     Case: 11-50813       Document: 00512054623         Page: 1     Date Filed: 11/15/2012




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

                                                                            FILED
                                                                        November 15, 2012
                                     No. 11-50813
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAIME FLORES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:11-CR-106-1


                           REVISED NOVEMBER 15, 2012
       The opinion issued November 14, 2012, is hereby withdrawn and replaced
with the following.


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       A jury found Jaime Flores guilty of conspiracy to distribute and to possess
with intent to distribute heroin, and the district court sentenced him to 72
months in prison, to be followed by a three-year term of supervised release. On

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50813

appeal, Flores 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). Flores
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, Flores 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 conspiracy
instructions. See United States v. Leahy, 82 F.3d 624, 630-31 (5th Cir. 1996).
Although Flores 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).
      Flores asserts 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 evidence is not challenged and 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, Flores has not demonstrated


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                                   No. 11-50813

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, Flores 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.
      In his final ground for relief, Flores asserts that the jury instructions as
a whole constituted a cumulative plain error. He has not shown that there exist
errors to be cumulated, and thus he is not entitled to relief. See United States
v. Brooks, 681 F.3d 678, 705 (5th Cir. 2012), petition for cert. filed (Aug. 9, 2012)
(No. 12-5812), and petition for cert. filed (Aug. 16, 2012) (No. 12-5847). Because
Flores has not shown reversible error, the judgment of the district court is
AFFIRMED.




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