    Case: 13-20162    Document: 00512617191     Page: 1   Date Filed: 05/02/2014




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

                                 No. 13-20162                           FILED
                                                                     May 2, 2014
                                                                   Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff–Appellee,

versus

JUAN AGUDIN SALAZAR, Also Known as Juan Fondin Salazar,

                                           Defendant–Appellant.




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




Before SMITH, CLEMENT, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
      Juan Salazar was charged with multiple drug and gun violations. At
trial, the government presented overwhelming evidence of guilt; against the
advice of counsel, Salazar decided to testify and confessed to all of the crimes
charged. At the trial’s conclusion, believing no factual issue remained for the
jury, the district court instructed the jury “to go back and find the Defendant
guilty.” Because the Sixth Amendment safeguards even an obviously guilty
defendant’s right to have a jury decide guilt or innocence, we vacate the
    Case: 13-20162    Document: 00512617191      Page: 2   Date Filed: 05/02/2014



                                 No. 13-20162
conviction and remand.


                                       I.
      The indictment charged (1) conspiracy to possess with intent to distrib-
ute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A) and 846; (2) aiding and abetting attempted possession with intent to
distribute five kilograms or more of cocaine, in violation of 18 U.S.C. § 2 and
21 U.S.C. § 841(a)(1) and (b)(1)(A); (3) conspiracy to possess a firearm in fur-
therance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)
and (o); and (4) aiding and abetting possession of a firearm in furtherance of a
drug-trafficking offense, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A). Two
co-conspirators—Jose Aquino and Robert Torres—were charged in connection
with the conspiracy and pleaded guilty.
      Trial evidence established the following: A confidential informant (“CI”)
advised Agent Carlos Valles of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives that multiple persons were interested in committing a home-
invasion-style armed robbery. The CI introduced Valles, acting as an under-
cover agent, to Torres for the purpose of participating in a robbery of a drug
stash house.
      Over the next few months, several phone calls and in-person meetings,
which were either audio- or video-recorded or both, occurred between Valles,
Torres, and others. Valles met face-to-face with Torres, Aquino, and Salazar
at a gas station to discuss logistics for the home invasion; two days later, the
group met there again, and Salazar confirmed that they were ready and had
their “tools with them.” The group then drove to a warehouse staging area.
Salazar balked at entering the premises, argued with Torres, and departed
quickly in a separate vehicle. Torres and Aquino tried to leave and were
arrested; Salazar was arrested later that day.
                                       2
    Case: 13-20162    Document: 00512617191       Page: 3   Date Filed: 05/02/2014



                                   No. 13-20162
      From the beginning of trial, defense counsel’s theory was that Salazar
had engaged in but ultimately withdrew from the two conspiracies. Against
the advice of counsel, Salazar decided to testify and, on cross-examination,
confessed to all of the crimes charged. Per his own testimony, he did not
attempt to withdraw from either conspiracy until after the conspirators arrived
at the staging area, shortly before they were going to complete the job, in pos-
session of firearms, ammunition, and other tools.
      At the trial’s conclusion, defense counsel requested a jury instruction on
withdrawal. The district court refused, believing that even if Salazar’s actions
constituted withdrawal he did not withdraw early enough. In light of Salazar’s
confession and the inapplicability of the withdrawal defense, the court thought
no factual issue remained, so it instructed the jury “to go back and find the
Defendant guilty.” Minutes later, the jury did so.
      Salazar brings two challenges on appeal. First, he claims the district
court erred in not instructing the jury on withdrawal. Second, he contends
that the court violated his Sixth Amendment right to a jury trial by directing
a guilty verdict.


                                       II.
      Salazar points to four events that demonstrate his withdrawal from the
conspiracy: (1) Because Valles did not appear “transparent,” Salazar angrily
told Torres that he would not go through with the job (which Salazar claims
the other co-conspirators would have overheard); (2) Salazar did not go all the
way inside the warehouse; (3) he left the staging area; and (4) after leaving, he
refused to answer his phone or meet with Torres. In light of this evidence,
Salazar believes the district court erred by not submitting an instruction to the
jury on the issue of withdrawal.
      The government offers three reasons why the failure to instruct on
                                        3
    Case: 13-20162         Document: 00512617191         Page: 4    Date Filed: 05/02/2014



