United States v. Marshall , 283 F. App'x 268 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 26, 2008
No. 07-40208
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FERNANDO F. MARSHALL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 1:06-CR-0212-ALL
Before SMITH and PRADO, Circuit Judges, and LUDLUM, District Judge.*
LUDLUM, District Judge:**
A jury convicted Appellant Fernando Marshall (“Marshall”) of eight counts
of various narcotics trafficking offenses, including conspiracy to possess with
intent to distribute, conspiracy to import, possession with intent to distribute,
and importation of cocaine, heroin and methamphetamine. He appeals his
convictions, challenging: (1) the sufficiency of the evidence to support his
convictions; (2) the court’s instructions given during voir dire and at the
*
District Judge of the Western District of Texas, sitting by designation.
**
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-40208
conclusion of the case; (3) the answers to two jury questions; and (4) the
admission of extrinsic evidence. Finding no error, we affirm Marshall’s
convictions.
I. FACTS AND PROCEEDINGS
On March 4, 2006 at 11:15 a.m., Marshall drove an extended cab Chevrolet
Silverado pickup truck from the Republic of Mexico into the primary inspection
station at the Gateway International Bridge Port of Entry in Brownsville, Texas.
At the primary inspection station, Marshall declared he was a resident alien of
the United States and had been in Mexico. Marshall also told the primary
inspection agent that he, a professed mechanic, was in the process of purchasing
the truck from its owner, who lived in Houston, Texas. The agent noticed
Marshall was tightly clutching the steering wheel and acting extremely friendly
with the agent. The agent inspected the truck’s undercarriage and saw it
recently had been sprayed with a thick layer of oil. He also noticed evidence of
tampering on the gas tank bolts. Marshall was then referred to the secondary
inspection area.
At the secondary inspection area, Marshall made a negative declaration.
He told agents he had been in Mexico visiting his sick mother and was returning
to Brownsville. According to Marshall, a friend of his named Arellano owned the
truck. Marshall told the agents he picked up the truck earlier that morning
from Arellano, who stayed in Mexico.
An agent noticed that the interior of the truck was recently cleaned, the
carpet vacuumed, the glove box emptied of all items, and the key ring held a
single ignition key and a religious artifact. The key ring appeared suspicious to
the agents because of the lack of any house and mailbox keys. The agents also
noticed the excessive amount of oil sprayed on the undercarriage, which emitted
a strong smell and was dripping and pooling on the ground.
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No. 07-40208
A narcotics detection canine was brought in to inspect the truck, but did
not alert to the presence of any contraband. The agents then used a density
detector, which registered a high density reading on one of the rear quarter
panels of the truck. Upon further inspection, the agents discovered the taillight
screws appeared tampered with and were recently painted. After removing the
taillights, agents discovered a compartment within the wall of the truck. By
probing the cavity with a drill, the agents extracted white powder, which field-
tested positive for cocaine.
Agents retrieved a total of thirty-five packages of narcotics from the left
and right rear quarter panels of the truck. Each bundle was in an air-sealed
package, covered with a layer of mustard seed, a layer of soap, a layer of plastic
wrap, a layer of duct tape, a layer of oil, and a final layer of plastic wrap, all
designed to mask the odor of the narcotics. The thirty-five bundles consisted of
eighteen bundles of cocaine, weighing 19.55 kilograms; eight bundles of
methamphetamine, weighing 5.05 kilograms; and nine bundles of heroin,
weighing 6.2 kilograms. The wholesale value of the drugs in Houston, Texas was
$731,000, while the street value was $5,865,000.
At some point in time during the search of the truck and prior to
Marshall’s arrest, the agents discovered the existence of an outstanding arrest
warrant for Marshall for the offense of unauthorized use of a motor vehicle.
Marshall was arrested at 11:49 a.m. The agents found the narcotics at
approximately 12:30 p.m. They contacted a duty agent, who arrived at the port
of entry by 1:00 p.m.
Marshall was advised of his constitutional rights, waived those rights, and
was subjected to custodial interrogation for approximately an hour-and-a-half.
He gave several versions of his confession. The inconsistencies pertained to the
name of the truck’s owner, the purpose of his visit to Mexico, the place and time
he retrieved the truck, and his instructions for the disposition of the truck.
