     Case: 12-20441      Document: 00512607390         Page: 1    Date Filed: 04/24/2014




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

                                                                                    FILED
                                      No. 12-20441                              April 24, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff-Appellee,

v.

JOSE ALBERTO DELEON; JOSELITO FLORES MERCADO,

                                                 Defendants-Appellants.


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:11-CR-393-2


Before STEWART, Chief Judge, and DENNIS, Circuit Judge, and GILSTRAP 1,
District Judge.
PER CURIAM: *
       Joselito Flores Mercado was convicted by a jury of conspiring to possess
with intent to distribute 100 kilograms or more of marijuana in violation of 21
U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(vii), and aiding and abetting the
possession with intent to distribute 100 kilograms or more of marijuana in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii) and 18 U.S.C § 2. He


       1 District Judge of the Eastern District of Texas, sitting by designation.
       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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received concurrent sentences of 97 months in prison to be followed by a four-
year term of supervised release.         Prior to Mercado’s trial, Mercado’s
codefendant, Jose Alberto Deleon, made a motion to sever the trials, which the
district court granted. Deleon testified against Mercado at his trial. Deleon
then waived his right to a jury trial and the parties stipulated to much of the
trial testimony and all of the exhibits from Mercado’s jury trial. Deleon was
convicted at a bench trial of aiding and abetting the possession with intent to
distribute 100 kilograms or more of marijuana in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B)(vii), and 18 U.S.C § 2 and acquitted on the conspiracy
count. He received a sentence of 22 months in prison with no supervised
release term. Both Defendants appeal various issues. We affirm the district
court in all respects.
                                        I.
      Deleon and the government presented, in relevant part, the following
sequence of events at Mercado’s trial. Deleon was approached by Mercado at
Lowes on April 18th. Deleon and Mercado did not know each other prior to this
encounter. Mercado offered to pay Deleon in exchange for his help in removing
lids from some shipping crates the next day at a nearby warehouse. The next
morning, Mercado met a tractor-trailer at his warehouse and by forklift
removed two large wooden shipping crates. Deleon met Mercado and assisted
with removing the lids. In the crates were auto parts and underneath them
there were metal boxes. Mercado offered to pay Deleon more if he helped open
the metal boxes.     They drove to a nearby pawn shop to obtain the tools
necessary to cut into the boxes. Deleon opened the boxes and saw bundles of
drugs. According to Deleon, he “thought they were drugs but did not know
exactly that they were drugs.”      At Mercado’s request, Deleon carried the
numbered bundles to the back of the warehouse where Mercado stored them



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before closing up. Mercado sorted and briefly opened them before closing them.
At that point, Deleon testified that he had confirmed his suspicions and knew
marijuana was in the bundles. The shipment contained 91 bundles totaling
1,915 pounds of marijuana. Mercado paid Deleon and Deleon left. Mercado
stopped briefly at a warehouse garage nearby, spoke to a worker there, and
then drove away.
      Unbeknownst to Mercado and Deleon, Mercado’s warehouse was under
surveillance by the U.S. Drug Enforcement Administration (“DEA”). A DEA
agent, Keith Jones, was monitoring the remote feed when he saw the
suspicious activity. He mobilized a group of officers and waited until the men
left separately. The officers followed Deleon and approached him when he
stopped at a roadside taqueria. He stated that “perhaps” there was marijuana
at the warehouse and agreed to accompany the officers back to the warehouse.
Another group of officers had followed Mercado and a local officer stopped him
for a traffic violation. The officer asked about the drugs in his warehouse and
Mercado stated that he was helping a friend and did not know what was in the
shipping crates. He gave verbal and written consent to a search. Although the
officer initially noted Mercado appeared nervous, he became more relaxed as
the conversation continued.
      At the warehouse, officers found, inter alia, the crates, the drugs, a gun,
and another opened bundle of marijuana inside Mercado’s office that was a
different shape and in different packaging. That bundle had been delivered
prior to this shipment. Deleon testified that he removed this bundle from the
cabinet at Mercado’s request and was told that it was better than what was
delivered that morning. The officers arrested Mercado and he told Agent Jones
he had unloaded the drugs for a friend. Mercado said he expected someone to
call to come and pick up the drugs. Agent Jones testified that nothing in