                                        No. 13-20162
withdrawal was not error:            “(1) Salazar did not engage in any definitive,
decisive, or affirmative act to disavow or defeat the purpose of the charged
conspiracies; (2) alternatively, Salazar’s conduct was not sufficient to raise the
issue of withdrawal; and (3) assuming arguendo that his evidence adequately
raised the issue of withdrawal, Salazar’s conduct came too late to absolve him
of the liability for the conspiracy.”
      Because “[d]istrict courts enjoy substantial latitude in formulating a jury
charge,” we generally review “all challenges to, and refusals to give, jury
instructions for abuse of discretion.” United States v. Webster, 162 F.3d 308,
321–22 (5th Cir. 1998). “We review de novo a district court’s refusal to offer an
instruction for a criminal defense that, if credited, would preclude a guilty ver-
dict.” United States v. Theagene, 565 F.3d 911, 917 (5th Cir. 2009).
   A refusal to give a requested instruction constitutes reversible error
   only if the proposed instruction (1) is substantially correct, (2) is not
   substantively covered in the jury charge, and (3) pertains to an impor-
   tant issue in the trial, such that failure to give it seriously impairs the
   presentation of an effective defense.”

Webster, 162 F.3d at 322. We review the record in the light most favorable to
the defendant in determining whether the record contains sufficient evidence
for the jury to find Salazar withdrew from the conspiracy in a timely fashion.
Theagene, 565 F.3d at 917−18.
      Focusing on the government’s third theory, a conspirator can choose to
“withdraw” from a conspiracy at any point. Because the timing of the with-
drawal determines which crimes a conspirator remains liable for, we distin-
guish between timely and untimely withdrawals. An untimely withdrawal
does not negate liability on the conspiracy charge 1 but instead helps a




      1   See Smith v. United States, 133 S. Ct. 714, 719 (2013):
                                               4
     Case: 13-20162      Document: 00512617191         Page: 5     Date Filed: 05/02/2014



                                      No. 13-20162
defendant guard against post-withdrawal acts done by other co-conspirators
and thereby serves to minimize his liability on subsequent crimes.
       To be timely, the withdrawal must precede the commission of an overt
act. See United States v. Heathington, 545 F.2d 972, 973 (5th Cir. 1977). In
essence, the government must not be able to show a completed conspiracy. For
purposes of absolving liability for the conspiracy charge, “withdrawal is impos-
sible once an overt act has been committed.” 2 If the conspiracy does not even
require the commission of an overt act, a defendant can never timely withdraw
and can never negate liability as to the conspiracy charge. See, e.g., United
States v. Francis, 916 F.2d 464, 466 (8th Cir. 1990).
       Salazar relies extensively on United States v. Schorovsky, 202 F.3d 727
(5th Cir. 2000). The defendant challenged her sentence, contending that,
because she withdrew from the conspiracy, “the district court clearly erred in
attributing more than 200 grams of heroin to her as relevant conduct in the
calculation of her base offense level.” Id. at 728. We agreed she had with-
drawn, so the court had erred in basing its sentence on “the amount of drugs
trafficked by the conspirators after she effectively withdrew.” Id. at 729.
       That case has no bearing here. A withdrawal from a drug conspiracy
may limit the amount of drugs a district court can rely on as relevant conduct




    Withdrawal does not negate an element of the conspiracy crimes charged here. . . .
    Far from contradicting an element of the offense, withdrawal presupposes that the
    defendant committed the offense. Withdrawal achieves more modest ends than
    exoneration. Since conspiracy is a continuing offense, a defendant who has joined a
    conspiracy continues to violate the law through every moment of [the conspiracy’s]
    existence, and he becomes responsible for the acts of his co-conspirators in pursuit
    of their common plot. Withdrawal terminates the defendant’s liability for postwith-
    drawal acts of his co-conspirators, but he remains guilty of conspiracy.
(Citations omitted.)
       2United States v. Nicoll, 664 F.2d 1308, 1315 (5th Cir. 1982), overruled on other
grounds by United States v. Henry, 749 F.2d 203 (5th Cir. 1984) (en banc).
                                             5
     Case: 13-20162       Document: 00512617191          Page: 6     Date Filed: 05/02/2014



                                       No. 13-20162
for purposes of sentencing. Salazar does not, however, challenge his sentence
calculation. And Schorovsky does not stand for the proposition that with-
drawal following an overt act absolves the defendant of liability as to the
underlying conspiracy charge. 3
       We assume both of the charged conspiracies required overt acts. Per his
own testimony, however, Salazar did not attempt to withdraw until after the
conspirators had arrived at the staging area in possession of firearms, ammu-
nition, and other necessary tools. By that point, several overt acts in further-
ance of both conspiracies had occurred. 4 Salazar’s withdrawal was therefore
not timely and cannot absolve him of liability on either conspiracy. 5 Accord-
ingly, the district court did not err in declining to instruct on withdrawal.