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No. 07-40208
Marshall, at some point, admitted he was paid to drive the truck into the United
States. He also admitted he lied to the agents during the interrogation. He
denied actual knowledge of the narcotics in the truck, but stated, “[B]ut I
thought it was suspicious. Because [the owner] did not want to drive the truck,
because he had problems before with Immigration relating to alien smuggling.
In my, what do you call it, 6th sense, I knew something was suspicious.”
II. DISCUSSION
A. Sufficiency of the Evidence
Marshall contends the evidence was insufficient to establish he knowingly
committed the eight offenses of conviction. He claims the Government, at best,
only proved he merely possessed the truck, not that he knew the drugs were
hidden in a secret compartment in the truck. He further contends evidence of
guilt was equipoised with evidence of innocence, and therefore, the convictions
should be reversed.1 The Government counters that the evidence was sufficient
to prove Marshall had the requisite knowledge of the narcotics, which was
established by evidence of his nervous demeanor and the numerous versions of
his confession.
Because Marshall moved for a judgment of acquittal at the close of the
Government’s case, we review de novo the sufficiency of the evidence claims. See
United States v. Leed, 981 F.2d 202, 205 (5th Cir. 1993). The standard of review
for determining the sufficiency of the evidence is whether any reasonable trier
of fact could have found that the evidence established guilt beyond a reasonable
doubt. United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). The
1
The indictment also charges Marshall with aiding and abetting as to the substantive
offenses listed in Counts Two, Three, Four, Six, Seven, and Eight. The parties do not challenge
the sufficiency of the evidence concerning the alternative aiding and abetting theory.
4
No. 07-40208
evidence is viewed in the light most favorable to the verdicts. Id. “The
government may prove its case through the use of circumstantial evidence so
long as the total evidence, including reasonable inferences, is sufficient to
warrant a jury's conclusion that the defendant is guilty beyond a reasonable
doubt.” United States v. Del Aguila-Reyes, 722 F.2d 155, 157 (5th Cir. 1983).
The evidence need not “‘exclude every reasonable hypothesis of innocence or be
wholly inconsistent with every conclusion except that of guilt . . . . A jury is free
to choose among reasonable constructions of the evidence.’” United States v.
Williams-Hendricks, 805 F.2d 496, 500 (5th Cir. 1986) (quoting United States v.
Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc) (footnote omitted)). However,
should the evidence show equal or nearly equal circumstantial support of guilt
and innocence, reversal is required. United States v. Lopez, 74 F.3d 575, 577
(5th Cir. 1996).
To be found guilty of conspiracy to possess with intent to distribute and
conspiracy to import controlled substances, pursuant to 21 U.S.C. §§ 846 and
963, respectively, the Government must prove there was: (1) an agreement
between two or more persons to violate the controlled substances laws; (2) the
defendant had knowledge of the agreement; and (3) the defendant voluntarily
participated in the conspiracy. United States v. Thomas, 348 F.3d 78, 82 (5th
Cir. 2003). “The agreement may be tacit, and the jury may infer its existence
from circumstantial evidence.” United States v. Crooks, 83 F.3d 103, 106 (5th
Cir. 1996). “Knowledge of the conspiracy may be inferred from a collection of
circumstances.” United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993)
(quotation omitted). Mere presence at the scene of the offense without more is
insufficient to support an inference of participation in a conspiracy. United
States v. Chavez, 947 F.2d 742, 745 (5th Cir. 1991). A defendant’s presence or
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No. 07-40208
association, in conjunction with other evidence, may be sufficient to support a
finding that a defendant participated in a conspiracy. Id.
To sustain a conviction for possession with intent to distribute a controlled
substance, pursuant to 21 U.S.C. § 841, the evidence must prove that a
defendant: (1) knowingly; (2) possessed a controlled substance; (3) with the
intent to distribute it. Id. A defendant’s intent to distribute a controlled
substance may be inferred from the possession of a large amount of the
controlled substance. United States v. Hernandez-Palacios, 838 F.2d 1346, 1349
(5th Cir. 1988) (citing Williams-Hendricks, 805 F.2d at 500). Importation of a
controlled substance, pursuant to 21 U.S.C. §§ 952 and 960, requires proof that
a “defendant participated in bringing a quantity of a controlled substance into
the United States knowing that the substance was controlled and that it would
enter the United States.” Crooks, 83 F.3d at 106.