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Mercado’s demeanor would have led him to believe that Mercado was forced to
accept the drugs.
      The officers also searched Deleon’s white van and found a scale, bags,
and other items that could be used in drug trafficking. However, Deleon had
a plausible innocent explanation for each item. Mercado and Deleon were
jailed together and Deleon testified that he told Mercado to tell the truth so
that he could leave. Deleon testified that Mercado stated he had more drugs
and money at his house, it was a good thing the cops had not followed him
there, and he had been drug trafficking for a while.
      Mercado testified in his own defense, as did his wife, and presented, in
relevant part, the following version of events. He stated that in January two
men from Mexico came to his warehouse and offered him $1,500 to accept a
shipment of auto parts and to store them in the warehouse until the men could
get them. Mercado agreed to do this. The two men returned later in April to
see if Mercado had rented a forklift to move the shipment of auto parts. He
was told to expect the delivery on April 18th but when it did not come he was
informed it would be there the next day. Mercado testified that the paperwork
looked legitimate and he did not know there were drugs in the crates when he
placed them in the warehouse. When the crates arrived, he called the men to
confirm receipt. He testified that they told him that someone was outside
waiting to retrieve the shipment. That person ended up being Deleon. Deleon
then inspected the crates and asked Mercado to take him to buy tools. They
bought the tools and came back to the warehouse.
      Back at the warehouse, Mercado was informed by phone that there were
narcotics in the crates and that if he called the police or did not help the drug
traffickers, they would kill him or his wife and kids. He was also told that two
“soldiers” were outside the warehouse and he understood the threat as



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immediate. He then helped Deleon unload the marijuana. He saw Deleon open
some of the bundles and saw Deleon identify one bundle as “the good stuff,”
which Deleon sampled and placed in Mercado’s office. After unloading, Deleon
spoke to someone by phone and told Mercado he would be back at 6:00 p.m.
Mercado remained at his warehouse alone for a few minutes then went to a
neighboring warehouse, intending to ask the workers there to call the police
but he was unable to communicate this. A worker at the warehouse testified
that Mercado seemed a little nervous, was probably scared, and was sweating.
He stated that Mercado acted like he wanted to say something but could not.
      Mercado then decided to go home and secure his family. He testified that
he called his wife on the way and told her there was a very serious problem
they needed to talk about. His wife testified that he sounded nervous, was
breathing hard, and that what he said had frightened her. His plan was to call
the police once his family was safe but he was stopped by the local officer while
on the phone with his wife. Mercado testified that he had no other drugs or
money at his house and that Deleon was lying. In fact, he stated that Deleon
had offered him $50,000 to take the fall for him.
      Mercado’s wife testified that once she had heard of her husband’s arrest
she called an attorney, Abraham Fisch (“Fisch”), and that she and Mercado
met with him one week after his arrest.           Fish allegedly told Mercado
information about Deleon that made Mercado and his wife fearful for
themselves and their family. Because of these fears, Mercado never told the
police about the threat he claims to have received. Mercado’s wife testified
that Fisch suggested they not trust the police and that they would not believe
Mercado’s story. He advised that they tell the story to a jury. She also testified
that her brother is a law enforcement officer and she was studying for a career
in law enforcement.



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                                  No. 12-20441

                                        II.
      On appeal, Mercado challenges: (1) the sufficiency of the evidence to
support his conspiracy conviction; (2) the district court’s decision not to instruct
the jury on his duress defense; (3) the district court’s decision not to allow Fisch
to testify and Mercado to recall Agent Jones; and (4) the denial of his motion
for a mistrial after Agent Jones testified about information as to Mercado’s
illegal activities prior to Mercado’s arrest, evidence that was earlier excluded
by the court. Deleon challenges only the sufficiency of the evidence to support
his conviction.
                                        A.
      To convict Mercado of conspiracy to possess with the intent to distribute,
the government was required to prove that: “(1) an agreement existed between
two or more persons to violate federal narcotics law, (2) the defendant knew of
the existence of the agreement, and (3) the defendant voluntarily participated
in the conspiracy.” United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012).
Mercado argues that the evidence is insufficient to support his conspiracy
conviction because there was no evidence that he knew of or participated in an
agreement to possess with intent to distribute marijuana.              We review
“preserved challenges to the sufficiency of the evidence de novo.” United States
v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). We “view all evidence . . . in the
light most favorable to the government, with all reasonable inferences and
credibility choices to be made in support of the jury’s verdict to determine
whether a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. (internal quotation marks and citation
omitted). “[K]nowledge of a conspiracy and voluntary participation may be
inferred from a collection of circumstances.” Thomas, 690 F.3d at 367 (internal
quotation marks and citation omitted) (alteration in original).



