IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41435

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ELIZARDO VAZQUEZ ORTEGON, also known as Vampy TX,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:12-CR-361-2

Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Elizardo Vazquez Ortegon contests his jury-trial conviction of conspiracy 

to possess with intent to distribute more than five kilograms of cocaine, in 

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii) (possession with intent to 

distribute) and § 846 (conspiracy). He challenges the sufficiency of the 

evidence and the district court’s failure to give a requested jury instruction.

* 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

December 19, 2013

Lyle W. Cayce

Clerk

 

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No. 12-41435

Because Vazquez moved for a judgment of acquittal at the close of the 

Government’s case and did not present one, we review de novo the sufficiency 

of the evidence to support his conviction. See United States v. Garcia-Gonzalez, 

714 F.3d 306, 313 (5th Cir. 2013) (citation omitted). The standard of review is 

“whether, after viewing the evidence in the light most favorable to the 

[Government], any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt”. United States v. Zamora, 

661 F.3d 200, 209 (5th Cir. 2011) (emphasis in original) (citation omitted).

The evidence shows, inter alia, that Vazquez communicated with true 

co-conspirators prior to, and on the date of, that controlled delivery and with a 

co-conspirator-turned-Government-informant on the date of that delivery. 

With Government Agents in the informant’s presence, the true co-conspirators

directed the informant by cell phone to contact Vazquez in order to deliver five 

packages of cocaine; and Vazquez contacted the informant by cell phone, asked 

him whether he had his “five spare parts”, and arrived at the informant’s 

tractor-trailer with a bag large enough to hold five packages of cocaine. 

Therefore, a rational trier of fact could have inferred that Vazquez had referred 

to the five packages of cocaine and intended to pick them up. Additionally, this 

“concert of action” among Vazquez, the true co-conspirators, and the informant, 

along with the significant quantity of cocaine being delivered, justifies the 

inference that Vazquez agreed to possess cocaine with intent to distribute it 

and was a voluntary participant in the conspiracy. See id. at 210; see also 

United States v. Clark, 511 F. App’x 312, 314 (5th Cir.) (“[T]ransporting 

kilogram quantities of cocaine . . . evinces . . . participat[ion] with others in 

distributing large quantities of drugs”.), cert. denied, 133 S. Ct. 2815 (2013).

Evidence also shows that Vazquez fled from law enforcement on the 

scene and claimed falsely that he had never spoken to the informant. Although 

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Vazquez claimed he arrived at the tractor-trailer to deliver money for fuel, a 

rational trier of fact could have rejected this explanation as incredible and 

implausible. See United States v. Villarreal, 324 F.3d 319, 325 (5th Cir. 2003) 

(“Both inconsistent statements and implausible explanations have been 

recognized as evidence of guilty knowledge.”) (citation omitted). In the light of 

the foregoing evidence, a rational juror could have inferred Vazquez agreed to 

possess cocaine with intent to distribute it and was a voluntary participant in 

the conspiracy. See Zamora, 661 F.3d at 209.

Vazquez’ alternative claim about the sufficiency vel non of the evidence 

is that it only establishes he was in a buyer-seller relationship. Vazquez and 

another person were each supposed to pick up a significant quantity of cocaine

from the tractor-trailer. This fact justifies the inference that Vazquez was 

participating with others to distribute the entire amount of cocaine in the 

tractor-trailer. See United States v. Delgado, 672 F.3d 320, 333-34 (5th Cir.), 

cert. denied, 133 S. Ct. 525 (2012). As discussed, the evidence of a concert of 

action also supports the inference of a conspiracy as opposed to a buyer-seller 

relationship.

Vazquez also claims the district court erred by refusing to give a jury 

instruction that he could not conspire with a Government informant. Sears v. 

United States, held: in appropriate circumstances, the district court should 

instruct the jury both that an agreement with a Government agent cannot be 

the basis for a conspiracy conviction and that a defendant can only be convicted 

of conspiracy if he also knew others were involved in the illegal enterprise. 343 

F.2d 139, 142 (5th Cir. 1965). 

A preserved challenge about a jury instruction is reviewed for abuse of 

discretion. United States v. Alaniz, 726 F.3d 586, 611 (5th Cir. 2013). Along 

that line, Vazquez objected to the absence of a Sears instruction in the original 

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instructions. After the jury began deliberating, and at the urging of the 

attorney for Vazquez, the court provided clarifying instructions that the 

informant was “detached as an active member of the conspiracy” and stated 

the question was: “[I]s this man [Vazquez] a participant with people who are 

still conspiring to commit the crime”. Vazquez did not object, however, to the 

supplemental instructions. 

Accordingly, our review is only for plain error. Delgado, 672 F.3d at 341-

42 (adding “challenges to omitted jury instructions are reversible ‘only in 

egregious instances’”) (citation omitted). For reversible plain error, Vazquez 

must show a clear or obvious forfeited error that affected his substantial rights. 

See Puckett v. United States, 556 U.S. 129, 135 (2009). Even if he makes such 

a showing, we have the discretion to correct the error, but should do so only if 

it seriously affects the fairness, integrity, or public reputation of the 

proceedings. See id.

Even assuming an error, it was neither clear nor obvious. And, even 

assuming it was, the failure to give the Sears instruction did not seriously 

impair Vazquez’ ability to effectively present a defense. See United States v. 

Hale, 685 F.3d 522, 541 (5th Cir.), cert. denied, 133 S. Ct. 559 (2012). The 

telephone calls between Vazquez and the true co-conspirators, both prior to 

and on the date of the controlled delivery, and the true co-conspirators’

directions to the informant to contact Vazquez to deliver the cocaine, indicate

a conspiracy among Vazquez and the true co-conspirators existed before, and 

independent of, the informant’s cooperation with the Government. E.g.,

Delgado, 672 F.3d at 342; cf. Sears, 343 F.2d at 141-42. Additionally, neither 

the Government nor Vazquez argued to the jury that Vazquez had only 

conspired with the informant. See Delgado, 672 F.3d at 342-43. Finally, the 

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court’s supplemental instruction, to which Vazquez did not object, limited the 

conspiracy to active members still conspiring. See id.

AFFIRMED.

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