                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      November 14, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 12-6030
                                                   (D.C. No. 5:11-CR-00125-F-1)
ADRIAN CONTRERAS GRANADOS,                                 (W.D. Okla.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Adrian Contreras Granados appeals his conviction for possessing five

kilograms or more of cocaine in violation of 21 U.S.C. § 844. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

                                    BACKGROUND

      With a history of convictions for importing marijuana into this country from

Mexico, Mr. Contreras became a registered confidential informant for Immigration

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and Customs Enforcement (ICE). But ICE “officially terminated” him from that

position after only four months on October 11, 2010, after his cover was blown.

R., Vol. IV at 326.

      On November 14, 2010, police officer Eldon Halliburton performed a traffic

stop on a vehicle driven alone by Mr. Contreras in Oklahoma. Mr. Contreras was

extremely nervous, falsely claimed to own the vehicle, falsely claimed to be married

to the woman the vehicle was registered to, could not recall the name of the city

where he started from, and stated he was traveling to Wichita, Kansas. Officer

Halliburton placed him in the patrol vehicle and radioed for permission to run his

drug dog around Mr. Contreras’s vehicle. When Officer Halliburton asked why

Mr. Contreras was headed to Wichita, Mr. Contreras claimed he was an informant for

the state department, ICE, and the Drug Enforcement Administration (DEA), and

added he was driving to Wichita and then Chicago.

      After Officer Halliburton’s drug dog alerted to the presence of narcotics in

Mr. Contreras’s vehicle, Mr. Contreras repeatedly denied that it contained narcotics,

but he consented to a vehicle search. Officer Halliburton and another officer

conducted a search, finding over 21 kilograms of cocaine hidden in a “non-factory

compartment.” Id. at 38. They then handcuffed Mr. Contreras and placed him under

arrest. Returning to Mr. Contreras’s vehicle, the officers also found a post-it note

with a phone number that Mr. Contreras asserted was for his government contact.




                                         -2-
      Later that day, Officer Halliburton called the number and spoke with

Investigator Alejandro Rodriguez of the North Las Vegas Police Department.

Investigator Rodriguez stated that “he had had contact with Mr. Contreras” in the

past, but that Mr. Contreras “was not hauling the narcotics for them” and “was

probably trying to . . . ‘sneak one in under the radar.’” Id. at 40.

      Mr. Contreras was indicted for possessing five kilograms or more of cocaine

with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). Before trial, he gave

notice that he intended “to raise a defense of believed exercise of public authority,”

asserting that “he believed he was acting under the authority of the [DEA], or

possibly other law enforcement agency with authority to investigate drug crimes (in

particular the California Department of Justice/Bureau of Firearms, the Las Vegas

Police Department, and/or [ICE].” R., Vol. I at 11. He also asserted that “he was

acting at the direction of, and under the authority of, Francisco Espino[s]a

Insunza, . . . a registered informant for one or more of the above listed agencies.” Id.

      At trial, Investigator Rodriguez testified that Mr. Espinosa was “signed up

through [their] narcotics unit as an informant,” id., Vol. IV at 60, and also “worked

with an agency out of California,” id. at 64. According to Investigator Rodriguez,

Mr. Espinosa informed him on November 13, 2010, that “he had a vehicle loaded

with cocaine headed towards Chicago,” id., and that the driver, Mr. Contreras,

“wanted to give up pretty much the load to law enforcement but did not want to be

stopped with the vehicle,” id. at 65. Investigator Rodriguez told Mr. Espinosa that

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his office could not do anything with the information, but he gave Mr. Espinosa the

name and phone number of a DEA agent in Chicago who Mr. Contreras could call to

see if the DEA was interested.

      Mr. Espinosa apparently gave Investigator Rodriguez’s phone number to

Mr. Contreras. Investigator Rodriguez testified to a brief telephone conversation

with Mr. Contreras the day before he was arrested, in which he told Mr. Contreras

simply “to reach out to Chicago contact when he got there.” Id. at 70. Investigator

Rodriguez was upset that Mr. Espinosa had given out his phone number, and he did

not want to speak with Mr. Contreras because he was not signed up as an informant

and he “didn’t know who he was,” id. at 81.

