                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                                                                 F I L E D
                                                                                November 6, 2003
                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT
                                                                             Charles R. Fulbruge III
                                                                                     Clerk
                               __________________________

                                      No. 03-50208
                                   Summary Calendar
                               __________________________


UNITED STATES OF AMERICA,
                                                                        Plaintiff - Appellee,

v.

XAVIER VILLARREAL,

                                                                     Defendant - Appellant.

                ___________________________________________________

                     Appeal from the United States District Court
                           for the Western District of Texas
                                    (No. 03-50208)
                ___________________________________________________


Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
               *
PER CURIAM:

       Xavier Villarreal (“Villarreal”) was convicted of two counts of possession with

intent to distribute cocaine. Because the district court’s failure to instruct the jury on the

public authority defense does not constitute plain error, we affirm.




       *
        Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth
in 5th Cir. R. 47.5.4.
                               I. FACTS AND PROCEEDINGS

       Villarreal was employed as a peace officer in the Central South Texas Narcotics Task

Force (“Task Force”).      During the time of his employment, the FBI conducted an

investigation of corrupt public officials, including law enforcement officers, in Texas. The

FBI used an informant, Guadalupe Morales (“Morales”), to buy cocaine from Villarreal.

Villarreal’s defense at trial was that he was acting in his capacity as a peace officer and

conducting a lawful investigation of Morales which necessitated the selling of the drugs.

No records or documentation of such an investigation exist. Villarreal’s counsel failed to

object to the district court’s failure to instruct the jury on the public authority defense, and

Villarreal was convicted. Villarreal timely appeals.

                               II. STANDARD OF REVIEW

       This Court reviews a defendant’s failure to submit or object to jury instructions for

plain error. Fed. R. Crim. P. 52(b); United States v. Martin, 332 F.3d 827, 834 (5th Cir.

2003). “Plain error occurs only when the instruction, considered as a whole, was so clearly

erroneous as to result in the likelihood of a grave miscarriage of justice.” Martin, 332 F.3d

at 834 (quotations omitted).

                                      III. DISCUSSION

       In this case it is uncontested that Villarreal did not object to the district court’s jury

instructions. Even if he had requested a public authority defense, it is questionable

whether there was evidence to support such an instruction. It is undisputed that: (1)

Villarreal did not keep any records of his alleged undercover investigation of Morales; and


                                               2
(2) that such reports are required by standard Task Force procedure. The absence of these

reports casts doubt on whether the district court should have given the public authority

defense had it been requested. Because it is not clear that there was an error in the jury

instructions, we certainly cannot find plain error.

       Even if we were not to decide on the above ground, Villarreal’s sole reliance on

United States v. Benavidez, 558 F.2d 308 (5th Cir. 2003), is misplaced. Unlike here, counsel

in Benavidez requested a particularized entrapment jury instruction. Id. at 308-09. We

held that the district court’s failure to give even a general entrapment instruction in that

situation constituted plain error. Id. at 310. In this case, however, Villarreal failed to

request any jury instructions (specific or otherwise) concerning the public authority

defense, and did not object when, unsurprisingly, none were given.

                                   IV. CONCLUSION

       For the foregoing reasons, we AFFIRM.




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