [4] the indictment must allege an actual crime. See United States v. Meacham , 626 F.2d 503, 507 (5th Cir. 1980) ("It is axiomatic that the elements alleged must amount to an offense.").

Our court, however, has long rejected an overly technical approach to evaluating the sufficiency of an indictment. See, e.g., United States v. Rainey , 757 F.3d 234, 247–48 (5th Cir. 2014) (collecting cases spanning decades to this effect). Thus, an indictment that "closely tracks the language" of the statute "under which it is brought" will generally pass muster—"[n]o prescribed set of words are required." United States v. Franco , 632 F.3d 880, 884–85 (5th Cir. 2011) (per curiam); see also United States v. Fitzgerald , 89 F.3d 218, 222 (5th Cir. 1996) ("The test of the validity of the indictment is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards.").

Now consider the text of the indictment in this case. Its charging language reads as follows:

[ 21 U.S.C. § 846 ]
On or about June 9, 2020 in the Western District of Texas, the Defendants,
Aided and abetted by each other, and others known and unknown to the Grand Jury to possess with intent to distribute a controlled substance, which offense involved five (5) grams or more of actual methamphetamine, contrary to Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B).

(Brackets in original.) The indictment's caption clarified the alleged violation by including the following: "Vio: 21 U.S.C. § 841(a)(1) Aiding and Abetting Possession With Intent to Distribute a Controlled Substance."


Cabello correctly points out a grammatical defect in the...

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