     Case: 11-40488   Document: 00511898307       Page: 1   Date Filed: 06/25/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                       FILED
                                                                      June 25, 2012

                                    No. 11–40488                      Lyle W. Cayce
                                                                           Clerk

UNITED STATES OF AMERICA,

                                               Plaintiff – Appellee
v.

ORLANDO JESUS HALE, also known as Chacho,

                                               Defendant – Appellant



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



Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
        This appeal involves former Laredo Police Officer Orlando Jesus Hale’s
jury trial conviction for (i) conspiracy to possess with intent to distribute more
than 5 kilograms of cocaine, and (ii) using or carrying a firearm in relation to a
drug trafficking offense or possessing a firearm in furtherance of a drug
trafficking offense. Hale challenges numerous aspects of his trial and sentencing.
For the following reasons, we affirm Hale’s conviction and sentence.
                                          I.
        In the fall of 2008, Laredo Police Officer Pedro Martinez, III, contacted his
friend Juan “Guero” Hernandez and asked Guero if he could supply cocaine to
   Case: 11-40488   Document: 00511898307      Page: 2   Date Filed: 06/25/2012



                                 No. 11–40488

Martinez’s father. At the time, Martinez’s father was trying to become a
middleman who would resell the cocaine to his known drug dealer acquaintance
at a higher price. Martinez believed his father would share with him the profits
gained from any future drug transactions. In response to the request, Guero
introduced Martinez to Adolfo “Tony” Baesa, Jr., who Guero said was his uncle
and who had access to large quantities of cocaine. Unbeknownst to Martinez,
Guero was a confidential informant for the Bureau of Alcohol, Tobacco, and
Firearms, and Tony was not Guero’s uncle but an undercover agent for the
Federal Bureau of Investigation (FBI).
      In order to gain Tony’s trust, Martinez agreed to act as an escort for a
vehicle Tony and Guero said was carrying cocaine. On the night of October 15,
2008, Martinez, driving his police cruiser, escorted one of Tony’s vehicles across
town. Martinez believed the vehicle contained 20 kilograms of cocaine. At one
point during the escort, Martinez heard a helicopter and became suspicious of
the situation, and at another point he had to pause the escort to respond to a
police call because he was still on duty. During the escort Martinez contacted
Guero to ask about the helicopter. Guero reassured him that nothing was wrong
with the situation and said that the escort was only a “dry run,” meaning no real
cocaine was actually being transported. Martinez did not believe that the escort
was merely a dry run as Guero suggested, but felt reassured nonetheless and
completed the escort as planned. After completing the escort, Martinez met with
Tony and was paid $1,000. He and Tony also discussed the possibility of future
escorts, at which time Martinez said he had another police officer in mind if
Tony needed additional help.
      A few days after the initial escort, Martinez told Hale—his friend and
fellow Laredo Police Officer—that he had a way for Hale to make some “easy
money.” After asking whether Martinez thought his contacts were undercover
agents, Hale said he was interested and agreed to meet Guero and Tony.

                                        2
  Case: 11-40488    Document: 00511898307     Page: 3   Date Filed: 06/25/2012



                                 No. 11–40488

Martinez never told Hale specifics about his prior cocaine escort which Guero
had said was only a dry run.
      Hale met with Martinez and Guero several times prior to the next escort.
On November 7, 2008, Hale, Martinez, Guero, and Tony all met in an Embassy
Suites hotel room to discuss plans for another cocaine escort. Upon arriving at
the hotel, Hale took a semiautomatic handgun from his vehicle, cocked it, tucked
it into the back waistband of his jeans, and covered it with his t-shirt before
walking inside. The meeting lasted approximately one hour, during which time
everyone agreed that on future escorts Hale and Martinez would keep their
weapons on them, use personal vehicles, use police-issued handheld radios to
monitor police channels, and use Nextel push-to-talk phones because they are
similar to walkie-talkies and difficult to track. Also during the meeting, Tony
distributed new Nextel phones still in the boxes. Hale opened the boxes without
leaving fingerprints on them and programmed into the phones each of the
participants’ phone numbers. FBI agents made audio and video recordings of the
meeting using a hidden camera.
      On the evening of November 13, 2008, Hale and Martinez each escorted
across town vehicles which they were told were transporting 20 kilograms of
cocaine. Unbeknownst to Hale or Martinez, no actual cocaine was used in the
transports. Neither Hale nor Martinez were paid for these escorts until they
drove to San Antonio approximately one week later, where one of Tony’s
associates, also an undercover FBI agent, paid each of them $1,000. Guero and
Tony attempted to arrange one more cocaine escort on November 19, 2008—this
time using real cocaine—but neither Hale nor Martinez was available because
they were both on duty.
      At some point in November 2008, Martinez recorded several of his
conversations with Guero. Martinez then told Laredo Police Department
Narcotics Sergeant Robert Medina that he had received a telephone call from

                                       3
   Case: 11-40488   Document: 00511898307     Page: 4   Date Filed: 06/25/2012



                                 No. 11–40488

somebody about possibly escorting cocaine shipments. Martinez did not tell
Sergeant Medina that he knew the person, that he had already recorded several
conversations, or that he had already been paid for performing an escort.
Martinez also never mentioned Hale’s involvement. Sergeant Medina advised
Martinez to take the information to Internal Affairs, which Martinez did not do,
and to record any future telephone calls. Martinez later informed Hale about the
recordings and about his conversation with Sergeant Medina. Martinez advised
Hale that they could use the recordings and his conversation with Sergeant
Medina for their defense as an “undercover thing between us” if they were ever
caught. However, Martinez was not authorized to organize or sanction an
undercover operation and he never told Hale that he had been authorized by
Sergeant Medina to engage in an official undercover operation or that he had the
authority to permit Hale to do so. At no time did Martinez or Hale receive
specialized training on undercover work, follow formal Laredo Police
Department protocol for undercover work, or request or receive pay for
performing undercover work related to the cocaine escorts.
      Approximately ten months later on September 29, 2009, FBI agents
lawfully searched Martinez’s father’s home. When Martinez arrived at the home,
his father was already being interviewed by FBI agents. Martinez was also
interviewed by FBI agents and during the interview agreed to initiate and record
a telephone conversation with Hale. During the call, Martinez said that his
father’s house had been raided by the FBI. When asked, Hale said he
remembered performing the escorts, but he hung up the phone when Martinez
broached the subject of receiving payments.
      Several days later on October 1, 2009, FBI agents arranged with the
Laredo Police Department to have Hale dispatched to a local hotel room under
the auspices of a burglary call in order to allow the FBI agents to conduct an
interview of Hale. At the hotel room, the FBI agents, led by lead case agent Troy

                                       4
   Case: 11-40488   Document: 00511898307      Page: 5   Date Filed: 06/25/2012



                                 No. 11–40488

McAdoo, initiated a consensual interview with Hale where they produced several
pictures taken from the hidden camera at the Embassy Suites meeting almost
a year earlier. Agent McAdoo told Hale that they had been investigating his
participation in the cocaine escort operation and that they were aware of his
various meetings with Martinez, Guero, and Tony; the November 13, 2008
cocaine escorts; and the $1,000 payment he received in San Antonio. Hale
admitted to Agent McAdoo during the interview that he knew Martinez,
Martinez’s father, and Guero; that he recognized from the pictures where the
Embassy Suites meeting had taken place; and that he remembered the purpose
of the Embassy Suites meeting. During the interview, Agent McAdoo witnessed
Hale’s demeanor change from being calm when he arrived at the hotel room to
being sick to the point of dry-heaving when he learned of the FBI’s investigation
into his past conduct. Eventually Hale chose to leave the hotel room and Agent
McAdoo terminated the interview.
      Around this same time, the Laredo Police Chief ordered that Martinez be
placed on administrative duty. Martinez resigned from the Laredo Police
Department several months later on February 16, 2010. On February 17, 2010,
Martinez pleaded guilty to conspiracy to possess with intent to distribute more
than 5 kilograms of cocaine. He was sentenced to 78 months of imprisonment
and later became one of the government’s key witnesses against Hale.
                                       II.
      Hale was indicted for (i) conspiracy to possess with intent to distribute
more than 5 kilograms of cocaine, and (ii) using or carrying a firearm in relation
to a drug trafficking offense or possessing a firearm in furtherance of a drug
trafficking offense. On April 29, 2010, Hale made his initial appearance in court.
Thereafter, Hale was placed on unpaid leave from the Laredo Police Department
and was released on bond but subject to house arrest and monitoring.



