USA v. Hai Schaffer

Filing

UNPUBLISHED OPINION FILED. [13-40322 Affirmed ] Judge: CDK , Judge: JEG , Judge: SAH Mandate pull date is 10/16/2014 for Appellants Adolph Gamez Jr. and Hai Van Schaffer [13-40322]

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IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 13-40322

September 25, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff - Appellee

v.

HAI VAN SCHAFFER; ADOLPH GAMEZ, JR.,
Defendants - Appellants

Appeals from the United States District Court
for the Eastern District of Texas
No. 4:10-CR-134-3
Before KING, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Hai Van Schaffer 1 and Adolph Gamez, Jr. appeal their convictions on one
count of conspiring to possess five kilograms or more of cocaine with the intent
to distribute it, in violation of 21 U.S.C. § 846 and § 841(a)(1). For the following
reasons, we AFFIRM both Schaffer’s and Gamez’s convictions.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Schaffer’s last name is spelled “Schaeffer;” however, we will use the spelling
“Schaffer,” which has been used throughout the proceedings.
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I.

FACTUAL AND PROCEDURAL BACKGROUND

This case centers around an undercover investigation of a conspiracy to
illegally distribute drugs in Plano, Texas. Without reciting the entire course
of the undercover investigation, it is important to detail how Schaffer and
Gamez were implicated in the conspiracy at issue here. In the months before
April 2010, Christopher Frosch, a detective with the Rowlett Police
Department, was working on an investigation into the distribution of ecstasy
in Plano. On May 5, 2010, Frosch, who was acting in an undercover capacity,
first met James Wood, who was identified as someone willing to engage in a
drug transaction. Wood indicated to Frosch that his drug supplier was Hai
Van Schaffer. Subsequently, it was decided that on June 2, 2010, Frosch would
purchase cocaine from Wood. Frosch also spoke with Schaffer over the phone
to plan the details of the transaction. Ultimately, the June 2, 2010 transaction
did not take place; however, Frosch and Wood did meet.
On the evening of June 2, 2010, Frosch and Schaffer discussed a second
transaction over the phone. Schaffer explained how he and “[his] people”
handle transactions, and how his “guys” prefer to count their money and “stuff”
(cocaine) to “make sure that everything’s there and everything’s in check.”
Frosch expressed hesitation about whether he wanted to conduct a second
transaction: “I don’t know if there’s gonna be a next time man.” Schaffer stated
that he had a location for transactions “where we do it very privately, in a very
private neighborhood,” where “we’ve been doing it for a couple years.” He
further explained that “everybody knows our routine.” Schaffer explained to
Frosch how the next transaction would take place. He also assured Frosch that
“these guys are consistent with their stuff all the time,” and that the cocaine
was “legit.” Next, Schaffer reiterated that he should have “taken the reins in
my hand like I normally do, and . . . mad[e] [the previously attempted
transaction] work right.” Schaffer explained that he was not looking for “the
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short term gain,” but rather “a long term relationship.” He also stated that
“there’s a lot of money to be made for everybody.”

