United States v. Diaz , 95 F. App'x 535 ( 2004 )


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  •                                                         United States Court of Appeals
    Fifth Circuit
    F I L E D
    March 16, 2004
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
    Clerk
    No. 02-20702
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JERMAINE CARLOS DIAZ,
    Defendant-Appellant.
    - - - - - - - - - -
    Appeal from the United States District Court
    for the Southern District of Texas
    (H-01-CR-528-ALL)
    - - - - - - - - - -
    Before JOLLY, WIENER, and PICKERING, Circuit Judges.
    PER CURIAM:*
    Defendant-Appellant     Jermaine   Carlos   Diaz   appeals       his
    conviction, following a jury trial, on charges of transporting a
    minor in interstate commerce for purposes of prostitution, and for
    aiding and abetting, in violation of 18 U.S.C. §§ 2423(a) and 2.
    The district court sentenced Diaz to 51 months in prison and three
    years supervised release.
    Diaz, who was only 14 years old at the time of the July 1998
    offense, contends that the district court reversibly erred by
    failing to (a) determine whether his waiver of his right to a
    *
    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    this opinion should not be published and is not precedent except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.
    juvenile proceeding was voluntary and knowing and (b) require that
    his juvenile court records be on file with the court before it
    transferred him for adult prosecution. As Diaz raises these claims
    for the first time on appeal, we review them for plain error only.
    See United States v. Calverley, 
    37 F.3d 160
    , 162-64 (5th Cir. 1994)
    (en   banc).   Under    the   plain-error   standard,   we   may   correct
    forfeited errors only when the appellant shows the existence of an
    error that was “clear” or “obvious” and affected his substantial
    rights.   
    Id. at 162-64.
         Furthermore, even if these criteria are
    met, we will not exercise our discretion to correct a forfeited
    error unless it seriously affects the fairness, integrity, or
    public reputation of judicial proceedings. United States v. Olano,
    
