United States v. Orlando Hale ( 2012 )


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  •      Case: 11-40488   Document: 00511898307       Page: 1   Date Filed: 06/25/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    June 25, 2012
    No. 11–40488                      Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee
    v.
    ORLANDO JESUS HALE, also known as Chacho,
    Defendant – Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
    PER CURIAM:
    This appeal involves former Laredo Police Officer Orlando Jesus Hale’s
    jury trial conviction for (i) conspiracy to possess with intent to distribute more
    than 5 kilograms of cocaine, and (ii) using or carrying a firearm in relation to a
    drug trafficking offense or possessing a firearm in furtherance of a drug
    trafficking offense. Hale challenges numerous aspects of his trial and sentencing.
    For the following reasons, we affirm Hale’s conviction and sentence.
    I.
    In the fall of 2008, Laredo Police Officer Pedro Martinez, III, contacted his
    friend Juan “Guero” Hernandez and asked Guero if he could supply cocaine to
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    No. 11–40488
    Martinez’s father. At the time, Martinez’s father was trying to become a
    middleman who would resell the cocaine to his known drug dealer acquaintance
    at a higher price. Martinez believed his father would share with him the profits
    gained from any future drug transactions. In response to the request, Guero
    introduced Martinez to Adolfo “Tony” Baesa, Jr., who Guero said was his uncle
    and who had access to large quantities of cocaine. Unbeknownst to Martinez,
    Guero was a confidential informant for the Bureau of Alcohol, Tobacco, and
    Firearms, and Tony was not Guero’s uncle but an undercover agent for the
    Federal Bureau of Investigation (FBI).
    In order to gain Tony’s trust, Martinez agreed to act as an escort for a
    vehicle Tony and Guero said was carrying cocaine. On the night of October 15,
    2008, Martinez, driving his police cruiser, escorted one of Tony’s vehicles across
    town. Martinez believed the vehicle contained 20 kilograms of cocaine. At one
    point during the escort, Martinez heard a helicopter and became suspicious of
    the situation, and at another point he had to pause the escort to respond to a
    police call because he was still on duty. During the escort Martinez contacted
    Guero to ask about the helicopter. Guero reassured him that nothing was wrong
    with the situation and said that the escort was only a “dry run,” meaning no real
    cocaine was actually being transported. Martinez did not believe that the escort
    was merely a dry run as Guero suggested, but felt reassured nonetheless and
    completed the escort as planned. After completing the escort, Martinez met with
    Tony and was paid $1,000. He and Tony also discussed the possibility of future
    escorts, at which time Martinez said he had another police officer in mind if
    Tony needed additional help.
    A few days after the initial escort, Martinez told Hale—his friend and
    fellow Laredo Police Officer—that he had a way for Hale to make some “easy
    money.” After asking whether Martinez thought his contacts were undercover
    agents, Hale said he was interested and agreed to meet Guero and Tony.
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    Martinez never told Hale specifics about his prior cocaine escort which Guero
    had said was only a dry run.
    Hale met with Martinez and Guero several times prior to the next escort.
    On November 7, 2008, Hale, Martinez, Guero, and Tony all met in an Embassy
    Suites hotel room to discuss plans for another cocaine escort. Upon arriving at
    the hotel, Hale took a semiautomatic handgun from his vehicle, cocked it, tucked
    it into the back waistband of his jeans, and covered it with his t-shirt before
    walking inside. The meeting lasted approximately one hour, during which time
    everyone agreed that on future escorts Hale and Martinez would keep their
    weapons on them, use personal vehicles, use police-issued handheld radios to
    monitor police channels, and use Nextel push-to-talk phones because they are
    similar to walkie-talkies and difficult to track. Also during the meeting, Tony
    distributed new Nextel phones still in the boxes. Hale opened the boxes without
    leaving fingerprints on them and programmed into the phones each of the
    participants’ phone numbers. FBI agents made audio and video recordings of the
    meeting using a hidden camera.
    On the evening of November 13, 2008, Hale and Martinez each escorted
    across town vehicles which they were told were transporting 20 kilograms of
    cocaine. Unbeknownst to Hale or Martinez, no actual cocaine was used in the
    transports. Neither Hale nor Martinez were paid for these escorts until they
    drove to San Antonio approximately one week later, where one of Tony’s
    associates, also an undercover FBI agent, paid each of them $1,000. Guero and
    Tony attempted to arrange one more cocaine escort on November 19, 2008—this
    time using real cocaine—but neither Hale nor Martinez was available because
    they were both on duty.
    At some point in November 2008, Martinez recorded several of his
    conversations with Guero. Martinez then told Laredo Police Department
    Narcotics Sergeant Robert Medina that he had received a telephone call from
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    somebody about possibly escorting cocaine shipments. Martinez did not tell
    Sergeant Medina that he knew the person, that he had already recorded several
    conversations, or that he had already been paid for performing an escort.
    Martinez also never mentioned Hale’s involvement. Sergeant Medina advised
    Martinez to take the information to Internal Affairs, which Martinez did not do,
    and to record any future telephone calls. Martinez later informed Hale about the
    recordings and about his conversation with Sergeant Medina. Martinez advised
    Hale that they could use the recordings and his conversation with Sergeant
    Medina for their defense as an “undercover thing between us” if they were ever
    caught. However, Martinez was not authorized to organize or sanction an
    undercover operation and he never told Hale that he had been authorized by
    Sergeant Medina to engage in an official undercover operation or that he had the
    authority to permit Hale to do so. At no time did Martinez or Hale receive
    specialized training on undercover work, follow formal Laredo Police
    Department protocol for undercover work, or request or receive pay for
    performing undercover work related to the cocaine escorts.
    Approximately ten months later on September 29, 2009, FBI agents
    lawfully searched Martinez’s father’s home. When Martinez arrived at the home,
    his father was already being interviewed by FBI agents. Martinez was also
    interviewed by FBI agents and during the interview agreed to initiate and record
    a telephone conversation with Hale. During the call, Martinez said that his
    father’s house had been raided by the FBI. When asked, Hale said he
    remembered performing the escorts, but he hung up the phone when Martinez
    broached the subject of receiving payments.
    Several days later on October 1, 2009, FBI agents arranged with the
    Laredo Police Department to have Hale dispatched to a local hotel room under
    the auspices of a burglary call in order to allow the FBI agents to conduct an
    interview of Hale. At the hotel room, the FBI agents, led by lead case agent Troy
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    McAdoo, initiated a consensual interview with Hale where they produced several
    pictures taken from the hidden camera at the Embassy Suites meeting almost
    a year earlier. Agent McAdoo told Hale that they had been investigating his
    participation in the cocaine escort operation and that they were aware of his
    various meetings with Martinez, Guero, and Tony; the November 13, 2008
    cocaine escorts; and the $1,000 payment he received in San Antonio. Hale
    admitted to Agent McAdoo during the interview that he knew Martinez,
    Martinez’s father, and Guero; that he recognized from the pictures where the
    Embassy Suites meeting had taken place; and that he remembered the purpose
    of the Embassy Suites meeting. During the interview, Agent McAdoo witnessed
    Hale’s demeanor change from being calm when he arrived at the hotel room to
    being sick to the point of dry-heaving when he learned of the FBI’s investigation
    into his past conduct. Eventually Hale chose to leave the hotel room and Agent
    McAdoo terminated the interview.
    Around this same time, the Laredo Police Chief ordered that Martinez be
    placed on administrative duty. Martinez resigned from the Laredo Police
    Department several months later on February 16, 2010. On February 17, 2010,
    Martinez pleaded guilty to conspiracy to possess with intent to distribute more
    than 5 kilograms of cocaine. He was sentenced to 78 months of imprisonment
    and later became one of the government’s key witnesses against Hale.