The only element at issue in the instant case is the sufficiency of the
evidence to prove Marshall’s knowledge. Generally, a jury may infer a defendant
knows about the presence of drugs if he exercises control over a vehicle
containing controlled substances. United States v. Resio-Trejo, 45 F.3d 907, 911
(5th Cir. 1995). However, when drugs are hidden in a vehicle, control of the
vehicle alone is insufficient to prove knowledge. United States v. Pennington, 20
F.3d 593, 598 (5th Cir. 1994). In hidden compartment cases, a fair assumption
can be made that a third party may have hidden the controlled substances in the
vehicle, using a defendant as an unwitting carrier of controlled substances.
Ortega Reyna, 148 F.3d at 544. In addition, there is a heightened assumption
of innocence when the “vehicle is a ‘loaner’ or has otherwise been in the
possession of the suspect for only a short time.” Id.
Because of the possibility that a defendant may be an unwitting carrier,
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No. 07-40208
“this Court has normally required additional ‘circumstantial evidence that is
suspicious in nature or demonstrates guilty knowledge.’” Resio-Trejo, 45 F.3d
at 911 (quoting United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th
Cir. 1990)). Circumstantial evidence of guilty knowledge may include
inconsistent statements; implausible explanations; nervousness, or lack thereof;
failure to make eye contact; reluctance to answer questions; lack of surprise
when contraband is discovered; possession of a large sum of money; and obvious
alterations to a vehicle, especially when the person has been in possession of the
vehicle for a significant period of time. Ortega Reyna, 148 F.3d at 544; see also
United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990) (nervous
behavior at a checkpoint may be “persuasive evidence of guilty knowledge”);
United States v. Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir. 1989) (“the
unusual nature of the fuel tanks and their special fittings [that] were observable
[upon an] exterior inspection” of the vehicle supported a finding of knowledge on
the part of the defendant).
In the present case, Marshall’s demeanor became the focus of the
inspector’s attention from the moment he entered the primary inspection lane.
Marshall was unusually friendly and was gripping the steering wheel tightly.
Additionally, the suspicious condition of the exterior of the truck was obvious to
the inspectors because of the copious amount of oil on the bottom of the truck,
which quickly pooled onto the ground. Agents also found noticeable tampering
evident on some of the bolts holding the gas tank and taillights. All of these
unusual aspects of the truck should have been very evident to a self-admitted
mechanic such as Marshall. The uncommonly clean interior of the truck and the
single key on the key ring only added to the suspicious condition of the truck.
Moveover, Marshall gave contradictory explanations concerning how he
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No. 07-40208
came to be in Mexico and in possession of the truck.2 “Perhaps the strongest
evidence of a criminal defendant’s guilty knowledge is inconsistent statements
to federal officials.” Diaz-Carreon, 915 F.2d at 954-55 (citing Williams-
Hendricks, 805 F.2d at 501). “[A] ‘less-than-credible explanation’ for a
defendant’s actions is ‘part of the overall circumstantial evidence from which
possession and knowledge may be inferred.’” Id. at 955 (quoting United States
v. Phillips, 496 F.2d 1395, 1398 n.6 (5th Cir. 1974)). Initially, Marshall told the
agents at the primary inspection station that he was returning to Brownsville
and was in the process of buying the truck from the owner, a long-time friend
named Arellano, whose name was on the title of the truck later found by agents.
After his arrest, the name of Marshall’s “long-time friend” and owner of the
truck changed to Cristobal Carrillo. In subsequent statements, Marshall told
agents he borrowed the truck from the owner at 8:00 a.m. to go to Matamoros.
He said he took the truck to a car wash and stated that the owner of the truck
was supposed to return to Houston with Marshall. Later in the confession,
Marshall again contradicted himself when he told agents he took possession of
the truck in Mexico at the car wash.
When confronted by agents about the contradictions, Marshall freely
admitted he was lying. Upon further questioning, Marshall stated he had a
friend take him into Mexico to meet the owner of the truck where Marshall
received $160 and the key to the truck with instructions to leave the truck with
“Meme” at a taxi stand, or a grocery store if the taxi stand was closed. He was
then to return to Mexico with the truck’s key. In Marshall’s final depiction of
2
Marshall attempts to justify his contradictory statements by referring to his diabetic
medical condition as the cause of his confusion. However, agents testified that it was their
custom to check on individuals every fifteen minutes once they are arrested. Marshall never
told agents he was sick or that he needed food or medicine.