Schaffer and Frosch

eventually agreed that Frosch would purchase 15 kilograms of cocaine.
On June 10, 2010, Wood and Daryl Preston, another co-conspirator, gave
a bag filled with five kilograms of cocaine to Frosch. Wood and Preston were
subsequently arrested. Upon being stopped by the police, Wood called Schaffer
to let him know that the deal was a set-up. As this was happening, Matt
Quillen, an officer with the Plano Police Department (“PPD”) who was involved
in the investigation and surveillance of Wood and Schaffer, followed Schaffer’s
car from Schaffer’s residence. Quillen contacted a marked patrol unit, which
conducted a traffic stop of the vehicle. Schaffer was ultimately arrested near
a McDonald’s. Adolph Gamez was arrested around the same time as Schaffer,
after he was observed bringing the cocaine to Schaffer’s residence earlier in the
day.
On June 11, 2010, the United States Attorney filed a criminal complaint
against Gamez, Schaffer, and four others. On July 7, 2010, all six defendants
were indicted in a one-count indictment charging that
from sometime in or about January 2009, and continuously
thereafter up to and including May 12, 2010, in the Eastern
District of Texas and elsewhere . . . defendants[] did knowingly and
intentionally combine, conspire, and agree with each other, and
with other persons known and unknown to the United States
Grand Jury, to knowingly and intentionally possess with the
intent to distribute 5 kilograms or more of a mixture or substance
containing a detectable amount of cocaine, a violation of 21 U.S.C.
§ 841(a)(1)[, and] [i]n violation of 21 U.S.C. § 846.
Schaffer and Gamez were tried together by jury in June 2011.
At the trial, the Government offered evidence that an off-duty police
officer with the PPD, Sergeant Terry Holway, arrested Schaffer at a dance club
on March 14, 2010 (“March 14 arrest”) on an outstanding warrant. After
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Schaffer was arrested, Holway’s partner performed a search of Schaffer and
found “a small baggy of cocaine” in his pocket, as well as three and a half pills
that Holway believed “were hydrocodone and alprazolam, which is Xanax.”
Holway asked Schaffer if the baggy contained “cocaine or methamphetamine,”
to which Schaffer responded, “[y]eah.”

The substance tested positive for

cocaine in a field test. Holway testified that, based on her experience and the
packaging of the cocaine, she believed Schaffer “was going in to sell [the
cocaine] or give it to somebody.” When Holway asked Schaffer where he was
taking it, he responded, “[t]o a business partner.” Holway testified that the
amount of cocaine that Schaffer had on him, approximately 1.9 grams, was “too
much to do in one night,” and that it was a “distributable amount.”
The Government filed a pre-trial notice that it intended to offer evidence
of Schaffer’s March 14 arrest under Federal Rule of Evidence 404(b). The
Government alternatively argued that the evidence was intrinsic to the offense
because it showed that Schaffer “had the intent to distribute,” and the incident
“falls squarely within that time frame of when he’s distributing cocaine,” as
outlined in the indictment. The district court conducted a United States v.
Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), analysis and described the
evidence regarding the March 14 arrest as “404(b) [e]vidence.” The court did
not formally rule that the evidence was admissible under Rule 404(b), but
instead rested its admissibility determination on the conclusion that the
evidence was intrinsic to the charged offense. Specifically, the district court
found that the arrest was “within the time frame of the indictment and involves
cocaine and possessing it and it involves his admission that he was going to
distribute it.”
During the trial, Officer Quillen testified that he “just briefly” had an
opportunity to question Schaffer immediately following the June 10 arrest, and
he “asked him where he was going to.” Schaffer “told [Quillen] he was going to
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the McDonald’s” that was in the vicinity of the traffic stop. Quillen also asked
Schaffer his name. Drug Enforcement Administration (“DEA”) special agent
Tahariiq Gray testified that he arrived at the traffic stop shortly after Quillen
spoke with Schaffer. The following exchange took place at trial, during Gray’s
direct examination:
Q. Okay. And was Mr. [Schaffer] inside the vehicle?
A. When I got there, he was not inside the vehicle, he was out of
the vehicle. And when I got there, the Plano Police Department
detectives advised that they had spoken to Mr. [Schaffer] and he
wasn’t being cooperative at the time.
Schaffer did not make a contemporaneous objection to the testimony. The
Government did not refer to Gray’s statement in its closing argument. The
record does not indicate when Schaffer received a Miranda warning, or
whether he received the warning before speaking with the officers.
On the fourth day of the trial, outside the presence of the jury, the court
conducted a hearing on evidence that the government intended to submit
under Federal Rule of Evidence 404(b), including evidence that Schaffer “had
asked another inmate to contact . . . Schaffer’s parents, his father specifically,
to try to bribe [the Assistant United States Attorney] to dismiss th[e] case.”
The Government had previously placed the inmate, Juan Rios, on its witness
list, and had informed the court that Rios would testify to the conversation he
had with Schaffer. The Government informed the court that it would not
pursue the testimony about the attempted bribery during the guilt phase of
the trial, but would present it at sentencing. The Government also indicated
that it might cross-examine Schaffer’s father (“Mr. Schaeffer”) about the
attempted bribery, if he took the stand. Schaffer’s counsel did not object or
respond in any way.

