United States v. Montiel

U.S. Court of Appeals for the Fifth Circuit

United States v. Montiel

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 98-40637 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO MONTIEL, JR.,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. L-96-CR-353-22 _________________________________________________________________

November 10, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Roberto Montiel, Jr., appeals his convictions for aiding and

abetting the possession with the intent to distribute marijuana and

for conspiracy to possess with the intent to distribute marijuana.

Montiel first notes that a copy of the indictment was not contained

in the original appellate record and argues, without elaboration,

that “[d]ue process is tied to a meaningful appeal[.]” Because he

has provided no legal argument in support of his bare assertion of

error, Montiel’s argument concerning the missing indictment is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. DEEMED ABANDONED on appeal. See United States v. Tomblin,

46 F.3d 1369

, 1376 n.1 (5th Cir. 1995).

Montiel also argues that because the government did not prove

that he knew any of the members of the conspiracy that were named

in the indictment, the evidence was insufficient to support his

conviction for conspiracy. He concedes, however, that he arranged

with an unknown individual to receive the marijuana and agreed to

deliver the marijuana to a specific destination in exchange for

$7,000. Because Montiel did not renew his motion for a judgment of

acquittal at the close of the government’s case, review of his

argument is limited to whether the conviction resulted in a

manifest miscarriage of justice. See United States v. Thomas,

12 F.3d 1350

, 1358-59 & n.5 (5th Cir. 1994).

To support a conviction for conspiracy, a defendant need not

know the details of the unlawful enterprise or know the number or

identity of the co-conspirators so long as he knowingly

participates in some fashion in the larger objections of the

conspiracy. United States v. Westbrook,

119 F.3d 1176, 1189

(5th

Cir. 1997), cert. denied,

118 S.Ct. 1059

-60 (1998). We perceive no

manifest miscarriage of justice in Montiel’s conspiracy conviction.

Montiel also argues that the district court should not have

denied his request that the jury be instructed regarding withdrawal

from the conspiracy. We review the district court’s refusal to

include a requested jury instruction for an abuse of discretion.

United States v. Pettigrew,

77 F.3d 1500, 1510

(5th Cir. 1996).

2 A defendant is not entitled to a withdrawal instruction unless

he sufficiently raises the defense of withdrawal from a criminal

conspiracy at trial.

Id. at 1514

. To establish such a defense,

the defendant must prove “affirmative acts inconsistent with the

object of the conspiracy and communicated in a manner reasonably

calculated to reach co-conspirators.”

Id.

(internal quotation and

citation omitted). Because Montiel did not sufficiently raise the

defense of withdrawal at trial, the district court did not abuse

its discretion by denying a jury instruction on the issue. See

Pettigrew,

77 F.3d at 1510

.

A F F I R M E D.

3

Reference

Status
Unpublished