    II.
    Hale was indicted for (i) conspiracy to possess with intent to distribute
    more than 5 kilograms of cocaine, and (ii) using or carrying a firearm in relation
    to a drug trafficking offense or possessing a firearm in furtherance of a drug
    trafficking offense. On April 29, 2010, Hale made his initial appearance in court.
    Thereafter, Hale was placed on unpaid leave from the Laredo Police Department
    and was released on bond but subject to house arrest and monitoring.
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    On June 17, 2010, the government filed a motion to continue based on the
    ends of justice, asserting that Agent McAdoo, the FBI’s “primary case agent” and
    one of the government’s “crucial witnesses,” had suffered a family emergency
    and was unable to be present for trial which was set to begin on June 21, 2010.
    Hale objected to the motion. The district court granted the government’s motion
    without a hearing and reset the trial date to August 2, 2010.
    On July 20, 2010, the government filed a superseding indictment against
    Hale, charging him with the same two counts contained in the original
    indictment—the conspiracy and firearms charges—as well as four new counts
    of mail and wire fraud related to a separate investigation involving an alleged
    car theft insurance scheme. At a July 30, 2010 hearing, the district court granted
    Hale’s request for an additional 30 days to prepare for trial on all six counts.
    On September 16, 2010, Hale filed a motion to dismiss based on a Speedy
    Trial Act violation, which the district court denied at a hearing on September 17,
    2010. During the hearing the district court reasserted its reasons for granting
    the government’s motion to continue and for granting Hale’s 30-day request for
    additional preparation time, in each case citing the ends-of-justice provision of
    the Speedy Trial Act.
    The trial commenced on September 17, 2010. During the course of the six-
    day trial, the government presented numerous witnesses (including Martinez,
    Guero, Tony, and Agent McAdoo) who each testified to the events surrounding
    the cocaine escort scheme and the undercover FBI operation. The government
    also presented numerous exhibits (including photographs, video and audio
    recordings, and the handgun Hale brought to the Embassy Suites meeting) to
    help establish Hale’s involvement in the scheme.
    Hale chose to take the stand and testify on his own behalf. He testified
    that he became a Laredo Police Officer near the end of 2007 and thereafter
    became close with Martinez because they patrolled the same district and had the
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    same work shifts. He said he trusted Martinez and often looked to him for
    backup and advice. Describing the cocaine escort activities, Hale testified that
    Martinez told him about a person named Guero who had contacted Martinez
    about possibly escorting cocaine for money. Hale said Martinez asked him if he
    would help conduct an investigation into Guero and Tony so that Martinez could
    earn a promotion to join the narcotics division. Hale said he agreed to help
    Martinez with an investigation but that he never personally discussed the
    investigation with Sergeant Medina or filled out any formal undercover reports
    or paperwork. Hale testified that he just went along with Martinez in the
    various meetings with Guero and at the Embassy Suites meeting with Guero
    and Tony. Hale also testified that Martinez told him there would not be any
    actual drugs in the vehicles they escorted on November 13, 2008, statements
    Martinez denied making. Hale admitted to receiving $1,000 from one of Tony’s
    associates when he drove with Martinez and Guero to San Antonio in November
    2008, but said that he later gave the $1,000 to Martinez to log into evidence,
    something Martinez also denied.
    On September 27, 2010, the jury returned a verdict of guilty on count one
    of conspiracy to possess with intent to distribute more than 5 kilograms of
    cocaine, and count two of using or carrying a firearm in relation to a drug
    trafficking offense or possessing a firearm in furtherance of a drug trafficking an
    offense. The jury returned a verdict of not guilty on counts three through six
    related to wire and mail fraud for the alleged car theft insurance scheme.
    On April 11, 2011, the district court sentenced Hale to a total of 295
    months of imprisonment and five years of supervised released, and fined him
    $2,000. Hale timely appealed.
    III.
    On appeal Hale challenges whether: (i) the district court erred in failing
    to grant Hale’s motions to dismiss based on a Speedy Trial Act violation; (ii) the
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    district court erred in excluding several out-of-court statements made by
    Martinez and Martinez’s father as inadmissible hearsay; (iii) the district court
    plainly erred in refusing to instruct the jury with more detail on the substantive
    crime underlying the conspiracy; (iv) the district court abused its discretion in
    refusing to instruct the jury on Hale’s proposed affirmative defenses of “public
    authority” and “entrapment by estoppel;” (v) there was sufficient evidence in the
    record for a rational jury to find Hale guilty of the firearms charge beyond a
    reasonable doubt; (vi) the district court erred in responding to the jury’s question
    during deliberations regarding the use of fake cocaine during the escorts; and
    (vii) the district court clearly erred by enhancing Hale’s sentence for “obstruction
    of justice” and “abuse of a position of trust.” We address each issue in turn.
    A.
    Hale asserts that the length of time between his initial appearance on
    April 29, 2010, and his trial which began on September 17, 2010—a total of 142
    calendar days—violated his statutory right to a speedy trial within 70 days. See
    Speedy Trial Act, 
    18 U.S.C. § 3161
     et seq.
    The Speedy Trial Act requires that a trial commence within 70 days of a
    defendant’s initial appearance, see § 3161(c)(1), subject to certain exceptions and
    tolling periods, see § 3161(h). Days that are excluded in computing the time
    within which a trial must commence include any period of delay resulting from:
    (i) the court’s consideration of any pretrial motion, § 3161(h)(1)(D); (ii) the
    absence or unavailability of an essential witness, § 3161(h)(3); and (iii) the grant
    of a continuance on the basis of the court’s finding that the ends of justice served
    by taking such action outweigh the best interest of the public and the defendant
    in a speedy trial, § 3161(h)(7).
    Hale challenges three determinations made by the district court with
    respect to the days countable toward the 70-day speedy trial clock. First, he
    challenges the district court’s ruling that any Speedy Trial Act claim was waived
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    when he failed to file his motion to dismiss before the district court’s scheduling
    order deadline for filing all pretrial motions. Second, he challenges the district
    court’s grant of the government’s June 17, 2010 motion to continue, arguing that
    the ends of justice were not met by granting the continuance. And third, he
    challenges the district court’s exclusion of the 30-day preparation period which
    he requested on July 30, 2010. The parties agree that the Speedy Trial Act would
    be violated if the district court erred in excluding either the 43-day continuance
    granted pursuant to the government’s motion or the 30-day continuance granted
    pursuant to Hale’s request for additional preparation time.
    1.
    On September 17, 2010, the first day of trial and the day after Hale filed
    his first motion to dismiss based on a Speedy Trial Act violation, the district
    court held that Hale had waived his right to file the motion by failing to comply
    with the court’s July 28, 2010 scheduling order which had set August 9, 2010,
    as the deadline for “filing all pre-trial motions (including motions for discovery,
    suppression, etc.).” “We review the district court’s administrative handling of a
    case, including its enforcement of the local rules and its own scheduling orders
    for abuse of discretion.” Macklin v. City of New Orleans, 
    293 F.3d 237
    , 240 (5th
    Cir. 2002).
    Federal Rule of Criminal Procedure 12 governs pleadings and pretrial
    motions. Rule 12(b)(3)(A) describes motions that must be made before trial and
    includes “a motion alleging a defect in instituting the prosecution.” Rule 12(c)
    provides that a district court may “set a deadline for the parties to make pretrial
    motions.” And Rule 12(e) provides that a party “waives any Rule 12(b)(3)
    defense, objection, or request not raised by the deadline the court sets under
    Rule 12(c) or by any extension the court provides.”