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After the Government rested its case, Schaffer moved for a directed
verdict on the basis that the activities for which he was arrested took place
after May 2010 (the ending date of the conspiracy designated in the
indictment).

Gamez joined Schaffer’s motion.

Gamez argued that the

language in the indictment was a “fatal defect,” and that it was “substantially
prejudicial . . . that all of the conduct that they’ve alleged . . . is outside of the
date period in the indictment.”

The district court denied the defendants’

motions for a directed verdict.
On the fifth and final day of the trial, Mr. Schaeffer testified for the
defense. The defense asked Mr. Schaeffer whether Schaffer’s criminal charge
was “in keeping with the child that [Mr. Schaeffer] raised,” and Mr. Schaeffer
responded “No.” Mr. Schaeffer also responded negatively when asked whether
there was anything “from [his] knowledge and background of Hai [Schaffer], to
prepare [Mr. Schaeffer] for this kind of charge.”

Lastly, Mr. Schaeffer

responded affirmatively when asked whether Schaffer “appear[ed] to be
having . . . a normal lifestyle.”
On cross-examination, the Government asked Mr. Schaeffer several
questions about his knowledge of specific examples of Schaffer’s conduct,
including Schaffer’s March 2010 arrest and his admission to “being in the drugdistribution business for at least two years.” The Government also asked the
following question:
Q. Mr. Schaeffer, were you aware that your son was trying to have
another inmate contact you to pay Mr. Gonzalez 30 to 50 thousand
dollars to make the case go away?
Schaffer’s counsel objected to the question, and the court recessed the jury.
Schaffer’s counsel contended that the government was “getting into hearsay”
with its question. The court expressed concern about “throw[ing] out” the
bribery question for the jury with “no definitive answer,” given that the
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Government had already rested its case and had not called Rios to testify about
the attempted bribery. The Government indicated that it would withdraw the
question; the court stated that it would “instruct the jury to disregard the
question, not consider it for any purpose.”

Accordingly, when the jury

returned, the court stated: “Ladies and gentlemen, before we resume, I need to
instruct you to disregard the last question. Do not consider it for any purpose.”
Schaffer did not object to the instruction or move for a mistrial.
Once the evidence was submitted to the jury, the district court conducted
a lengthy hearing regarding whether to give the jury an instruction regarding
the entrapment defense. After giving both the Government and the defense an
opportunity to address the question, the district court ruled that it would not
instruct the jury on entrapment. Subsequently, the jury found both defendants
guilty. The district court sentenced the defendants-appellants, and they timely
appealed their convictions.
II.

SCHAFFER’S CHALLENGES

Schaffer argues that the district court erred at trial by declining to
instruct the jury on his proposed entrapment defense; by admitting evidence
of the March 14 arrest as intrinsic evidence; and by admitting testimony that
he was “uncooperative” following his arrest. Schaffer further argues that the
government committed prosecutorial misconduct during his trial; that he
received ineffective assistance of counsel; and that the cumulative effect of the
alleged errors at trial entitles him to a new trial. We address these claims in
order.
A. Entrapment Instruction
“We review the district court’s decision not to grant an entrapment
instruction de novo, looking at the evidence in the light most favorable to the
defendant.”

United States v. Nelson, 732 F.3d 504, 513 (5th Cir. 2013).