    507 U.S. 725
    , 735-36 (1993).
    The Juvenile Justice and Delinquency Protection Act (“JJDPA”)
    provides the means by which the federal government may proceed
    against a juvenile who has been accused of committing an act of
    juvenile delinquency.     See 18 U.S.C. § 5032.    “A juvenile who is
    alleged to have committed an act of juvenile delinquency and who is
    not surrendered to State authorities shall be proceeded against
    under this chapter unless he has requested in writing upon advice
    of counsel to be proceeded against as an adult.”             § 5032, ¶ 4
    (emphasis added).   It is not disputed that Diaz, his attorney, and
    his guardian complied with this provision by signing a written
    request that he be proceeded against as an adult.            As Diaz has
    cited no binding or non-distinguishable legal authority requiring
    a district court to ensure that the juvenile’s request is knowing
    2
    and voluntary, and Diaz has not explicitly asserted that his
    request was in fact unknowing or involuntary, he has failed to
    establish plain error.
    Diaz has also failed to show plain error with respect to his
    claim that the district court failed to comply with § 5032's
    requirement that transfer to adult prosecution shall not occur
    before the district court has received “any prior juvenile court
    records.”     The magistrate judge’s July 3, 2001, detention order
    reflects that such records were obtained and reviewed by the court.
    Diaz also contends that trial evidence was insufficient to
    establish that, by the time he and the female minor left Arkansas
    for Houston, he had already formed the intent for the minor to
    engage   in   prostitution   there.        Generally,      the   standard   for
    reviewing a claim of insufficient evidence is whether “a rational
    trier of fact could have found that the evidence establishes the
    essential elements of the offense beyond a reasonable doubt.”
    United States v. Villarreal, 
    324 F.3d 319
    , 322 (5th Cir. 2003)
    (citing Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979)).              When, as
    here, the defendant fails “to renew his motion for judgment of
    acquittal at the close of the trial, we review his claim [only] to
    determine ‘whether there was a manifest miscarriage of justice.’”
    United   States   v.   Burton,   
    324 F.3d 768
    ,   770    (5th   Cir.   2003)
    (citation omitted).     “That occurs only where the record is devoid
    of evidence pointing to guilt or contains evidence on a key element
    of the offense [that is] so tenuous that a conviction would be
    shocking.”    
    Id. (citations and
    internal quotation marks omitted).
    3
    Under 18 U.S.C. § 2423(a), the intent that a minor engage in
    prostitution need only be a “dominant motive” of the transportation
    across state lines; it need not be the only motive.    United States
    v. Campbell, 
    49 F.3d 1079
    , 1082 (5th Cir. 1995) (citing Mortensen
    v. United States, 
    322 U.S. 369
    , 374 (1944)).
    The trial evidence shows that Diaz enticed the minor and
    another girl to travel with him from their Arkansas hometown to
    Houston by telling them that he would find them work there as
    strippers.   Within less than one hour after Diaz and the minor
    checked into a motel in Houston, Diaz appeared with two other
    pimps, brandished a handgun, and told the minor that she “was down
    here to prostitute.”   The minor testified that she was “afraid” to
    disobey.   That evening, Diaz and a second pimp took the minor to a
    “modeling studio,” which in fact was a “whore house,” where the
    minor signed a job application using false identification provided
    by Diaz and had sex with men for money.     The minor acknowledged
    that she had never worked as a prostitute before and that it was
    “apparent” that Diaz “knew how these modeling studios worked.” The
    minor also testified that Diaz “knew what to do when [they] went”
    inside the first of two studios at which she worked.   This evidence
    and reasonable inferences to be drawn from it were more than
    sufficient to support the finding of fact that before leaving
    Arkansas, Diaz had formed the intent for the minor to engage in
    prostitution in Texas.   See United States v. Haas, 
    171 F.3d 259
    ,
    265-66 (5th Cir. 1999) (criminal intent may be established by
    circumstantial evidence).
    4
    Diaz asserts further that the district court erred in failing
    to declare a mistrial when the minor testified that she was
    “afraid” of Diaz because he had allegedly “done drive-bys” in their
    Arkansas hometown.      The district court’s denial of Diaz’s motion
    for mistrial was not an abuse of discretion.                United States v.
    Millsaps, 
    157 F.3d 989
    , 993 (5th Cir. 1998).          The comment was made
    only one time, and the district court gave a sufficient curative
    instruction.      See   
    id. Juries are
      presumed   to   follow   such
    instructions.     
    Id. Diaz has
    not established that there was “a
    significant    possibility    that   the    prejudicial     evidence   had   a
    substantial impact upon the jury verdict, viewed in light of the
    entire record.”   United States v. Paul, 
    142 F.3d 836
    , 844 (5th Cir.
    1998).
    Diaz next contends, again for the first time on appeal, that
    the district court erred by answering several written jury notes
    without ensuring that Diaz and his attorney were present.                  The
    parties dispute whether the record even shows that Diaz and his
    attorney were not present when the court entertained these notes;
    there is nothing in the record to confirm their absence at those
    times.   (Diaz is represented by a new attorney on appeal.)               But
    even if we assume arguendo that Diaz and his attorney were not
    present, we are satisfied that Diaz has not established plain
    error, because he has failed to establish that the purported error
    was anything but harmless.      See United States v. Bieganowski, 
    313 F.3d 264
    , 293 (5th Cir. 2002), cert. denied, 
    123 S. Ct. 1956
    (2003); 
    Calverley, 37 F.3d at 162-64
    . He suggests that the court’s
    5
    answer to only one of five jury notes was unresponsive, but, even
    with respect to the question posed in that particular note, the
    court had already instructed the jury properly.
    Diaz also urges that the district court abused its discretion
    by giving an abbreviated Allen1 charge after the jury submitted a
    note, several hours into its deliberations, stating that it was
    deadlocked as to the count of conviction.    As this contention is
    raised for the first time on appeal, it too is reviewed for plain
    error only.2   See 
    Calverley, 37 F.3d at 162-64
    .   The trial court
    instructed the jury, inter alia, to return the following morning
    and “spend at least 30 minutes or so deliberating on this issue and
    then tell me as soon as possible whether or not you think you can
    reach agreement as to that particular issue.”   Although the court
    failed explicitly to “make it plain” that each juror had a “duty
    conscientiously to adhere to his own honest opinion,” see United
    States v. Sylvester, 
    143 F.3d 923
    , 927 (5th Cir. 1998) (citations
    and internal quotation marks omitted), the charge did not contain
    the coercive elements that we have found impermissible under Allen.
    See United States v. McClatchy, 
    249 F.3d 348
    , 359 (5th Cir. 2001);
    United States v. Solomon, 
    565 F.2d 364
    , 365-66 (5th Cir. 1978).   No
    error is apparent, plain or otherwise.
    AFFIRMED.
    
    1 Allen v
    . United States, 
    164 U.S. 492
    , 501 (1896).
    2
    Diaz contends that he preserved this contention for
    appellate review by moving for a mistrial as soon as he learned
    that the jury was deadlocked. This did not absolve him of the
    burden, however, of objecting to the propriety or adequacy of the
    district court’s subsequent Allen charge.
    6