    Hale does not dispute that the district court set an August 9, 2010
    deadline for all pretrial motions and that he did not file a motion to dismiss
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    based on a Speedy Trial Act violation until September 16, 2010. However, he
    argues that (i) the scheduling order was vague because it did not specifically
    include Speedy Trial Act violations in its list of motions covered by the
    scheduling order, and (ii) the operation of Rule 12 cannot completely foreclose
    a defendant’s right to file a motion to dismiss based on a Speedy Trial Act
    violation because such a motion may only become available after the deadline set
    by the scheduling order has passed. The government responds that the
    scheduling order was not vague but was explicit and inclusive of all pretrial
    motions, and that our precedent “squarely foreclosed” Hale’s argument regarding
    the scheduling order deadline.
    The government is correct only on the first point. The district court’s
    scheduling order set August 9, 2010, as the deadline for “filing all pre-trial
    motions (including motions for discovery, suppression, etc.).” The phrase “all pre-
    trial motions” is explicit and inclusive and the parenthetical listing several types
    of motions explains but does not limit the scope of the order. The scheduling
    order is not vague and it is clearly meant to cover any pretrial motion either
    party intends to file.
    However, we agree with Hale that it is an abuse of discretion for a district
    court to find that, pursuant to Rule 12(e), a defendant prospectively waived his
    right to file a motion to dismiss based on a Speedy Trial Act violation. See Zedner
    v. United States, 
    547 U.S. 489
    , 500–03 (2006) (holding a defendant could not
    prospectively waive his right to make a Speedy Trial Act claim); see also
    § 3162(a)(2) (“Failure of the defendant to move for dismissal prior to trial or
    entry of a plea of guilty or nolo contendere shall constitute a waiver of the right
    to dismissal under this section.”) (emphasis added). In Zedner, the Supreme
    Court’s reasoned that prospective waivers are very different than the
    retrospective waivers countenanced by § 3162(a)(2) and are therefore
    impermissible. 
    547 U.S. at
    501–03. Making compliance with Rule 12(b) (required
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    pretrial motions), Rule 12(c) (scheduling orders), and Rule 12(e) (waiver)
    applicable to motions to dismiss based on Speedy Trial Act violations would thus
    impermissibly force a defendant to prospectively waive his right to a speedy trial
    for the period of time between the filing deadline and the start of trial.
    Moreover, United States v. Westbrook, 
    119 F.3d 1176
     (5th Cir. 1997), which
    the government asserts has “squarely foreclosed” this issue, was decided almost
    a decade before Zedner and dealt primarily with whether one defendant’s filing
    of a motion to dismiss based on a Speedy Trial Act violation was effective for his
    three co-defendants who did not expressly join in the motion. See 
    119 F.3d at
    1184–85. It did not expressly decide that motions to dismiss for a Speedy Trial
    Act violation must be filed before trial and before any scheduling deadline. 
    Id.
    Westbrook’s determination that, pursuant to Rule 12(b) and (e), a Speedy Trial
    Act violation “is a defense, objection ,or request ‘which must be made prior to
    trial,’” does not answer the question of whether a district court’s scheduling
    order deadline established pursuant to Rule 12(c) is effective against a claim of
    a Speedy Trial Act violation. See 
    id.
     (citing FED. RULE CRIM. P. 12(b) and (e) but
    not (c)). Ultimately, Westbrook is distinguishable from this case, and is abrogated
    by Zedner insofar as it can be read to have held that a Speedy Trial Act violation
    is a “defect in instituting the prosecution” that must be raised in a motion which
    complies with a district court’s Rule 12 deadline for pretrial motions. See FED.
    RULE CRIM. P. 12(b)(3)(A); Zedner, 
    547 U.S. at
    501–03.
    In this case, the district court’s ruling that Hale waived his right to move
    for dismissal based on a Speedy Trial Act violation effectively forced Hale to
    prospectively waive his rights under the Speedy Trial Act from August 9, 2010,
    through September 17, 2010—a period of 40 days. We find that a defendant
    cannot prospectively waive his right to assert a Speedy Trial Act claim
    voluntarily under Zedner, and cannot be forced to prospectively waive his right
    pursuant to Rule 12. Accordingly, based on Zedner and the text of § 3162(a)(2),
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    which simply requires that motions to dismiss based on Speedy Trial Act
    violations be filed “prior to trial,” we hold that it was an abuse of discretion for
    the district court to find that Hale waived his right to file a motion to dismiss
    based on a Speedy Trial Act violation when he failed to file it before the
    scheduling order deadline of August 9, 2010.
    However, because the district court made an alternative holding on the
    merits that the Speedy Trial Act was not violated because the number of
    countable days totaled fewer than 70, we must reach the substantive question
    of whether the Speedy Trial Act was in fact violated.
    2.
    Hale challenges the district court’s grant of the government’s motion to
    continue, arguing both that there were no grounds for an ends-of-justice
    continuance under § 3161(h)(7) and that Agent McAdoo was not an unavailable
    essential witness whose attendance could not be obtained by due diligence.
    The government filed its motion under seal on June 17, 2010, requesting
    an ends-of-justice continuance. The motion asserted that Agent McAdoo, the
    FBI’s “primary case agent” and one of the government’s “crucial witnesses,”
    experienced a family emergency on June 15, 2010. It stated that Agent McAdoo’s
    wife was hospitalized in Fort Worth near their home, and that he needed to
    remain in Fort Worth to provide immediate care for their two young children, to
    determine how to provide for long-term child and medical care, and to stabilize
    the medical emergency situation. It also stated that Agent McAdoo had
    “conducted an interview of and received an incriminating statement” from Hale
    and “directed, led, supervised, planned, implemented, and executed all but one
    of the key operational plans in the course of the investigation.” The motion cited
    the Speedy Trial Act and stated that the ends of justice were satisfied and “that
    the delay would avoid a miscarriage of justice by allowing for the testimony of
    a critical witness . . . and would allow counsel for the defendant and attorney for
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    the Government the reasonable time necessary for effective preparation, taking
    into account the exercise of due diligence.”
    Hale filed an objection on June 18, 2010. In his objection, Hale asserted
    that he would be prejudiced by a continuance because he was suspended without
    pay from his job, he was under house arrest, and a jury had already been
    selected. Hale also stated that the government had not shown that Agent
    McAdoo was unable to attend trial because “Laredo has several facilities that
    could provide short term child care” and “[Agent] McAdoo could appear in Laredo
    during one day and return to his wife and kids in Fort Worth.” Hale also
    challenged the government’s assertions that Agent McAdoo had taken an
    incriminating statement and was a crucial witness.
    The district court signed an order granting the motion on June 22, 2010.
    The order provided that:
    The court finds that the ends of justice are satisfied by the granting
    of this continuance to August 2, 2010 in order to avoid a miscarriage
    of justice by the failure to grant the continuance. Special Agent Troy
    L. McAdoo is a critical fact witness, one who purports to have heard
    the alleged criminal admissions of the defendant and who was the
    lead case agent throughout the entire course of the two-year
    investigation. For reasons completely out of his control, Agent
    McAdoo experienced an immediate and catastrophic family medical
    emergency arising out of the witness’ wife hospitalization. The
    witness’ physical presence is required immediately in Fort Worth as
    he is the sole remaining care giver of his and his wife’s two small
    children. The witness’ wife will likely require arrangements for
    treatment at a mental health facility once she is released from the
    hospital. While the defendant opposes the continuance, the court
    finds that, as the defendant is out on bond and the evidence is
    readily available, that there is no indication of prejudice and that
    evidence will or might perish in the interim. Furthermore, a denial
    of the continuance would have the effect of denying the attorney for
    the Government, reasonable time for effective trial preparation
    taking into account the diligence and the Government’s critical need
    for the witness. Finally, as the emergency was completely
    unforeseen and unforeseeable, the granting of this continuance was
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    not the result of a lack of diligent preparation or a failure to obtain
    available witnesses on the part of the attorney for the Government.
    Subsequently, at a hearing on September 17, 2010, concerning Hale’s
    motion to dismiss based on a Speedy Trial Act violation, the district court
    reiterated its reasons for granting the government’s June 17, 2010 motion to
    continue, relying again on the ends of justice.
    “We review the district court’s factual findings supporting its Speedy Trial
    Act ruling for clear error and its legal conclusions de novo.” United States v.
    Stephens, 
    489 F.3d 647
    , 652 (5th Cir. 2007). “A judge’s finding that a
    continuance would best serve the ends of justice is a factual determination
    subject to review under the clearly erroneous standard.” United States v. Eakes,
    
    783 F.2d 499
    , 503 (5th Cir. 1986).
    The Speedy Trial Act permits a judge to grant a motion to continue “on the
    basis of his findings that the ends of justice served by taking such action
    outweigh the best interest of the public and the defendant in a speedy trial.”
    § 3161(h)(7)(A). However,
    [n]o such period of delay resulting from a continuance granted by
    the court in accordance with this paragraph shall be excludable
    under this subsection unless the court sets forth, in the record of the
    case, either orally or in writing, its reasons for finding that the ends
    of justice served by the granting of such continuance outweigh the
    best interests of the public and the defendant in a speedy trial.
    Id. Moreover, no ends-of-justice continuance can be granted because of “lack of
    diligent preparation or failure to obtain available witnesses on the part of the
    attorney for the Government.” Id. § 3161(h)(7)(C).
    Here, the district court’s June 22, 2010 order provided its reasons for
    granting the government’s motion to continue, and its statements at the
    September 17, 2010 hearing permissibly supplemented those reasons. See
    Zedner, 
    547 U.S. at
    506–07 (accepting a district court’s later-expressed reasons
    for granting an ends-of-justice continuance so long as the reasons are put on the
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    record prior to a ruling on a defendant’s motion to dismiss under § 3162(a)(2)).
    The district court’s reasons for finding that the ends of justice supported
    granting the continuance focused on the emergency nature of the medical
    situation, the necessity that Agent McAdoo remain in Fort Worth for the near
    term, the integral role Agent McAdoo played in the investigation, the
    expectation that he would testify to, among other things, Hale’s demeanor and
    several of his “admissions” during the hotel room interview on October 1, 2009,
    and the perceived lack of prejudice that would result from a continuance.
    Additionally, the district court expressly found that the continuance “was not the
    result of [the government’s] lack of diligent preparation or a failure to obtain
    available witnesses.”
    The medical emergency situation in this case was unforeseeable and
    unavoidable, and the district court’s reasons for granting the continuance are
    quite persuasive and are set forth at length in the order and on the record. We
    find that the district court’s findings made in its June 22, 2010 order and at the
    September 17, 2010 hearing are sufficient to satisfy the requirements of an ends-
    of-justice continuance under § 3161(h)(7)(A) and are not clearly erroneous. See,
    e.g., United States v. Lopez, 426 F. App’x 260, 263 (5th Cir. 2011) (finding no
    clear error where continuance was granted due to a co-defendant’s counsel’s
    conflicting trial schedule and the government’s difficulty in securing travel plans
    for witnesses); United States v. Howard, 
    218 F.3d 556
    , 562–63 (6th Cir. 2000)
    (upholding ends-of-justice continuance of four months where prosecution witness
    went into premature labor and doctor told her to “avoid stress”); United States
    v. Twitty, 
    107 F.3d 1482
    , 1489 (11th Cir. 1997) (upholding ends-of-justice
    continuance where an essential witness was in “ill health”); United States v.
    Meyer, 
    803 F.2d 246
    , 247–48 (6th Cir. 1986) (upholding ends-of-justice
    continuance where an essential government witness had expensive, non-
    refundable honeymoon plans).
    15
    Case: 11-40488    Document: 00511898307     Page: 16    Date Filed: 06/25/2012
    No. 11–40488
    Even so, Hale argues that under United States v. Burrell, 
    634 F.3d 284
    (5th Cir. 2011), we should reject the district court’s findings because the
    government did not establish that Agent McAdoo was unavailable and did not
    set forth the facts surrounding Agent McAdoo’s family emergency in a sworn
    affidavit or other exhibits. In Burrell, we found reversible error where the
    district court had rejected a Speedy Trial Act challenge but the government “did
    not present any evidence that it made reasonable efforts to secure [a sheriff
    deputy witness’s] presence at the schedule trial dates.” 
    634 F.3d 284
    , 292. We
    reasoned that the Speedy Trial Act’s requirement of “due diligence” requires that
    the government provide evidence of its reasonable efforts to secure a witness’s
    attendance at a scheduled trial date in order to carry its burden of showing any
    delay was not based on its “failure to obtain an available witness.” 
    Id.
     at 292–93
    (citing § 3161(h)(7)(C)).
    However, Burrell does not require the government to provide sworn
    affidavits or attach exhibits in order to establish that a witness is unavailable
    and the witness’s presence could not be obtained by reasonable efforts. What is
    required is for the government to show that it did not fail to use reasonable
    efforts to secure an available witness’s attendance. See id. Affidavits and other
    evidence may be helpful in convincing a district court or this court that
    reasonable efforts were used, but they are not essential. See, e.g., Howard, 
    218 F.3d at 563
     (finding that government attorney’s unverified affidavit describing
    witness’s labor and medical issues was sufficient evidence upon which to base
    a continuance).
    The government’s motion provides enough information for the district
    court to determine that Agent McAdoo was “a critical fact witness” whose family
    emergency made him unavailable to attend trial and any efforts to take him
    away from his family in Fort Worth the same week the incident occurred would
    be unreasonable. We therefore agree that ends of justice were served by the
    16
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    No. 11–40488
    district court’s grant of the government’s motion to continue, and find that the
    district court’s exclusion from the speedy trial clock of the days between June 17,
    2010, and July 30, 2010, was not clearly erroneous.
    3.
    Hale also challenges the district court’s determination that the 30 days
    from July 30, 2010, to August 29, 2010 were not excludable as an ends-of-justice
    continuance. At the September 17, 2010 hearing, the district court stated:
    The court specifically inquired of Mr. Hale and his attorney whether
    they were asserting their right to that additional 30 days. [They]
    both said that they were asserting their right to that additional 30
    days. . . . But that additional 30 days would also toll the running of
    the speedy trial clock. And even if it is not a requirement under the
    statute that the defendant be provided with an additional 30 days,
    clearly here the court granted the continuance because it was at the
    request of the attorney and Mr. Hale. And the statute clearly
    provides that the court can grant a continuance in order to allow
    counsel adequate time to prepare for trial. And, again, that is one of
    those situations where the court didn’t make a specific finding
    because it didn’t think it was necessary at the time, but that is the
    situation where obviously in that case where it is the defense
    counsel asking for more time to prepare for trial. And under all the
    circumstances, it was certainly appropriate for the court to grant
    the additional time to prepare for trial in light of the superseding
    indictment which added more charges, so certainly the ends of
    justice in that instance outweighed the best interest of the public in
    setting the case on the regular speedy-trial calendar. So the court
    also finds that that time should be excluded.
    Hale contends that it was reversible error for the district court to exclude
    the 30-day period of additional time he requested in order to prepare for the four
    new charges added by the superseding indictment.
    The Speedy Trial Act grants a defendant a 30-day window within which
    a trial may not be commenced without the defendant’s written consent,
    § 3161(c)(2), and these days are countable unless otherwise excluded. See United
    State v. Bigler, 
    810 F.2d 1317
    , 1321–22 (5th Cir. 1987). However, the automatic
    17
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    No. 11–40488
    30-day preparation period does not apply to superseding indictments. See United
    States v. Rojas-Contreras, 
    474 U.S. 231
    , 234–35 (1985) (“Had Congress intended
    that the 30-day trial preparation period of § 3161(c)(2) commence or recommence
    on [the date of a superceding indictment], it would have so provided.”); Eakes,
    
    783 F.2d at 503
     (“A district judge has the discretion to continue a trial under the
    ends of justice provision even though the Act does not require an additional
    thirty-days after arraignment on a superseding indictment.”). Therefore any
    excludable days stemming from a continuance following a superseding
    indictment must be justified by a separate statutory provision.
    In this case, the district court relied on § 3161(h)(7), finding on the record
    that the ends of justice supported granting Hale’s requested 30-day continuance
    so that defense counsel would have time for effective preparation. When
    questioned on July 30, 2010, both Hale and his defense counsel expressly
    indicated their desire for additional time to prepare. While the district court did
    initially indicate (albeit incorrectly) that there may be an automatically
    excludable 30-day preparation period following superseding indictments, it
    ultimately based its decision to grant the continuance on the determination that
    the ends of justice outweighed the best interests of the public in a speedy trial.
    Because Hale requested this continuance, we cannot find that this determination
    was clearly erroneous.
    With respect to Hale’s argument that government filing a superseding
    indictment shortly before his scheduled trial date was unfair, we find that Hale
    had options other than simply requesting a 30-day continuance which would toll
    the speedy trial clock for the original two charges. Hale could have challenged
    the new and unrelated charges contained in the superseding indictment
    pursuant to Federal Rule of Criminal Procedure 8(a), which requires that the
    charged offenses in an indictment be “of the same or similar character, or are
    based on the same act or transaction, or are connected with or constitute parts
    18
    Case: 11-40488    Document: 00511898307      Page: 19   Date Filed: 06/25/2012
    No. 11–40488
    of a common scheme or plan.” He could have filed a motion pursuant to Rule
    12(b) for a defect in the indictment. Or he could have filed a motion pursuant to
    Rule 14(a) requesting that the court separate the trials of the original two counts
    and the four new counts. He also could have filed a motion pursuant to Rule
    48(b) for unnecessary delay in adding the new charges to the indictment shortly
    before trial we set to begin on the original two charges. Hale waived any
    argument he may have had with respect to fairness by failing to directly
    challenge the superseding indictment before the district court.
    Ultimately, the original indictment started one speedy trial clock for the
    original two charges, and the superseding indictment started a second speedy
    trial clock for the four new charges. See United States v. Alford, 
    142 F.3d 825
    ,
    829–30 (5th Cir. 1998); United States v. Gonzalez, 
    897 F.2d 1312
    , 1316–17 (5th
    Cir. 1990). Absent a specific order from the district court, the 30-day ends-of-
    justice continuance requested by Hale tolled both the original and the new
    speedy trial clocks. Therefore, because the district court’s decision to grant the
    continuance was not clearly erroneous, the district court properly excluded the
    30 days from July 30, 2010, to August 29, 2010, from both speedy trial clocks.
    Including the government’s ends-of-justice continuance and Hale’s ends-of-
    justice continuance, the final count of non-excludable days is 62 days, well
    within the required 70-day period. Accordingly, we agree with the district court
    that there was no violation of the Speedy Trial Act.
    B.
    Hale challenges the district court’s exclusion of several out-of-court
    statements made by Martinez and Martinez’s father as inadmissible hearsay. He
    alleges that the statements were admissible under Federal Rules of Evidence
    613 and 804, and that exclusion of the statements violated the Confrontation
    Clause of the Sixth Amendment. “We review alleged Sixth Amendment
    Confrontation Clause violations de novo, but any violations are subject to a
    19
    Case: 11-40488     Document: 00511898307      Page: 20   Date Filed: 06/25/2012
    No. 11–40488
    harmless error analysis.” United States v. Templeton, 
    624 F.3d 215
    , 223 (5th Cir.
    2010). “If there is no Confrontation Clause violation, we review the district
    court’s limitation of cross-examination for abuse of discretion.” 
    Id.
     We review
    evidentiary rulings regarding the admission of evidence “only for an abuse of
    discretion.” United States v. Skipper, 
    74 F.3d 608
    , 612 (5th Cir. 1996).
    1.
    The Confrontation Clause provides that “[i]n all criminal prosecutions, the
    accused shall enjoy the right . . . to be confronted with the witnesses against
    him.” U.S. CONST. amend. VI; see Crawford v. Washington, 
    541 U.S. 36
    , 42
    (2004). “However, ‘the Confrontation Clause guarantees an opportunity for
    effective cross-examination, not cross-examination that is effective in whatever
    way, and to whatever extent, the defense might wish.’” United States v. Skelton,
    
    514 F.3d 433
    , 439 (5th Cir. 2008) (quoting Delaware v. Fensterer, 
    474 U.S. 15
    , 20
    (1985)). Determining whether the exclusion of impeachment evidence is of
    constitutional concern depends on the reasons for and effect of the exclusion,
    which “typically includes an inquiry into the admissibility of the evidence under
    the Federal Rules of Evidence.” Id. at 440; see also Kittelson v. Dretke, 
    426 F.3d 306
    , 319 (5th Cir. 2005)).
    In this case Martinez testified as one of the government’s key witnesses
    against Hale and the court placed no limitations on defense counsel’s ability to
    cross-examine Martinez as to any prior inconsistent statements he may have
    made. However, following Martinez’s testimony, Hale sought to provide extrinsic
    evidence in the form of prior out-of-court statements made by both Martinez and
    Martinez’s father to two FBI agents. The statements allegedly made by Martinez
    were:
    •     That Martinez “had brought [the known drug dealer] to his dad’s
    property approximately two years before to help set up a deal for
    [the drug dealer] to store large amounts of cocaine in his dad’s
    house.”
    20
    Case: 11-40488    Document: 00511898307     Page: 21   Date Filed: 06/25/2012
    No. 11–40488
    •     “That an individual [Martinez] identified only as Guero . . . was
    moving large shipments of cocaine in the Laredo area with his
    family.”
    •     “That on at least two occasions he had provided escorts, but was
    later told by Guero that there was no cocaine. It was only dry runs,
    to test his loyalty.”
    •     That Martinez “reported his actions to Sergeant Robert Medina of
    the Laredo Police Department Narcotics Division.”
    The statements allegedly made by Martinez’s father were:
    •     That Martinez’s father “told [one of the FBI agents] that
    approximately two years before the date of September 29, 2009,
    [Martinez] had come to him asking if [the known drug dealer] could
    rent out a room from the house for the storing of large amount of
    cocaine.”
    •     That Martinez’s father “stated that [Martinez] had been present on
    several occasion while cocaine was being broken down while in
    uniform, but that he was not there for protection or he did not
    participate.”
    Hale’s intention was to question the two FBI agents regarding these
    statements in an attempt to impeach Martinez’s credibility. The district court
    sustained an objection as to the admissibility of such evidence, stating that it
    had already permitted a full cross-examination of Martinez, that it did not
    believe the statements were admissible either as prior inconsistent statements
    or statements against interest, and that they were unreliable.
    2.
    Federal Rule of Evidence 613(b) provides that “[e]xtrinsic evidence of a
    witness’s prior inconsistent statement is admissible only if the witness is given
    an opportunity to explain or deny the statement and an adverse party is given
    an opportunity to examine the witness about it, or if justice so requires.” We
    have held that “[p]roof of such a statement may be elicited by extrinsic evidence
    only if the witness on cross-examination denies having made the statement.”
