107 F.4th 459
5th Cir.2024Background
- Priscilla Yvette Cervantes was convicted by a jury of (1) conspiracy to possess with intent to distribute cocaine and (2) aiding and abetting possession with intent to distribute cocaine, arising from her participation with her partner Reyes in an FBI reverse-sting operation.
- Cervantes and Reyes were targeted after the FBI received a tip about Reyes’s alleged corruption and staged several money and drug runs using informants and undercover agents posing as cartel members.
- Cervantes accompanied Reyes on multiple occasions, at times showing apparent law enforcement credentials and participating in the logistics of transporting purported cartel money and drugs.
- On December 8, 2020, Cervantes drove as part of a police-style escort for a tractor-trailer containing FBI-prepared cocaine (6 kg real, 4 kg fake) while communicating with Reyes and an undercover agent.
- Cervantes was convicted on both counts and sentenced to 121 months’ imprisonment; she timely appealed.
Issues
| Issue | Cervantes’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Motion for Acquittal | No evidence that she or Reyes possessed or agreed to possess cocaine; drugs always controlled by govt agents | Constructive possession via escorting drugs was sufficient; conspiracy did not require physical possession by defendants | Sufficient evidence of agreement and participation; conviction affirmed |
| Jury Instruction (Sears) | Jury should be instructed that a conspiracy cannot exist solely with a government agent | Unnecessary since evidence showed conspiracy with Reyes, a non-agent | Not reversible error; failure to give Sears instruction did not impair defense |
| Exclusion of DX4 (post-arrest statement) | DX4 should be admitted for non-hearsay purpose (state of mind/lack of knowledge) | DX4 is hearsay within hearsay; other evidence addressed Cervantes’s lack of intent | No reversible error; exclusion proper, did not affect verdict |
Key Cases Cited
- United States v. Sears, 343 F.2d 139 (5th Cir. 1965) (A conspiracy conviction cannot be based on an agreement solely with a government agent)
- United States v. Scott, 892 F.3d 791 (5th Cir. 2018) (Drug conspiracy does not require defendant’s physical possession of drugs)
- United States v. Wise, 221 F.3d 140 (5th Cir. 2000) (Aiding and abetting conviction can stand even if principal is a government agent)
- United States v. Moreno, 878 F.2d 817 (5th Cir. 1989) (Rejection of defense that aiding and abetting a government informant is not a crime)
- United States v. Haynes, 319 F.2d 620 (5th Cir. 1963) (Conviction upheld where defendant arranged for informant to transport drugs)
- United States v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014) (Review of jury inferences for sufficiency of evidence)