                                        5
   Case: 11-40488   Document: 00511898307      Page: 6   Date Filed: 06/25/2012



                                 No. 11–40488

      On June 17, 2010, the government filed a motion to continue based on the
ends of justice, asserting that Agent McAdoo, the FBI’s “primary case agent” and
one of the government’s “crucial witnesses,” had suffered a family emergency
and was unable to be present for trial which was set to begin on June 21, 2010.
Hale objected to the motion. The district court granted the government’s motion
without a hearing and reset the trial date to August 2, 2010.
      On July 20, 2010, the government filed a superseding indictment against
Hale, charging him with the same two counts contained in the original
indictment—the conspiracy and firearms charges—as well as four new counts
of mail and wire fraud related to a separate investigation involving an alleged
car theft insurance scheme. At a July 30, 2010 hearing, the district court granted
Hale’s request for an additional 30 days to prepare for trial on all six counts.
      On September 16, 2010, Hale filed a motion to dismiss based on a Speedy
Trial Act violation, which the district court denied at a hearing on September 17,
2010. During the hearing the district court reasserted its reasons for granting
the government’s motion to continue and for granting Hale’s 30-day request for
additional preparation time, in each case citing the ends-of-justice provision of
the Speedy Trial Act.
      The trial commenced on September 17, 2010. During the course of the six-
day trial, the government presented numerous witnesses (including Martinez,
Guero, Tony, and Agent McAdoo) who each testified to the events surrounding
the cocaine escort scheme and the undercover FBI operation. The government
also presented numerous exhibits (including photographs, video and audio
recordings, and the handgun Hale brought to the Embassy Suites meeting) to
help establish Hale’s involvement in the scheme.
      Hale chose to take the stand and testify on his own behalf. He testified
that he became a Laredo Police Officer near the end of 2007 and thereafter
became close with Martinez because they patrolled the same district and had the

                                        6
   Case: 11-40488    Document: 00511898307      Page: 7   Date Filed: 06/25/2012



                                  No. 11–40488

same work shifts. He said he trusted Martinez and often looked to him for
backup and advice. Describing the cocaine escort activities, Hale testified that
Martinez told him about a person named Guero who had contacted Martinez
about possibly escorting cocaine for money. Hale said Martinez asked him if he
would help conduct an investigation into Guero and Tony so that Martinez could
earn a promotion to join the narcotics division. Hale said he agreed to help
Martinez with an investigation but that he never personally discussed the
investigation with Sergeant Medina or filled out any formal undercover reports
or paperwork. Hale testified that he just went along with Martinez in the
various meetings with Guero and at the Embassy Suites meeting with Guero
and Tony. Hale also testified that Martinez told him there would not be any
actual drugs in the vehicles they escorted on November 13, 2008, statements
Martinez denied making. Hale admitted to receiving $1,000 from one of Tony’s
associates when he drove with Martinez and Guero to San Antonio in November
2008, but said that he later gave the $1,000 to Martinez to log into evidence,
something Martinez also denied.
      On September 27, 2010, the jury returned a verdict of guilty on count one
of conspiracy to possess with intent to distribute more than 5 kilograms of
cocaine, and count two of using or carrying a firearm in relation to a drug
trafficking offense or possessing a firearm in furtherance of a drug trafficking an
offense. The jury returned a verdict of not guilty on counts three through six
related to wire and mail fraud for the alleged car theft insurance scheme.
      On April 11, 2011, the district court sentenced Hale to a total of 295
months of imprisonment and five years of supervised released, and fined him
$2,000. Hale timely appealed.
                                       III.
      On appeal Hale challenges whether: (i) the district court erred in failing
to grant Hale’s motions to dismiss based on a Speedy Trial Act violation; (ii) the

                                        7
   Case: 11-40488    Document: 00511898307      Page: 8    Date Filed: 06/25/2012



                                   No. 11–40488

district court erred in excluding several out-of-court statements made by
Martinez and Martinez’s father as inadmissible hearsay; (iii) the district court
plainly erred in refusing to instruct the jury with more detail on the substantive
crime underlying the conspiracy; (iv) the district court abused its discretion in
refusing to instruct the jury on Hale’s proposed affirmative defenses of “public
authority” and “entrapment by estoppel;” (v) there was sufficient evidence in the
record for a rational jury to find Hale guilty of the firearms charge beyond a
reasonable doubt; (vi) the district court erred in responding to the jury’s question
during deliberations regarding the use of fake cocaine during the escorts; and
(vii) the district court clearly erred by enhancing Hale’s sentence for “obstruction
of justice” and “abuse of a position of trust.” We address each issue in turn.
                                        A.
      Hale asserts that the length of time between his initial appearance on
April 29, 2010, and his trial which began on September 17, 2010—a total of 142
calendar days—violated his statutory right to a speedy trial within 70 days. See
Speedy Trial Act, 18 U.S.C. § 3161 et seq.
      The Speedy Trial Act requires that a trial commence within 70 days of a
defendant’s initial appearance, see § 3161(c)(1), subject to certain exceptions and
tolling periods, see § 3161(h). Days that are excluded in computing the time
within which a trial must commence include any period of delay resulting from:
(i) the court’s consideration of any pretrial motion, § 3161(h)(1)(D); (ii) the
absence or unavailability of an essential witness, § 3161(h)(3); and (iii) the grant
of a continuance on the basis of the court’s finding that the ends of justice served
by taking such action outweigh the best interest of the public and the defendant
in a speedy trial, § 3161(h)(7).
      Hale challenges three determinations made by the district court with
respect to the days countable toward the 70-day speedy trial clock. First, he
challenges the district court’s ruling that any Speedy Trial Act claim was waived

                                         8
   Case: 11-40488    Document: 00511898307      Page: 9   Date Filed: 06/25/2012



                                  No. 11–40488

when he failed to file his motion to dismiss before the district court’s scheduling
order deadline for filing all pretrial motions. Second, he challenges the district
court’s grant of the government’s June 17, 2010 motion to continue, arguing that
the ends of justice were not met by granting the continuance. And third, he
challenges the district court’s exclusion of the 30-day preparation period which
he requested on July 30, 2010. The parties agree that the Speedy Trial Act would
be violated if the district court erred in excluding either the 43-day continuance
granted pursuant to the government’s motion or the 30-day continuance granted
pursuant to Hale’s request for additional preparation time.
                                        1.
      On September 17, 2010, the first day of trial and the day after Hale filed
his first motion to dismiss based on a Speedy Trial Act violation, the district
court held that Hale had waived his right to file the motion by failing to comply
with the court’s July 28, 2010 scheduling order which had set August 9, 2010,
as the deadline for “filing all pre-trial motions (including motions for discovery,
suppression, etc.).” “We review the district court’s administrative handling of a
case, including its enforcement of the local rules and its own scheduling orders
for abuse of discretion.” Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th
Cir. 2002).
      Federal Rule of Criminal Procedure 12 governs pleadings and pretrial
motions. Rule 12(b)(3)(A) describes motions that must be made before trial and
includes “a motion alleging a defect in instituting the prosecution.” Rule 12(c)
provides that a district court may “set a deadline for the parties to make pretrial
motions.” And Rule 12(e) provides that a party “waives any Rule 12(b)(3)
defense, objection, or request not raised by the deadline the court sets under
Rule 12(c) or by any extension the court provides.”
      Hale does not dispute that the district court set an August 9, 2010
deadline for all pretrial motions and that he did not file a motion to dismiss

