United States v. Cervantes

In United States v. Cervantes, —- F.4th —-, No. 23-20133 (5th Cir. July 9, 2024), the Fifth Circuit affirmed Ms. Cervantes’ trial convictions for conspiring and possessing with intent to distribute a controlled substance.

Holding 1: The evidence was sufficient to support the convictions.

On appeal, the Fifth Circuit views “the evidence and all reasonable inferences in the light most favorable to the prosecution and to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Lara, 23 F.4th 459, 470 (5th Cir. 2022) (quotation omitted). Even so, it asks whether a jury’s inferences “were rational, as opposed to being speculative or insupportable.” United States v. Vargas-Ocampo, 747 F.3d 299, 302 (5th Cir. 2014) (en banc).

Regarding the conspiracy charge, Cervantes had argued that neither she nor her codefendant had possessed the cocaine, which was in a truck driven by an undercover police officer. But the Fifth Circuit found “substantial evidence” that Cervantes and her codefendant agreed “to operate on behalf of the cartel,” and the jury had sufficient evidence to conclude that Cervantes knew drugs were involved. “It is immaterial that a government agent had actual possession of the cocaine.”

As for aiding and abetting the possession of cocaine with intent to distribute it, Cervantes argued that the Government failed to prove that any person committed the substantive offense — because a “government agent … cannot be a co-conspirator.” United States v. Goff, 847 F.2d 149, 173 (5th Cir. 1988). But the Fifth Circuit has previously rejected that argument: “an aiding and abetting conviction for a completed substantive offense may stand even if the principal is a government agent with no guilty intent and therefore no substantive crime actually was committed.” United States v. Wise, 221 F.3d 140, 150 (5th Cir. 2000).

Holding 2: The district court did not reversibly err by failing to instruct the jury that a defendant cannot be in a conspiracy alone with a government agent.

Cervantes argued that such an instruction was important so that the jury would not convict her of conspiring with the undercover officer, and because her codefendant through heroin, not cocaine, was inside the truck, so she could not have been in a cocaine conspiracy with him.

The Fifth Circuit agreed that this type of jury instruction, known as a “Sears instruction,” was “substantively correct and not substantially covered in the charge given to the jury.” In fact, the court agreed that “it might have been prudent to give the instruction,” but failure to do so “did not seriously impair Cervantes’s ability to advance a particular defense—even if, in the end, her defense did not succeed.”

Here, “there was ample evidence that Cervantes entered into the alleged drug conspiracy” with her codefendant,” not just the undercover officer. Additionally, “drug type is not an element of 21 U.S.C. § 841(a)(1)” so it did not matter what type of drug Cervantes thought was involved.

Holding 3: The district court did not reversibly err by refusing to admit a video exhibit offered by Cervantes. The proposed exhibit was a video recording of Cervantes’ codefendant speaking to the FBI. In it, the codefendant said that he had lied to Cervantes about what they were doing.

To get around the rule against hearsay, Cervantes argued that she wanted to use the video to show her state of mind, not the truth of the matter asserted, because the video proved that her codefendant had been lying to her and concealing the illegal nature of their actions.

The Fifth Circuit disagreed, calling the video “hearsay within hearsay.” The court held that Cervantes failed to identify a hearsay exception for the second layer of the hearsay. Her codefendant’s earlier statements to her may have shown her state of mind, but the codefendant’s later description of those statements to an officer was pure hearsay. Regardless, “the exclusion of [this video] did not substantially affect the outcome of the trial because other evidence that Cervantes lacked intent was presented to the jury.”

Note: One of our firm’s lawyers represented Ms. Cervantes during pretrial proceedings.