     Case: 18-40776      Document: 00515390622         Page: 1    Date Filed: 04/21/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-40776
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 21, 2020
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ZACK SAYAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-956-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Zack Sayas appeals from his jury verdict conviction for conspiracy to
possess with intent to distribute more than 50 grams of methamphetamine,
possession with intent to distribute approximately 11.94 kilograms of
methamphetamine, conspiracy to import a controlled substance into the
United     States,    and     importing      approximately       11.94     kilograms               of
methamphetamine. For the first time, he argues that the district court erred


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-40776      Document: 00515390622   Page: 2   Date Filed: 04/21/2020


                                 No. 18-40776

by misstating the law in the jury instruction for the public authority defense.
We review this unpreserved challenge for plain error. See Puckett v. United
States, 556 U.S. 129, 135 (2009); see also United States v. Reeves, 752 F.2d 995,
1000 (5th Cir. 1985).
      The jury was instructed that, pursuant to the public authority or
government authorization defense, it should find Sayas not guilty of all four
charges if he proved “by a preponderance of the evidence that he was acting as
an authorized government agent to assist in law enforcement activity at the
time of the offense charged in the indictment.”       Sayas acknowledges our
holding in United States v. Sariles, 645 F.3d 315, 317-18 (5th Cir. 2011), that
the public authority defense requires the government agent to have actual
authority to permit the defendant’s act, but he specifies in his reply brief that
he is not relying on a theory of apparent authority. Sayas contends that the
jury should have instead been told that he had a “reasonable belief” that he
was acting as an authorized government agent in relation to the charged
offenses.
      The reasonableness of the defendant’s belief that he was acting as an
authorized government agent is a relevant jury consideration for purposes of a
public authority defense. See United States v. Hale, 685 F.3d 522, 542 (5th Cir.
2012); Sariles, 645 F.3d at 318. Nevertheless, even if it is assumed that this
omission constituted clear or obvious error in this case, Sayas has not met his
burden of showing that the error affected his substantial rights or that we
should exercise our discretion to correct that error. See Puckett, 556 U.S. at
135; United States v. Andaverde-Tinoco, 741 F.3d 509, 522-23 (5th Cir. 2013).
      Accordingly, the district court’s judgment is AFFIRMED.




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