IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50813

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAIME FLORES,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:11-CR-106-1

REVISED NOVEMBER 15, 2012

The opinion issued November 14, 2012, is hereby withdrawn and replaced

with the following.

Before WIENER, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

A jury found Jaime Flores guilty of conspiracy to distribute and to possess

with intent to distribute heroin, and the district court sentenced him to 72

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

United States Court of Appeals

Fifth Circuit

F I L E D

November 15, 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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No. 11-50813

appeal, Flores 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). Flores

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, Flores contends that the district court

constructively amended the indictment by failing to limit the 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 conspiracy

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

Although Flores 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).

Flores asserts 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 evidence is not challenged and 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, Flores has not demonstrated

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No. 11-50813

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, Flores 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.

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

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

errors to be cumulated, and thus he is not entitled to relief. See United States

v. Brooks, 681 F.3d 678, 705 (5th Cir. 2012), petition for cert. filed (Aug. 9, 2012)

(No. 12-5812), and petition for cert. filed (Aug. 16, 2012) (No. 12-5847). Because

Flores has not shown reversible error, the judgment of the district court is

AFFIRMED.

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 Case: 11-50813 Document: 00512054623 Page: 3 Date Filed: 11/15/2012