Although entrapment is a question for the jury and not the court, in order “for
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an entrapment instruction to be put to the jury, a defendant must make a
prima facie showing of two elements: (1) lack of predisposition to commit the
offense and (2) some governmental involvement and inducement more
substantial than simply providing an opportunity or facilities to commit the
offense.” Id. at 514 (internal quotation marks omitted). Both elements assist
the court in making the “critical determination” of “whether criminal intent
originated with the defendant or with the government agents.” United States
v. Bradfield, 113 F.3d 515, 521 (5th Cir. 1997).
In order to determine “whether the defendant lacked predisposition, we
consider whether he ‘intended, was predisposed, or was willing to commit the
offense before first being approached by government agents.’” Nelson, 732 F.3d
at 514 (emphasis in original) (quoting United States v. Theagene, 565 F.3d 911,
919 (5th Cir. 2009)).

“[A] defendant’s eager willingness to participate in

government-solicited criminal activity is sufficient to prove predisposition.”
United States v. Reyes, 239 F.3d 722, 741 (5th Cir. 2001). We have found that
“[a] defendant lacks predisposition where he had no prior interest or
experience related to the crime, displayed ‘significant hesitation or
unwillingness, or attempt[ed] to return discussion to lawful conduct.’” Nelson,
732 F.3d at 514 (quoting Theagene, 565 F.3d at 920). It may be taken as
evidence of predisposition that the defendant was an “active, enthusiastic
participa[nt] or demonstrated expertise in the criminal endeavor.” Id. at 515
(internal quotation marks omitted).
“Government inducement consists of the creative activity of law
enforcement officials in spurring an individual to crime.” Theagene, 565 F.3d
at 922 (internal quotation marks omitted). “Evidence that government agents
merely afforded the defendant an opportunity . . . for the commission of the
crime is insufficient to warrant the entrapment instruction.” United States v.
Bradfield, 113 F.3d 515, 522 (5th Cir. 1997).
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Schaffer argues that the drug transaction with Frosch was at a standstill
and that it was the Government’s prodding that made it come to fruition. He
further argues that he was a reluctant participant in the drug conspiracy and
that, but for the Government’s efforts, the conspiracy would not have begun.
In support of these arguments, Schaffer highlights the testimony of his father
who stated that the charges against Schaffer were not “in keeping with the
child that [I] raised.” Although Schaffer acknowledges that the jury could have
concluded that he was a willing participant, he argues that they jury should
have been instructed on entrapment to allow it to evaluate the merits of the
defense.
After a review of the record, with the evidence viewed in Schaffer’s favor,
he does not show that his entrapment defense was “plausible enough that the
jury deserved a chance to evaluate it.” Theagene, 565 F.3d at 922. As to
Schaffer’s predisposition, he “demonstrated expertise in the criminal
endeavor,” Nelson, 732 F.3d at 514, when he described to Frosch, in depth, how
he usually conducted drug transactions, when he indicated that “there’s a lot
of money to be made for everybody” from such drug transactions, and when he
described how the drugs would be packaged to deter detection. Schaffer did
not express “significant hesitation or unwillingness” when presented with the
opportunity to make a second attempt to transact with the undercover officer.
Theagene, 565 F.3d at 920. In fact, he was an eager participant, which he
demonstrated by encouraging the hesitant officer to make a second attempt at
the drug transaction.

Mr. Schaeffer’s vague testimony concerning his

impression of Schaffer’s character cannot rebut the evidence that Schaffer was
an “active, enthusiastic participant in the crime.” Nelson, 732 F.3d at 515
(internal quotation marks and brackets omitted). As to inducement, Schaffer
fails to assert how the June 10 transaction amounted to anything more “than
simply providing an opportunity or facilities to commit the offense.” Theagene,
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565 F.3d at 922. In short, the district court did not err when it declined to
provide the jury with an entrapment defense instruction.
B. Admission of Other Act Evidence
The court reviews a district court’s evidentiary rulings for abuse of
discretion, subject to harmless-error analysis. See United States v. Girod, 646
F.3d 304, 318 (5th Cir. 2011).