    21
    Case: 11-40488    Document: 00511898307     Page: 22    Date Filed: 06/25/2012
    No. 11–40488
    United States v. Devine, 
    934 F.2d 1325
    , 1344 (5th Cir. 1991); see also United
    States v. Leslie, 
    759 F.2d 366
    , 379–80 (5th Cir. 1985).
    Hale cannot show that Martinez ever denied making any of the statements
    Hale wishes to use as extrinsic impeachment evidence. During cross-
    examination, defense counsel asked Martinez about a number of prior
    statements he had made and each time Martinez admitted making them.
    Defense counsel never confronted Martinez with the four specific statements
    Hale later attempted to use while the FBI agents were on the stand. Moreover,
    none of the excluded statements were directly inconsistent with anything
    Martinez said on the stand or admitted to previously saying. Without a denial
    of making the statements or a showing of inconsistency, such statements cannot
    be used to impeach a witness’s credibility.
    There were no constitutional concerns raised by the district court’s
    exclusion of Martinez’s several out-of-court statements because Hale had an
    opportunity to fully cross-examine Martinez about any prior statements he may
    have made. As extrinsic evidence used for impeachment purposes only, the out-
    of-court statements made by Hale were properly excluded. We find that the
    district court did not abuse its discretion when it excluded Martinez’s statements
    as inadmissible hearsay. In any case, excluding the statements would be
    harmless error due to the overwhelming evidence supporting the jury’s verdict.
    United States v. Bell, 
    367 F.3d 452
    , 468 (5th Cir. 2004) (noting the court “must
    be convinced beyond a reasonable doubt that the error was harmless in light of
    the other evidence presented at trial”).
    3.
    Federal Rule of Evidence 804 provides that statements are not
    inadmissible hearsay if the declarant is unavailable as a witness where
    a reasonable person in the declarant’s position would have made
    [the statement] only if the person believed it to be true because,
    22
    Case: 11-40488     Document: 00511898307      Page: 23     Date Filed: 06/25/2012
    No. 11–40488
    when made, it . . . has so great a tendency . . . to expose the
    declarant to civil or criminal liability [and] is supported by
    corroborating circumstances that clearly indicate its
    trustworthiness, if it is offered in a criminal case as one that tends
    to expose the declarant to criminal liability.
    FED. R. EVID . 804(b)(3). Hale correctly asserts that Martinez’s father (the
    declarant    of   two   out-of-court    statements)    was     unavailable     as     a
    witness—Martinez’s father committed suicide in 2009—but he cannot establish
    either that (i) the statements exposed Martinez’s father to criminal liability, or
    (ii) there are other corroborating circumstances that indicate trustworthiness.
    Martinez’s father’s first out-of-court statement reports that his son had
    approached him about possibly arranging a room rental in his house for cocaine.
    This does not, by itself, expose Martinez’s father to any criminal liability; rather,
    it directs any potential criminal liability toward his son and the known drug
    dealer. Likewise, Martinez’s father’s second out-of-court statement describes his
    son’s presence at the house in uniform while cocaine is being broken down. This
    statement also tends to expose his son to potential criminal liability, and does
    not necessarily expose himself. Even if both statements did tend to implicate
    Martinez’s father in a crime, neither of the statements have “so great a
    tendency” to do so that make them inherently reliable. Id.; see also Williamson
    v. United States, 
    512 U.S. 594
    , 600–01 (1994) (finding proximity to self-
    inculpatory statements does not make non-inculpatory collateral statements
    admissible); Bell, 
    367 F.3d at
    466–67 (finding statements by an accomplice are
    not presumed trustworthy).
    Moreover, there are no corroborating circumstances that clearly indicate
    the statements’ trustworthiness. Martinez’s father was likely to become a co-
    defendant in the conspiracy scheme had he not committed suicide, making his
    statements that tend to implicate others at least as much as himself less credible
    and more suspicious than other out-of-court statements. Williamson, 
    512 U.S. 23
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    No. 11–40488
    at 600–01; Bell, 
    367 F.3d at
    466–67. And even if we were to find some
    corroboration in the other evidence (e.g., that Martinez agreed to help his father
    try to become a cocaine middleman), there is still enough evidence on which the
    jury could rely to convict Hale that improper exclusion of Martinez’s father’s two
    out-of-court statements is harmless error. Bell, 
    367 F.3d 468
    .
    Accordingly, we find that there were no constitutional concerns raised by
    the district court’s exclusion of Martinez’s father’s out-of-court statements and
    that it was not an abuse of discretion to exclude such statements as inadmissible
    hearsay.
    C.
    Hale contends that the district court plainly erred by not instructing the
    jury on the substantive crime underlying the conspiracy, actual possession with
    intent to distribute cocaine. Because Hale did not object to the district court’s
    failure to instruct the jury as to the elements of the substantive crime, we review
    for plain error. United States v. Girod, 
    646 F.3d 304
    , 315 (5th Cir. 2011). A plain
    error is clear or obvious and affects the defendant’s substantial rights. 
    Id.
     at 315
    n.3. Where we find an error to be plain, we reverse only if the error “seriously
    affects the fairness, integrity, or public reputation of judicial proceedings.” 
    Id.
    (quotations omitted).
    Hale was charged with conspiracy to possess with intent to distribute more
    than 5 kilograms of cocaine and the district court instructed the jury in detail on
    each element of that crime. However, Hale was not charged with the substantive
    offence underlying the conspiracy—actual possession with intent to distribute
    more than 5 kilograms of cocaine—because only “sham” cocaine was used during
    the escorts. The district court did not set forth in detail every element of that
    crime in the same manner as the conspiracy crime. Instead, the district court
    instructed the jury:
    24
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    No. 11–40488
    You will note that the defendant is charged with conspiracy to
    commit the crime of possession with intent to distribute a controlled
    substance, but is not charged with the substantive crime of
    possession with intent to distribute. Nonetheless, the Court
    instructs you that to “possess with intent to distribute” means to
    possess with intent to deliver or transfer possession of a controlled
    substance to another person, with or without any financial interest
    in the transaction. Cocaine is a controlled substance with[in] the
    meaning of the crime. However, the Government is not required to
    prove that this crime was actually committed by any person, nor is
    the Government required to prove that actual cocaine was involved.
    Hale’s primary contention is that it was error for the district court not to
    instruct the jury that “actual cocaine” had to be involved with the escorts in
    order for Hale to be convicted of the conspiracy charge.
    It is black letter law that a defendant can be convicted of conspiracy or
    attempt without also being charged or convicted of the underlying offense. See
    United States v. Burke, 
    431 F.3d 883
    , 886 (5th Cir. 2005) (noting in a case where
    fake drugs were used that “factual impossibility does not preclude a conviction
    for conspiracy or attempt”). In United States v. Marino, we did not find plain
    error where “the jury instructions, read as a whole, adequately charged the jury
    as to the definition, character, and nature of the acts” of the substantive crime
    underlying the conspiracy. 
    562 F.2d 941
    , 945 (5th Cir. 1977); see also United
    States v. Vaglica, 
    720 F.2d 388
    , 390–91 (5th Cir. 1983) (finding “serious” error
    but not reversible error where the district court failed to instruct the jury on the
    substantive offence of the conspiracy crime). Therefore, because the district
    court’s instructions were sufficient to apprise the jury of the definition and
    character of the substantive crime underlying the conspiracy charge, and
    because the use of actual cocaine was not necessary to commit the crime of
    conspiracy, we find that the district court did not commit plain error.
    25
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    No. 11–40488
    D.
