USA v. Jaime Flores, No. 11-50813 (5th Cir. 2012)
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The court issued a subsequent related opinion or order on November 15, 2012.
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Case: 11-50813 Document: 00512053069 Page: 1 Date Filed: 11/14/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-50813 Summary Calendar November 14, 2012 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JAIME FLORES, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 7:11-CR-106-1 Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM:* A jury found Jaime Flores guilty of conspiracy to distribute and to possess with intent to distribute heroin, and the district court sentenced him to 72 months in prison, to be followed by a three-year term of supervised release. On appeal, Flores contends that the district court erred in its presentation of the jury instructions. As he concedes, he did not object to the instructions, so we review for plain error. See United States v. Bohuchot, 625 F.3d 892, 897 (5th Cir. 2010); United States v. Betancourt, 586 F.3d 303, 305-06 (5th Cir. 2009). Flores * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 11-50813 Document: 00512053069 Page: 2 Date Filed: 11/14/2012 No. 11-50813 thus must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to correct the error but will do so only if it affects the fairness, integrity, or public reputation of judicial proceedings. See id. In his first ground for relief, Flores contends that the district court constructively amended the indictment by failing to limit the jury s consideration to the three defendants named in the indictment, which permitted the jurors to consider the possible participation of other individuals in the conspiracy. He has not established a clear or obvious error arising from the court s conspiracy instructions. See United States v. Leahy, 82 F.3d 624, 630-31 (5th Cir. 1996). Although Flores also asserts that the jury should have been instructed about the possibility of multiple conspiracies, he has not established that the district court s failure to give such an instruction affected his substantial rights. See Puckett, 556 U.S. at 135; United States v. Morris, 46 F.3d 410, 417 (5th Cir. 1995). Flores asserts that the district court should have instructed the jury about expert witnesses and should have warned the jury that Detective Mitch Russell was testifying in a dual role as a lay and an expert witness. Russell s testimony about conclusions reached from common sense or . . . past experience formed from firsthand observation does not rise to the level of expert testimony. United States v. Ebron, 683 F.3d 105, 138 (5th Cir. 2012) (internal quotation marks and citation omitted). Flores s citations to case law in other circuits indicating that Russell was testifying as an expert are insufficient to overrule this court s authority. See United States v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010). Because Russell was not testifying as an expert, the district court did not err in failing to instruct the jury on expert evidence or on a witness s dual role. In his final ground for relief, Flores asserts that the jury instructions as a whole constituted a cumulative plain error. He has not shown that there exist 2 Case: 11-50813 Document: 00512053069 Page: 3 Date Filed: 11/14/2012 No. 11-50813 errors to be cumulated, and thus he is not entitled to relief. See United States v. Brooks, 681 F.3d 678, 705 (5th Cir. 2012), petition for cert. filed (Aug. 9, 2012) (No. 12-5812), and petition for cert. filed (Aug. 16, 2012) (No. 12-5847). Because Flores has not shown reversible error, the judgment of the district court is AFFIRMED. 3
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