“For any of the evidentiary rulings to be

reversible error, the admission of the evidence in question must have
substantially prejudiced the defendant’s rights.” Id. at 318 (internal quotation
marks and brackets omitted).
The district court referred to the evidence relating to the March 14 arrest
as both “404(b) evidence” and “intrinsic” evidence.

Although the court

performed a Beechum analysis, its ruling on admissibility rested on its
conclusion that the evidence was intrinsic. We need not decide whether the
district court was correct when it held the March 14 arrest evidence to be
intrinsic, because that evidence was properly admitted pursuant to Rule 404(b)
of the Federal Rules of Civil Procedure.
Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.”
However, “[t]his evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id. This court held in United States
v. Beechum, 582 F.2d 898 (5th Cir. 1978), that Rule 404(b) requires a two-step
analysis: “[f]irst, it must be determined that the extrinsic offense evidence is
relevant to an issue other than the defendant’s character,” and “[s]econd, the
evidence must possess probative value that is not substantially outweighed by
its undue prejudice and must meet the other requirements of rule 403.” Id. at
911.
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“We have previously held that in a conspiracy case, the defendant puts
his intent into issue when he pleads not guilty.” United States v. Heard, 709
F.3d 413, 430 (5th Cir. 2013).

Accordingly, Schaffer’s possession of a

“distributable amount” of cocaine and other drugs on March 14 and the fact
that he admitted that he was taking it “to a business partner” are clearly
relevant to establishing Schaffer’s intent to participate in the conspiracy at
issue here. As for the second prong of the Beechum analysis, “we must take
care not to infringe upon the broad discretion of the trial court regarding the
relevance, probative value, and prejudicial effect of evidence.” United States v.
Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994) (internal quotation marks and
citation omitted). Given that the evidence regarding the March 14 arrest was
within the time frame alleged by the indictment and involved possession by
Schaffer of a “distributable amount” of cocaine, we conclude that the probative
value of the evidence was not substantially outweighed by any undue
prejudice. Therefore, the evidence was properly admitted.
C. Evidence that Schaffer was “uncooperative”
The Supreme Court has established that “use of [a] defendant’s postarrest silence” to impeach a defendant is a violation of due process. Doyle v.
Ohio, 426 U.S. 610, 611 (1976).

“Ordinarily, we review a constitutional

question de novo.” United States v. Potts, 644 F.3d 233, 236 (5th Cir. 2011).
However, where, as is the case here, an appellant “did not properly preserve
his claim of error regarding the prosecutor’s comments on his post-arrest
silence in the district court, we review this claim only for plain error.” United
States v. Salinas, 480 F.3d 750, 755 (5th Cir. 2007). In order to establish plain
error, “the defendant must show that (1) there is an error, (2) the error is clear
or obvious, and (3) the error affects his substantial rights.” Id. at 756 (internal
quotation marks omitted). For the error to be considered plain, it must have
been clear under existing law. See id. “If those three conditions are satisfied,
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this court may grant relief if ‘the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.’” Id. (quoting United States v.
Ibarra-Zelaya, 465 F.3d 596, 606 (5th Cir. 2006)).
Schaffer argues that it was a violation of his Fifth Amendment right to
remain silent when DEA Agent Gray testified that the “Plano Police
Department Detective advised that they had spoken to Mr. Schaffer and he
wasn’t being cooperative.” However, Gray’s statement that Schaffer was not
“being cooperative” was likely not a comment on Schaffer’s supposed postarrest silence, 2 but a spontaneous comment suggesting that Schaffer’s
explanation for where he was going when the police pulled him over—he stated
he was en route to McDonald’s—rang hollow under the circumstances. As
such, it is likely that Gray’s statement was not a comment on Schaffer’s silence
and did not implicate Schaffer’s Fifth Amendment rights. See Salinas, 480
F.3d at 756 (“[T]he Supreme Court has established that due process prevents
the prosecution from commenting at trial on a criminal defendant’s
silence. . . .”).
Given that the test for a Doyle violation is “whether the manifest intent
of the remarks was to comment on the defendant’s silence, or (stated another
way) whether the character of the remark was such that the jury would
naturally and necessarily construe it as a comment on the defendant’s silence,”
United States v. Pennington, 20 F.3d 593, 599 (5th Cir. 1994) (internal
quotation marks omitted), it is difficult to see how the jury could consider the
vague remark, “wasn’t being cooperative,” as a comment on Schaffer’s silence.
Moreover, the remark was “a spontaneous comment by the witness,” not “a
comment prompted by the prosecutor.” United States v. Andaverde-Tiñoco, 741

