United States v. Polanco

Decision Date28 February 2022
Docket Number20-20585
PartiesUnited States of America, Plaintiff-Appellee, v. Daniel Polanco, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Before Barksdale, Costa, and Engelhardt, Circuit Judges.

PER CURIAM [*]

As a prelude to the threatening-a-federal-official conviction at issue in this appeal, Daniel Polanco, a former agent for the United States Customs and Border Patrol, was convicted of conspiracy to possess, with intent to distribute, five kilograms or more of cocaine; possession, with intent to distribute, five kilograms or more of cocaine; and making false statements to a government agent. Following a post-trial hearing, the district court denied his motion for a judgment of acquittal and a new trial. In exiting the courtroom at the conclusion of that hearing, Polanco threatened a federal agent, who was involved in prosecuting Polanco. According to the agent, Polanco said to him "This is going to come back to you motherfuckers. You will see".

As a result of this conduct, he was convicted by a jury of threatening a federal official, in violation of, inter alia, 18 U.S.C. § 115(a)(1)(B). Polanco asserts the trial evidence was insufficient to convict him of the charged offense; and the district court did not respond reasonably to a question the jury submitted to the court during its deliberations.

Regarding the sufficiency issue, and because Polanco moved for a judgment of acquittal at the close of the Government's case and after both sides rested, he preserved that issue and our review is, therefore, de novo. E.g., United States v. Frye, 489 F.3d 201 207 (5th Cir. 2007). He claims: his statement to the agent was ambiguous and subject to interpretations that did not imply physical harm; and the evidence was insufficient for a reasonable jury to find the threat was made with the requisite intent.

For the following reasons, a reasonable jury could find Polanco threatened to assault a federal law enforcement officer, "with intent to impede, intimidate, or interfere with [him while he was engaged] in the performance of official duties, or with intent to retaliate against [him due to] the performance of official duties". See 18 U.S.C. § 115(a)(1)(B); United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (explaining court should affirm jury's verdict if "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"); United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012) (per curiam) (explaining our court evaluates "all evidence, whether circumstantial or direct, in the light most favorable to the [g]overnment[, ] with all reasonable inferences to be made in support of the jury's verdict" (alteration in original) (citation omitted)).

Although Polanco asserts his statement was ambiguous and subject to interpretations that did not imply physical harm, the record establishes that the jury: resolved the factual question as to the meaning of his statement; rejected an innocent interpretation of it; and found the statement was a threat to commit bodily harm. Our court defers to the jury's decision. See United States v. Romans, 823 F.3d 299, 311 (5th Cir. 2016) (noting court considers whether "verdict was reasonable" (citations omitted)); United States v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007) (explaining jury entitled to choose among any reasonable construction of evidence). Facts discernable from the record, including, inter alia, testimony regarding the context in which Polanco made his statement and the reaction of those who heard or learned about it, support that his statement could be reasonably inferred to constitute a threat to assault the agent. See United States v. Stevenson, 126 F.3d 662, 664-65 (5th Cir. 1997) (explaining, Government need only prove "threat was intentionally communicated, not that threat was credible or could be immediately carried out"). The resolution of any conflicts in the evidence is, of course, the sole role of the jury. E.g., United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992) (explaining resolving conflicts in evidence solely within domain of jury).

Further, there was sufficient circumstantial evidence for a reasonable jury to find Polanco made the threat with intent to retaliate against the agent due to his performance of official duties. See United States v. Aggarwal, 17 F.3d 737, 740 (5th Cir. 1994) (noting intent required to support conviction can be shown by circumstantial evidence). The evidence supported that Polanco directed the remark to the agent because of his role in prosecuting Polanco for serious drug offenses.

Polanco also contends the evidence was insufficient to prove he had the subjective intent to threaten the agent. But, our court uses an objective standard in deciding whether a statement is a threat under 18 U.S.C. § 115(a)(1)(B) and considers the intent of the speaker only to evaluate whether the threat was made intentionally or knowingly. See United States v. Raymer, 876 F.2d 383, 391 (5th Cir. 1989) (explaining subjective impression of recipient not element of the offense under § 115); Stevenson 126 F.3d at 664-65 (explaining "intent can be proven by direct or circumstantial evidence which allows for an inference of criminal intent"). To the extent Polanco challenges our prior decisions or asserts decisions of other courts should be applied, his challenge fails because our court is bound by our precedent, absent a change in the law, reconsideration by our full court, or an intervening Supreme Court decision. E.g., United States v. Montgomery, 974 F.3d 587, 590 n.4 (5th Cir. 2020), cert. denied, ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT