IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20441

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE ALBERTO DELEON; JOSELITO FLORES MERCADO,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CR-393-2

Before STEWART, Chief Judge, and DENNIS, Circuit Judge, and GILSTRAP1, 

District Judge.

PER CURIAM:*

Joselito Flores Mercado was convicted by a jury of conspiring to possess 

with intent to distribute 100 kilograms or more of marijuana in violation of 21 

U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(vii), and aiding and abetting the 

possession with intent to distribute 100 kilograms or more of marijuana in 

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii) and 18 U.S.C § 2. He 

1 District Judge of the Eastern District of Texas, sitting by designation. * 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.

United States Court of Appeals

Fifth Circuit

FILED

April 24, 2014

Lyle W. Cayce

Clerk

 

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received concurrent sentences of 97 months in prison to be followed by a fouryear term of supervised release. Prior to Mercado’s trial, Mercado’s 

codefendant, Jose Alberto Deleon, made a motion to sever the trials, which the 

district court granted. Deleon testified against Mercado at his trial. Deleon 

then waived his right to a jury trial and the parties stipulated to much of the 

trial testimony and all of the exhibits from Mercado’s jury trial. Deleon was 

convicted at a bench trial of aiding and abetting the possession with intent to 

distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. 

§§ 841(a)(1), 841(b)(1)(B)(vii), and 18 U.S.C § 2 and acquitted on the conspiracy 

count. He received a sentence of 22 months in prison with no supervised 

release term. Both Defendants appeal various issues. We affirm the district 

court in all respects.

I.

Deleon and the government presented, in relevant part, the following 

sequence of events at Mercado’s trial. Deleon was approached by Mercado at 

Lowes on April 18th. Deleon and Mercado did not know each other prior to this 

encounter. Mercado offered to pay Deleon in exchange for his help in removing 

lids from some shipping crates the next day at a nearby warehouse. The next 

morning, Mercado met a tractor-trailer at his warehouse and by forklift 

removed two large wooden shipping crates. Deleon met Mercado and assisted 

with removing the lids. In the crates were auto parts and underneath them

there were metal boxes. Mercado offered to pay Deleon more if he helped open 

the metal boxes. They drove to a nearby pawn shop to obtain the tools 

necessary to cut into the boxes. Deleon opened the boxes and saw bundles of 

drugs. According to Deleon, he “thought they were drugs but did not know 

exactly that they were drugs.” At Mercado’s request, Deleon carried the 

numbered bundles to the back of the warehouse where Mercado stored them 

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before closing up. Mercado sorted and briefly opened them before closing them. 

At that point, Deleon testified that he had confirmed his suspicions and knew 

marijuana was in the bundles. The shipment contained 91 bundles totaling 

1,915 pounds of marijuana. Mercado paid Deleon and Deleon left. Mercado 

stopped briefly at a warehouse garage nearby, spoke to a worker there, and 

then drove away.

Unbeknownst to Mercado and Deleon, Mercado’s warehouse was under 

surveillance by the U.S. Drug Enforcement Administration (“DEA”). A DEA 

agent, Keith Jones, was monitoring the remote feed when he saw the 

suspicious activity. He mobilized a group of officers and waited until the men 

left separately. The officers followed Deleon and approached him when he 

stopped at a roadside taqueria. He stated that “perhaps” there was marijuana 

at the warehouse and agreed to accompany the officers back to the warehouse. 

Another group of officers had followed Mercado and a local officer stopped him 

for a traffic violation. The officer asked about the drugs in his warehouse and 

Mercado stated that he was helping a friend and did not know what was in the 

shipping crates. He gave verbal and written consent to a search. Although the 

officer initially noted Mercado appeared nervous, he became more relaxed as 

the conversation continued. 