The record does not establish whether Schaffer’s discussion with the police officers
occurred before or after he received a Miranda warning.
2

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F.3d 509, 521 (5th Cir. 2013) (quoting United States v. Moreno, 185 F.3d 465,
472 (5th Cir. 1999)). This analysis leads us to reject Schaffer’s argument,
regardless of whether he received a Miranda warning before his short
discussion with the police officers. See Doyle, 426 U.S. at 619 (addressing postarrest, post-Miranda silence); Salinas, 480 F.3d at 758 (addressing post-arrest,
pre-Miranda silence).
D. Prosecutorial Misconduct
This court applies a “two-step analysis to claims of prosecutorial
misconduct.” United States v. Davis, 609 F.3d 663, 677 (5th Cir. 2010). “First,
we assess whether ‘the prosecutor made an improper remark.’” Id. (quoting
United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007)). If so, we then ask
if the defendant was prejudiced because of the prosecutor’s remark. Id. “The
determinative question is whether the prosecutor’s remarks cast serious doubt
on the correctness of the jury’s verdict.” United States v. Fields, 483 F.3d 313,
358 (5th Cir. 2007) (internal quotation marks omitted). We determine whether
the prosecutor’s remark cast serious doubt on the correctness of the jury’s
verdict by considering three factors: “(1) the magnitude of the prejudicial effect
of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by
the judge, and (3) the strength of the evidence supporting the conviction.”
Davis, 609 F.3d at 677 (internal quotation marks omitted). While we review
“the propriety of the prosecution’s arguments de novo, we review the question
of whether or not the defendant’s substantial rights were affected under the
abuse of discretion standard.” United States v. McCann, 613 F.3d 486, 494 (5th
Cir. 2010).
Schaffer argues that his substantial rights were affected when the
prosecutor, on cross-examination of Schaffer’s father, asked, “Mr. Schaeffer,
were you aware that your son was trying to have another inmate contact you
to pay [the Assistant United States Attorney] 30 to 50 thousand dollars to
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make this case go away?” We disagree because we find that this question was
proper. Under Federal Rule of Evidence 405(a),
[w]hen evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s
reputation or by testimony in the form of an opinion. On crossexamination of the character witness, the court may allow an
inquiry into relevant specific instances of the person’s conduct.
We have “explained that ‘[o]nce a witness has testified concerning a
defendant’s good character, it is permissible during cross-examination to
attempt to undermine his credibility by asking him whether he has heard of
prior misconduct of the defendant which is inconsistent with the witness’ direct
testimony.’”

United States v. Skelton, 514 F.3d 433, 444 (5th Cir. 2008)

