Full Opinion

Case: 25-11337 Document: 68-1 Page: 1 Date Filed: 11/06/2026 United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 25-11337 November 6, 2026 Summary Calendar Thomas B. Plunkett, III ____________ Clerk United States of America, Plaintiff—Appellee, versus Fredrick Asberry, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:24-CR-258-1 ______________________________ Before Barksdale, Graves, and Higginson, Circuit Judges. Per Curiam: * Following a jury trial, Fredrick Asberry was convicted of one count of conspiracy to distribute and possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 846 (prohibiting conspiracy) and 841(a)(1) (prohibiting distribution and possession with intent to distribute), (b)(1)(A) (setting penalty), and four counts of possession of controlled _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 25-11337 Document: 68-1 Page: 2 Date Filed: 11/06/2026 No. 25-11337 substances with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (prohibiting possession with intent to distribute), (b)(1)(A)–(C) (setting penalties). In challenging his 222-months’ imprisonment sentence with a life term of supervised release, Asberry contends: the district court violated his right to be present at the start of his trial by removing him from the courtroom for disruptive behavior before trial began; the irregularities between the live charging instrument and the jury verdict form constituted a constructive amendment, such that a new trial is required; and the evidence was insufficient to prove beyond a reasonable doubt that he knowingly and voluntarily joined the charged drug conspiracy in Count One, as opposed to merely engaging in independent or isolated narcotics activity. Because Asberry did not preserve his first two contentions in district court, their review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Asberry must show a forfeited plain error (clear-or-obvious error, rather than one subject to reasonable dispute) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the discretion to correct the reversible plain error, but generally should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. (citation omitted). Regarding Asberry’s disruptive behavior, he contends the court violated his right to be present at the start of his trial. “A defendant has a constitutionally protected right to be present at all stages of the trial where [his] absence might frustrate the fairness of the proceedings.” United States v. Kasali, 111 F.4th 637, 645 (5th Cir. 2024) (citations omitted). This right extends to “every trial stage, including jury empanelment”. Fed. R. Crim. P. 43(a)(2). Rule 43 further states: “A defendant who was initially 2 Case: 25-11337 Document: 68-1 Page: 3 Date Filed: 11/06/2026 No. 25-11337 present at trial” may waive his right to be present either by being “voluntarily absent after the trial has begun” or by being removed “for disruptive behavior”. Fed. R. Crim. P. 43(c)(1)(A), (C). In either circumstance, “the trial may proceed to completion . . . during the defendant’s absence”. Fed. R. Crim. P. 43(c)(2). Because Rule 43 “is broader than the constitutional right alone”, it is not necessary to conduct a separate constitutional analysis if the Rule’s requirements are met. United States v. Thomas, 724 F.3d 632, 642 (5th Cir. 2013); see also United States v. Krout, 56 F.3d 643, 645 n.2 (5th Cir. 1995). For purposes of whether Asberry was initially present under Rule 43, he maintains the preliminary matters—addressed by the court after the courtroom was called to order but mere minutes before the venire entered— were not a part of his trial. Our court rejected a materially indistinguishable assertion in Kasali. 111 F.4th at 645–46 (holding Rule 43 was satisfied when courtroom was called to order and conference before jury selection bore “reasonably substantial” relation to defendant’s defense). Here, the preliminary matters concerned, inter alia, potential prejudice resulting from Asberry’s jail clothing and refusal to participate in trial, as well as his desire to proceed pro se. These matters undoubtedly bore a “reasonably substantial” relation to his defense and sufficed to commence trial. See id. at 646 (addressing defendant’s refusal to participate in trial and prejudice resulting from wearing jail clothing in front of jury). Because Asberry was present when trial began under Rule 43, he could waive his right to be present. See Fed. R. Crim. P. 43(c)(1)(A), (C). His subsequent actions included refusal to change out of jail clothes, reference to several court officers as “crooks”, and persistent disruptive conduct, despite the court’s warning him of the risk of his removal. There was no clear-or- obvious error. See Illinois v. Allen, 397 U.S. 337, 343 (1970) (holding a defendant can lose his right to be present at trial if he is warned of removal 3 Case: 25-11337 Document: 68-1 Page: 4 Date