At the warehouse, officers found, inter alia, the crates, the drugs, a gun, 

and another opened bundle of marijuana inside Mercado’s office that was a 

different shape and in different packaging. That bundle had been delivered 

prior to this shipment. Deleon testified that he removed this bundle from the 

cabinet at Mercado’s request and was told that it was better than what was 

delivered that morning. The officers arrested Mercado and he told Agent Jones 

he had unloaded the drugs for a friend. Mercado said he expected someone to 

call to come and pick up the drugs. Agent Jones testified that nothing in 

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Mercado’s demeanor would have led him to believe that Mercado was forced to 

accept the drugs.

The officers also searched Deleon’s white van and found a scale, bags, 

and other items that could be used in drug trafficking. However, Deleon had

a plausible innocent explanation for each item. Mercado and Deleon were 

jailed together and Deleon testified that he told Mercado to tell the truth so 

that he could leave. Deleon testified that Mercado stated he had more drugs 

and money at his house, it was a good thing the cops had not followed him 

there, and he had been drug trafficking for a while.

Mercado testified in his own defense, as did his wife, and presented, in 

relevant part, the following version of events. He stated that in January two 

men from Mexico came to his warehouse and offered him $1,500 to accept a 

shipment of auto parts and to store them in the warehouse until the men could 

get them. Mercado agreed to do this. The two men returned later in April to 

see if Mercado had rented a forklift to move the shipment of auto parts. He 

was told to expect the delivery on April 18th but when it did not come he was 

informed it would be there the next day. Mercado testified that the paperwork 

looked legitimate and he did not know there were drugs in the crates when he 

placed them in the warehouse. When the crates arrived, he called the men to 

confirm receipt. He testified that they told him that someone was outside 

waiting to retrieve the shipment. That person ended up being Deleon. Deleon 

then inspected the crates and asked Mercado to take him to buy tools. They 

bought the tools and came back to the warehouse. 

Back at the warehouse, Mercado was informed by phone that there were 

narcotics in the crates and that if he called the police or did not help the drug 

traffickers, they would kill him or his wife and kids. He was also told that two 

“soldiers” were outside the warehouse and he understood the threat as 

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immediate. He then helped Deleon unload the marijuana. He saw Deleon open 

some of the bundles and saw Deleon identify one bundle as “the good stuff,” 

which Deleon sampled and placed in Mercado’s office. After unloading, Deleon 

spoke to someone by phone and told Mercado he would be back at 6:00 p.m. 

Mercado remained at his warehouse alone for a few minutes then went to a 

neighboring warehouse, intending to ask the workers there to call the police 

but he was unable to communicate this. A worker at the warehouse testified 

that Mercado seemed a little nervous, was probably scared, and was sweating. 

He stated that Mercado acted like he wanted to say something but could not. 

Mercado then decided to go home and secure his family. He testified that 

he called his wife on the way and told her there was a very serious problem 

they needed to talk about. His wife testified that he sounded nervous, was 

breathing hard, and that what he said had frightened her. His plan was to call 

the police once his family was safe but he was stopped by the local officer while 

on the phone with his wife. Mercado testified that he had no other drugs or 

money at his house and that Deleon was lying. In fact, he stated that Deleon 

had offered him $50,000 to take the fall for him.

Mercado’s wife testified that once she had heard of her husband’s arrest 

she called an attorney, Abraham Fisch (“Fisch”), and that she and Mercado 

met with him one week after his arrest. Fish allegedly told Mercado 

information about Deleon that made Mercado and his wife fearful for 

themselves and their family. Because of these fears, Mercado never told the 

police about the threat he claims to have received. Mercado’s wife testified 

that Fisch suggested they not trust the police and that they would not believe 

Mercado’s story. He advised that they tell the story to a jury. She also testified 

that her brother is a law enforcement officer and she was studying for a career 

in law enforcement. 

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II.

