### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 20162

UNITED STATES OF AMERICA , Plaintiff

–

Appellee ,

versus JUAN AGUDIN SALAZAR, A l so K n own as Juan Fondin Salazar , Defendant

– Appellant

.

Appeal from the United States District Court for the Southern District of Texas

Before SMITH , CLEMENT , and HIGGINSON , Circuit Judges

. JERRY E. SMITH, Circuit Judge : Juan Salazar was charged with multiple dr ug and gun violations. At trial, the government presented overwhelming evidence of guilt; a gainst the advice of counsel, Salazar decided to testify and confessed to all of the crimes charged. At the trial’s conclusion, believing no factual issue remained for the jury, the district court instructed the jury “to go back and find the Defendant gui lty.” Because the Sixth Amendment safeguards even an obviously guilty defendant’s right to have a jury decide guilt or innocence , we vacate the United States Court of Appeals Fifth Circuit 

### FILED May 2, 2014 Lyle W. Cayce Clerk Case: 13-20162 Document: 00512617191 Page: 1 Date Filed: 05/02/2014No. 13

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conviction and remand.

I. The indictment charged (1) conspiracy to possess with intent to distrib

ute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846 ; (2) aiding and abetting attempted possession with intent to distribute five kilograms or more of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) an d (b)(1)(A); (3) conspiracy to possess a f irearm in fur

therance of a drug

- trafficking offense, in violation of 18 U.S.C. § 9 24(c)(1)(A) and (o); and (4) aiding and abetting possession of a f irearm in furtherance of a drug

- trafficking offense, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A). Two

co
- conspirators

— Jose Aquino and Robert Torres

— were charged in con nection with the co nspiracy and ple a d ed guilty. Trial evidence established the following: A confidential informant (“CI”) advised Agent Carlos Valle s of the Bureau of Alcohol, Tobacco, Firearms , and Explosives that multiple pe rsons were interested in commit ting a home

invasion

- style armed robbery. The CI introduced Valles, acting as an under

cover agent, to Torres for the purpose of participating in a robbery of a drug stash house. Over the next few months, several phone calls and in

- person meetings, which were either audio

- or video

- recorded or both, occurred between Valles, Torres, and others. Valles met face

- to

- face with Torres, A quino, and Salaz ar
at a gas station to discuss logis tics for the home invasion ; two days later, the group met there again, and Salazar confirmed that they were ready and had their “tools with them.” The group then drove to a ware house staging area. Sal a zar balked at entering the premises, argued with Torres, and departed quickly in a separate vehicle. Torres and Aquino tried to leave and were arrested ; Salazar was arrested later that day. 2 Case: 13-20162 Document: 00512617191 Page: 2 Date Filed: 05/02/2014No. 13

- 20162 From the beginning of trial, defense counsel’s theory was that Sala zar had en gaged in but ultimately withdrew from the two conspiracies. Against the advice of counsel, Salazar decided to testify and, o n cross
- examination, confessed to all of the crimes charged. P er his own testimony, he did not attempt to withdraw from either conspiracy until after the conspirators arrived at the staging area , shortly before they were going to complete the job , in pos

ses sion of firearms, ammunition, and other tools. At the trial’s conclusion, defense c ounsel requested a jury instruction on withdrawal. The d istrict court refused , believing that even if Salazar’s actions constituted withdrawal he did not withdraw early enough. In light of Salazar’s

con fession and the inapplicability of the withdrawal de fense , the court thought no factual issue remained , so it instructed the jury “ to go back and find the Defendant guilty.” Minutes later, the jury did so. Salazar brings two challenges on appeal. First, he claims the district court erred in not instructing the jury on withdrawal. Second, he contends that the court violated his Sixth Amendment right to a jury trial by directing a guilty verdict.

