     Case: 15-50117      Document: 00513214920         Page: 1    Date Filed: 10/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-50117                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                 October 1, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

TAYLOR BREANN MOOREFIELD,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:14-CR-209


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Following a jury trial, Taylor Breann Moorefield was found guilty of
conspiracy to possess with intent to distribute 50 grams or more of actual
methamphetamine.           Moorefield appeals the district court’s judgment,
specifically challenging: (1) the exclusion of evidence related to her cooperation
with the Drug Enforcement Administration (DEA); (2) the sufficiency of the
evidence; and (3) the court’s jury instructions. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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      Exclusion of Evidence
      This court reviews a district court’s exclusion of evidence for an abuse of
discretion, and if such abuse is found we review for harmless error. United
States v. Haese, 162 F.3d 359, 364 (5th Cir. 1998).
      The Government filed a motion in limine requesting that the court
exclude evidence of Moorefield’s cooperation with the DEA. To support its
motion, the Government argued that such evidence was irrelevant and that
Moorefield did not file a notice of intent to assert a public authority defense
(i.e., defendant was actually trying to help enforce the law) as required under
Federal Rule of Criminal Procedure 12.3. At a bench conference, defense
counsel responded that Moorefield did not comply with the Rule because she
was not asserting that her behavior was authorized by the DEA. Instead,
defense counsel argued that this evidence would be used to show her state of
mind related to the inherent dangers of being a DEA informant, and requested
a jury instruction to that effect. When questioned by the court as to why her
state of mind was relevant to the charge, defense counsel asserted that
Moorefield did not change her behavior or stop her involvement in the drug
business because she feared her life was at risk if she was discovered as an
informant.
      The district court responded by citing the Fifth Circuit’s discussion of the
matter in a number of cases, specifically United States v. Smith, 481 F.3d 259,
262-63 (5th Cir. 2007). The district judge reasoned that while the Smith court
dealt with a different issue – entrapment – it discussed the rule that is
applicable to the instant case. Similarly, Smith involved a motion in limine to
exclude evidence that defendant had been a police informant. Id. at 262. Like
here, the Smith court granted the motion in limine because defendant did not
provide notice of his intent to use a public authority defense. Id. Also, the


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court in Smith opined that the district court did not err in failing to give the
entrapment instruction, stating:
      Before the district court, Smith’s counsel never clearly asserted
      entrapment as a possible defense. Even though Smith asserts that
      his proffered testimony was relevant to entrapment, he did not
      make a prima facie showing that would require either the
      government to prove that it did not entrap the defendant or the
      district court to offer an instruction on entrapment.

Id. at 263. The same may be said here. Moorefield’s counsel did not clearly
assert duress as a possible defense and did not make a prima facie showing to
support a duress instruction.        While defense counsel’s statement that
Moorefield feared for her life if discovered to be a DEA informant may imply
duress, it was not enough to warrant the instruction.         To merit a duress
instruction, defendant must show:
      (1)   that the defendant was under an unlawful and “present,
            imminent, and impending [threat] of such a nature as to
            induce a well-grounded apprehension of death or serious
            bodily injury”;
      (2)   that defendant had not “recklessly or negligently placed
            himself in a situation in which it was probable that he would
            be [forced to choose the criminal conduct]”;
      (3)   that defendant had no “reasonable legal alternative to
            violating the law; a chance both to refuse to do the criminal
            act and also to avoid the threatened harm”; and
      (4)   “that a direct causal relationship may be reasonably
            anticipated between the [criminal] action taken and the
            avoidance of the [threatened] harm.”

