United States v. Fausto Aguero Alvarado
808 F.3d 474
| 11th Cir. | 2015Background
- Defendant Fausto Aguero Alvarado was a DEA confidential informant (CI) who signed written CI agreements in 2008–2009 that limited authorization to activities explicitly approved by supervising agents.
- After contact with agents waned (agents told him to stop and some agreements expired), Defendant participated for ~16 months in a weapons-for-cocaine conspiracy and related drug transactions without notifying supervisors.
- Defendant was indicted federally for conspiracy to distribute ≥5 kg of cocaine (weapons charge dropped by extradition agreement); he asserted he believed he was acting as an informant and sought a public-authority defense and to call an expert about DEA procedures.
- The magistrate and district court precluded the public-authority (and entrapment-by-estoppel) defenses for lack of evidentiary support, but allowed an "innocent intent" (lack-of-mens-rea) instruction; the expert witness was excluded as irrelevant and improper under Rule 704(b).
- A jury convicted Defendant on the drug conspiracy count; the district court sentenced him to 360 months (within Guidelines). The Eleventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court should have instructed the jury on a public-authority defense | Gov: instruction inappropriate absent evidence of authorization | Aguero: his CI status and contacts furnished sufficient basis to instruct jury on public authority | Affirmed: no instruction — Defendant produced no evidence that agents actually authorized the charged conduct or that he reasonably relied on authorization |
| Exclusion of proposed expert on DEA procedures | Gov: expert irrelevant and would invade ultimate issues; Rule 403/704 concerns | Aguero: expert would show agents failed to follow CI activation/deactivation procedures, supporting authorization inference | Affirmed: exclusion proper — testimony not probative of Defendant’s subjective belief and would risk impermissible opinion on mental state |
| Whether the court erred by prefacing the innocent-intent instruction by stating Defendant was not authorized | Aguero: preface prejudicial, effectively directed verdict for government | Gov: clarification avoided juror confusion between affirmative defense and mens‑rea negation | Affirmed: no error — instruction accurately framed issues and did not intrude on facts for jury to decide |
| Substantive reasonableness of 360‑month sentence | Aguero: sentence excessive; should be lower or a variance | Gov: within-Guidelines; longer sentences for co‑defendants who pled/ cooperated justify disparity | Affirmed: sentence reasonable — within Guidelines, district court weighed §3553(a) factors and considered co‑defendants’ cooperation and trial conduct |
Key Cases Cited
- United States v. Baptista-Rodriguez, 17 F.3d 1354 (11th Cir. 1994) (distinguishes public-authority, entrapment-by-estoppel, and innocent-intent doctrines)
- United States v. Johnson, 139 F.3d 1359 (11th Cir. 1998) (public-authority defense requires actual authority and reasonable reliance)
- United States v. Reyes-Vasquez, 905 F.2d 1497 (11th Cir. 1990) (public authority when acts are under color of official authority)
- United States v. Giffen, 473 F.3d 30 (2d Cir. 2006) (discusses apparent vs. actual authority and fairness rationale)
- United States v. Abcasis, 45 F.3d 39 (2d Cir. 1995) (public-authority defense cannot be open‑ended license to commit crimes)
- United States v. Anderson, 872 F.2d 1508 (11th Cir. 1989) (apparent authority insufficient where official lacked power to authorize illegality)
- United States v. Rosenthal, 793 F.2d 1214 (11th Cir. 1986) (rejecting claim of apparent authority to authorize illegal acts)
- United States v. Juan, 776 F.2d 256 (11th Cir. 1985) (innocent‑intent evidence can negate mens rea where defendant claims cooperation with government)
- United States v. Ruiz, 59 F.3d 1151 (11th Cir. 1995) (proper jury instruction required when defendant claims belief he was acting with law enforcement)
- United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990) (discusses burden and foundation for estoppel/authority defenses)
- United States v. Stallworth, 656 F.3d 721 (11th Cir. 2011) (distinguishes actual authority requirement for public authority from estoppel doctrines)