On appeal, Mercado challenges: (1) the sufficiency of the evidence to 

support his conspiracy conviction; (2) the district court’s decision not to instruct 

the jury on his duress defense; (3) the district court’s decision not to allow Fisch

to testify and Mercado to recall Agent Jones; and (4) the denial of his motion 

for a mistrial after Agent Jones testified about information as to Mercado’s 

illegal activities prior to Mercado’s arrest, evidence that was earlier excluded 

by the court. Deleon challenges only the sufficiency of the evidence to support 

his conviction. 

A.

To convict Mercado of conspiracy to possess with the intent to distribute,

the government was required to prove that: “(1) an agreement existed between 

two or more persons to violate federal narcotics law, (2) the defendant knew of 

the existence of the agreement, and (3) the defendant voluntarily participated 

in the conspiracy.” United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012). 

Mercado argues that the evidence is insufficient to support his conspiracy 

conviction because there was no evidence that he knew of or participated in an 

agreement to possess with intent to distribute marijuana. We review 

“preserved challenges to the sufficiency of the evidence de novo.” United States 

v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). We “view all evidence . . . in the 

light most favorable to the government, with all reasonable inferences and 

credibility choices to be made in support of the jury’s verdict to determine 

whether a rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.” Id. (internal quotation marks and citation 

omitted). “[K]nowledge of a conspiracy and voluntary participation may be 

inferred from a collection of circumstances.” Thomas, 690 F.3d at 367 (internal 

quotation marks and citation omitted) (alteration in original). 

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The direct evidence presented at trial was sufficient for a reasonable 

factfinder to determine that Mercado voluntarily participated in an agreement 

to violate the narcotics laws with either Deleon or the suppliers of the 

marijuana. See Thomas, 690 F.3d at 367–68 (holding that the government 

presented sufficient evidence of a defendant’s knowledge and voluntary 

participation in the conspiracy given the collection of circumstances); United 

States v. Booker, 334 F.3d 406, 409–11 (5th Cir. 2003) (holding evidence 

sufficient to support two defendants conspiracy charges). Mercado’s argument 

ignores the evidence presented by Deleon that Mercado knew about the drugs, 

was expecting a shipment, had hired Deleon with the intent to obtain access to 

the drugs, and had been involved in drug trafficking for a period of time. 

Although Mercado testified that he had no knowledge of the marijuana before 

it was delivered, the jury was entitled to choose among reasonable 

constructions of the evidence. See United States v. Mitchell, 484 F.3d 762, 768 

(5th Cir. 2007) (“The evidence need not exclude every reasonable hypothesis of 

innocence or be wholly inconsistent with every conclusion except that of guilt, 

and the jury is free to choose among reasonable constructions of the evidence.” 

(internal quotation marks and citation omitted)). 

B.

Mercado contends that the district court erred in denying his request to 

instruct the jury as to the defense of duress. The affirmative defense of duress 

requires a showing by the defendant that (1) he was “under an unlawful, 

present, imminent, and impending [threat] that would induce a well-grounded 

apprehension of death or serious bodily injury,” (2) that he had not “recklessly 

or negligently placed himself in the situation” at issue, (3) that he “had no 

reasonable legal alternative to violating the law” that would also avoid the 

threatened harm, and (4) that it was reasonable to anticipate that the 

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avoidance of harm directly caused the criminal actions. United States v. 

Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998). The defendant must provide 

evidence of each of the elements before it may be presented to the jury because 

it is an affirmative defense. Id. “In determining whether a defendant has 

made a threshold showing of the elements of the defense a court must 

objectively evaluate the facts presented by the defendant.” Id. (citation 

omitted). We review a district court’s refusal to submit a requested jury 

instruction only for abuse of discretion. Id. at 875. 

We hold that there was no abuse of discretion by the district court in 

refusing to instruct the jury on Mercado’s duress defense.2 Mercado has not 

put forth evidence demonstrating that he had no available alternatives to his 

illegal activity. See id. at 873–75. A defendant must show “that he had 

actually tried the alternative or had no time to try it, or that a history of futile 

attempts revealed the illusionary benefit of the alternative,” in order to 

establish the absence of a legal alternative. Id. at 874 (internal quotation 

marks and citation omitted). Mercado could have called the police, told others 

to call, or explained the situation to police at several points including when he 

was: outside of Deleon’s presence, left by Deleon at the warehouse, at the 

nearby garage, in the car on his way home, or stopped by the police. 