                                        9
  Case: 11-40488    Document: 00511898307       Page: 10   Date Filed: 06/25/2012



                                  No. 11–40488

based on a Speedy Trial Act violation until September 16, 2010. However, he
argues that (i) the scheduling order was vague because it did not specifically
include Speedy Trial Act violations in its list of motions covered by the
scheduling order, and (ii) the operation of Rule 12 cannot completely foreclose
a defendant’s right to file a motion to dismiss based on a Speedy Trial Act
violation because such a motion may only become available after the deadline set
by the scheduling order has passed. The government responds that the
scheduling order was not vague but was explicit and inclusive of all pretrial
motions, and that our precedent “squarely foreclosed” Hale’s argument regarding
the scheduling order deadline.
      The government is correct only on the first point. The district court’s
scheduling order set August 9, 2010, as the deadline for “filing all pre-trial
motions (including motions for discovery, suppression, etc.).” The phrase “all pre-
trial motions” is explicit and inclusive and the parenthetical listing several types
of motions explains but does not limit the scope of the order. The scheduling
order is not vague and it is clearly meant to cover any pretrial motion either
party intends to file.
      However, we agree with Hale that it is an abuse of discretion for a district
court to find that, pursuant to Rule 12(e), a defendant prospectively waived his
right to file a motion to dismiss based on a Speedy Trial Act violation. See Zedner
v. United States, 547 U.S. 489, 500–03 (2006) (holding a defendant could not
prospectively waive his right to make a Speedy Trial Act claim); see also
§ 3162(a)(2) (“Failure of the defendant to move for dismissal prior to trial or
entry of a plea of guilty or nolo contendere shall constitute a waiver of the right
to dismissal under this section.”) (emphasis added). In Zedner, the Supreme
Court’s reasoned that prospective waivers are very different than the
retrospective waivers countenanced by § 3162(a)(2) and are therefore
impermissible. 547 U.S. at 501–03. Making compliance with Rule 12(b) (required

                                        10
  Case: 11-40488    Document: 00511898307      Page: 11   Date Filed: 06/25/2012



                                  No. 11–40488

pretrial motions), Rule 12(c) (scheduling orders), and Rule 12(e) (waiver)
applicable to motions to dismiss based on Speedy Trial Act violations would thus
impermissibly force a defendant to prospectively waive his right to a speedy trial
for the period of time between the filing deadline and the start of trial.
      Moreover, United States v. Westbrook, 119 F.3d 1176 (5th Cir. 1997), which
the government asserts has “squarely foreclosed” this issue, was decided almost
a decade before Zedner and dealt primarily with whether one defendant’s filing
of a motion to dismiss based on a Speedy Trial Act violation was effective for his
three co-defendants who did not expressly join in the motion. See 119 F.3d at
1184–85. It did not expressly decide that motions to dismiss for a Speedy Trial
Act violation must be filed before trial and before any scheduling deadline. Id.
Westbrook’s determination that, pursuant to Rule 12(b) and (e), a Speedy Trial
Act violation “is a defense, objection ,or request ‘which must be made prior to
trial,’” does not answer the question of whether a district court’s scheduling
order deadline established pursuant to Rule 12(c) is effective against a claim of
a Speedy Trial Act violation. See id. (citing FED. RULE CRIM. P. 12(b) and (e) but
not (c)). Ultimately, Westbrook is distinguishable from this case, and is abrogated
by Zedner insofar as it can be read to have held that a Speedy Trial Act violation
is a “defect in instituting the prosecution” that must be raised in a motion which
complies with a district court’s Rule 12 deadline for pretrial motions. See FED.
RULE CRIM. P. 12(b)(3)(A); Zedner, 547 U.S. at 501–03.
      In this case, the district court’s ruling that Hale waived his right to move
for dismissal based on a Speedy Trial Act violation effectively forced Hale to
prospectively waive his rights under the Speedy Trial Act from August 9, 2010,
through September 17, 2010—a period of 40 days. We find that a defendant
cannot prospectively waive his right to assert a Speedy Trial Act claim
voluntarily under Zedner, and cannot be forced to prospectively waive his right
pursuant to Rule 12. Accordingly, based on Zedner and the text of § 3162(a)(2),

                                        11
  Case: 11-40488    Document: 00511898307       Page: 12   Date Filed: 06/25/2012



                                  No. 11–40488

which simply requires that motions to dismiss based on Speedy Trial Act
violations be filed “prior to trial,” we hold that it was an abuse of discretion for
the district court to find that Hale waived his right to file a motion to dismiss
based on a Speedy Trial Act violation when he failed to file it before the
scheduling order deadline of August 9, 2010.
      However, because the district court made an alternative holding on the
merits that the Speedy Trial Act was not violated because the number of
countable days totaled fewer than 70, we must reach the substantive question
of whether the Speedy Trial Act was in fact violated.
                                         2.
      Hale challenges the district court’s grant of the government’s motion to
continue, arguing both that there were no grounds for an ends-of-justice
continuance under § 3161(h)(7) and that Agent McAdoo was not an unavailable
essential witness whose attendance could not be obtained by due diligence.
      The government filed its motion under seal on June 17, 2010, requesting
an ends-of-justice continuance. The motion asserted that Agent McAdoo, the
FBI’s “primary case agent” and one of the government’s “crucial witnesses,”
experienced a family emergency on June 15, 2010. It stated that Agent McAdoo’s
wife was hospitalized in Fort Worth near their home, and that he needed to
remain in Fort Worth to provide immediate care for their two young children, to
determine how to provide for long-term child and medical care, and to stabilize
the medical emergency situation. It also stated that Agent McAdoo had
“conducted an interview of and received an incriminating statement” from Hale
and “directed, led, supervised, planned, implemented, and executed all but one
of the key operational plans in the course of the investigation.” The motion cited
the Speedy Trial Act and stated that the ends of justice were satisfied and “that
the delay would avoid a miscarriage of justice by allowing for the testimony of
a critical witness . . . and would allow counsel for the defendant and attorney for

                                        12
  Case: 11-40488    Document: 00511898307      Page: 13   Date Filed: 06/25/2012



                                 No. 11–40488

the Government the reasonable time necessary for effective preparation, taking
into account the exercise of due diligence.”
      Hale filed an objection on June 18, 2010. In his objection, Hale asserted
that he would be prejudiced by a continuance because he was suspended without
pay from his job, he was under house arrest, and a jury had already been
selected. Hale also stated that the government had not shown that Agent
McAdoo was unable to attend trial because “Laredo has several facilities that
could provide short term child care” and “[Agent] McAdoo could appear in Laredo
during one day and return to his wife and kids in Fort Worth.” Hale also
challenged the government’s assertions that Agent McAdoo had taken an
incriminating statement and was a crucial witness.
      The district court signed an order granting the motion on June 22, 2010.
The order provided that:
      The court finds that the ends of justice are satisfied by the granting
      of this continuance to August 2, 2010 in order to avoid a miscarriage
      of justice by the failure to grant the continuance. Special Agent Troy
      L. McAdoo is a critical fact witness, one who purports to have heard
      the alleged criminal admissions of the defendant and who was the
      lead case agent throughout the entire course of the two-year
      investigation. For reasons completely out of his control, Agent
      McAdoo experienced an immediate and catastrophic family medical
      emergency arising out of the witness’ wife hospitalization. The
      witness’ physical presence is required immediately in Fort Worth as
      he is the sole remaining care giver of his and his wife’s two small
      children. The witness’ wife will likely require arrangements for
      treatment at a mental health facility once she is released from the
      hospital. While the defendant opposes the continuance, the court
      finds that, as the defendant is out on bond and the evidence is
      readily available, that there is no indication of prejudice and that
      evidence will or might perish in the interim. Furthermore, a denial
      of the continuance would have the effect of denying the attorney for
      the Government, reasonable time for effective trial preparation
      taking into account the diligence and the Government’s critical need
      for the witness. Finally, as the emergency was completely
      unforeseen and unforeseeable, the granting of this continuance was