       3 Our decision in United States v. Puig-Infante, 19 F.3d 929, 945–46 (5th Cir. 1994),
similarly does not help Salazar, because it also deals with relevant conduct for purposes of
sentencing.
       4 See United States v. Brackett, 113 F.3d 1396, 1400 (5th Cir. 1997) (“Overt acts in
furtherance of a conspiracy need not be criminal . . . .”); United States v. Pomranz, 43 F.3d
156, 160 (5th Cir. 1995) (“In this case, various acts were committed in furtherance of the drug
conspiracy. For instance, after the initial contact between Pomranz and agent DeLaFlor:
telephone conversations ensued between the parties to finalize the drug transaction, Pom-
ranz traveled from Oklahoma to Texas to personally discuss the illegal activity, plans to
inspect a sample of the marihuana before the actual purchase were consummated, install-
ments on the total purchase price were made and most crucial to this analysis, Pomranz
carried a weapon during and in relation to delivery of the final drug payment. Unques-
tionably, the primary reason that Pomranz carried a weapon was to protect or further the
drug transaction by ensuring the safe delivery of the drug money.”).
       5  Salazar also attempts to support his argument with United States v. Jimenez, 622
F.2d 753 (5th Cir. 1980). In that case, Jimenez was charged with conspiracy to possess
cocaine with intent to distribute it. Id. at 754. “Jimenez claimed in the trial of the case that
he had withdrawn from the conspiracy prior to the commission of any overt act . . . .” Id. The
district court determined that this possible timely withdrawal was an issue for the jury and
instructed it accordingly. Jimenez does not apply: (1) Unlike Jimenez, Salazar has not dem-
onstrated that he withdrew before the commission of any overt act; and (2) because the jury
was instructed on withdrawal in Jimenez, that case can have no bearing on the question
whether a district court erred in not giving such an instruction.
                                               6
    Case: 13-20162     Document: 00512617191     Page: 7   Date Filed: 05/02/2014



                                  No. 13-20162
                                       III.
      We must determine the appropriate standard of review to assess the
Sixth Amendment challenge. The government presses us to review either as
invited error or under the plain-error standard. Salazar maintains that trial
counsel preserved this error for appeal.
      A defendant “may not complain on appeal of errors that he himself
invited or provoked the [district] court . . . to commit.” United States v. Wells,
519 U.S. 482, 487–88 (1997) (citations and internal quotation marks omitted).
Invited error applies, however, only where the error can be attributed “to the
actions of the defense.” United States v. Green, 272 F.3d 748, 754 (5th Cir.
2001). Invited error imposes an even higher standard than does plain-error
review: We “will not reverse on the basis of invited error, absent manifest
injustice.” United States v. Pankhurst, 118 F.3d 345, 359 (5th Cir. 1997).
      The government argues that defense counsel invited this error by
lamenting on the futility of closing arguments. Specifically, the government
points to defense counsel’s statement, “Well, what am I going to argue? That
he wasn’t there? That he didn’t complete the conspiracy?” The government
relies on Walker v. State, 781 P.2d 838 (Okla. Crim. App. 1989), and Griffin v.
State, 255 S.W.3d 774 (Tex. App.―Amarillo 2008, no pet.), which it believes
demonstrate invited error.
      In Walker, the court held an in camera hearing:
   At this hearing, defense counsel presented the stipulation to the court
   and Appellant affirmatively gave his consent to the agreement. He told
   the court that he was offering the stipulation voluntarily with a full
   understanding of the consequences. The trial court then announced
   that it would instruct the jury as to the stipulations, would allow both
   the State and Appellant to present evidence as to punishment and
   would then instruct the jury to find Appellant guilty and assess
   punishment. The court asked Appellant if this procedure was agreea-
   ble. Appellant answered “that’s fine.”