      Mr. Espinosa testified that he and Mr. Contreras were friends, and that when

he learned of the planned narcotics delivery, he told Mr. Contreras that he would

“talk to [his] agent in Las Vegas and then . . . figure out what could be done.” Id.

at 249. According to Mr. Espinosa, when he called Investigator Rodriguez about the

narcotics, Investigator Rodriguez told him “we cannot work” with such short notice

and that he should tell Mr. Contreras to stop. Id. at 276. Mr. Espinosa stated that he

told Mr. Contreras to stop, but for reasons unclear from Mr. Espinosa’s testimony,

Mr. Contreras proceeded onward. Finally, Mr. Espinosa testified he did not relay the

DEA agent’s contact information to Mr. Contreras and that he, himself, had not made

contact.




                                          -4-
      Special agent Jose Cuellar from the California Department of Justice testified

that Mr. Espinosa worked for him as an informant, and that Mr. Espinosa did not

contact him about the delivery involving Mr. Contreras prior to his arrest. He further

testified that Mr. Contreras had attempted on several occasions prior to his arrest to

provide narcotics information, but he (Cuellar) told him that he could not work with

him because Mr. Contreras was already employed by ICE. Further, Agent Cuellar

indicated that he did not “in any way authorize Mr. Contreras’s possession of” the

cocaine. Id. at 117.

      Mr. Contreras testified in his defense. He admitted that when he was recruited

to transport the cocaine into the United States, he no longer was employed as an

informant. He claimed, however, that Agent Cuellar had once told him “that any job

we were going to do together we should do it through his informants . . . and then we

would split the [payment].” Id. at 391. Consequently, Mr. Contreras approached

Mr. Espinosa and asked him to “talk to [his] superiors and . . . see if they will

give . . . the go-ahead [for] this job.” Id. at 392. Espinosa purportedly called back

and “said that his superiors said go ahead.” Id. at 392-93. After passing through an

immigration checkpoint on November 13, Mr. Contreras stated that he called

Mr. Espinosa and told him, “Now you know everything is okay,” to which

Mr. Espinosa allegedly answered, “Yes, everything is under control.” Id. at 409.

      After the close of evidence, the district court turned to finalizing the jury

instructions and announced it would not instruct the jury on Mr. Contreras’s


                                          -5-
public-authority defense.1 The district court’s ultimate reasoning is not in the record,

but throughout the proceedings the judge expressed concern as to whether there

would be any evidence showing that a government agent had authorized

Mr. Contreras’s actions.

       During deliberations, the jury could not reach a verdict on the charged offense,

but returned a guilty verdict on the lesser-included offense of simple possession. The

court sentenced Mr. Contreras to 24-months’ imprisonment, and he has since served

that sentence and been released.

                                      DISCUSSION

       Mr. Contreras argues that the district court erred by refusing to instruct the

jury on the defense of public authority. “We review the district court’s decision to

give or to refuse a particular jury instruction for abuse of discretion.” United

States v. Diaz, 679 F.3d 1183, 1188 (10th Cir. 2012) (internal quotation marks

omitted). But “[a] criminal defendant is entitled to an instruction as to any

recognized defense for which there exists evidence sufficient for a reasonable jury to

find in his favor.” United States v. Apperson, 441 F.3d 1162, 1204 (10th Cir. 2006)


1
       Mr. Contreras’s proposed instruction read:
       If you find that Mr. Contreras was acting or reasonably believed he was
       acting on behalf of a law enforcement agency or officer when he
       engaged in the narcotics transaction charged in the indictment, then you
       must acquit him of this charge.

R., Vol. I at 36.


                                          -6-
(internal quotation marks omitted). “A district court’s failure to give such an

instruction constitutes reversible error.” Id. “The district court, however, is not

required to give a theory of the defense instruction which lacks a reasonable legal and

factual basis.” United States v. Gallant, 537 F.3d 1202, 1233 (10th Cir. 2008)

(internal quotation marks omitted).

      “The public authority defense requires a defendant to show that he was

engaged by a government official to participate in a covert activity.” Apperson,

441 F.3d at 1204 (internal quotation marks omitted). And when the government

official engages a defendant to participate in a violation of federal law, that official

must actually have the authority to empower such a violation. See United States v.