    Hale argues that the district court erred when it refused to instruct the
    jury on his requested affirmative defenses of “public authority” and “entrapment
    by estoppel.” Failure to include a defendant’s proposed jury instruction is
    reviewed for abuse of discretion. United States v. Simkanin, 
    420 F.3d 397
    , 410
    (5th Cir. 2005). We will reverse only if the defendant’s requested instructions
    “(1) [are] substantively correct; (2) [are] not substantially covered in the charge
    given to the jury; and (3) concern[] an important point in the trial so that the
    failure to give [them] seriously impairs the defendant’s ability to present
    effectively a particular defense.” United States v. Lucas, 
    516 F.3d 316
    , 324 (5th
    Cir. 2008). However, even if we find that the district court abused its discretion,
    “a conviction [can not] be overturned for failure to instruct the jury on a defense
    unless the requested but omitted instruction has an evidentiary basis in the
    record which would lead to acquittal.” United States v. Spires, 
    79 F.3d 464
    , 466
    (5th Cir. 1996).
    1.
    The public authority defense is available “when the defendant is engaged
    by a government official to participate or assist in covert activity.” United States
    v. Sariles, 
    645 F.3d 315
    , 317 (5th Cir. 2011) (quoting Spires, 
    79 F.3d at
    466 n.2).
    “[A] defendant who claims he was acting on behalf of a law enforcement officer
    may escape culpability only because that officer had the ability to permit the
    conduct. A defendant may claim that he made a good faith mistake about the
    scope of the officer’s authority because it appeared to him that the officer was
    sufficiently able to permit his conduct.” 
    Id.
    In order to assert a public authority defense, Hale must show that he
    reasonably relied on the actual, not apparent, authority of a government official
    who convinced him to engage in covert activity. 
    Id.
     at 318–19. He cannot do so.
    The only person who Hale claims ever directly authorized him to engage in
    26
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    No. 11–40488
    undercover work for the Laredo Police Department was Martinez, who Hale
    admits was simply a patrol officer like himself who he knew had no actual
    authority to initiate or approve undercover operations. Even if Hale believed
    Martinez had some apparent authority as a slightly senior police officer, any
    reliance on Martinez’s authorization could not be reasonable considering Hale’s
    admitted knowledge of the formal undercover procedures followed by the Laredo
    Police Department, which were not followed in this case.
    Because Hale did not establish that Martinez had actual authority to
    permit him to engage in what he claims to be undercover work, and because any
    reliance on Martinez’s purported authorization would be unreasonable, Hale
    failed to establish an evidentiary basis upon which to validly submit the public
    authority defense to the jury. Moreover, none of Hale’s proposed jury
    instructions as to the public authority defense properly set forth the actual
    authority requirement, making them substantively incorrect. The district court
    did not abuse its discretion in rejecting Hale’s proposed public authority defense.
    2.
    “The defense of entrapment by estoppel is applicable when a government
    official or agent actively assures a defendant that certain conduct is legal and
    the defendant reasonably relies on that advice and continues or initiates the
    conduct.” Spires, 
    79 F.3d at 466
    . It constitutes a “narrow exception to the general
    rule that ignorance of the law is no excuse,” and the “focus of the inquiry is on
    the conduct of the government not the intent of the accused.” 
    Id.
    Hale argues that he met his burden to fairly raise the entrapment by
    estoppel defense and that the district court’s refusal to so instruct the jury was
    reversible error. However, the evidence against Hale precludes application of an
    entrapment by estoppel defense. To rely on the defense when charged with a
    federal crime, Hale must be able to show he reasonably relied on the advice of
    a federal government official or authorized agent of the federal government who
    27
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    No. 11–40488
    was “empowered to render the claimed erroneous advice.” 
    Id. at 467
    . He can do
    neither. Neither Martinez, who Hale claims recruited him to work with him
    undercover, nor Sergeant Medina, who Hale claims knew of the undercover
    work, are authorized federal government officials empowered to give advice on
    federal drug laws. Moreover, any reliance on advice received from Martinez (or
    second-hand from Sergeant Medina) could not be reasonable where Hale
    acknowledges that he never spoke to Medina about the purported undercover
    work, never received specialized undercover training, and he never followed any
    undercover protocol or completed any formal police reports.
    Hale cannot show reasonable reliance on Martinez’s purported
    authorization for him to engage in undercover work, nor can he show that any
    federal government official ever authorized him to violate federal drug laws.
    While Hale submitted to the district court several potential versions of the public
    authority and entrapment by estoppel defenses, none of them correctly stated
    the law or had the requisite evidentiary basis for it to be submitted to a jury.
    Accordingly, we find that the district court did not abuse its discretion in
    rejecting Hale’s proposed entrapment-by-estoppel defense.
    E.
    Hale contends that the district court erred when it refused to enter a
    judgment of acquittal on the firearms charge (count 2), which required that the
    government prove beyond a reasonable doubt that Hale (i) used or carried a
    firearm in relation to a drug trafficking offense or (ii) possessed a firearm in
    furtherance of a drug trafficking an offense. Because Hale moved for a judgment
    of acquittal both after the government’s case in chief and at the close of the trial,
    we review a challenge to the sufficiency of the evidence de novo, reviewing the
    evidence in the light most favorable to the verdict and determining whether any
    rational jury could have found guilt beyond a reasonable doubt. United States v.
    Clayton, 
    506 F.3d 405
    , 412 (5th Cir. 2007).
    28
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    Hale argues that the evidence presented at trial established that his
    carrying a handgun during the Embassy Suites meeting “played no part” in the
    crime of conspiracy to commit a drug trafficking offense. He likewise argues that
    his possession of the handgun at the meeting was not “in furtherance of” the
    conspiracy because he never “brandished, employed, engaged, or used [the
    handgun] in any way and [that it] had no effect of changing the results of the
    meeting.” His excuse for taking the handgun into the meeting was that there
    was no safe place to leave it in the vehicle because the door lock was not
    working.
    Both of Hale’s arguments fail. There is sufficient evidence in the record
    that the jury could have reasonably relied upon showing that Hale committed
    a drug trafficking crime and that he knowingly carried a firearm during and in
    relation to that crime. See United States v. Speer, 
    30 F.3d 605
    , 612 (5th Cir.
    1994). Several witnesses testified that Hale took his handgun from the vehicle,
    cocked it, and carried it tucked in the waistband of his jeans for the duration of
    the one-hour meeting at the Embassy Suites where the participants agreed to
    conduct and escort cocaine shipments. This is enough to support a conviction
    under the first prong of 
    18 U.S.C. § 924
    (c). See 
    id. at 612
     (“Actual possession or
    use of the firearm is not necessary; it need only have been available to provide
    protection to the defendant in connection with his engagement in drug
    trafficking.”) (citation and quotation marks omitted).
    Moreover, the evidence is also sufficient under the second prong of
    § 924(c), which requires possession of a firearm “in furtherance” of a drug
    trafficking offense. See United States v. Ceballos-Torres, 
    218 F.3d 409
    , 413 & n.4
    (5th Cir. 2000) (noting most conduct that satisfies the first prong of 
    18 U.S.C. § 924
    (c) also satisfies the second prong). Hale’s possession of a handgun
    displayed prominently in his waistband during the Embassy Suites meeting, and
    his participation in discussing the idea that he and Martinez would carry their
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    No. 11–40488
    handguns during the escorts, is sufficient to satisfy the “in furtherance of”
    requirement. See 
    id.
     at 413–15 (discussing the ways in which possession of a
    handgun could further a drug trafficking crime). Despite Hale’s contentions,
    there is no requirement that Hale have brandished or actually fired his handgun
    to be found guilty under§ 924(c), which actions would in fact constitute a
    separate charge and carry a harsher penalty.
    We find that there was sufficient evidence for a jury to conclude beyond a
    reasonable doubt that Hale either carried a firearm during and in relation to a
    drug trafficking offense, or he possessed a firearm in furtherance of a drug
    trafficking offense.
    F.