II. Salazar points to four events that demonstrate his withdrawal from the conspiracy: (1) Because Valles did not appear “transparent,” Salazar angrily told Torres that he would not go through with the job (which Salazar claims the other co

- conspirators would have overheard); (2) Salazar did not go all the way inside the warehouse; (3) he left the stagi ng area; and (4) after leaving, he refused to answer his phone or meet with Torres. In light of this evidence, Salazar believes the district court erred by not submitting an instruction to the jury on the issue of withdrawal. The government offers three reasons why the failure to instruct on 3 Case: 13-20162 Document: 00512617191 Page: 3 Date Filed: 05/02/2014No. 13

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withdrawal was not error: “(1) Salazar did not engage in any definitive, decisive, or affirmative act to disavow or defeat the purpose of the charged conspiracies; (2) alternatively, Salazar’s conduct was not suffici ent to raise the issue of with drawal; and (3) assuming arguendo that his evidence adequately raised the issue of withdrawal, Salazar’s conduct came too late to absolve him of the lia bility for the conspiracy.”
B ecause “[d]istrict courts enjoy substantia l latitude in formulating a jury charge,” we generally review “all challenges to, and refusals to give, jury instruc tions for abuse of discretion.” United States v. Webster , 162 F.3d 308,
321

– 22 (5th Cir. 1998). “We review de novo a district court’s ref usal to offer an instruction for a criminal defense that, if credited, would preclude a guilty ver

dict.” United States v. Theagene , 565 F.3d 911, 917 (5th Cir. 2009). A refusal to give a requested instruction constitutes reversible error only if the proposed instruction (1) is substantially correct, (2) is not sub stantively covered in the jury charge, and (3) pertains to an impor

tant issue in the trial, such that failure to give it seriously impairs the pres entation of an effective defense.”

W ebster , 162 F.3d at 322. We review the record in the light most favorable to the defen dant in determining whether the record contains sufficient evidence for the jury to find Salazar withdrew from the conspiracy in a timely fashion. Theagene , 565 F.3d at 917 −18. Focusing on the government’s third theory , a conspirator can choose to “withdraw” from a conspiracy at any point. Because the timing of the with

drawal determines whic h crimes a conspirator remains liable for, we distin

guish between timely and untimely withdrawals. An untimely withdrawal does not negate liability on the conspiracy charge 1 but i nstead helps a

1 See Smith v. United States , 133 S. Ct. 714, 719 (2013) : 4 Case: 13-20162 Document: 00512617191 Page: 4 Date Filed: 05/02/2014No. 13

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defendant guard against post

- withdrawal acts done by other co

- conspirators and thereby serves to minimiz e his lia bility on subse quent crimes.
T o be timely, the withdrawal must precede the commission of an overt
act. See United States v. Heathington , 545 F.2d 972, 973 (5th Cir. 1977). In essence, the government must not be able to show a completed conspiracy. For purposes of absolving liability for the conspiracy charge, “withdrawal is impos

si ble once an overt act has been committed.” 2 I f the conspiracy does not even require the commission of an overt act, a defendant can never timely with draw and can never negate liability as to the conspiracy charge. See , e.g. , United States v. Francis , 916 F.2d 464, 466 (8th Cir. 1990). Salazar relies extensively on United States v. Schorovsky , 202 F.3d 727 (5th Cir. 2000). The defendant challenged her sentence, contend ing that, because she withdrew from the conspiracy, “the district court clearly erred in attributing more than 200 grams of heroin to her as relevant conduct in the calculation of her base offense level.” Id. at 728. We agreed she had with

drawn , so the court had erred in basing its sentence on “the amount of drugs trafficked by the conspirators after she effectively withdrew.” Id. at 729. That case has no bearing here . A withdrawal from a drug conspiracy may limit the amount of drugs a district court can rely on as rele vant conduct

Withdrawal does not negate an element of the conspiracy crimes charged here.

. . . Far from contradicting an element of the offense, withdrawal presupposes that the defendant committed the offense. Withdrawal achieves more modest ends than

exon eration. Since conspiracy is a continuing offense, a defendant who has joined a conspirac y continues to violate the law through every moment of [the consp iracy’s] existence, and he becomes responsible for the acts of his co

- conspirators in pursuit of their common plot . With drawal terminates the defendant’ s liability for postwith

drawal acts of his co

- conspirators, but he remains guilty of conspiracy. ( C itations omitted

. )

2 United States v. Nicoll , 664 F.2d 1308, 1315 (5th Cir. 1982), overruled on other grounds by U nited States v. Henry , 749 F.2d 203 (5th Cir. 1984) (en banc)