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No. 07-40208
events, he claimed he met Cristobal in Mexico for lunch and received the key to
the truck. Marshall confessed he was suspicious of the situation because his
friend, the owner of the vehicle, did not want to drive his own truck across the
international bridge.3
Marshall’s nervous demeanor, the conditions of the truck, his suspicions
about the truck and his friend’s motives, and his contradictory statements
provide a sufficient basis to find that Marshall knew the controlled substances
were hidden in the truck and knowingly participated in the commission of the
offenses charged in the amended indictment. Additionally, the truck contained
controlled substances with a street value of $5,865,000. The possession of such
a large amount of controlled substances, even if hidden, can be a basis for an
inference of guilty knowledge on the part of a defendant. See Del Aguila-Reyes,
722 F.2d at 157 (finding that even though cocaine was hidden in a compartment
not visible to the defendant, it was a reasonable inference that the defendant
would not have been entrusted with the narcotics, worth $5,000,000, if “he were
ignorant of all details surrounding his responsibility and the importance of the
cargo in his care”).
A court should not be inclined to alter a jury’s verdicts. In the present
case, the totality of the evidence and reasonable inferences drawn therefrom
compel a finding that the evidence is sufficient to support the jury’s findings,
beyond a reasonable doubt, that Marshall knowingly committed the offenses of
conviction.
3
Marshall attempts to use his medical condition and leg amputation to suggest he was
targeted and used to drive the drug laden vehicle without his knowledge due to his
sympathetic appearance. However, it is equally plausible for the jury to have concluded that
Marshall knew of the drugs and used his physical disabilities as a way to distract the
inspectors from suspecting him of transporting the drugs.
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No. 07-40208
B. Jury Voir Dire
Marshall contends that the district court erred when it, sua sponte, read
to the venire panel the deliberate ignorance instruction during voir dire. A trial
court has broad discretion under Federal Rule of Criminal Procedure 24 to
conduct voir dire and determine its scope. United States v. Garcia, 86 F.3d 394,
401 (5th Cir. 1996); United States v. Black, 685 F.2d 132, 134 (5th Cir. 1982).
Generally, a challenge to the scope of the voir dire proceedings is reviewed for
abuse of discretion. United States v. Munoz, 150 F.3d 401, 412 (5th Cir. 1998).
If the Court finds an abuse of discretion, we then must decide if any resulting
error was harmless. Id. “Harmless error is ‘[a]ny error, defect, irregularity, or
variance which does not affect substantial rights’” and does not prejudice a
defendant. Id. at 412-13 (quoting Fed. R. Crim. P. 52(a)). Prejudice only occurs
“when the error ‘ha[s] affected the outcome of the district court proceedings.’” Id.
(quoting United States v. Olano, 507 U.S. 725, 734 (1993)).
The Government, however, argues that a plain error standard is
appropriate because Marshall failed to raise the argument in the district court.
“We may reverse for plain error only if (1) there was error (2) that was clear and
obvious and (3) that affected the defendant's substantial rights.” Munoz, 150
F.3d at 413. To meet the third prong of the plain error test, a defendant must
specifically show prejudice. Id. In addition, even in the presence of plain error,
“we should exercise our discretion to reverse only if the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.” Id.
(quotation omitted).
We find that under either standard of review, the district judge’s reading
of the deliberate ignorance instruction to the venire panel fails to constitute
reversible error. While it is unusual for a venire panel to hear a rendition of
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No. 07-40208
deliberate ignorance law during voir dire, it did not constitute error in the
present case. Upon review of the record, we find the district court was only
attempting to ascertain potential jurors’ bias for or against that particular area
of the law and did not abuse its discretion in doing so. The district judge stated
that the jurors “may” be given the instruction, and after reading it, asked if
anyone could not follow the instruction if it were given to them at the conclusion
of the trial. The panel was not instructed to absolutely apply the principles of
deliberate ignorance. Nor is there evidence the jury felt compelled to apply the
law of deliberate ignorance to the facts of the case based upon the initial
presentation to the complete venire panel.
However, if merely broaching the subject of deliberate ignorance with the
venire panel could constitute error, Marshall’s substantial rights were not
affected by the district court’s actions during voir dire, and his rights to a fair
trial were not prejudiced. Prejudice, if any, to Marshall was cured by the final
charge to the jury, which included a proper deliberate ignorance instruction, as
discussed below. Id.