                                        7
    Case: 13-20162     Document: 00512617191      Page: 8    Date Filed: 05/02/2014



                                  No. 13-20162
781 P.2d at 839–40. By explicitly agreeing to this procedure and to the directed
guilty verdict, Walker had invited any error. See id. at 840.
      In Griffin, the defendant pleaded not guilty of assaulting his wife. Dur-
ing trial, “after [his wife] testified to the assault . . . , [Griffin] informed the
court that he wished to plead guilty.” Griffin, 255 S.W.2d at 774. The state,
however, did not waive its right to have a jury trial. Id. In light of the fact
that the defendant wanted to plead guilty, “the court informed [the parties]
that the jury would be instructed to return a verdict of guilty. Neither party
objected to the procedure or the charge, and the court so instructed the jury.”
Id. at 774–75. Because the defendant wanted to plead guilty, the appellate
court considered any problem to be invited error. Id. at 775.
      As Walker and Griffin instruct, if a defendant wished to change his plea
during trial to a guilty plea and thereby waive his right to a jury, we might
invoke the doctrine of invited error. Nothing in this record, however, suggests
that Salazar wished to change his plea or consented to the directed verdict.
      The government’s reliance on comments made by defense counsel suffers
two problems: (1) Offhanded comments made by defense counsel cannot have
caused the defendant to change his plea; and (2) in any event, the government
misreads defense counsel’s comments. The parties only appear to have been
discussing how counsel could best handle closing arguments in light of the
overwhelming evidence against Salazar. Nothing in the record suggests that
counsel requested or consented to a directed guilty verdict at any point (and
the government gives no explanation as to why counsel would do so).
      Plain error also does not apply. The district court explicitly acknowl-
edged that Salazar was preserving this argument for appeal and stated that
any error regarding the directed guilty verdict would be error solely on its




                                         8
     Case: 13-20162        Document: 00512617191           Page: 9     Date Filed: 05/02/2014



                                        No. 13-20162
part. 6 Even though defense counsel did not specifically reference the Sixth
Amendment interest at stake or provide any legal authority demonstrating
error, the court was well aware of the glaring issue before it. 7 Salazar has
preserved this argument for appeal.


                                               IV.
       As to the merits, the government contends that the district court did not
err in instructing the jury to return a guilty verdict because Salazar volun-
tarily confessed after being admonished of his right not to testify. The gov-
ernment asserts that the confession “equates to a plea of guilty” that waived
the right to a jury trial.
       For Salazar to be able to complain about a Sixth Amendment violation,
this right must have attached. 8 All four counts of the indictment carry statu-
tory maximum penalties of greater than six months’ imprisonment, so the
offenses are serious, 9 and the Sixth Amendment right to a jury trial attached.
       The Sixth Amendment safeguards “the accused[’s] . . . right to a speedy
and public trial[ ] by an impartial jury,” U.S. CONST. amend VI, and “require[s]



       6 “No. I think that I take that out of your hands. If there’s error, it’s error on my part.
It’s not on your part. It’s not on Mr. Gonzales’ part. It’s error on the Court’s part. And I
think that that removes it.”
       7  See Bradley v. Allstate Ins. Co., 620 F.3d 509, 519 n.5 (5th Cir. 2010) (“Although
issues not raised before the district court are generally waived, an argument is not waived
on appeal if the argument on the issue before the district court was sufficient to permit the
district court to rule on it.” (citation and internal quotation marks omitted)); United States v.
Akpan, 407 F.3d 360, 376 (5th Cir. 2005).
       8 See Lewis v. United States, 518 U.S. 322, 325 (1996) (“[T]he Sixth Amendment, like
the common law, reserves this jury trial right for prosecutions of serious offenses, and that
there is a category of petty crimes or offenses which is not subject to the Sixth Amendment
jury trial provision.” (citation and internal quotation marks omitted)).
       9Any offense punishable by greater than six months’ imprisonment is considered seri-
ous. See id. at 326.
                                                9
    Case: 13-20162        Document: 00512617191          Page: 10     Date Filed: 05/02/2014