(quoting United States v. Wells, 525 F.2d 974, 976 (5th Cir. 1976)).
Schaffer’s father had testified on direct examination to Schaffer’s good
character. He was asked whether there was anything in Schaffer’s background
to prepare him for the news of the drug conspiracy charge, whether Schaffer
was employed since graduating from college, and whether he had a “normal
lifestyle.” These questions were clearly asked by the defense as a means to
establish Schaffer’s good character and to attempt to show that he was not
predisposed, for entrapment purposes, to commit the offense. As such, the
prosecution’s question on cross-examination about Schaffer’s attempted
bribery was proper under the Federal Rules of Evidence, given that the record
shows that the prosecutor had a good faith basis to ask the question.
Accordingly, the prosecutor did not make an improper remark and there was
no prosecutorial misconduct. Davis, 609 F.3d at 677 (prosecutorial misconduct
is assessed by asking whether prosecutor made improper remark).
E. Ineffective assistance of trial counsel
Schaffer argues that we should, on direct appeal, consider his ineffective
assistance of counsel claim. He highlights a number of points in the trial where
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he believes his lawyer made errors sufficient to establish an ineffective
assistance of counsel claim. However, we decline to reach this claim “because
it is premature.” United States v. Montes, 602 F.3d 381, 387 (5th Cir. 2010).
In this circuit, the “general rule . . . is that a claim of ineffective assistance of
counsel cannot be resolved on direct appeal when the claim has not been raised
before the district court since no opportunity existed to develop the record on
the merits of the allegations.” Id. (quoting United States v. Gulley, 526 F.3d
809, 821 (5th Cir. 2008)). We will only consider a claim of ineffective assistance
of counsel on direct appeal “in those rare occasions where the record is
sufficiently developed.” Gulley, 526 F.3d at 821. If the record does not allow
us to “fairly evaluate the claim . . . we must decline to consider the issue
without prejudice to a defendant’s right to raise it in a subsequent proceeding.”
Id.
Schaffer’s ineffective assistance claim was not raised before the district
court. As a result, the record is not sufficiently developed for the court to fairly
evaluate the claim that Schaffer’s attorney was ineffective. As in Montes, this
case “falls within th[e] general rule because the record reveals neither the
reasons for [Schaffer’s] attorney’s decisions nor the availability of alternative
strategies.” 602 F.3d at 387. Schaffer makes no persuasive argument for why
this is one of the “rare occasions” in which the court should evaluate his claim
on direct appeal. Accordingly, we decline to reach his ineffective assistance of
counsel claim.
F. Cumulative effect
Schaffer next argues that the “cumulative effect” of the errors he has
identified was to deprive him of a fair trial. The cumulative error doctrine
“provides that an aggregation of non-reversible errors (i.e., plain errors failing
to necessitate reversal and harmless errors) can yield a denial of the
constitutional right to a fair trial, which calls for reversal.” United States v.
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Delgado, 672 F.3d 320, 343–44 (5th Cir. 2012) (en banc) (internal quotation
marks and citation omitted).

There being no error, the cumulative error

doctrine has no application.
III.

GAMEZ’S CHALLENGE

Gamez raises one issue on appeal: the adequacy of the indictment. He
asserts that it was impermissibly vague, and that it “failed to allege the correct
time period in which most of the criminal conduct occurred.” Gamez argues
that since the “majority of testimony centered around a ‘buy bust’ on June 10,
2010 that resulted in [his] arrest,” and the indictment alleges conduct from
“sometime in or about January 2009, and continuously thereafter up to and
including May 12, 2010,” most of the evidence at trial concerned events outside
of the dates alleged in the indictment. As a result of this alleged deficiency,
Gamez argues that he was unable to properly prepare a defense, and that he
was unable to ensure that his prosecution was based on facts previously
presented to the grand jury.
Gamez waived his challenge to the indictment by failing to raise it before
trial. See Fed. R. Crim. P. 12(e); United States v. Whitfield, 590 F.3d 325, 359
(5th Cir. 2009) (“Failure to comply with this rule generally constitutes
waiver.”). 3 Nevertheless, we will review the alleged errors relating to the
adequacy of the indictment here for plain error. See United States v. Hoover,
467 F.3d 496, 498 n.2 (5th Cir. 2006) (citing United States v. Rodriguez, 360