Filed: 11/06/2026 No. 25-11337 and continues engaging in “disorderly, disruptive, and disrespectful” conduct); United States v. Hill, 63 F.4th 335, 347–49 (5th Cir. 2023). Asberry next contends the court constructively amended the indictment in violation of the Fifth Amendment because the jury charge and verdict form incorrectly referred in some places to the “Superseding Indictment” instead of the operative “Second Superseding Indictment”. As noted, review is for plain error. See id. “A criminal defendant has a Fifth Amendment right to be tried only on charges presented in a grand jury indictment, and therefore only the grand jury may amend an indictment once it has been issued.” United States v. Vargas, 6 F.4th 616, 621 (5th Cir. 2021). Under the Fifth Amendment, a constructive amendment “occurs when the government changes its theory at trial, allowing the jury to convict on a broader basis than that alleged in the indictment, or when the government proves an essential element of the crime on an alternate basis authorized by the statute but not charged in the indictment”. United States v. Stanford, 805 F.3d 557, 565 (5th Cir. 2015). In assessing whether a constructive amendment has occurred, our court considers “whether the jury instruction, taken as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of the law applicable to the factual issues confronting them”. United States v. Scher, 601 F.3d 408, 411 (5th Cir. 2010). There is no dispute that the jury charge and verdict form accurately set out the charges contained in the operative Second Superseding Indictment. And the only difference between the two indictments is that the Second Superseding Indictment added the conspiracy charge as Count One. It follows that the jury charge and verdict form correctly described the Count One conspiracy charge of the operative Second Superseding Indictment, simply misattributing the charge as coming from the Superseding 4 Case: 25-11337 Document: 68-1 Page: 5 Date Filed: 11/06/2026 No. 25-11337 Indictment. In any event, the correct elements and charges were provided to the jury. There was no clear-or-obvious error. See id. at 411–12 (holding no constructive amendment existed where one misstatement was made but balance of instructions were correct). Finally, Asberry contends there was insufficient evidence to support his conviction for conspiracy to distribute and possess with intent to distribute controlled substances because, in his view, the Government failed to show the requisite element of agreement but instead identified only a buyer-seller relationship and his mere presence during drug transactions. At the close of evidence, Asberry asserted there was no evidence he had “any kind of agreement” with his alleged co-conspirator. Because the court construed this statement as a motion for acquittal and Asberry raises the same contention on appeal, this issue is preserved. See United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013). Challenges to the sufficiency of the evidence are reviewed de novo. See United States v. Chapman, 851 F.3d 363, 376 (5th Cir. 2017). Under this standard, we review the evidence adduced at trial to determine if it supports a conviction beyond a reasonable doubt. Id. In doing so, we “review the evidence in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the jury”. Id. (citation omitted). For the following reasons, Asberry’s challenge fails under this standard. A conviction for conspiracy to distribute and possess with intent to distribute controlled substances requires proof of “(1) an agreement between two or more persons to violate the narcotics laws, (2) the defendant’s knowledge of the agreement, and (3) the defendant’s voluntary participation in the conspiracy”. United States v. Booker, 334 F.3d 406, 409 (5th Cir. 2003). “A drug distribution conspiracy agreement—and the conspiracy itself—may be tacit and inferred from circumstantial evidence, presence, and 5 Case: 25-11337 Document: 68-1 Page: 6 Date Filed: 11/06/2026 No. 25-11337 association”, as well as factual indicia of conspiracy, such as “sizeable amounts of cash, large quantities of drugs, and the presence of weapons”. United States v. Escajeda, 8 F.4th 423, 427 (5th Cir. 2021) (citations omitted). The evidence included text messages between Asberry and others coordinating the purchase and sale of large quantities of drugs over the course of months and Asberry’s arrest with large quantities of various drugs packaged for distribution. Asberry does not show it was unreasonable for the jury to infer from these facts that he had an agreement with others to purchase and sell drugs. In short, the evidence was sufficient for a reasonable juror to find him guilty beyond a reasonable doubt of conspiracy. See, e.g., United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc); United States v. Virgen-Moreno, 265 F.3d 276, 285–87 (5th Cir. 2001). AFFIRMED. 6