United States v. Montiel ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-40637
Summary Calendar
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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
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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this opinion should not be published and is not precedent except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