                                       13
  Case: 11-40488    Document: 00511898307       Page: 14   Date Filed: 06/25/2012



                                  No. 11–40488

      not the result of a lack of diligent preparation or a failure to obtain
      available witnesses on the part of the attorney for the Government.
      Subsequently, at a hearing on September 17, 2010, concerning Hale’s
motion to dismiss based on a Speedy Trial Act violation, the district court
reiterated its reasons for granting the government’s June 17, 2010 motion to
continue, relying again on the ends of justice.
      “We review the district court’s factual findings supporting its Speedy Trial
Act ruling for clear error and its legal conclusions de novo.” United States v.
Stephens, 489 F.3d 647, 652 (5th Cir. 2007). “A judge’s finding that a
continuance would best serve the ends of justice is a factual determination
subject to review under the clearly erroneous standard.” United States v. Eakes,
783 F.2d 499, 503 (5th Cir. 1986).
      The Speedy Trial Act permits a judge to grant a motion to continue “on the
basis of his findings that the ends of justice served by taking such action
outweigh the best interest of the public and the defendant in a speedy trial.”
§ 3161(h)(7)(A). However,
      [n]o such period of delay resulting from a continuance granted by
      the court in accordance with this paragraph shall be excludable
      under this subsection unless the court sets forth, in the record of the
      case, either orally or in writing, its reasons for finding that the ends
      of justice served by the granting of such continuance outweigh the
      best interests of the public and the defendant in a speedy trial.
Id. Moreover, no ends-of-justice continuance can be granted because of “lack of
diligent preparation or failure to obtain available witnesses on the part of the
attorney for the Government.” Id. § 3161(h)(7)(C).
      Here, the district court’s June 22, 2010 order provided its reasons for
granting the government’s motion to continue, and its statements at the
September 17, 2010 hearing permissibly supplemented those reasons. See
Zedner, 547 U.S. at 506–07 (accepting a district court’s later-expressed reasons
for granting an ends-of-justice continuance so long as the reasons are put on the

                                        14
  Case: 11-40488    Document: 00511898307      Page: 15   Date Filed: 06/25/2012



                                  No. 11–40488

record prior to a ruling on a defendant’s motion to dismiss under § 3162(a)(2)).
The district court’s reasons for finding that the ends of justice supported
granting the continuance focused on the emergency nature of the medical
situation, the necessity that Agent McAdoo remain in Fort Worth for the near
term, the integral role Agent McAdoo played in the investigation, the
expectation that he would testify to, among other things, Hale’s demeanor and
several of his “admissions” during the hotel room interview on October 1, 2009,
and the perceived lack of prejudice that would result from a continuance.
Additionally, the district court expressly found that the continuance “was not the
result of [the government’s] lack of diligent preparation or a failure to obtain
available witnesses.”
      The medical emergency situation in this case was unforeseeable and
unavoidable, and the district court’s reasons for granting the continuance are
quite persuasive and are set forth at length in the order and on the record. We
find that the district court’s findings made in its June 22, 2010 order and at the
September 17, 2010 hearing are sufficient to satisfy the requirements of an ends-
of-justice continuance under § 3161(h)(7)(A) and are not clearly erroneous. See,
e.g., United States v. Lopez, 426 F. App’x 260, 263 (5th Cir. 2011) (finding no
clear error where continuance was granted due to a co-defendant’s counsel’s
conflicting trial schedule and the government’s difficulty in securing travel plans
for witnesses); United States v. Howard, 218 F.3d 556, 562–63 (6th Cir. 2000)
(upholding ends-of-justice continuance of four months where prosecution witness
went into premature labor and doctor told her to “avoid stress”); United States
v. Twitty, 107 F.3d 1482, 1489 (11th Cir. 1997) (upholding ends-of-justice
continuance where an essential witness was in “ill health”); United States v.
Meyer, 803 F.2d 246, 247–48 (6th Cir. 1986) (upholding ends-of-justice
continuance where an essential government witness had expensive, non-
refundable honeymoon plans).

                                        15
  Case: 11-40488    Document: 00511898307     Page: 16    Date Filed: 06/25/2012



                                 No. 11–40488

      Even so, Hale argues that under United States v. Burrell, 634 F.3d 284
(5th Cir. 2011), we should reject the district court’s findings because the
government did not establish that Agent McAdoo was unavailable and did not
set forth the facts surrounding Agent McAdoo’s family emergency in a sworn
affidavit or other exhibits. In Burrell, we found reversible error where the
district court had rejected a Speedy Trial Act challenge but the government “did
not present any evidence that it made reasonable efforts to secure [a sheriff
deputy witness’s] presence at the schedule trial dates.” 634 F.3d 284, 292. We
reasoned that the Speedy Trial Act’s requirement of “due diligence” requires that
the government provide evidence of its reasonable efforts to secure a witness’s
attendance at a scheduled trial date in order to carry its burden of showing any
delay was not based on its “failure to obtain an available witness.” Id. at 292–93
(citing § 3161(h)(7)(C)).
      However, Burrell does not require the government to provide sworn
affidavits or attach exhibits in order to establish that a witness is unavailable
and the witness’s presence could not be obtained by reasonable efforts. What is
required is for the government to show that it did not fail to use reasonable
efforts to secure an available witness’s attendance. See id. Affidavits and other
evidence may be helpful in convincing a district court or this court that
reasonable efforts were used, but they are not essential. See, e.g., Howard, 218
F.3d at 563 (finding that government attorney’s unverified affidavit describing
witness’s labor and medical issues was sufficient evidence upon which to base
a continuance).
      The government’s motion provides enough information for the district
court to determine that Agent McAdoo was “a critical fact witness” whose family
emergency made him unavailable to attend trial and any efforts to take him
away from his family in Fort Worth the same week the incident occurred would
be unreasonable. We therefore agree that ends of justice were served by the

                                       16
  Case: 11-40488    Document: 00511898307      Page: 17   Date Filed: 06/25/2012



                                  No. 11–40488

district court’s grant of the government’s motion to continue, and find that the
district court’s exclusion from the speedy trial clock of the days between June 17,
2010, and July 30, 2010, was not clearly erroneous.
                                        3.
      Hale also challenges the district court’s determination that the 30 days
from July 30, 2010, to August 29, 2010 were not excludable as an ends-of-justice
continuance. At the September 17, 2010 hearing, the district court stated:
      The court specifically inquired of Mr. Hale and his attorney whether
      they were asserting their right to that additional 30 days. [They]
      both said that they were asserting their right to that additional 30
      days. . . . But that additional 30 days would also toll the running of
      the speedy trial clock. And even if it is not a requirement under the
      statute that the defendant be provided with an additional 30 days,
      clearly here the court granted the continuance because it was at the
      request of the attorney and Mr. Hale. And the statute clearly
      provides that the court can grant a continuance in order to allow
      counsel adequate time to prepare for trial. And, again, that is one of
      those situations where the court didn’t make a specific finding
      because it didn’t think it was necessary at the time, but that is the
      situation where obviously in that case where it is the defense
      counsel asking for more time to prepare for trial. And under all the
      circumstances, it was certainly appropriate for the court to grant
      the additional time to prepare for trial in light of the superseding
      indictment which added more charges, so certainly the ends of
      justice in that instance outweighed the best interest of the public in
      setting the case on the regular speedy-trial calendar. So the court
      also finds that that time should be excluded.
      Hale contends that it was reversible error for the district court to exclude
the 30-day period of additional time he requested in order to prepare for the four
new charges added by the superseding indictment.
      The Speedy Trial Act grants a defendant a 30-day window within which
a trial may not be commenced without the defendant’s written consent,
§ 3161(c)(2), and these days are countable unless otherwise excluded. See United
State v. Bigler, 810 F.2d 1317, 1321–22 (5th Cir. 1987). However, the automatic