United States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998).
      Moorefield contends on appeal that these requirements set the bar too
high because the Supreme Court has held that “a defendant is entitled to an
instruction as to any recognized defense for which there exists evidence
sufficient for a reasonable jury to find in his favor.” Mathews v. United States,

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485 U.S. 58, 63, 108 S. Ct. 883, 887 (1988). This argument works against
Moorefield, however. Without more, defense counsel’s general statements of
Moorefield’s angst about being found out as a government informant is not
sufficient evidence to necessitate the duress instruction.
      Accordingly, the district court did not abuse its discretion in excluding
evidence of Moorefield’s DEA cooperation.
      Insufficiency of the Evidence
      Next, Moorefield contends that the evidence was not sufficient to support
the jury’s conviction. This court in Vargas-Ocampo restated the Supreme
Court standard that a conviction must be affirmed “if after viewing the
evidence and all reasonable inferences in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747
F.3d 299, 300 (5th Cir. 2014 (en banc), cert. denied, 135 S. Ct. 170 (2014) (citing
Jackson v. Virginia, 443 U.S. 307, 313-14, 99 S. Ct. 2781-2786 (1979)).
      To show that Moorefield conspired to possess methamphetamine with
intent to distribute under 21 U.S.C. §§ 841(a)(1) and 846, the Government
“must prove beyond a reasonable doubt the existence of an agreement that
entails a violation of the narcotics laws, the defendants’ knowledge of the
agreement, and their voluntary participation in it.” United States v. Ayala,
887 F.2d 62, 67 (5th Cir. 1989) (citing United States v. Hernandez-Palacios,
838 F.2d 1346, 1348 (5th Cir.1988); United States v. Gardea Carrasco, 830 F.2d
41, 44 (5th Cir.1987)). Moorefield only challenges the “voluntariness” of her
participation in the conspiracy, stating that “the evidence does not prove
beyond a reasonable doubt that Moorefield’s intent was borne of a ‘bad purpose’
rather than fear of retribution from some dangerous people.” She further
argues that the evidence proves that she lacked the specific intent to commit
the offense.
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                                  No. 15-50117
      On the contrary, the evidence supports the assertion that Moorefield
voluntarily and actively participated in furthering the drug conspiracy.
Multiple witnesses testified to having personal knowledge of Moorefield
dealing meth. One of those witnesses was Michael Brewer, an admitted meth
dealer who testified to providing her with enough meth to distribute, and on
several occasions, personally driving her to the locations to complete the deals.
Another witness, Brandy Zaliauskas, testified that Moorefield and several
other individuals regularly distributed meth from a hotel room that was
usually paid for by Zaliauskas.
      Moreover, the Government presented audio recordings and text
messages that reflected Moorefield’s conversations about drug dealing with
Brewer. Some of these conversations revealed Moorefield seemingly bragging
about her ability to sell meth. Brewer testified that Moorefield was referring
to meth as “work” when she stated “I can get rid of work like getting rid of
candy on Halloween.” Also, Moorefield admitted telling Brewer “I can sell a
whole ball all by myself. I’m a big girl. I’ve done it before.” Her explanation
for this apparent boasting was that she was not proud of it, but that she sold
meth because she needed the money.
      In light of the compelling evidence at trial, we conclude that a reasonable
jury could find that Moorefield possessed the requisite intent to further the
drug conspiracy and that her participation was voluntary.
      Jury Instructions
      Moorefield’s final argument is that the district court committed plain
error by failing to define “willfully” as requiring a “bad purpose” according to
the Fifth Circuit Pattern Jury Instructions.
      “The trial judge is given substantial latitude in tailoring the instructions
so long as they fairly and adequately cover the issues presented.” United States
v. Pool, 660 F.2d 547, 558 (5th Cir. 1981). It is undisputed that conspiracy to
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possess with intent to distribute a controlled substance “is a specific intent
crime.” United States v. Burroughs, 876 F.2d 366, 369 (5th Cir. 1989). The
phrase “specific intent” need not be used in the jury instruction; what matters
is whether the jury is instructed that the defendant intended to break the law.
United States v. Kay, 513 F.3d 432, 449 (5th Cir. 2007).
      Here, the jury was required to find “[t]hat the defendant knew of the
unlawful purpose of the agreement; and [t]hat the defendant joined in the
agreement willfully, that is, with the intent to further its unlawful purpose.”
Thus, unlike in Burroughs, the district court did not wrongly treat the
conspiracy charge as a general intent crime. See 876 F.2d at 368. Because the
jury was “required to find that [Moorefield] intended to do something
unlawful,” the instruction was proper. See id. at 369.
      AFFIRMED.




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