IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50846

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FERNANDO SALGADO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:11-CR-106-2

Before WIENER, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

A jury found Fernando Salgado guilty of conspiracy to distribute and to

possess with intent to distribute heroin, and the district court sentenced him to

210 months in prison, to be followed by a three-year term of supervised release. 

On appeal, Salgado 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). Salgado

United States Court of Appeals

Fifth Circuit

F I L E D

November 19, 2012

Lyle W. Cayce

Clerk

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.

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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, Salgado contends that the district court

constructively amended the indictment by failing to limitthe 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 instructions on

a conspiracy. See United States v. Leahy, 82 F.3d 624, 630-31 (5th Cir. 1996). 

Moreover, Salgado has not established “that the probability of a different result 

is sufficient to undermine confidence in the outcome of the proceeding.” United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Although Salgado 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).

Salgado maintains that the district court should have sua sponte

instructed the jury that they could have found him guilty of conspiracy to

possess heroin, which is a lesser included offense of conspiracy to possess with

intent to distribute heroin. The indictment charged him with conspiring to

distribute and to possess with intent to distribute; Salgado concedes that

conspiracy to possess narcotics is not a lesser included offense of conspiracy to

distribute. Although the district court advised the jury that it must

unanimously find one of the conspiracy objectives, nothing in the record

indicates which was found. Salgado therefore has not shown that the error had

an effect on the jury deliberations or the verdict, and he thus has not established

plain error. See United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).

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In addition, Salgado contends 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. Even assuming that portions of Detective Russell’s testimony can be

considered expert testimony, given that the admissibility of the testimony is not

challenged; that the jury heard other evidence of guilt, including Salgado’s own

conflicting statements about his participation in the conspiracy; and that the

district court properly instructed the jury that it could accept or reject any

testimony and that it was the sole judge of credibility of the witnesses and the

weight, if any, to give to each witness’s testimony, Salgado has not

demonstrated that the failure to give an expert witness or dual role instruction

affected the outcome of the proceedings and thus affected his substantial rights.

See Puckett, 556 U.S. at 135. Further, Salgado has not shown that the failure

to give an expert witness or dual role instruction in these circumstances affects

the fairness, integrity, or public reputation of judicial proceedings as required

for reversal on plain error. Id.

Salgado maintains that the district court should have provided a limiting

instruction with respect to evidence of his gang affiliation. He does not challenge

the introduction of the evidence. Salgado has not shown that any clear or

obvious error affected his substantial rights, in light of the instructions that

were provided. See Puckett, 556 U.S. 135; Zafiro v. United States, 506 U.S. 534,

540 (1993).

In his final ground for relief, Salgado asserts that the jury instructions as

a whole constituted a cumulative plain error. He has not shown that the

“coalescence of [plain] errors, if any, arising in this case” resulted in the denial

of a fair trial. United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998). 

Because Salgado has not shown reversible error, the judgment of the district

court is AFFIRMED.

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