IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20162

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

versus

JUAN AGUDIN SALAZAR, Also Known 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 drug and gun violations. At 

trial, the government presented overwhelming evidence of guilt; against 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 

guilty.” 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

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No. 13-20162

conviction and remand.

I.

The indictment charged (1) conspiracy to possess with intent to distribute 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) and (b)(1)(A); (3) conspiracy to possess a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)

and (o); and (4) aiding and abetting possession of a firearm 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 connection 

with the conspiracy and pleaded guilty.

Trial evidence established the following: A confidential informant (“CI”)

advised Agent Carlos Valles of the Bureau of Alcohol, Tobacco, Firearms, and 

Explosives that multiple persons were interested in committing a homeinvasion-style armed robbery. The CI introduced Valles, acting as an undercover 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, Aquino, and Salazar 

at a gas station to discuss logistics 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 warehouse staging area. 

Salazar 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.

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From the beginning of trial, defense counsel’s theory was that Salazar

had engaged in but ultimately withdrew from the two conspiracies. Against 

the advice of counsel, Salazar decided to testify and, on cross-examination, 

confessed to all of the crimes charged. Per 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 possession of firearms, ammunition, and other tools.

At the trial’s conclusion, defense counsel requested a jury instruction on 

withdrawal. The district court refused, believing that even if Salazar’s actions 

constituted withdrawal he did not withdraw early enough. In light of Salazar’s 

confession and the inapplicability of the withdrawal defense, 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 staging 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 

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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 sufficient to raise the 

issue of withdrawal; and (3) assuming arguendo that his evidence adequately 

raised the issue of withdrawal, Salazar’s conduct came too late to absolve him 

of the liability for the conspiracy.”

Because “[d]istrict courts enjoy substantial latitude in formulating a jury 

charge,” we generally review “all challenges to, and refusals to give, jury 

instructions 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 refusal to offer an 

instruction for a criminal defense that, if credited, would preclude a guilty verdict.” 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 

substantively covered in the jury charge, and (3) pertains to an important issue in the trial, such that failure to give it seriously impairs the 

presentation of an effective defense.” 

Webster, 162 F.3d at 322. We review the record in the light most favorable to 

the defendant 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 withdrawal determines which crimes a conspirator remains liable for, we distinguish between timely and untimely withdrawals. An untimely withdrawal 

does not negate liability on the conspiracy charge1 but instead helps a 

1 See Smith v. United States, 133 S. Ct. 714, 719 (2013):

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defendant guard against post-withdrawal acts done by other co-conspirators

and thereby serves to minimize his liability on subsequent crimes.

To 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 impossible once an overt act has been committed.”2 If the conspiracy does not even 

require the commission of an overt act, a defendant can never timely withdraw 

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, contending 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 withdrawn, 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 relevant 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 

exoneration. Since conspiracy is a continuing offense, a defendant who has joined a 

conspiracy continues to violate the law through every moment of [the conspiracy’s] 

existence, and he becomes responsible for the acts of his co-conspirators in pursuit 

of their common plot. Withdrawal terminates the defendant’s liability for postwithdrawal acts of his co-conspirators, but he remains guilty of conspiracy.

(Citations omitted.)

2 United States v. Nicoll, 664 F.2d 1308, 1315 (5th Cir. 1982), overruled on other 

grounds by United States v. Henry, 749 F.2d 203 (5th Cir. 1984) (en banc).

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for purposes of sentencing. Salazar does not, however, challenge his sentence 

calculation. And Schorovsky does not stand for the proposition that withdrawal following an overt act absolves the defendant of liability as to the 

underlying conspiracy charge.3

We assume both of the charged conspiracies required 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, ammunition, and other necessary tools. By that point, several overt acts in furtherance of both conspiracies had occurred.4 Salazar’s withdrawal was therefore 

not timely and cannot absolve him of liability on either conspiracy.5 Accordingly, the 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),

similarly does not help Salazar, because it also deals with relevant conduct for 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 furtherance of the drug 

conspiracy. For instance, after the initial contact between Pomranz and agent DeLaFlor: 

telephone conversations ensued between the parties to finalize the drug transaction, Pomranz 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, installments 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. Unquestionably, 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. The 

district court determined that this possible timely withdrawal was an issue for the jury and 

instructed it accordingly. Jimenez does not apply: (1) Unlike Jimenez, Salazar has not demonstrated that he withdrew before the commission of any overt act; and (2) because 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.

