     Case: 11-50846       Document: 00512057268         Page: 1     Date Filed: 11/19/2012




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

                                                                            FILED
                                                                        November 19, 2012
                                     No. 11-50846
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FERNANDO SALGADO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:11-CR-106-2


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       A jury found Fernando Salgado guilty of conspiracy to distribute and to
possess with intent to distribute heroin, and the district court sentenced him to
210 months in prison, to be followed by a three-year term of supervised release.
On appeal, Salgado contends that the district court erred in its presentation of
the jury instructions. As he concedes, he did not object to the instructions, so we
review for plain error. See United States v. Bohuchot, 625 F.3d 892, 897 (5th Cir.
2010); United States v. Betancourt, 586 F.3d 303, 305-06 (5th Cir. 2009). Salgado

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-50846

thus must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, we have the discretion to correct the error but will do so
only if it affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      In his first ground for relief, Salgado contends that the district court
constructively amended the indictment by failing to limit the jury’s consideration
to the three defendants named in the indictment, which permitted the jurors to
consider the possible participation of other individuals in the conspiracy. He has
not established a clear or obvious error arising from the court’s instructions on
a conspiracy. See United States v. Leahy, 82 F.3d 624, 630-31 (5th Cir. 1996).
Moreover, Salgado has not established “that the probability of a different result
is sufficient to undermine confidence in the outcome of the proceeding.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Although Salgado also
asserts that the jury should have been instructed about the possibility of
multiple conspiracies, he has not established that the district court’s failure to
give such an instruction affected his substantial rights. See Puckett, 556 U.S. at
135; United States v. Morris, 46 F.3d 410, 417 (5th Cir. 1995).
      Salgado maintains that the district court should have sua sponte
instructed the jury that they could have found him guilty of conspiracy to
possess heroin, which is a lesser included offense of conspiracy to possess with
intent to distribute heroin. The indictment charged him with conspiring to
distribute and to possess with intent to distribute; Salgado concedes that
conspiracy to possess narcotics is not a lesser included offense of conspiracy to
distribute.   Although the district court advised the jury that it must
unanimously find one of the conspiracy objectives, nothing in the record
indicates which was found. Salgado therefore has not shown that the error had
an effect on the jury deliberations or the verdict, and he thus has not established
plain error. See United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).

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                                   No. 11-50846

      In addition, Salgado contends that the district court should have
instructed the jury about expert witnesses and should have warned the jury
that Detective Mitch Russell was testifying in a dual role as a lay and an expert
witness. Even assuming that portions of Detective Russell’s testimony can be
considered expert testimony, given that the admissibility of the testimony is not
challenged; that the jury heard other evidence of guilt, including Salgado’s own
conflicting statements about his participation in the conspiracy; and that the
district court properly instructed the jury that it could accept or reject any
testimony and that it was the sole judge of credibility of the witnesses and the
weight, if any, to give to each witness’s testimony, Salgado has not
demonstrated that the failure to give an expert witness or dual role instruction
affected the outcome of the proceedings and thus affected his substantial rights.
See Puckett, 556 U.S. at 135. Further, Salgado has not shown that the failure
to give an expert witness or dual role instruction in these circumstances affects
the fairness, integrity, or public reputation of judicial proceedings as required
for reversal on plain error. Id.
      Salgado maintains that the district court should have provided a limiting
instruction with respect to evidence of his gang affiliation. He does not challenge
the introduction of the evidence. Salgado has not shown that any clear or
obvious error affected his substantial rights, in light of the instructions that
were provided. See Puckett, 556 U.S. 135; Zafiro v. United States, 506 U.S. 534,
540 (1993).
      In his final ground for relief, Salgado asserts that the jury instructions as
a whole constituted a cumulative plain error. He has not shown that the
“coalescence of [plain] errors, if any, arising in this case” resulted in the denial
of a fair trial. United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998).
Because Salgado has not shown reversible error, the judgment of the district
court is AFFIRMED.


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