United States v. Severa ( 1996 )

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                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40032
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
SHAWN ANTHONY SEVERA
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
USDC No. L-95-115
October 8, 1996
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Shawn Anthony Severa appeals his conviction and sentence for
possessing marijuana with intent to distribute it, 21 U.S.C. §
841(a)(1).     Contrary to his contention, the evidence was amply
sufficient for a jury to convict.     United States v. Lopez,

74 F.3d 575

(5th Cir.), cert. denied,

116 S. Ct. 1867

(1996).          Among other
things, the    defendant   was   caught   with   $1.7   million   worth   of
marijuana secreted in his truck, and demonstrated no surprise when
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
it was found.   United States v. Del Aguila-Reyes,

722 F.2d 155

, 157
(5th Cir. 1983).    When arrested, he was carrying a semi-automatic
pistol and almost $2,000 in cash.          United States v. Romero-Reyna,

867 F.2d 834

, 836 (5th Cir. 1989).          Severa said that he inspected
the trailer and did not smell anything even though four agents
testified that the odor coming from the trailer was very strong.
Severa had in his cab tools that would quickly and easily dismantle
the compartment behind which the drugs were hidden. The jury heard
testimony   about   false   license       plates   and    bills   of   sale   for
different trailers that were also in the truck.                   Severa gave a
false account to border agents about his involvement with the
trailer, an account that clashed with evidence the jury heard at
trial.   The jury was free to disbelieve Severa.              A rational jury
had sufficient evidence to convict Severa.           United States v. Diaz-
Carreon,

915 F.2d 951

(5th Cir. 1990); United States v. Anchondo-
Sandoval,

910 F.2d 1234

(5th Cir. 1990).
We also find no plain error in (1) what Severa alleged to be
constructive amendment of the indictment; (2) Severa’s not being
sentenced for simple possession of marijuana;(3) the district
court’s curtailment of his cross-examination of two witnesses; (4)
what Severa alleged to be prosecutorial misconduct; and (5) the
modified Allen charge given to the jury.                 See United States v.
Calverly,

37 F.3d 160

, 162 (5th Cir. 1994) (en banc), cert. denied,
2

115 S. Ct. 1266

(1995).       We comment briefly about appellant’s
contentions of constructive amendment and the Allen charge.
The record shows that both the prosecutor and the defense
counsel correctly informed the jury that the Government had to
prove beyond a reasonable doubt that Severa possessed the drugs
with intent to distribute.    The court expounded forcefully on the
knowledge element.    In open court, the judge asked the foreman of
the jury about the handwritten portion of the jury forms, and then
polled the jury.     The jury members confirmed that they voted to
convict Severa on the count in charge two.      The court asked the
jurors whether they all understood the elements of count two, and
they nodded in agreement.    With no objections, the court released
the jury.   There was no constructive amendment of the indictment.
United States v. Holley,

23 F.3d 902

, 912 (5th Cir.), cert. denied

115 S. Ct. 635

(1994),

115 S. Ct. 737

(1995).
There was no plain error in the Allen charge given to the
jury.   A court may give a charge to a jury to iron out their
differences and reach a verdict, sometimes called an “Allen charge”
after Allen v. United States,

164 U.S. 492

(1896).   We review Allen
charges to make sure (1) the semantic deviation from approved Allen
charges is not so prejudicial as to require reversal, and (2) the
circumstances surrounding the giving of an approved Allen charge
are not coercive.    United States v. Heath,

970 F.2d 1397

, 1406 (5th
Cir. 1992), cert. denied,

507 U.S. 1004

(1993).           The entire
3
instruction given by Judge Kazen was substantially the same as the
Fifth Circuit District Judges Association Pattern Jury Instructions
(Criminal Cases) (1990), approved in United States v. Pace,

10 F.3d 1106

, 1122 n. 15 (5th Cir. 1993), cert. denied,

114 S. Ct. 2180

(1994).   The charge given to Severa’s jury was even less coercive
than the pattern instruction because the court emphasized (1) the
jurors’ not surrendering their positions, and (2) the fact that the
court would not detain them if they found they were unable to
agree.    See United States v. Kimmel,

777 F.2d 290