                                        17
  Case: 11-40488    Document: 00511898307      Page: 18    Date Filed: 06/25/2012



                                  No. 11–40488

30-day preparation period does not apply to superseding indictments. See United
States v. Rojas-Contreras, 474 U.S. 231, 234–35 (1985) (“Had Congress intended
that the 30-day trial preparation period of § 3161(c)(2) commence or recommence
on [the date of a superceding indictment], it would have so provided.”); Eakes,
783 F.2d at 503 (“A district judge has the discretion to continue a trial under the
ends of justice provision even though the Act does not require an additional
thirty-days after arraignment on a superseding indictment.”). Therefore any
excludable days stemming from a continuance following a superseding
indictment must be justified by a separate statutory provision.
      In this case, the district court relied on § 3161(h)(7), finding on the record
that the ends of justice supported granting Hale’s requested 30-day continuance
so that defense counsel would have time for effective preparation. When
questioned on July 30, 2010, both Hale and his defense counsel expressly
indicated their desire for additional time to prepare. While the district court did
initially indicate (albeit incorrectly) that there may be an automatically
excludable 30-day preparation period following superseding indictments, it
ultimately based its decision to grant the continuance on the determination that
the ends of justice outweighed the best interests of the public in a speedy trial.
Because Hale requested this continuance, we cannot find that this determination
was clearly erroneous.
      With respect to Hale’s argument that government filing a superseding
indictment shortly before his scheduled trial date was unfair, we find that Hale
had options other than simply requesting a 30-day continuance which would toll
the speedy trial clock for the original two charges. Hale could have challenged
the new and unrelated charges contained in the superseding indictment
pursuant to Federal Rule of Criminal Procedure 8(a), which requires that the
charged offenses in an indictment be “of the same or similar character, or are
based on the same act or transaction, or are connected with or constitute parts

                                        18
  Case: 11-40488    Document: 00511898307      Page: 19   Date Filed: 06/25/2012



                                  No. 11–40488

of a common scheme or plan.” He could have filed a motion pursuant to Rule
12(b) for a defect in the indictment. Or he could have filed a motion pursuant to
Rule 14(a) requesting that the court separate the trials of the original two counts
and the four new counts. He also could have filed a motion pursuant to Rule
48(b) for unnecessary delay in adding the new charges to the indictment shortly
before trial we set to begin on the original two charges. Hale waived any
argument he may have had with respect to fairness by failing to directly
challenge the superseding indictment before the district court.
      Ultimately, the original indictment started one speedy trial clock for the
original two charges, and the superseding indictment started a second speedy
trial clock for the four new charges. See United States v. Alford, 142 F.3d 825,
829–30 (5th Cir. 1998); United States v. Gonzalez, 897 F.2d 1312, 1316–17 (5th
Cir. 1990). Absent a specific order from the district court, the 30-day ends-of-
justice continuance requested by Hale tolled both the original and the new
speedy trial clocks. Therefore, because the district court’s decision to grant the
continuance was not clearly erroneous, the district court properly excluded the
30 days from July 30, 2010, to August 29, 2010, from both speedy trial clocks.
      Including the government’s ends-of-justice continuance and Hale’s ends-of-
justice continuance, the final count of non-excludable days is 62 days, well
within the required 70-day period. Accordingly, we agree with the district court
that there was no violation of the Speedy Trial Act.
                                        B.
      Hale challenges the district court’s exclusion of several out-of-court
statements made by Martinez and Martinez’s father as inadmissible hearsay. He
alleges that the statements were admissible under Federal Rules of Evidence
613 and 804, and that exclusion of the statements violated the Confrontation
Clause of the Sixth Amendment. “We review alleged Sixth Amendment
Confrontation Clause violations de novo, but any violations are subject to a

                                        19
  Case: 11-40488     Document: 00511898307      Page: 20   Date Filed: 06/25/2012



                                   No. 11–40488

harmless error analysis.” United States v. Templeton, 624 F.3d 215, 223 (5th Cir.
2010). “If there is no Confrontation Clause violation, we review the district
court’s limitation of cross-examination for abuse of discretion.” Id. We review
evidentiary rulings regarding the admission of evidence “only for an abuse of
discretion.” United States v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996).
                                         1.
        The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. CONST. amend. VI; see Crawford v. Washington, 541 U.S. 36, 42
(2004). “However, ‘the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.’” United States v. Skelton,
514 F.3d 433, 439 (5th Cir. 2008) (quoting Delaware v. Fensterer, 474 U.S. 15, 20
(1985)). Determining whether the exclusion of impeachment evidence is of
constitutional concern depends on the reasons for and effect of the exclusion,
which “typically includes an inquiry into the admissibility of the evidence under
the Federal Rules of Evidence.” Id. at 440; see also Kittelson v. Dretke, 426 F.3d
306, 319 (5th Cir. 2005)).
        In this case Martinez testified as one of the government’s key witnesses
against Hale and the court placed no limitations on defense counsel’s ability to
cross-examine Martinez as to any prior inconsistent statements he may have
made. However, following Martinez’s testimony, Hale sought to provide extrinsic
evidence in the form of prior out-of-court statements made by both Martinez and
Martinez’s father to two FBI agents. The statements allegedly made by Martinez
were:
        •     That Martinez “had brought [the known drug dealer] to his dad’s
              property approximately two years before to help set up a deal for
              [the drug dealer] to store large amounts of cocaine in his dad’s
              house.”

                                         20
  Case: 11-40488    Document: 00511898307     Page: 21   Date Filed: 06/25/2012



                                 No. 11–40488

      •     “That an individual [Martinez] identified only as Guero . . . was
            moving large shipments of cocaine in the Laredo area with his
            family.”
      •     “That on at least two occasions he had provided escorts, but was
            later told by Guero that there was no cocaine. It was only dry runs,
            to test his loyalty.”
      •     That Martinez “reported his actions to Sergeant Robert Medina of
            the Laredo Police Department Narcotics Division.”
The statements allegedly made by Martinez’s father were:
      •     That Martinez’s father “told [one of the FBI agents] that
            approximately two years before the date of September 29, 2009,
            [Martinez] had come to him asking if [the known drug dealer] could
            rent out a room from the house for the storing of large amount of
            cocaine.”
      •     That Martinez’s father “stated that [Martinez] had been present on
            several occasion while cocaine was being broken down while in
            uniform, but that he was not there for protection or he did not
            participate.”
      Hale’s intention was to question the two FBI agents regarding these
statements in an attempt to impeach Martinez’s credibility. The district court
sustained an objection as to the admissibility of such evidence, stating that it
had already permitted a full cross-examination of Martinez, that it did not
believe the statements were admissible either as prior inconsistent statements
or statements against interest, and that they were unreliable.
                                       2.
      Federal Rule of Evidence 613(b) provides that “[e]xtrinsic evidence of a
witness’s prior inconsistent statement is admissible only if the witness is given
an opportunity to explain or deny the statement and an adverse party is given
an opportunity to examine the witness about it, or if justice so requires.” We
have held that “[p]roof of such a statement may be elicited by extrinsic evidence
only if the witness on cross-examination denies having made the statement.”