Mercado’s arguments on appeal are unavailing. Mercado argues that he 

feared the police could not protect his family and that they would not believe 

him. He contends that calling the police prior to securing his family was not a 

reasonable alternative in light of the nature of the threats and that “soldiers” 

were watching his warehouse. He urges that he was avoiding his death and 

2 The district court stated that it thought “very seriously” about Mercado’s argument. 

Ultimately, the district court decided that given the fact that Mercado could have made phone 

calls outside the presence of Deleon, after Deleon left the premises, and certainly when he 

was alone in the car, he had not made the requisite showing necessary for the instruction.

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the death of his wife and children by not contacting the police. However, his 

“subjective belief as to available legal alternatives is not determinative.” 

Posada-Rios, 158 F.3d at 874 (internal quotation marks and citation omitted). 

Further, once he was actually stopped by the police and asked specifically 

about the drugs, he failed to communicate any of the threats to himself or to 

his family.3 The district court did not abuse its discretion given the facts of 

this case.

C.

Mercado asserts that the district court violated his right to confront 

witnesses and present a complete defense in violation of the Sixth Amendment. 

He contends that he should have been allowed to call Fisch and to recall Agent 

Jones. We review the alleged denial of a defendant’s rights under the Sixth 

Amendment de novo, subject to review for harmless error. United States v. 

Skelton, 514 F.3d 433, 438 (5th Cir. 2008). A defendant’s right to present a 

complete defense under the Sixth Amendment is “an essential attribute” of our 

criminal justice system but it is not without limits. United States v. Najera 

Jimenez, 593 F.3d 391, 402 (5th Cir. 2010) (internal quotation marks and 

citation omitted). A defendant “does not have an unfettered right to offer 

testimony that is incompetent, privileged, or otherwise inadmissible under 

standard rules of evidence.” Id. (internal quotation marks and citation 

3 Mercado makes an argument that duress only applies at the time the offense is 

actually committed and because he was no longer in possession of the drugs once he left the 

warehouse, his failure to call the police after leaving should have no bearing on the elements 

of the duress defense. We need not address this argument because the offenses of conspiracy 

and possession were continuing criminal acts even after he physically left the warehouse. 

See United States v. Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000) (holding that a defendant 

is presumed to continue involvement in a conspiracy unless a defendant makes an 

“affirmative showing of withdrawal, abandonment, or defeat of the conspiratorial purpose”); 

United States v. Daniels, 723 F.3d 562, 579 n.24 (stating that possession is “actual or 

constructive, and a defendant who knowingly has ownership, dominion, or control over drugs 

or over the premises” concealing the drugs has possession of them). 

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omitted). “We review a district court’s evidentiary rulings for abuse of 

discretion.” Id. (citation omitted). 

Mercado contends that he wanted to call Fisch as a witness because

Fisch could have provided information regarding Mercado’s duress defense and 

his reasons for not reporting the threats to law enforcement. However, 

Mercado did not speak with Fisch until a week after the events occurred when 

he was released on bond. Because Fisch’s testimony would not have made it 

more probable that Mercado faced a real and immediate threat on the date of 

his arrest and did not establish the lack of reasonable alternatives to his 

continued illegal activities, Mercado has failed to establish that his right to 

present a defense was impeded by his inability to call Fisch as a witness. 

See United States v. Jimenez-Montoya, 348 F. App’x 73, 75–76 (5th Cir. 2009) 

(per curiam) (unpublished) (holding that a defense witness was properly 

excluded because the witness’ testimony was irrelevant to the defendant’s 

defense); Fed. R. Evid. 401; see also United States v. Dixon, 413 F.3d 520, 523–

24 (5th Cir. 2005) (upholding the exclusion of expert testimony to the extent 

the testimony would have affirmed the defendant’s subjective perceptions of 

danger, which was not relevant to a duress defense).

