United States Court of Appeals
Fifth Circuit
F I L E D
November 6, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
__________________________
No. 03-50208
Summary Calendar
__________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
XAVIER VILLARREAL,
Defendant - Appellant.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(No. 03-50208)
___________________________________________________
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
*
PER CURIAM:
Xavier Villarreal (“Villarreal”) was convicted of two counts of possession with
intent to distribute cocaine. Because the district court’s failure to instruct the jury on the
public authority defense does not constitute plain error, we affirm.
*
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not be published and is not precedent except under the limited circumstances set forth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.
I. FACTS AND PROCEEDINGS
Villarreal was employed as a peace officer in the Central South Texas Narcotics Task
Force (“Task Force”). During the time of his employment, the FBI conducted an
investigation of corrupt public officials, including law enforcement officers, in Texas. The
FBI used an informant, Guadalupe Morales (“Morales”), to buy cocaine from Villarreal.
Villarreal’s defense at trial was that he was acting in his capacity as a peace officer and
conducting a lawful investigation of Morales which necessitated the selling of the drugs.
No records or documentation of such an investigation exist. Villarreal’s counsel failed to
object to the district court’s failure to instruct the jury on the public authority defense, and
Villarreal was convicted. Villarreal timely appeals.
II. STANDARD OF REVIEW
This Court reviews a defendant’s failure to submit or object to jury instructions for
plain error. Fed. R. Crim. P. 52(b); United States v. Martin, 332 F.3d 827, 834 (5th Cir.
2003). “Plain error occurs only when the instruction, considered as a whole, was so clearly
erroneous as to result in the likelihood of a grave miscarriage of justice.” Martin, 332 F.3d
at 834 (quotations omitted).
III. DISCUSSION
In this case it is uncontested that Villarreal did not object to the district court’s jury
instructions. Even if he had requested a public authority defense, it is questionable
whether there was evidence to support such an instruction. It is undisputed that: (1)
Villarreal did not keep any records of his alleged undercover investigation of Morales; and
2
(2) that such reports are required by standard Task Force procedure. The absence of these
reports casts doubt on whether the district court should have given the public authority
defense had it been requested. Because it is not clear that there was an error in the jury
instructions, we certainly cannot find plain error.
Even if we were not to decide on the above ground, Villarreal’s sole reliance on
United States v. Benavidez, 558 F.2d 308 (5th Cir. 2003), is misplaced. Unlike here, counsel
in Benavidez requested a particularized entrapment jury instruction. Id. at 308-09. We
held that the district court’s failure to give even a general entrapment instruction in that
situation constituted plain error. Id. at 310. In this case, however, Villarreal failed to
request any jury instructions (specific or otherwise) concerning the public authority
defense, and did not object when, unsurprisingly, none were given.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
3