. 5 Case: 13-20162 Document: 00512617191 Page: 5 Date Filed: 05/02/2014No. 13

- 20162 for purposes of sentencing. Salazar does not , however, challenge his sentence calculation. And Schorovsky does not stand for the proposition that with

drawal following an overt act absolves the defendant of liability as t o the under lying conspiracy charge. 3
W e assume both of the charged conspiracies require d overt acts. Per his own testimony, however, Salazar did not attempt to withdraw until after the conspirators had arrived at the staging area in possession of firearms, ammu

nition, and other necessary tools. By that point, several overt acts in further

ance of both conspiracies had occurred. 4 Salazar’s withdrawal was therefore not timely and cannot absolve him o f liability on either conspiracy. 5 Accord

ingly , t he district court did not err in declining to instruct on withdrawal.

3 Our decision in United States v. Puig

- Infante , 19 F.3d 929 , 945

– 46 (5th Cir. 1994) , sim ilarly does not help Salazar , because it also deals with relevant conduct f or purposes of sentencing.

4 See United States v. Brackett , 113 F.3d 1396, 1400 (5th Cir. 1997) (“ Overt acts in furtherance of a conspiracy need not be criminal . . . .”); United States v. Pomranz , 43 F.3d 156, 160 (5th Cir. 1995) (“ In this case, various acts were committed in furthe rance of the drug conspiracy. For instance, after the initial contact between Pomranz and agent DeLaFlor: tele phone conversations ensued between the parties to finalize the drug transaction, Pom

ranz traveled from Oklahoma to Texas to personally discuss the illegal activity, plans to inspect a sample of the marihuana before the actual purchase were consummated, install

ments on the total purchase price were made and most crucial to this analysis, Pomranz carried a weapon during and in relation to delivery of the final drug payment. Unques

tionably, the primary reason that Pomranz carried a weapon was to protect or further the drug transaction by ensuring the safe delivery of the drug money. ”).

5 Salazar also attempts to support his argument with United States v. Jimenez , 622 F.2d 753 (5th Cir. 1980). In that case, Jimenez was charged with conspiracy to possess cocaine with intent to distribute it. Id. at 754. “Jimenez claimed in the trial of the case that he had withdrawn from the conspiracy prior to the commission of any overt act . . . .” Id. T he dis trict court determined that this possible timely withdrawal was an issue for the jury and instructed i t accordingly. Jim e nez does not apply: (1) Unlike Jimenez, Salazar has not dem

on strated that h e withdrew before the commission of any overt act; and (2) b ecause the jury was instructed on withdrawal in Jimenez , that case can have no bearing on the question whether a district court erred in not giving such an instruction. 6 Case: 13-20162 Document: 00512617191 Page: 6 Date Filed: 05/02/2014No. 13

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III. We must determine the appropriate s tandard of review to assess the Sixth Amendment challenge

. The government presses us to review either as invited error or under the plain

- error standard . Salazar maintains that trial counsel preserved this error for appeal. A defendant “ may not complain on appeal of errors that he himself invited or provoked the [district] court

. . . to commit. ” United States v. Wells , 519 U.S. 482, 487

– 88 (1997) (citations and internal quotation marks omitted)

. Invited error applies, however, only where the error can be attributed “to the actions of the defense.” United States v. Green , 272 F.3d 748, 754 (5th Cir. 2001). Invited error imposes an even higher standard than does plain

- error review: W e “will not reverse on the basis of invited error, absent manifest injustice.” United States v. Pankhurst , 118 F.3d 345, 359 (5th Cir. 1997). The government argues that defense counsel invited this error by lament ing on the futility of closing arguments. Specifically, the government points to defense counsel’s statement , “ Well, what am I going to argue? That he wasn’t there? That he didn’t complete the conspiracy? ” T he government relies on W alker v. Sta te , 781 P. 2d 838 (Okla. Crim. App. 1989) , and Griffin v. State , 255 S.W.3d 7 7 4 (Tex. App.

