United States v. Villarreal

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. 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) 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. *732 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.1977), 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. Footnotes [*] 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.