                                       No. 13-20162
criminal convictions to rest upon a jury determination that the defendant is
guilty of every element of the crime with which he is charged, beyond a rea-
sonable doubt,” United States v. Gaudin, 515 U.S. 506, 510 (1995). Although
a court may enter a judgment of acquittal, 10 the Sixth Amendment prohibits
the court from directing a guilty verdict. That protection extends even to “obvi-
ously guilty” defendants. 11 “[A] judge . . . may not direct a verdict for the State,
no matter how overwhelming the evidence.” Sullivan v. Louisiana, 508 U.S.
275, 277 (1993). The instruction “to go back and find the Defendant guilty”
violated the clear command in Sullivan and Gaudin. It makes no difference
that the court told the jury to do so rather than entering the verdict itself. 12
       Contrary to the government’s suggestion, Salazar’s confession did not
deprive him of his right to have a jury determine his guilt. The Sixth Amend-
ment permits a jury to disregard a defendant’s confession and still find him not
guilty. This conclusion does not depend on when the confession occurs —on
the stand or pre-trial—or how much the defendant confesses—to one element
or to every crime. A defendant’s confession merely amounts to more, albeit
compelling, evidence against him. But no amount of compelling evidence can
override the right to have a jury determine his guilt.
       It is true that a defendant may waive his right to a jury trial by pleading




       10  See FED. R. CRIM. P. 29(a) (“After the government closes its evidence or after the
close of all the evidence, the court on the defendant’s motion must enter a judgment of acquit-
tal of any offense for which the evidence is insufficient to sustain a conviction.”).
       11 Crawford v. Washington, 541 U.S. 36, 62 (2004) (“Dispensing with confrontation
because testimony is obviously reliable is akin to dispensing with jury trial because a defen-
dant is obviously guilty. This is not what the Sixth Amendment prescribes.”).
       12 See Connecticut v. Johnson, 460 U.S. 73, 83 (1983) (plurality opinion) (“The Court
consistently has held that a trial judge is prohibited from entering a judgment of conviction
or directing the jury to come forward with such a verdict . . . regardless of how overwhelmingly
the evidence may point in that direction.” (emphasis added)).
                                              10
    Case: 13-20162        Document: 00512617191          Page: 11     Date Filed: 05/02/2014



                                       No. 13-20162
guilty. 13 And he can, at least in theory, waive this right in the midst of trial.
We have never held, however, that he changes his plea from not guilty to guilty
just by confessing on the stand; certainly none of the cases cited by the gov-
ernment hints as much. 14 And nothing in this record suggests that Salazar, at
any point, wished to change his plea to guilty; the court did not ask him, fol-
lowing his confession, whether he wished to do so.
       Finally, assessing harmlessness in this context would be inappropriate.
Because a jury never rendered a verdict of guilty beyond a reasonable doubt, it
would be meaningless to ask whether it would have returned the same verdict
absent the constitutional error:
    The most an appellate court can conclude is that a jury would surely
    have found petitioner guilty beyond a reasonable doubt—not that the
    jury’s actual finding of guilty beyond a reasonable doubt would surely
    not have been different absent the constitutional error. That is not
    enough. The Sixth Amendment requires more than appellate specula-
    tion about a hypothetical jury’s action, or else directed verdicts for the
    State would be sustainable on appeal; it requires an actual jury finding
    of guilty.

Sullivan, 508 U.S. at 280 (citations omitted).
       The judgment of conviction is VACATED and REMANDED for further
proceedings.



       13 See FED. R. CRIM. P. 11(a)(1) (“A defendant may plead not guilty, guilty, or (with the
court’s consent) nolo contendere.”); United States v. Robertson, 698 F.2d 703, 707 (5th Cir.
1983) (“A defendant who pleads guilty waives his Fifth Amendment right against compulsory
self-incrimination, his Sixth Amendment right to a jury trial, and his Sixth Amendment right
to confront adverse witnesses.”).
       14 See Rucker v. State, 580 P.2d 1005 (Okla. Crim. App. 1978) (“It has long been a
constitutional and statutory right of accused in this state that a defendant has the right to a
jury’s determination of his or her guilt, even in such cases where during the course of a trial
the defendant admits his or her guilt.”); Mougell v. State, 260 P.2d 447, 451 (Okla. Crim. App.
1953) (“[A] confession from the witness stand from the defendant does not meet the require-
ments of a plea of guilty voluntarily entered. The trial judge cannot take away the defen-
dant’s right to a trial by jury as provided by law.”).
                                              11