― Amarillo 2008 , no pet. ) , which it believes demonstrate invited error.
In Walker , the court held an in camera hearing: At this hearing, defense counsel presented the stipulation to the court and Appellant affirmatively gave his consent to the agreement. He told the court that he was offering the stipulation voluntarily with a full under standing of the consequences. The trial court then announced that it would instru ct the jury as to the stipulations, would allow both the State and Appellant to present evidence as to punishment and would then instruct the jury to find Appellant guilty and assess punishment. The court asked Appellant if this procedure was agree a
ble. Appel lant answered “that’s fine.”

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781 P.2d at 839

– 40. By explicitly agreeing to this procedure and to the directed guilty verdict, Walker had invited any error. See id. at 840. In Griffin , the defendant ple ade d not guilty of assaulting his wife. Du r
ing trial, “after [his wife] testified to the assault . . . , [Griffin] informed the court that he wished to plead guilty.” Griffin , 255 S.W.2d at 774. The s tate, however, did not waive its right to have a jury trial. Id. In light of the fact that the defen dant wanted to plead guilty, “the court informed [the parties] that the jury would be instructed to return a verdict of guilty. Neither party objected to the procedure or the charge, and the court so instructed the jury.” Id. at 774

– 75

. Becaus e the defendant wanted to plead guilty, the appel late court considered any problem to be invited error. Id. at 775. As Walker and Griffin instruct, if a defendant wished to change his plea during trial to a guilty plea and thereby waive his right to a jury, we might invoke the doctrine of i nvited error. Nothing in this record, however, suggests that Salazar wished to change his plea or cons ented to the directed verdict. The government ’s reliance on comments made by def ense counsel suffers two problems: (1) O ffhanded comments made by defense counsel cannot have caused the defendant to chan ge his plea; and (2) in any event , t he government misreads defense counsel’s comments . T he parties only appear to have been dis cuss ing how counsel could best handle closing arguments in light of the

over whelming evidence against Salazar. Nothing in the record suggests that counsel request ed or consent ed to a directed guilty verdict at any point (and the government gives no explanation as to why counsel would do so).
P lain error also does not apply

. T he district court explicitly acknowl

edged that Salazar was preserving this argument for appeal and stated that any error regarding the directed guilty verdict would be erro r solely on its

8 Case: 13-20162 Document: 00512617191 Page: 8 Date Filed: 05/02/2014No. 13

- 20162 part. 6 Even though defense counsel did not specifically reference the Sixth Amend ment interest at stake or provide any legal authority demonstrating error, the court was well aware of the glaring issue before it. 7 Salazar has preserved this argument for appeal.

IV

. As to the merits, t he government contends that the district court did not

err in instructing the jury to return a guilty ver dict because Salazar vol un
tarily confessed after being admonished of his right not to testify. The gov
ernment asserts that the confession “equates to a plea of guilty” that waived the right to a jury trial.
F or Salazar to be able to complain about a Sixth Amendment violation,
t his right must have attached. 8 All four counts of the indictment carry stat u
tory maximum penalt ies of greater than six months ’ imprisonment , so the offenses are serious , 9 and the Sixth Amendment right to a jury trial attached

. T he Sixth Amendment safeguards “the accused[’s]

. . . right to a speedy and public trial[ ] by an impartial jury , ” U.S. C ONST . amend VI , and “require [ s ]

6 “No. I think that I take that out of your hands. If there’s error, it’s error on my part. It’s not on your part. It’s not on Mr. Gonzales’ part. It’s error on the Court’s part. And I think that that removes it.”

7 See Bradley v. Allstate Ins. Co. , 620 F.3d 509, 519 n.5 (5th Cir. 2010) (“Although issues not raised before the district court are generally waived, an argument is not waived on appeal if the argument on the issue before the district court was sufficient to permit the district court to rule on it.” (citation and int ernal quotation marks omitted)) ; United States v. Akpan , 407 F.3d 360, 376 (5th Cir. 2005).