                                       21
  Case: 11-40488    Document: 00511898307     Page: 22    Date Filed: 06/25/2012



                                 No. 11–40488

United States v. Devine, 934 F.2d 1325, 1344 (5th Cir. 1991); see also United
States v. Leslie, 759 F.2d 366, 379–80 (5th Cir. 1985).
      Hale cannot show that Martinez ever denied making any of the statements
Hale wishes to use as extrinsic impeachment evidence. During cross-
examination, defense counsel asked Martinez about a number of prior
statements he had made and each time Martinez admitted making them.
Defense counsel never confronted Martinez with the four specific statements
Hale later attempted to use while the FBI agents were on the stand. Moreover,
none of the excluded statements were directly inconsistent with anything
Martinez said on the stand or admitted to previously saying. Without a denial
of making the statements or a showing of inconsistency, such statements cannot
be used to impeach a witness’s credibility.
      There were no constitutional concerns raised by the district court’s
exclusion of Martinez’s several out-of-court statements because Hale had an
opportunity to fully cross-examine Martinez about any prior statements he may
have made. As extrinsic evidence used for impeachment purposes only, the out-
of-court statements made by Hale were properly excluded. We find that the
district court did not abuse its discretion when it excluded Martinez’s statements
as inadmissible hearsay. In any case, excluding the statements would be
harmless error due to the overwhelming evidence supporting the jury’s verdict.
United States v. Bell, 367 F.3d 452, 468 (5th Cir. 2004) (noting the court “must
be convinced beyond a reasonable doubt that the error was harmless in light of
the other evidence presented at trial”).
                                        3.
      Federal Rule of Evidence 804 provides that statements are not
inadmissible hearsay if the declarant is unavailable as a witness where
      a reasonable person in the declarant’s position would have made
      [the statement] only if the person believed it to be true because,


                                       22
  Case: 11-40488     Document: 00511898307      Page: 23     Date Filed: 06/25/2012



                                   No. 11–40488

      when made, it . . . has so great a tendency . . . to expose the
      declarant to civil or criminal liability [and] is supported by
      corroborating circumstances that clearly indicate its
      trustworthiness, if it is offered in a criminal case as one that tends
      to expose the declarant to criminal liability.
FED. R. EVID . 804(b)(3). Hale correctly asserts that Martinez’s father (the
declarant    of   two   out-of-court    statements)    was     unavailable     as     a
witness—Martinez’s father committed suicide in 2009—but he cannot establish
either that (i) the statements exposed Martinez’s father to criminal liability, or
(ii) there are other corroborating circumstances that indicate trustworthiness.
      Martinez’s father’s first out-of-court statement reports that his son had
approached him about possibly arranging a room rental in his house for cocaine.
This does not, by itself, expose Martinez’s father to any criminal liability; rather,
it directs any potential criminal liability toward his son and the known drug
dealer. Likewise, Martinez’s father’s second out-of-court statement describes his
son’s presence at the house in uniform while cocaine is being broken down. This
statement also tends to expose his son to potential criminal liability, and does
not necessarily expose himself. Even if both statements did tend to implicate
Martinez’s father in a crime, neither of the statements have “so great a
tendency” to do so that make them inherently reliable. Id.; see also Williamson
v. United States, 512 U.S. 594, 600–01 (1994) (finding proximity to self-
inculpatory statements does not make non-inculpatory collateral statements
admissible); Bell, 367 F.3d at 466–67 (finding statements by an accomplice are
not presumed trustworthy).
      Moreover, there are no corroborating circumstances that clearly indicate
the statements’ trustworthiness. Martinez’s father was likely to become a co-
defendant in the conspiracy scheme had he not committed suicide, making his
statements that tend to implicate others at least as much as himself less credible
and more suspicious than other out-of-court statements. Williamson, 512 U.S.


                                         23
  Case: 11-40488       Document: 00511898307    Page: 24   Date Filed: 06/25/2012



                                  No. 11–40488

at 600–01; Bell, 367 F.3d at 466–67. And even if we were to find some
corroboration in the other evidence (e.g., that Martinez agreed to help his father
try to become a cocaine middleman), there is still enough evidence on which the
jury could rely to convict Hale that improper exclusion of Martinez’s father’s two
out-of-court statements is harmless error. Bell, 367 F.3d 468.
      Accordingly, we find that there were no constitutional concerns raised by
the district court’s exclusion of Martinez’s father’s out-of-court statements and
that it was not an abuse of discretion to exclude such statements as inadmissible
hearsay.
                                        C.
      Hale contends that the district court plainly erred by not instructing the
jury on the substantive crime underlying the conspiracy, actual possession with
intent to distribute cocaine. Because Hale did not object to the district court’s
failure to instruct the jury as to the elements of the substantive crime, we review
for plain error. United States v. Girod, 646 F.3d 304, 315 (5th Cir. 2011). A plain
error is clear or obvious and affects the defendant’s substantial rights. Id. at 315
n.3. Where we find an error to be plain, we reverse only if the error “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
(quotations omitted).
      Hale was charged with conspiracy to possess with intent to distribute more
than 5 kilograms of cocaine and the district court instructed the jury in detail on
each element of that crime. However, Hale was not charged with the substantive
offence underlying the conspiracy—actual possession with intent to distribute
more than 5 kilograms of cocaine—because only “sham” cocaine was used during
the escorts. The district court did not set forth in detail every element of that
crime in the same manner as the conspiracy crime. Instead, the district court
instructed the jury:



                                        24
  Case: 11-40488    Document: 00511898307       Page: 25   Date Filed: 06/25/2012



                                  No. 11–40488

      You will note that the defendant is charged with conspiracy to
      commit the crime of possession with intent to distribute a controlled
      substance, but is not charged with the substantive crime of
      possession with intent to distribute. Nonetheless, the Court
      instructs you that to “possess with intent to distribute” means to
      possess with intent to deliver or transfer possession of a controlled
      substance to another person, with or without any financial interest
      in the transaction. Cocaine is a controlled substance with[in] the
      meaning of the crime. However, the Government is not required to
      prove that this crime was actually committed by any person, nor is
      the Government required to prove that actual cocaine was involved.
      Hale’s primary contention is that it was error for the district court not to
instruct the jury that “actual cocaine” had to be involved with the escorts in
order for Hale to be convicted of the conspiracy charge.
      It is black letter law that a defendant can be convicted of conspiracy or
attempt without also being charged or convicted of the underlying offense. See
United States v. Burke, 431 F.3d 883, 886 (5th Cir. 2005) (noting in a case where
fake drugs were used that “factual impossibility does not preclude a conviction
for conspiracy or attempt”). In United States v. Marino, we did not find plain
error where “the jury instructions, read as a whole, adequately charged the jury
as to the definition, character, and nature of the acts” of the substantive crime
underlying the conspiracy. 562 F.2d 941, 945 (5th Cir. 1977); see also United
States v. Vaglica, 720 F.2d 388, 390–91 (5th Cir. 1983) (finding “serious” error
but not reversible error where the district court failed to instruct the jury on the
substantive offence of the conspiracy crime). Therefore, because the district
court’s instructions were sufficient to apprise the jury of the definition and
character of the substantive crime underlying the conspiracy charge, and
because the use of actual cocaine was not necessary to commit the crime of
conspiracy, we find that the district court did not commit plain error.