    Hale contends that the district court erred in responding to a note from the
    jury during its deliberations. The note stated:
    In reference to count 1 [conspiracy], can the fact that the defendant
    knew wether [sic] or not the escort involved real or sham cocaine
    affect the outcome? I ask because the count clearly states the
    defendant attempted to distribute a controlled substance, when
    according to the defendants [sic] testimony and knowledge, there
    was no controlled substanced [sic] at all.
    The court intended to “redirect [the jury] back to the instructions where [it] told
    them the government is not required to prove that the crime of possession was
    committed or that there was in fact any controlled substance,” and stated in its
    supplemental instruction (over objection):
    As instructed by the Court, the Government is not required to prove
    that actual cocaine was involved; it is only required to prove those
    elements set out in the Court’s Instruction. Please consider the
    Court’s Instructions and continue your deliberations.
    After further deliberations the jury returned a guilty verdict on the
    conspiracy count. Hale contends that the district court’s response constituted
    reversible error because, viewed in light of the instructions already given, it did
    30
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    No. 11–40488
    not completely and accurately clear away the confusion and difficulty the jury
    had over the issue. See United States v. Carter, 
    491 F.2d 625
    , 633 (5th Cir. 1974).
    We assess whether a district court erred in instructing the jury “in light
    of the entire charge,” United States v. Eargle, 
    921 F.2d 56
    , 57 (5th Cir. 1991),
    recognizing that district courts enjoy “wide latitude in deciding how to respond
    to questions from a jury.” United States v. Cantu, 
    185 F.3d 298
    , 305 (5th Cir.
    1999). Supplemental instructions must be “reasonably responsive” and “allow[]
    the jury to understand the issue presented to it.” 
    Id.
     (quoting United States v.
    Mann, 
    161 F.3d 840
    , 864 (5th Cir. 1998)); see also Eargle, 
    921 F.2d at 58
     (finding
    no reversible error with respect to defendant’s contention that a supplemental
    instruction negated a correct and accurate original instruction).
    The district court’s original jury instructions were a detailed and correct
    statement of the law on the charge of conspiracy to possess with intent to
    distribute more than 5 kilograms of cocaine. They made clear that the jury
    should not convict Hale unless they found beyond a reasonable doubt that he
    willfully joined an unlawful agreement to possess with intent to distribute more
    than 5 kilograms of cocaine. They also made clear that the actual use of cocaine
    during the escorts was not necessary to convict for conspiracy.
    The jury’s note shows that, during deliberations, it focused on Hale’s
    testimony that he knew there was no cocaine in the cars he and Martinez were
    escorting because he had been told they were performing a “dry run.” In its
    response to the note, the district court redirected the jury back to the original
    instructions which made clear that an agreement to possess and distribute
    cocaine was sufficient, and that the government did not need to prove that actual
    cocaine was used in the escorts in order for them to convict Hale of conspiracy.
    While the response is perhaps not the most artful response one can imagine,1 it
    1
    For example, the district court could have said something like: “As stated in the
    original instructions, in order to convict on count 1, you need to find beyond a reasonable doubt
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    is reasonably responsive, correct on the law, and refers the jury back to the more
    detailed and comprehensive original instructions. The supplemental instructions
    did nothing to undermine the clarity of the original instructions, and they
    adequately informed the jury of what the government needed to prove beyond
    a reasonable doubt in order to convict Hale. See Eargle, 
    921 F.2d at 58
     (noting
    jury instructions “may not be viewed in a vacuum”).
    We therefore find that the district court did not abuse its discretion when
    it responded to the jury’s note in the manner that it did.
    G.
    Finally, Hale contends that the district court erred by enhancing Hale’s
    sentence based on “obstruction of justice” under U.S. SENTENCING GUIDELINES
    MANUAL (U.S.S.G.) § 3C1.1 (2010), and “abuse of office or use of a special skill”
    under U.S.S.G. § 3B1.3 (2010). We review a district court’s determination that
    a defendant has obstructed justice and its determination that he abused his
    position as a police officer for clear error. United States v. Cisneros, 
    112 F.3d 1272
    , 1279 (5th Cir. 1997); United States v. Deville, 
    278 F.3d 500
    , 508 (5th Cir.
    2002).
    1.
    The Sentencing Guidelines provide for a two level increase to a defendant’s
    offense level in cases where the court finds that the defendant “willfully
    obstructed or impeded, or attempted to obstruct or impede, the administration
    of justice with respect to the investigation, prosecution, or sentencing of the
    instant offence of conviction.” U.S.S.G. § 3C1.1. This provision specifically
    that the defendant willfully entered into an agreement to possess with intent to distribute
    more than 5 kilograms of cocaine. The government need not prove that the defendant knew
    whether actual cocaine was used during the performance of the agreement in order to convict
    of the conspiracy charge.”
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    includes denials of guilt under oath that constitute perjury. U.S.S.G. § 3C1.1
    cmt. n.2 & n.4 (2010).
    At the sentencing hearing, the district court discussed Hale’s “overall
    position that [he] was doing this because he believed it was part of a properly
    authorized police undercover investigation” and stated that it did not “believe
    [that argument] under any circumstances.” It also noted that Hale “attempted
    to minimize his training” which showed that he actually knew how undercover
    operations are normally planned and executed, and that video evidence showed
    Hale’s carefully calculated conduct where he did not leave any fingerprints on
    the Nextel phone boxes during the Embassy Suites meeting. The district court
    stated that it did not find Hale “credible for many of the reasons [it had] already
    touched upon” and that it believed Hale “was not truthful in that respect.” It
    concluded that the “testimony is replete with instances in which [the court
    thought] Mr. Hale demonstrated that he in fact knew that he was not doing this
    for a properly authorized police activity.”
    Although it did not use the term “perjury,” the record clearly indicates that
    the district court at least implicitly found that Hale provided “false testimony
    concerning a material matter with the willful intent to provide false testimony.”
    United States v. Como, 
    53 F.3d 87
    , 89 (5th Cir. 1995) (citation omitted). This is
    sufficient to support an obstruction of justice enhancement. 
    Id.
     (noting that “a
    separate and clear finding on each element of the alleged perjury, although
    preferable, is not required”).
    2.
    The Sentencing Guidelines also provide for a two level increase to a
    defendant’s offense level in cases where the court finds that the “defendant
    abused a position of public or private trust, or used a special skill, in a manner
    that significantly facilitated the commission or concealment of the offense.”
    U.S.S.G. § 3B1.3. In reviewing an abuse-of-trust determination, we determine
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    whether the defendant occupied a position of trust and whether he abused his
    position “in a manner that significantly facilitated the commission or
    concealment of the offense.” United States v. Kay, 
    513 F.3d 432
    , 459 (5th Cir.
    2007) (defining “significant facilitation” as “whether the defendant occupied a
    superior position, relative to all people in a position to commit the offense, as a
    result of [his] job”) (citation omitted).
    At sentencing, the district court adopted the presentence investigation
    report (PSR) which, like the evidence at trial, provided that Hale was a patrol
    officer working for the Laredo Police Department when he became involved in
    the cocaine escort scheme. Police officers hold positions of public trust. See
    Deville, 
    278 F.3d at 508
    . The PSR and trial evidence also depicted how Hale and
    his co-conspirators agreed to use police radios to monitor police frequencies in
    order to detect whether an escort was under surveillance and whether there was
    a dispatch related to the escorts. This evidence is sufficient to establish that
    Hale abused his position as a police officer to better facilitate and conceal the
    cocaine escort conspiracy.
    Accordingly, we find that the district court’s findings and its application
    of both of the two level enhancements were not clearly erroneous.
    IV.
    For the foregoing reasons, we AFFIRM the district court on all issues
    raised on appeal (except for the Speedy Trial Act waiver issue) and, accordingly,
    AFFIRM Hale’s conviction and sentence.
    34