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III.

We must determine the appropriate standard 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: We “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 

lamenting 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?” The government 

relies on Walker v. State, 781 P.2d 838 (Okla. Crim. App. 1989), and Griffin v. 

State, 255 S.W.3d 774 (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 

understanding of the consequences. The trial court then announced 

that it would instruct 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 agreeable. Appellant 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 pleaded not guilty of assaulting his wife. During 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 state, 

however, did not waive its right to have a jury trial. Id. In light of the fact 

that the defendant 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. Because the defendant wanted to plead guilty, the appellate 

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 invited error. Nothing in this record, however, suggests 

that Salazar wished to change his plea or consented to the directed verdict.

The government’s reliance on comments made by defense counsel suffers 

two problems: (1) Offhanded comments made by defense counsel cannot have 

caused the defendant to change his plea; and (2) in any event, the government 

misreads defense counsel’s comments. The parties only appear to have been 

discussing how counsel could best handle closing arguments in light of the 

overwhelming evidence against Salazar. Nothing in the record suggests that 

counsel requested or consented to a directed guilty verdict at any point (and 

the government gives no explanation as to why counsel would do so).

Plain error also does not apply. The district court explicitly acknowledged that Salazar was preserving this argument for appeal and stated that 

any error regarding the directed guilty verdict would be error solely on its

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part.6 Even though defense counsel did not specifically reference the Sixth 

Amendment 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, the government contends that the district court did not 

err in instructing the jury to return a guilty verdict because Salazar voluntarily confessed after being admonished of his right not to testify. The government asserts that the confession “equates to a plea of guilty” that waived

the right to a jury trial.

For Salazar to be able to complain about a Sixth Amendment violation, 

this right must have attached.8 All four counts of the indictment carry statutory maximum penalties of greater than six months’ imprisonment, so the 

offenses are serious,9 and the Sixth Amendment right to a jury trial attached.

The Sixth Amendment safeguards “the accused[’s] . . . right to a speedy 

and public trial[] by an impartial jury,” U.S. CONST. 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 internal 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 Any offense punishable by greater than six months’ imprisonment is considered serious. See id. at 326.

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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 reasonable 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 directing a guilty verdict. That protection extends even to “obviously guilty” defendants.11 “[A] judge . . . may not direct a verdict for the State, 

no matter how overwhelming the evidence.” Sullivan v. Louisiana, 508 U.S. 

275, 277 (1993). The instruction “to go back and find the Defendant guilty” 

violated the clear command in Sullivan and Gaudin. It makes no difference 

that 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 Amendment 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 element 

or to every crime. A defendant’s confession 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 FED. R. CRIM. P. 29(a) (“After the government closes its evidence or after the 

close of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal 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 defendant is obviously guilty. This is not what the Sixth Amendment prescribes.”).

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

consistently has held that a trial judge is prohibited from entering a judgment of conviction 

or directing the jury to come forward with such a verdict . . . regardless of how overwhelmingly 

the evidence may point in that direction.” (emphasis added)).

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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; certainly none of the cases cited by the government hints as much.14 And nothing in this record suggests that Salazar, at 

any point, wished to change his plea to guilty; the court did not ask him, following his confession, whether he wished to do so.

Finally, assessing harmlessness in this context would be inappropriate. 

Because a jury never rendered a verdict of guilty beyond a reasonable doubt, it 

would be meaningless to ask whether it would have returned the same verdict 

absent the constitutional error:

The most an appellate court can conclude is that a jury would surely 

have 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 speculation 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 (citations omitted).

The judgment of conviction is VACATED and REMANDED for further 

proceedings.

13 See FED. R. CRIM. P. 11(a)(1) (“A defendant may plead not guilty, guilty, or (with the 

court’s consent) nolo contendere.”); United 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 witnesses.”).

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

constitutional 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 447, 451 (Okla. Crim. App. 

1953) (“[A] confession from the witness stand from the defendant does not meet the requirements of a plea of guilty voluntarily entered. The trial judge cannot take away the defendant’s right to a trial by jury as provided by law.”).

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