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      The direct evidence presented at trial was sufficient for a reasonable
factfinder to determine that Mercado voluntarily participated in an agreement
to violate the narcotics laws with either Deleon or the suppliers of the
marijuana. See Thomas, 690 F.3d at 367–68 (holding that the government
presented sufficient evidence of a defendant’s knowledge and voluntary
participation in the conspiracy given the collection of circumstances); United
States v. Booker, 334 F.3d 406, 409–11 (5th Cir. 2003) (holding evidence
sufficient to support two defendants conspiracy charges). Mercado’s argument
ignores the evidence presented by Deleon that Mercado knew about the drugs,
was expecting a shipment, had hired Deleon with the intent to obtain access to
the drugs, and had been involved in drug trafficking for a period of time.
Although Mercado testified that he had no knowledge of the marijuana before
it was delivered, the jury was entitled to choose among reasonable
constructions of the evidence. See United States v. Mitchell, 484 F.3d 762, 768
(5th Cir. 2007) (“The evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt,
and the jury is free to choose among reasonable constructions of the evidence.”
(internal quotation marks and citation omitted)).
                                      B.
      Mercado contends that the district court erred in denying his request to
instruct the jury as to the defense of duress. The affirmative defense of duress
requires a showing by the defendant that (1) he was “under an unlawful,
present, imminent, and impending [threat] that would induce a well-grounded
apprehension of death or serious bodily injury,” (2) that he had not “recklessly
or negligently placed himself in the situation” at issue, (3) that he “had no
reasonable legal alternative to violating the law” that would also avoid the
threatened harm, and (4) that it was reasonable to anticipate that the



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avoidance of harm directly caused the criminal actions.                 United States v.
Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998). The defendant must provide
evidence of each of the elements before it may be presented to the jury because
it is an affirmative defense. Id. “In determining whether a defendant has
made a threshold showing of the elements of the defense a court must
objectively evaluate the facts presented by the defendant.”                   Id. (citation
omitted). We review a district court’s refusal to submit a requested jury
instruction only for abuse of discretion. Id. at 875.
       We hold that there was no abuse of discretion by the district court in
refusing to instruct the jury on Mercado’s duress defense. 2 Mercado has not
put forth evidence demonstrating that he had no available alternatives to his
illegal activity. See id. at 873–75. A defendant must show “that he had
actually tried the alternative or had no time to try it, or that a history of futile
attempts revealed the illusionary benefit of the alternative,” in order to
establish the absence of a legal alternative. Id. at 874 (internal quotation
marks and citation omitted). Mercado could have called the police, told others
to call, or explained the situation to police at several points including when he
was: outside of Deleon’s presence, left by Deleon at the warehouse, at the
nearby garage, in the car on his way home, or stopped by the police.
       Mercado’s arguments on appeal are unavailing. Mercado argues that he
feared the police could not protect his family and that they would not believe
him. He contends that calling the police prior to securing his family was not a
reasonable alternative in light of the nature of the threats and that “soldiers”
were watching his warehouse. He urges that he was avoiding his death and


       2 The district court stated that it thought “very seriously” about Mercado’s argument.
Ultimately, the district court decided that given the fact that Mercado could have made phone
calls outside the presence of Deleon, after Deleon left the premises, and certainly when he
was alone in the car, he had not made the requisite showing necessary for the instruction.


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the death of his wife and children by not contacting the police. However, his
“subjective belief as to available legal alternatives is not determinative.”
Posada-Rios, 158 F.3d at 874 (internal quotation marks and citation omitted).
Further, once he was actually stopped by the police and asked specifically
about the drugs, he failed to communicate any of the threats to himself or to
his family. 3 The district court did not abuse its discretion given the facts of
this case.
                                             C.
       Mercado asserts that the district court violated his right to confront
witnesses and present a complete defense in violation of the Sixth Amendment.
He contends that he should have been allowed to call Fisch and to recall Agent
Jones. We review the alleged denial of a defendant’s rights under the Sixth
Amendment de novo, subject to review for harmless error. United States v.
Skelton, 514 F.3d 433, 438 (5th Cir. 2008). A defendant’s right to present a
complete defense under the Sixth Amendment is “an essential attribute” of our
criminal justice system but it is not without limits. United States v. Najera
Jimenez, 593 F.3d 391, 402 (5th Cir. 2010) (internal quotation marks and
citation omitted). A defendant “does not have an unfettered right to offer
testimony that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.”           Id. (internal quotation marks and citation



       3 Mercado makes an argument that duress only applies at the time the offense is
actually committed and because he was no longer in possession of the drugs once he left the
warehouse, his failure to call the police after leaving should have no bearing on the elements
of the duress defense. We need not address this argument because the offenses of conspiracy
and possession were continuing criminal acts even after he physically left the warehouse.
See United States v. Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000) (holding that a defendant
is presumed to continue involvement in a conspiracy unless a defendant makes an
“affirmative showing of withdrawal, abandonment, or defeat of the conspiratorial purpose”);
United States v. Daniels, 723 F.3d 562, 579 n.24 (stating that possession is “actual or
constructive, and a defendant who knowingly has ownership, dominion, or control over drugs
or over the premises” concealing the drugs has possession of them).


