     Case: 13-10954      Document: 00512606814         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
                                    No. 13-10954                                   FILED
                                  Summary Calendar                             April 24, 2014
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                   Clerk


                                                 Plaintiff-Appellee

v.

ERNESTO NAVARETTE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:13-CR-10-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Ernesto Navarette appeals his jury trial conviction for felony possession
of a firearm. He argues that the district court erred in refusing to give the jury
a modified version of the Fifth Circuit’s Pattern Jury Charge for “Witness’s Use
of Addictive Drugs.” He argues that a modified version of the charge was
appropriate because his out-of-court admissions that he possessed a firearm
were introduced during the trial and because the evidence supported a finding


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10954     Document: 00512606814     Page: 2   Date Filed: 04/24/2014


                                  No. 13-10954

that those admissions were made while he was being treated in the emergency
room of a hospital and while he was under the influence of a pain killer.
      We review a district court’s failure to provide a requested jury
instruction “under an abuse of discretion standard, affording the trial court
substantial latitude in describing the law to the jurors.” United States v. Rios,
636 F.3d 168, 171 (5th Cir. 2011). We will reverse a district court for refusal
to give a jury instruction only “if the proposed jury instruction was
(1) substantively correct, (2) not substantively covered in the jury charge, and
(3) concerned an important issue at trial, such that failure to give the requested
instruction seriously impaired the presentation of a defense.” United States v.
Jones, 132 F.3d 232, 242 (5th Cir. 1998).
      Navarette concedes that the Fifth Circuit’s Pattern Jury Charge for
“Witness’s Use of Addictive Drugs” was not, in its original form, applicable in
his case because he was not a witness during his trial. Moreover, the jury was
instructed   that,   when   determining     whether    Navarette’s   out-of-court
statements were knowingly and voluntarily made, it should consider the
evidence concerning such statements “with caution and great care” and that it
“should give such weight to the statement[s]” as it felt it deserved “under all
the circumstances[,]” including Navarette’s “physical and mental condition . . .
and all the other circumstances in evidence surrounding the making of the
statement[s].” Accordingly, the substance of Navarette’s requested instruction
was already substantially covered by the jury charge. Finally, Navarette was
able to adequately present his defense that his out-of-court statements were
not reliable because of his physical condition and the medication he was given
at the hospital. Accordingly, the district court did not abuse its discretion in
refusing to include the requested jury instruction in the jury charge. See Rios,
636 F.3d at 171. The district court’s judgment is therefore AFFIRMED.



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