Case: 12-41435 Document: 00512476358 Page: 1 Date Filed: 12/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-41435 December 19, 2013
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ELIZARDO VAZQUEZ ORTEGON, also known as Vampy TX,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-361-2
Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Elizardo Vazquez Ortegon contests his jury-trial conviction of conspiracy
to possess with intent to distribute more than five kilograms of cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii) (possession with intent to
distribute) and § 846 (conspiracy). He challenges the sufficiency of the
evidence and the district court’s failure to give a requested jury instruction.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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Because Vazquez moved for a judgment of acquittal at the close of the
Government’s case and did not present one, we review de novo the sufficiency
of the evidence to support his conviction. See United States v. Garcia-Gonzalez,
714 F.3d 306, 313 (5th Cir. 2013) (citation omitted). The standard of review is
“whether, after viewing the evidence in the light most favorable to the
[Government], any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt”. United States v. Zamora,
661 F.3d 200, 209 (5th Cir. 2011) (emphasis in original) (citation omitted).
The evidence shows, inter alia, that Vazquez communicated with true
co-conspirators prior to, and on the date of, that controlled delivery and with a
co-conspirator-turned-Government-informant on the date of that delivery.
With Government Agents in the informant’s presence, the true co-conspirators
directed the informant by cell phone to contact Vazquez in order to deliver five
packages of cocaine; and Vazquez contacted the informant by cell phone, asked
him whether he had his “five spare parts”, and arrived at the informant’s
tractor-trailer with a bag large enough to hold five packages of cocaine.
Therefore, a rational trier of fact could have inferred that Vazquez had referred
to the five packages of cocaine and intended to pick them up. Additionally, this
“concert of action” among Vazquez, the true co-conspirators, and the informant,
along with the significant quantity of cocaine being delivered, justifies the
inference that Vazquez agreed to possess cocaine with intent to distribute it
and was a voluntary participant in the conspiracy. See id. at 210; see also
United States v. Clark, 511 F. App’x 312, 314 (5th Cir.) (“[T]ransporting
kilogram quantities of cocaine . . . evinces . . . participat[ion] with others in
distributing large quantities of drugs”.), cert. denied, 133 S. Ct. 2815 (2013).
Evidence also shows that Vazquez fled from law enforcement on the
scene and claimed falsely that he had never spoken to the informant. Although
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Vazquez claimed he arrived at the tractor-trailer to deliver money for fuel, a
rational trier of fact could have rejected this explanation as incredible and
implausible. See United States v. Villarreal, 324 F.3d 319, 325 (5th Cir. 2003)
(“Both inconsistent statements and implausible explanations have been
recognized as evidence of guilty knowledge.”) (citation omitted). In the light of
the foregoing evidence, a rational juror could have inferred Vazquez agreed to
possess cocaine with intent to distribute it and was a voluntary participant in
the conspiracy. See Zamora, 661 F.3d at 209.
Vazquez’ alternative claim about the sufficiency vel non of the evidence
is that it only establishes he was in a buyer-seller relationship. Vazquez and
another person were each supposed to pick up a significant quantity of cocaine
from the tractor-trailer. This fact justifies the inference that Vazquez was
participating with others to distribute the entire amount of cocaine in the
tractor-trailer. See United States v. Delgado, 672 F.3d 320, 333-34 (5th Cir.),
cert. denied, 133 S. Ct. 525 (2012). As discussed, the evidence of a concert of
action also supports the inference of a conspiracy as opposed to a buyer-seller
relationship.
Vazquez also claims the district court erred by refusing to give a jury
instruction that he could not conspire with a Government informant. Sears v.
United States, held: in appropriate circumstances, the district court should
instruct the jury both that an agreement with a Government agent cannot be
the basis for a conspiracy conviction and that a defendant can only be convicted
of conspiracy if he also knew others were involved in the illegal enterprise. 343
F.2d 139, 142 (5th Cir. 1965).
A preserved challenge about a jury instruction is reviewed for abuse of
discretion. United States v. Alaniz, 726 F.3d 586, 611 (5th Cir. 2013). Along
that line, Vazquez objected to the absence of a Sears instruction in the original
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instructions. After the jury began deliberating, and at the urging of the
attorney for Vazquez, the court provided clarifying instructions that the
informant was “detached as an active member of the conspiracy” and stated
the question was: “[I]s this man [Vazquez] a participant with people who are
still conspiring to commit the crime”. Vazquez did not object, however, to the
supplemental instructions.
Accordingly, our review is only for plain error. Delgado, 672 F.3d at 341-
42 (adding “challenges to omitted jury instructions are reversible ‘only in
egregious instances’”) (citation omitted). For reversible plain error, Vazquez
must show a clear or obvious forfeited error that affected his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). Even if he makes such
a showing, we have the discretion to correct the error, but should do so only if
it seriously affects the fairness, integrity, or public reputation of the
proceedings. See id.
Even assuming an error, it was neither clear nor obvious. And, even
assuming it was, the failure to give the Sears instruction did not seriously
impair Vazquez’ ability to effectively present a defense. See United States v.
Hale, 685 F.3d 522, 541 (5th Cir.), cert. denied, 133 S. Ct. 559 (2012). The
telephone calls between Vazquez and the true co-conspirators, both prior to
and on the date of the controlled delivery, and the true co-conspirators’
directions to the informant to contact Vazquez to deliver the cocaine, indicate
a conspiracy among Vazquez and the true co-conspirators existed before, and
independent of, the informant’s cooperation with the Government. E.g.,
Delgado, 672 F.3d at 342; cf. Sears, 343 F.2d at 141-42. Additionally, neither
the Government nor Vazquez argued to the jury that Vazquez had only
conspired with the informant. See Delgado, 672 F.3d at 342-43. Finally, the
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court’s supplemental instruction, to which Vazquez did not object, limited the
conspiracy to active members still conspiring. See id.
AFFIRMED.
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