On December 1, 2014, absent congressional action, revisions to Federal Rule of
Criminal Procedure 12 will take effect. These revisions will alter the rule’s “waiver” provision
by making it a “timeliness” provision: “Consequences of Not Making a Timely Motion Under
Rule 12(b)(3). If a party does not meet the deadline for making a Rule 12(b)(3) motion, the
motion is untimely. But a court may consider the defense, objection, or request if the party
shows good cause.” Gamez has never attempted to show “good cause” for why he failed to
make a timely motion challenging the indictment.
3

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F.3d 949, 958 (9th Cir. 2004) (reviewing alleged insufficient indictment for
plain error when raised for first time in a Rule 34 motion)). 4
This court has held that in the conspiracy context “[a]n allegation as to
the time of the offense is not an essential element of the offense charged in the
indictment, and, within reasonable limits, the offense need only occur before
the return of the indictment and within the statute of limitations.” United
States v. Valdez, 453 F.3d 252, 259–60 (5th Cir. 2006) (internal quotation
marks and citation omitted). We have previously found that “[a] five-month
variance between the date alleged and the date proved is not unreasonable as
a matter of law as long as the date proven falls within the statute of limitations
and before the return of the indictment.” Girod, 646 F.3d at 316–17 (5th Cir.
2011) (internal quotation marks omitted); see also Russell v. United States, 429
F.2d 237, 238 (5th Cir. 1970) (finding that in the conspiracy context “within
reasonable limits, proof of any date before the return of the indictment and
within the statute of limitations is sufficient.”).
Given that the “buy bust” and Gamez’s arrest occurred on June 10, 2010,
there is no question that the offense conduct occurred both before the return of
the indictment, which was on July 7, 2010, and within the statute of
limitations. See 18 U.S.C. § 3282 (establishing five year statute of limitations).
The facts here are well within the five-month discrepancy we concluded in
Girod was not an unreasonable variance between the evidence presented at
trial and the indictment, 646 F.3d at 316, since the “buy bust” took place on

Rodriguez dealt with a situation where the defendant brought his challenge to the
indictment for the first time in a Rule 34 motion, after he had pled guilty and judgment had
been entered. 360 F.3d at 958. The defendant argued that he was entitled to de novo review,
whereas the government argued that the review should be for plain error because the “postjudgment Rule 34 motion does not constitute pre-trial review.” Id. The Ninth Circuit sided
with the Government and conducted a plain error review. Id. Here, Gamez brought his
challenge for the first time after the Government rested its case-in-chief.
4

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June 10, 2010, and the indictment listed May 12, 2010 as the end date of the
conspiracy. Moreover, Gamez fails to explain how the indictment failed to
provide him with “the substantial safeguards . . . an indictment is designed to
provide.” Russell v. United States, 369 U.S. 749, 763 (1962) (internal quotation
marks omitted). He was fully aware of the charges against him, and the
criminal complaint, issued the day after his arrest, indicated that the criminal
conduct ran “up until the present.” Given these circumstances, Gamez cannot
establish that he is entitled to relief. 5
IV.

CONCLUSION

For the foregoing reasons, we AFFIRM the Defendants’ convictions.

Gamez’s reliance on United States v. Cecil, 608 F.2d 1294 (9th Cir. 1979) is
misplaced. Cecil is distinguishable because the temporal language of the indictment there
was “open-ended in both directions,” id. at 1297, which is not the case here. In Cecil, the
indictment alleged that the conspiracy had “beg[un] on or before July, 1975, and continu[ed]
thereafter until on or after October, 1975.” Id. (emphasis added). The Ninth Circuit held
that “the indictment fail[ed] to allege sufficient facts to facilitate the proper preparation of a
defense and to ensure that the defendants were prosecuted on facts presented to the Grand
Jury,” because of the open-ended nature of the indictment’s time frame. Id. The indictment
here has an end date of “up to and including May 12, 2010,” which is definitive; accordingly,
the concerns recognized by the Ninth Circuit in Cecil do not apply here.
5

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