United States v. Alejandro Estrada Aplesa

690 F. App'x 630
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 23, 2017
Docket16-12399 Non-Argument Calendar
StatusUnpublished
Cited by2 cases

This text of 690 F. App'x 630 (United States v. Alejandro Estrada Aplesa) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alejandro Estrada Aplesa, 690 F. App'x 630 (11th Cir. 2017).

Opinion

PER CURIAM:

After a jury trial, Alejandro Aplesa was convicted of conspiracy to possess with intent to distribute and possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1), (b)(1)(B), respectively. For these offenses, Aplesa was sentenced to a total term of 60 months of imprisonment, which was the statutory minimum. On appeal, Aplesa contends that his convictions should be overturned because the district court erroneously instructed the jury on both offenses and the government improperly vouched for the credibility of a key cooperating witness. He challenges his sentence on the ground that the court clearly erred in determining that he did not qualify for a minor-role reduction under U.S.S.G. § 3B1.2. After careful review, we affirm.

I. Jury Instructions

Aplesa argues that the district court erred in instructing the jury in two respects. Aplesa first contends that the court omitted an essential element of the drug-conspiracy charge — that the object of the conspiracy was to possess with intent to distribute cocaine, and not just to possess cocaine — and therefore constructively amended the indictment by broadening the possible bases for conviction beyond what was alleged in the indictment. Second, he argues that the court’s instruction on aiding-and-abetting liability is inconsistent with the Supreme Court’s decision in Rosemond v. United States, — U.S. —, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014).

We ordinarily review jury instructions de novo “to determine whether the instructions misstated the law or misled the jury to the prejudice of the objecting party.” United States v. Felts, 579 F.3d 1341, 1342 (11th Cir. 2009). We will not reverse a conviction because of an erroneous instruction unless we are “left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” Id. at 1342-43 (quotation marks omitted). We evaluate the instruction as a whole and in the context of the entire trial. United States v. Seabrooks, 839 F.3d 1326, 1333 (11th Cir. 2016), petition for cert. filed, (U.S. Feb. 16, 2017) (No. 16-8072).

Challenges to jury instructions that are raised for the first time on appeal, however, are reviewed for plain error only. Unit *632 ed States v. Madden, 733 F.3d 1314, 1322-23 (11th Cir. 2013) (holding that plain-error review applies “where the defendant fails to object to a constructive amendment”); United States v. Schlei, 122 F.3d 944, 973 (11th Cir. 1997). “An error is plain if it is obvious and clear under current law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir, 2006). Unless the explicit language of a statute or rule specifically resolves an issue, there can be no plain error without precedent from the Supreme Court or this Court directly resolving the issue. United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015).

When a party “induces” or “invites” the district court to make an error, the doctrine of invited error precludes the party from seeking review of that error on appeal, even if plain error would result. United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005). While the mere failure to object to jury instructions does not constitute invited error, United States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012), a party invites error by indicating that proposed jury instructions are acceptable, Silvestri, 409 F.3d at 1337. See United States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010) (“[W]hen a party agrees with a court’s proposed instructions, the doctrine of invited error applies, meaning that review is waived even if plain error would result”).

A. Drug-conspiracy Instruction

This Circuit’s pattern instruction' for a drug-conspiracy offense under 21 U.S.C. § 846 lists the elements of that crime as follows:

(1) two or more people in some way agreed to try to accomplish a shared and unlawful plan to possess or import [substance];
(2) the Defendant, knew the unlawful purpose of the plan and willfully joined in it; and
(3) the object of the unlawful plan was to [possess with the intent to distribute] [import] more than [threshold] of [substance].

11th Cir, Pattern Grim. Jury Instructions (Criminal) Instruction 0100 (2015) (alteration in original). Commentary to this instruction states that “if the bracketed language in this instruction concerning weights is made a part of the overall instructions, followed by use of the special verdict form below, then the Third element of the instructions defining the offense should be deleted.” Id.

At the charge conference, the district court stated that, consistent with commentary to the pattern § 846 instruction, it would remove a reference to the third element because the issue of weight was discussed later in the charge and on the verdict form. 1 Neither party objected to the court’s proposal. When the court instructed the jury, it omitted the third element — that the “the object of the unlawful plan” was to possess with intent to distribute a quantity of cocaine. The court also instructed the jurors that they must “unanimously agree on the weight of the cocaine the defendant possessed and specify the amount on the verdict form.”

Shortly after the jury retired to begin its deliberations, the district court on its own initiative raised the issue that Aplesa advances on appeal. The court noted that *633 the instruction “just says a common unlawful plan to possess cocaine” and not “to possess cocaine with intent to distribute.” But the court expressed its inclination to “stay with the pattern [instruction] ,.. unless somebody thinks differently.” Asked for their input, both the government and Aplesa requested that the court stay with the pattern instruction.

Now, however, Aplesa contends that the district court plainly erred by failing to instruct the jury that it was required to find that the object of the conspiracy was “to possess cocaine with intent to distribute.” We conclude that Aplesa has waived review of the drug-conspiracy instruction because he agreed to the court’s instruction and thereby invited the alleged error of which he complains. See Frank, 599 F.3d at 1240;

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Cite This Page — Counsel Stack

Bluebook (online)
690 F. App'x 630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alejandro-estrada-aplesa-ca11-2017.