Baker, 438 F.3d 749, 754 (7th Cir. 2006) (noting that under the public-authority

defense state and local law-enforcement officers generally cannot exempt violations

of federal law). “[A]s our sister circuits see it, the public authority defense is limited

to those situations where the communication was from a government official acting

with actual authority, and not merely apparent authority.” United States v.

Stallworth, 656 F.3d 721, 727 (7th Cir. 2011) (collecting cases), cert. denied, 132 S.

Ct. 1597 (2012). But this court has not yet decided whether apparent authority is

sufficient for a public-authority defense.

      Mr. Contreras does not contend that a government official with actual

authority sanctioned his conduct. Rather, he claims that he reasonably believed he

was exercising public authority based on his interactions with Mr. Espinosa and


                                             -7-
Investigator Rodriguez. We need not decide whether such a claim is cognizable

under the public-authority defense because, even if it were, as we detail below,

Mr. Contreras has shown no reasonable basis to justify a belief he was acting at the

behest of any government official.2

      Initially, we note that Mr. Contreras’s public-authority notice did not mention

Investigator Rodriguez, but instead relied solely on Mr. Espinosa. But even if we

overlook that omission, there is no evidence that Investigator Rodriguez encouraged

Mr. Contreras or otherwise led him to believe he should proceed with the narcotics

delivery. Indeed, Investigator Rodriguez did nothing more than suggest to

Mr. Contreras, after he had already begun his journey, to reach out to DEA in

Chicago. And he had told Mr. Espinosa, who was in contact with Mr. Contreras

throughout the trip, that he (Rodriguez) could not do anything with the narcotics

2
       Mr. Contreras argues that his public-authority defense is consistent with
Federal Rule of Criminal Procedure 12.3(a)(1), which requires a defendant to give
notice if he “intends to assert a defense of actual or believed exercise of public
authority on behalf of a law enforcement agency or federal intelligence agency at the
time of the alleged offense.” (Emphasis added.) The Fourth Circuit has rejected just
such an argument:

      Since Rule 12.3 is merely a notice provision and does not in any way
      alter the substantive legal standards with regard to the public authority
      defense, we agree with the Third Circuit’s conclusion in [United
      States v. Pitt, 193 F.3d 751 (3d Cir. 1999)] “that the law in jurisdictions
      where actual authority was required was not altered” by the
      promulgation of Rule 12.3. 193 F.3d at 757.

United States v. Fulcher, 250 F.3d 244, 254 n.5 (4th Cir. 2001). In any event, we
need not decide the effect of Rule 12.3 on the public-authority defense given the lack
of evidentiary support for Mr. Contreras’s view of the defense.

                                         -8-
delivery. Moreover, Mr. Espinosa testified that Investigator Rodriguez said to stop,

and that he (Espinosa) relayed that command to Mr. Contreras. Even Mr. Contreras

testified that the impetus for undertaking the delivery was not any specific

communication with Investigator Rodriguez, but rather, some vague conversation

with Agent Cuellar about working with Cuellar’s informants. And even then, Agent

Cuellar testified that he repeatedly told Mr. Contreras that he could not work with

him.

       Additionally, there is no evidence that would have justified Mr. Contreras’s

belief that he was working with the approval of government agents through

Mr. Espinosa. Although Mr. Contreras testified that Mr. Espinosa had told him that

his handlers had approved the controlled delivery, there is absolutely no

corroborating evidence of such approval. Significantly, Mr. Contreras’s own

testimony suggests that he was pursuing the delivery on his own accord, as he claims

to have reassured Mr. Espinosa after passing through a checkpoint, telling him, “Now

you know everything is okay,” R., Vol. IV at 409.

       Mr. Contreras’s behavior after being stopped by Officer Halliburton further

belies his claim that he believed he was acting with government authorization.

Indeed, he lied about everything from vehicle ownership to the presence of

narcotics—even after he learned of the drug dog’s alert.




                                         -9-
      In short, we see no evidence outside of Mr. Contreras’s own, sometimes vague

and contradictory testimony, that would have supported his defense-of-public-

authority instruction.

                                   CONCLUSION

      The judgment of the district court is AFFIRMED. We GRANT the

government’s unopposed motion to dismiss the sentencing component of this appeal

as moot.

                                                Entered for the Court


                                                Jerome A. Holmes
                                                Circuit Judge




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