With respect to Agent Jones, Mercado contends that he was entitled to 

recall him to testify about his testimony at Deleon’s detention hearing. At that 

hearing, Jones testified that he was told by another officer that Deleon had 

provided a different explanation for his presence at the warehouse. That 

explanation contradicted Deleon’s trial testimony. The district court correctly 

concluded that the testimony was inadmissible as hearsay within hearsay. See

United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 508 (5th Cir. 2008); 

Fed. R. Evid. 805. Mercado has not established that his inability to recall Jones 

violated his Sixth Amendment rights. See Skelton, 514 F.3d at 438. Moreover, 

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he has not shown that the two adverse evidentiary rulings constituted an 

abuse of discretion. See Najera Jimenez, 539 F.3d at 402.

D.

In his final ground for relief, Mercado asserts that the district court erred 

in denying his request for a mistrial after Jones testified that law enforcement 

officials had prior information regarding Mercado’s involvement in drug 

activities, a matter on which the government had agreed not to adduce specific 

testimony. “We review a denial of a motion for mistrial for abuse of discretion.” 

United States v. Zamora, 661 F.3d 200, 211 (5th Cir. 2011) (citation omitted). 

A new trial is required only when the statement is so prejudicial, viewed in 

light of the entire record, that it had a substantial impact on the jury verdict. 

Id. “We give great weight to the trial court’s assessment of the prejudicial 

effect of the evidence, and prejudice may be rendered harmless by a curative 

instruction.” United States v. Valles, 484 F.3d 745, 756 (5th Cir. 2007). The 

statement in question constituted a single statement in a multi-day trial, 

which was immediately stricken by the court. The district court also advised 

the jury to disregard the statement. Mercado has not established that the 

district court abused its discretion in denying his motion for a mistrial. See

Zamora, 661 F.3d at 211–12; Valles, 484 F.3d at 756; United States v Millsaps, 

157 F.3d 989, 993 (5th Cir. 1998). 

E.

In his only ground for relief, Deleon asserts that the evidence is 

insufficient to support his conviction. When a defendant challenges the 

sufficiency of the evidence to sustain his conviction following a bench trial, we 

review the district court’s finding of guilt to determine whether it is supported 

by “any substantial evidence.” United States v. Ceballos-Torres, 218 F.3d 409, 

411 (5th Cir. 2000) (internal quotation marks and citation omitted). The 

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evidence is sufficient if, when considered as a whole and in the light most 

favorable to upholding the conviction, it would permit a rational trier of fact to 

find the essential elements of the crime beyond a reasonable doubt. United 

States v. Allen, 587 F.3d 246, 256 (5th Cir. 2009). 

Aiding and abetting requires proof that the substantive offense occurred 

and that the defendant “(1) associated with the criminal venture; (2) 

purposefully participated in the crime; and (3) sought by his actions for it to 

succeed.” United States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007). 

Deleon does not dispute the existence of an underlying marijuana offense; 

instead, he contends that the evidence does not establish that he aided and 

abetted the crime. The stipulated evidence at his trial showed that he

continued to unload the marijuana after realizing that the packages were in 

fact marijuana. He did not stop once he realized the illegal nature of the 

activity; instead, he continued his association with Mercado and intentionally 

continued participating in the illegal enterprise. He was willing to do so in 

return for payment. Because substantial evidence supports the finding of guilt, 

Deleon is not entitled to reversal. See id.; Ceballos-Torres, 218 F.3d at 411; 

Allen, 587 F.3d at 256.

III.

Neither Deleon nor Mercado has established reversible error with 

respect to their convictions. Consequently, the judgments of the district court 

are AFFIRMED.

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