                                        25
  Case: 11-40488    Document: 00511898307       Page: 26   Date Filed: 06/25/2012



                                  No. 11–40488

                                        D.
      Hale argues that the district court erred when it refused to instruct the
jury on his requested affirmative defenses of “public authority” and “entrapment
by estoppel.” Failure to include a defendant’s proposed jury instruction is
reviewed for abuse of discretion. United States v. Simkanin, 420 F.3d 397, 410
(5th Cir. 2005). We will reverse only if the defendant’s requested instructions
“(1) [are] substantively correct; (2) [are] not substantially covered in the charge
given to the jury; and (3) concern[] an important point in the trial so that the
failure to give [them] seriously impairs the defendant’s ability to present
effectively a particular defense.” United States v. Lucas, 516 F.3d 316, 324 (5th
Cir. 2008). However, even if we find that the district court abused its discretion,
“a conviction [can not] be overturned for failure to instruct the jury on a defense
unless the requested but omitted instruction has an evidentiary basis in the
record which would lead to acquittal.” United States v. Spires, 79 F.3d 464, 466
(5th Cir. 1996).
                                         1.
      The public authority defense is available “when the defendant is engaged
by a government official to participate or assist in covert activity.” United States
v. Sariles, 645 F.3d 315, 317 (5th Cir. 2011) (quoting Spires, 79 F.3d at 466 n.2).
“[A] defendant who claims he was acting on behalf of a law enforcement officer
may escape culpability only because that officer had the ability to permit the
conduct. A defendant may claim that he made a good faith mistake about the
scope of the officer’s authority because it appeared to him that the officer was
sufficiently able to permit his conduct.” Id.
      In order to assert a public authority defense, Hale must show that he
reasonably relied on the actual, not apparent, authority of a government official
who convinced him to engage in covert activity. Id. at 318–19. He cannot do so.
The only person who Hale claims ever directly authorized him to engage in

                                        26
  Case: 11-40488    Document: 00511898307      Page: 27   Date Filed: 06/25/2012



                                  No. 11–40488

undercover work for the Laredo Police Department was Martinez, who Hale
admits was simply a patrol officer like himself who he knew had no actual
authority to initiate or approve undercover operations. Even if Hale believed
Martinez had some apparent authority as a slightly senior police officer, any
reliance on Martinez’s authorization could not be reasonable considering Hale’s
admitted knowledge of the formal undercover procedures followed by the Laredo
Police Department, which were not followed in this case.
      Because Hale did not establish that Martinez had actual authority to
permit him to engage in what he claims to be undercover work, and because any
reliance on Martinez’s purported authorization would be unreasonable, Hale
failed to establish an evidentiary basis upon which to validly submit the public
authority defense to the jury. Moreover, none of Hale’s proposed jury
instructions as to the public authority defense properly set forth the actual
authority requirement, making them substantively incorrect. The district court
did not abuse its discretion in rejecting Hale’s proposed public authority defense.
                                        2.
      “The defense of entrapment by estoppel is applicable when a government
official or agent actively assures a defendant that certain conduct is legal and
the defendant reasonably relies on that advice and continues or initiates the
conduct.” Spires, 79 F.3d at 466. It constitutes a “narrow exception to the general
rule that ignorance of the law is no excuse,” and the “focus of the inquiry is on
the conduct of the government not the intent of the accused.” Id.
      Hale argues that he met his burden to fairly raise the entrapment by
estoppel defense and that the district court’s refusal to so instruct the jury was
reversible error. However, the evidence against Hale precludes application of an
entrapment by estoppel defense. To rely on the defense when charged with a
federal crime, Hale must be able to show he reasonably relied on the advice of
a federal government official or authorized agent of the federal government who

                                        27
  Case: 11-40488     Document: 00511898307      Page: 28    Date Filed: 06/25/2012



                                   No. 11–40488

was “empowered to render the claimed erroneous advice.” Id. at 467. He can do
neither. Neither Martinez, who Hale claims recruited him to work with him
undercover, nor Sergeant Medina, who Hale claims knew of the undercover
work, are authorized federal government officials empowered to give advice on
federal drug laws. Moreover, any reliance on advice received from Martinez (or
second-hand from Sergeant Medina) could not be reasonable where Hale
acknowledges that he never spoke to Medina about the purported undercover
work, never received specialized undercover training, and he never followed any
undercover protocol or completed any formal police reports.
      Hale cannot show reasonable reliance on Martinez’s purported
authorization for him to engage in undercover work, nor can he show that any
federal government official ever authorized him to violate federal drug laws.
While Hale submitted to the district court several potential versions of the public
authority and entrapment by estoppel defenses, none of them correctly stated
the law or had the requisite evidentiary basis for it to be submitted to a jury.
Accordingly, we find that the district court did not abuse its discretion in
rejecting Hale’s proposed entrapment-by-estoppel defense.
                                         E.
      Hale contends that the district court erred when it refused to enter a
judgment of acquittal on the firearms charge (count 2), which required that the
government prove beyond a reasonable doubt that Hale (i) used or carried a
firearm in relation to a drug trafficking offense or (ii) possessed a firearm in
furtherance of a drug trafficking an offense. Because Hale moved for a judgment
of acquittal both after the government’s case in chief and at the close of the trial,
we review a challenge to the sufficiency of the evidence de novo, reviewing the
evidence in the light most favorable to the verdict and determining whether any
rational jury could have found guilt beyond a reasonable doubt. United States v.
Clayton, 506 F.3d 405, 412 (5th Cir. 2007).

                                         28
  Case: 11-40488    Document: 00511898307     Page: 29    Date Filed: 06/25/2012



                                 No. 11–40488

      Hale argues that the evidence presented at trial established that his
carrying a handgun during the Embassy Suites meeting “played no part” in the
crime of conspiracy to commit a drug trafficking offense. He likewise argues that
his possession of the handgun at the meeting was not “in furtherance of” the
conspiracy because he never “brandished, employed, engaged, or used [the
handgun] in any way and [that it] had no effect of changing the results of the
meeting.” His excuse for taking the handgun into the meeting was that there
was no safe place to leave it in the vehicle because the door lock was not
working.
      Both of Hale’s arguments fail. There is sufficient evidence in the record
that the jury could have reasonably relied upon showing that Hale committed
a drug trafficking crime and that he knowingly carried a firearm during and in
relation to that crime. See United States v. Speer, 30 F.3d 605, 612 (5th Cir.
1994). Several witnesses testified that Hale took his handgun from the vehicle,
cocked it, and carried it tucked in the waistband of his jeans for the duration of
the one-hour meeting at the Embassy Suites where the participants agreed to
conduct and escort cocaine shipments. This is enough to support a conviction
under the first prong of 18 U.S.C. § 924(c). See id. at 612 (“Actual possession or
use of the firearm is not necessary; it need only have been available to provide
protection to the defendant in connection with his engagement in drug
trafficking.”) (citation and quotation marks omitted).
      Moreover, the evidence is also sufficient under the second prong of
§ 924(c), which requires possession of a firearm “in furtherance” of a drug
trafficking offense. See United States v. Ceballos-Torres, 218 F.3d 409, 413 & n.4
(5th Cir. 2000) (noting most conduct that satisfies the first prong of 18 U.S.C.
§ 924(c) also satisfies the second prong). Hale’s possession of a handgun
displayed prominently in his waistband during the Embassy Suites meeting, and
his participation in discussing the idea that he and Martinez would carry their

                                       29
  Case: 11-40488       Document: 00511898307   Page: 30   Date Filed: 06/25/2012



                                  No. 11–40488

handguns during the escorts, is sufficient to satisfy the “in furtherance of”
requirement. See id. at 413–15 (discussing the ways in which possession of a
handgun could further a drug trafficking crime). Despite Hale’s contentions,
there is no requirement that Hale have brandished or actually fired his handgun
to be found guilty under§ 924(c), which actions would in fact constitute a
separate charge and carry a harsher penalty.
      We find that there was sufficient evidence for a jury to conclude beyond a
reasonable doubt that Hale either carried a firearm during and in relation to a
drug trafficking offense, or he possessed a firearm in furtherance of a drug
trafficking offense.
                                        F.
      Hale contends that the district court erred in responding to a note from the
jury during its deliberations. The note stated:
      In reference to count 1 [conspiracy], can the fact that the defendant
      knew wether [sic] or not the escort involved real or sham cocaine
      affect the outcome? I ask because the count clearly states the
      defendant attempted to distribute a controlled substance, when
      according to the defendants [sic] testimony and knowledge, there
      was no controlled substanced [sic] at all.
The court intended to “redirect [the jury] back to the instructions where [it] told
them the government is not required to prove that the crime of possession was
committed or that there was in fact any controlled substance,” and stated in its
supplemental instruction (over objection):
      As instructed by the Court, the Government is not required to prove
      that actual cocaine was involved; it is only required to prove those
      elements set out in the Court’s Instruction. Please consider the
      Court’s Instructions and continue your deliberations.
      After further deliberations the jury returned a guilty verdict on the
conspiracy count. Hale contends that the district court’s response constituted
reversible error because, viewed in light of the instructions already given, it did