8 See Lewis v. United States , 518 U.S. 322, 325 (1996) ( “[T]he Sixth Amendment, like the common law, reserves this jury trial right for prosecutions of serious offenses, and that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.” (citation and internal quotation marks omitted))

.
9 A n y offense punishable by greater than six month s ’ imprisonment is con sidered seri

ous

. See id. at 326. 9 Case: 13-20162 Document: 00512617191 Page: 9 Date Filed: 05/02/2014No. 13

- 20162 criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a rea

sona ble doubt , ” United States v. Gaudin , 515 U.S. 506, 510 (1995). Although

a court may enter a judgment of acquittal, 10 the Sixth Amendment prohibits the court from direct ing a guilty verdict. Th at protect ion extends even to “obvi

ously guilty” defendants. 11 “[A] judge . . . may not dir ect a verdict for the State,
no mat ter how overwhelming the evidence. ” Sullivan v. Louisiana , 508 U.S. 275, 277 (1993). The instruction “to go back and find the Defendant guilty” vio lated the clear command in Sullivan and Gaudin

. It makes no differ ence th at the court told the jury to do so rather than entering the verdict itself. 12 Contrary to the government’s suggestion, Salazar’s confession did not deprive him of his right to have a jury determine his guilt. The Sixth Amend

ment permits a jury to disregard a defendant’s confession and still find him not guilty. This conclusion does not depend on when the confession occurs

— on the stand or pre

- trial

— or how much the defendant confesses

— to one ele ment

or to every crime . A defendant’s confes sion merely amounts to more , albeit compelling , evidence against him . But no amount of compelling evidence can override the right to have a jury determine his guilt

. It is true that a defendant may waive his right to a jury trial by pleading

10 See F ED

. R. C RIM

. P. 29(a) (“After the government closes its evidence or after the close of all the evide nce, the court on the defendant’ s motion must enter a judgment of acquit

tal of any offense for which the evidence is insufficient to sustain a conviction.”).

11 Crawford v. Washington , 541 U.S. 36, 62 (2004) (“Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defen

dant is obviously guilty. This is n ot what the Sixth Amendment prescribes.”).

12 See Connecticut v. Johnson , 460 U.S. 73, 83 (1983) (plurality opinion) (“The Court

con sistently has held that a trial judge is prohibited from entering a judgment of conviction or directing the jury to come for ward with such a verdict . . . regardless of how overwhelmingly the evidenc e may point in that direction.” (emphasis added) )

. 10 Case: 13-20162 Document: 00512617191 Page: 10 Date Filed: 05/02/2014No. 13

- 20162 guilty. 13 And he can, at least in theory, waive this right in the midst of trial. We have never held, however, that he changes his plea from not guilty to guilty just by confessing on the stand ; c ertainly none of the cases cited by the gov

ernment hints as much. 14 And n othing in this record suggests that Salazar, at any point, wished to change his plea to guilty ; t he court did not ask him , fol

lowing his confession, whether he wished to do so

. Finally, assessing harmlessness in this context would be inappropriate

. Bec ause a jury never rendered a verdict of guilt y beyond a reasonable doubt, it would be meaningless to ask whether i t would have re turned the same verdict absent the constitutional error : The most an appellate court can conclude is that a jury would surely h ave found petitioner guilty beyond a reasonable doubt

— not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. The Sixth Amendment requires more than appellate specula

tion about a hypothetical jury’s action , or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.

Sullivan , 508 U.S. at 280 (citation s omitted). The judgment of con viction is VACATED and R EMAND ED for further proceedings.

13 See F ED

. R. C RIM

. P. 11(a)(1) (“ A defendant may plead not gui lty, guilty, or (with the court’ s consent) nolo contendere. ”) ; Unit ed States v. Robertson , 698 F.2d 703, 707 (5th Cir. 1983) (“ A defendant who pleads guilty waives his Fifth Amendment right against compulsory self

- incrimination, his Sixth Amendment right to a jury trial, and his Sixth Amendment right to confront adverse w itnesses. ”).

14 See Rucker v. State , 580 P.2d 1005 (Okla. Crim. App. 1978) (“It has long been a

con sti tutional and statutory right of accused in this state that a defendant has the right to a jury’s determination of his or her guilt, even in such cases where during the course of a trial the defendant admits his or her guilt.”); Mougell v. State , 260 P.2d 4 47, 451 (Okla. Crim. App. 1953) (“[A] confession from the witness stand from the defendant does not meet the require

ments of a plea of guilty voluntarily entered. The trial judge cannot take away the defen

dant’s right to a trial by jury as provided by l aw.”). 11 Case: 13-20162 Document: 00512617191 Page: 11 Date Filed: 05/02/2014