Summary
The Eleventh Circuit affirmed Fausto Aguero Alvarado’s conviction for conspiracy to distribute five kilograms or more of cocaine knowing that it would be imported into the United States, and affirmed his 360-month sentence. The court held that Alvarado was not entitled to a public-authority jury instruction because he lacked evidence that federal agents had actually authorized the charged criminal conduct, although the district court properly permitted him to present an innocent-intent theory. The court also upheld the exclusion of proposed expert testimony concerning DEA procedures and concluded that the sentence was substantively reasonable.
Topics
Practice areas
Questions Presented
- Whether the district court erred by refusing to instruct the jury on the public-authority defense.
- Whether the district court erred by instructing the jury on an innocent-intent theory and clarifying that Alvarado had not established authorization by law enforcement.
- Whether the district court abused its discretion by excluding expert testimony concerning DEA agents' compliance with agency procedures for handling confidential informants.
- Whether Alvarado's 360-month within-Guidelines sentence was substantively unreasonable.
Holdings
- A defendant is not entitled to a public-authority instruction without evidence that a government official actually authorized the charged criminal conduct, that the official had actual authority to authorize it, and that the defendant reasonably relied on that authorization. Alvarado presented no evidence of affirmative authorization for the sixteen-month conspiracy, so the district court properly refused the instruction.
- The district court properly instructed the jury that it should acquit if Alvarado honestly believed he was performing the charged conduct to help law enforcement, and the jury's guilty verdict necessarily rejected that testimony. The court's clarification that Alvarado had not established authorization did not direct a verdict or prejudice him.
- The district court did not abuse its discretion by excluding proposed expert testimony that the supervising DEA agents failed to follow agency best practices in activating, deactivating, and terminating confidential informants.
- The 360-month sentence was substantively reasonable. The within-Guidelines sentence was not rendered unreasonable by its disparity from the sentences of cooperating codefendants.
Key quotations
“The phrase “authorization of an action” connotes first, an awareness of the intended action by the person authorizing it and second, a communication to the person undertaking the action.” (at 34-35)
“And it is the actual affirmative communication by a law enforcement agent that transforms an informant’s assumption of authorization into the approval that is required for the public authority defense to apply.” (at 36)
Factual background
Alvarado worked as a DEA confidential informant under written agreements that prohibited independent action and provided no immunity for conduct not specifically authorized by his controlling investigators. After the agents' working relationship with him largely ended and his agreements expired, Alvarado participated for approximately sixteen months in a conspiracy to obtain cocaine in exchange for weapons and to arrange drug shipments for importation into the United States. He did not inform his former supervising agents about the conspiracy or seek authorization for his conduct, but testified that he believed he was continuing to act as an informant.
Procedural history
A superseding indictment charged Alvarado with one count of conspiracy to distribute five kilograms or more of cocaine. Before trial, the district court excluded a public-authority defense and proposed expert testimony concerning DEA procedures, but allowed Alvarado to present an innocent-intent theory. A jury convicted him, and the district court imposed 360 months' imprisonment and five years' supervised release. The Eleventh Circuit affirmed.