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omitted). “We review a district court’s evidentiary rulings for abuse of
discretion.” Id. (citation omitted).
      Mercado contends that he wanted to call Fisch as a witness because
Fisch could have provided information regarding Mercado’s duress defense and
his reasons for not reporting the threats to law enforcement.           However,
Mercado did not speak with Fisch until a week after the events occurred when
he was released on bond. Because Fisch’s testimony would not have made it
more probable that Mercado faced a real and immediate threat on the date of
his arrest and did not establish the lack of reasonable alternatives to his
continued illegal activities, Mercado has failed to establish that his right to
present a defense was impeded by his inability to call Fisch as a witness.
See United States v. Jimenez-Montoya, 348 F. App’x 73, 75–76 (5th Cir. 2009)
(per curiam) (unpublished) (holding that a defense witness was properly
excluded because the witness’ testimony was irrelevant to the defendant’s
defense); Fed. R. Evid. 401; see also United States v. Dixon, 413 F.3d 520, 523–
24 (5th Cir. 2005) (upholding the exclusion of expert testimony to the extent
the testimony would have affirmed the defendant’s subjective perceptions of
danger, which was not relevant to a duress defense).
      With respect to Agent Jones, Mercado contends that he was entitled to
recall him to testify about his testimony at Deleon’s detention hearing. At that
hearing, Jones testified that he was told by another officer that Deleon had
provided a different explanation for his presence at the warehouse. That
explanation contradicted Deleon’s trial testimony. The district court correctly
concluded that the testimony was inadmissible as hearsay within hearsay. See
United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 508 (5th Cir. 2008);
Fed. R. Evid. 805. Mercado has not established that his inability to recall Jones
violated his Sixth Amendment rights. See Skelton, 514 F.3d at 438. Moreover,



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he has not shown that the two adverse evidentiary rulings constituted an
abuse of discretion. See Najera Jimenez, 539 F.3d at 402.
                                        D.
      In his final ground for relief, Mercado asserts that the district court erred
in denying his request for a mistrial after Jones testified that law enforcement
officials had prior information regarding Mercado’s involvement in drug
activities, a matter on which the government had agreed not to adduce specific
testimony. “We review a denial of a motion for mistrial for abuse of discretion.”
United States v. Zamora, 661 F.3d 200, 211 (5th Cir. 2011) (citation omitted).
A new trial is required only when the statement is so prejudicial, viewed in
light of the entire record, that it had a substantial impact on the jury verdict.
Id. “We give great weight to the trial court’s assessment of the prejudicial
effect of the evidence, and prejudice may be rendered harmless by a curative
instruction.” United States v. Valles, 484 F.3d 745, 756 (5th Cir. 2007). The
statement in question constituted a single statement in a multi-day trial,
which was immediately stricken by the court. The district court also advised
the jury to disregard the statement. Mercado has not established that the
district court abused its discretion in denying his motion for a mistrial. See
Zamora, 661 F.3d at 211–12; Valles, 484 F.3d at 756; United States v Millsaps,
157 F.3d 989, 993 (5th Cir. 1998).
                                        E.
      In his only ground for relief, Deleon asserts that the evidence is
insufficient to support his conviction.      When a defendant challenges the
sufficiency of the evidence to sustain his conviction following a bench trial, we
review the district court’s finding of guilt to determine whether it is supported
by “any substantial evidence.” United States v. Ceballos-Torres, 218 F.3d 409,
411 (5th Cir. 2000) (internal quotation marks and citation omitted).          The



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evidence is sufficient if, when considered as a whole and in the light most
favorable to upholding the conviction, it would permit a rational trier of fact to
find the essential elements of the crime beyond a reasonable doubt. United
States v. Allen, 587 F.3d 246, 256 (5th Cir. 2009).
      Aiding and abetting requires proof that the substantive offense occurred
and that the defendant “(1) associated with the criminal venture; (2)
purposefully participated in the crime; and (3) sought by his actions for it to
succeed.” United States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007).
Deleon does not dispute the existence of an underlying marijuana offense;
instead, he contends that the evidence does not establish that he aided and
abetted the crime.        The stipulated evidence at his trial showed that he
continued to unload the marijuana after realizing that the packages were in
fact marijuana. He did not stop once he realized the illegal nature of the
activity; instead, he continued his association with Mercado and intentionally
continued participating in the illegal enterprise. He was willing to do so in
return for payment. Because substantial evidence supports the finding of guilt,
Deleon is not entitled to reversal. See id.; Ceballos-Torres, 218 F.3d at 411;
Allen, 587 F.3d at 256.
                                       III.
      Neither Deleon nor Mercado has established reversible error with
respect to their convictions. Consequently, the judgments of the district court
are AFFIRMED.




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