                                        30
  Case: 11-40488        Document: 00511898307          Page: 31     Date Filed: 06/25/2012



                                        No. 11–40488

not completely and accurately clear away the confusion and difficulty the jury
had over the issue. See United States v. Carter, 491 F.2d 625, 633 (5th Cir. 1974).
       We assess whether a district court erred in instructing the jury “in light
of the entire charge,” United States v. Eargle, 921 F.2d 56, 57 (5th Cir. 1991),
recognizing that district courts enjoy “wide latitude in deciding how to respond
to questions from a jury.” United States v. Cantu, 185 F.3d 298, 305 (5th Cir.
1999). Supplemental instructions must be “reasonably responsive” and “allow[]
the jury to understand the issue presented to it.” Id. (quoting United States v.
Mann, 161 F.3d 840, 864 (5th Cir. 1998)); see also Eargle, 921 F.2d at 58 (finding
no reversible error with respect to defendant’s contention that a supplemental
instruction negated a correct and accurate original instruction).
       The district court’s original jury instructions were a detailed and correct
statement of the law on the charge of conspiracy to possess with intent to
distribute more than 5 kilograms of cocaine. They made clear that the jury
should not convict Hale unless they found beyond a reasonable doubt that he
willfully joined an unlawful agreement to possess with intent to distribute more
than 5 kilograms of cocaine. They also made clear that the actual use of cocaine
during the escorts was not necessary to convict for conspiracy.
       The jury’s note shows that, during deliberations, it focused on Hale’s
testimony that he knew there was no cocaine in the cars he and Martinez were
escorting because he had been told they were performing a “dry run.” In its
response to the note, the district court redirected the jury back to the original
instructions which made clear that an agreement to possess and distribute
cocaine was sufficient, and that the government did not need to prove that actual
cocaine was used in the escorts in order for them to convict Hale of conspiracy.
While the response is perhaps not the most artful response one can imagine,1 it

       1
          For example, the district court could have said something like: “As stated in the
original instructions, in order to convict on count 1, you need to find beyond a reasonable doubt

                                               31
  Case: 11-40488      Document: 00511898307         Page: 32    Date Filed: 06/25/2012



                                     No. 11–40488

is reasonably responsive, correct on the law, and refers the jury back to the more
detailed and comprehensive original instructions. The supplemental instructions
did nothing to undermine the clarity of the original instructions, and they
adequately informed the jury of what the government needed to prove beyond
a reasonable doubt in order to convict Hale. See Eargle, 921 F.2d at 58 (noting
jury instructions “may not be viewed in a vacuum”).
       We therefore find that the district court did not abuse its discretion when
it responded to the jury’s note in the manner that it did.
                                            G.
       Finally, Hale contends that the district court erred by enhancing Hale’s
sentence based on “obstruction of justice” under U.S. SENTENCING GUIDELINES
MANUAL (U.S.S.G.) § 3C1.1 (2010), and “abuse of office or use of a special skill”
under U.S.S.G. § 3B1.3 (2010). We review a district court’s determination that
a defendant has obstructed justice and its determination that he abused his
position as a police officer for clear error. United States v. Cisneros, 112 F.3d
1272, 1279 (5th Cir. 1997); United States v. Deville, 278 F.3d 500, 508 (5th Cir.
2002).
                                            1.
       The Sentencing Guidelines provide for a two level increase to a defendant’s
offense level in cases where the court finds that the defendant “willfully
obstructed or impeded, or attempted to obstruct or impede, the administration
of justice with respect to the investigation, prosecution, or sentencing of the
instant offence of conviction.” U.S.S.G. § 3C1.1. This provision specifically




that the defendant willfully entered into an agreement to possess with intent to distribute
more than 5 kilograms of cocaine. The government need not prove that the defendant knew
whether actual cocaine was used during the performance of the agreement in order to convict
of the conspiracy charge.”

                                            32
  Case: 11-40488    Document: 00511898307      Page: 33   Date Filed: 06/25/2012



                                  No. 11–40488

includes denials of guilt under oath that constitute perjury. U.S.S.G. § 3C1.1
cmt. n.2 & n.4 (2010).
      At the sentencing hearing, the district court discussed Hale’s “overall
position that [he] was doing this because he believed it was part of a properly
authorized police undercover investigation” and stated that it did not “believe
[that argument] under any circumstances.” It also noted that Hale “attempted
to minimize his training” which showed that he actually knew how undercover
operations are normally planned and executed, and that video evidence showed
Hale’s carefully calculated conduct where he did not leave any fingerprints on
the Nextel phone boxes during the Embassy Suites meeting. The district court
stated that it did not find Hale “credible for many of the reasons [it had] already
touched upon” and that it believed Hale “was not truthful in that respect.” It
concluded that the “testimony is replete with instances in which [the court
thought] Mr. Hale demonstrated that he in fact knew that he was not doing this
for a properly authorized police activity.”
      Although it did not use the term “perjury,” the record clearly indicates that
the district court at least implicitly found that Hale provided “false testimony
concerning a material matter with the willful intent to provide false testimony.”
United States v. Como, 53 F.3d 87, 89 (5th Cir. 1995) (citation omitted). This is
sufficient to support an obstruction of justice enhancement. Id. (noting that “a
separate and clear finding on each element of the alleged perjury, although
preferable, is not required”).
                                        2.
      The Sentencing Guidelines also provide for a two level increase to a
defendant’s offense level in cases where the court finds that the “defendant
abused a position of public or private trust, or used a special skill, in a manner
that significantly facilitated the commission or concealment of the offense.”
U.S.S.G. § 3B1.3. In reviewing an abuse-of-trust determination, we determine

                                        33
  Case: 11-40488     Document: 00511898307        Page: 34   Date Filed: 06/25/2012



                                   No. 11–40488

whether the defendant occupied a position of trust and whether he abused his
position “in a manner that significantly facilitated the commission or
concealment of the offense.” United States v. Kay, 513 F.3d 432, 459 (5th Cir.
2007) (defining “significant facilitation” as “whether the defendant occupied a
superior position, relative to all people in a position to commit the offense, as a
result of [his] job”) (citation omitted).
      At sentencing, the district court adopted the presentence investigation
report (PSR) which, like the evidence at trial, provided that Hale was a patrol
officer working for the Laredo Police Department when he became involved in
the cocaine escort scheme. Police officers hold positions of public trust. See
Deville, 278 F.3d at 508. The PSR and trial evidence also depicted how Hale and
his co-conspirators agreed to use police radios to monitor police frequencies in
order to detect whether an escort was under surveillance and whether there was
a dispatch related to the escorts. This evidence is sufficient to establish that
Hale abused his position as a police officer to better facilitate and conceal the
cocaine escort conspiracy.
      Accordingly, we find that the district court’s findings and its application
of both of the two level enhancements were not clearly erroneous.
                                            IV.
      For the foregoing reasons, we AFFIRM the district court on all issues
raised on appeal (except for the Speedy Trial Act waiver issue) and, accordingly,
AFFIRM Hale’s conviction and sentence.




                                            34