C. Jury Instructions
Marshall additionally argues that it was error to include the deliberate
ignorance charge in the final jury instructions.4 Challenges to jury charges
require a determination whether
4
The district court included a deliberate ignorance instruction in the final jury charge,
which recited the pattern jury instruction: “The word ‘knowingly’ as that term has been used
from time to time in these instructions, means that the act was done voluntarily and
intentionally, not because of mistake or accident. You may find that a defendant had
knowledge of a fact if you find that the defendant deliberately closed his eyes to what would
otherwise have been obvious to him. While knowledge on the part of the defendant cannot be
established merely by demonstrating that the defendant was negligent, careless or foolish,
knowledge can be inferred if the defendant deliberately blinded himself to the existence of a
fact.” Fifth Circuit Pattern Jury Instructions (Criminal) § 1.37 (2001).
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No. 07-40208
the court's charge, as a whole, is a correct statement of the
law and whether it clearly instructs jurors as to the principles
of law applicable to the factual issues confronting them. A
district court has broad discretion in framing the instructions
to the jury and this Court will not reverse unless the
instructions taken as a whole do not correctly reflect the
issues and law.
United States v. Threadgill, 172 F.3d 357, 367-68 (5th Cir. 1999) (quotation and
citation omitted). The trial court’s charge must be supported by the evidence
adduced at trial. United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir.
2003). In reaching a decision whether the instruction was properly given, “we
‘view the evidence and all reasonable inferences that may be drawn from the
evidence in the light most favorable to the Government.’” Id. (quoting United
States v. Lara-Velasquez, 919 F.2d 946, 950 (5th Cir. 1990)). If error is found,
the harmless error analysis applies. United States v. Cartwright, 6 F.3d 294,
301 (5th Cir. 1993).
“The purpose of the deliberate ignorance instruction is to inform the jury
that it may consider evidence of the defendant’s charade of ignorance as
circumstantial proof of guilty knowledge.” Lara-Velasquez, 919 F.2d at 951. “It
is only to be given when a defendant claims a lack of guilty knowledge and the
proof at trial supports an inference of deliberate indifference.” Threadgill, 172
F.3d at 368 (citing United States v. Wisenbaker, 14 F.3d 1022, 1027 (5th Cir.
1994)). We have cautioned that a deliberate ignorance instruction should be
used sparingly. Id.
The deliberate ignorance instruction is properly given if the evidence
shows: (1) the defendant’s subjective awareness of a high probability of the
existence of illegal conduct; and (2) a purposeful contrivance by the defendant
to avoid learning of the illegal conduct. Id. As long as the evidence in the record
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No. 07-40208
satisfies both prongs, giving the instruction does not constitute error. See United
States v. Chen, 913 F.2d 183, 191 (5th Cir.1990).
1. Subjective Knowledge by a Defendant
To satisfy the first prong of the deliberate ignorance instruction test, the
Government must present evidence which supports an inference that a
defendant subjectively knew his conduct to be illegal. United States v. Nguyen,
493 F.3d 613, 619 (5th Cir. 2007). It is not enough for the Government to
present evidence which only supports an inference that a reasonable person
would have known his conduct to be illegal. Id. “The evidence should allow a
‘glimpse’ into the defendants’ minds when there is no evidence pointing to actual
knowledge.” Id. at 619-620 (citing Lara-Velasquez, 919 F.2d at 953 n.8).
“Suspicious and erratic behavior may be sufficient to infer subjective awareness
of illegal conduct.” Id. at 620; see also United States v. Saucedo-Munoz, 307 F.3d
344, 348 (5th Cir. 2002); United States v. Casilla, 20 F.3d 600, 603 (5th Cir.
1994).
In the instant case, the Government presented sufficient evidence
demonstrating Marshall subjectively believed he was taking part in illegal
activity. Marshall admitted he thought it was suspicious that the owner would
not drive his own truck into the United States, and instead would pay Marshall
to do so. Marshall further reinforces the inference of subjective knowledge by
admitting he knowingly lied to agents during the interrogation, after providing
numerous conflicting stories to agents about how he came into possession of the
truck, how he arrived in Mexico, what he was doing there, and where he was
traveling to upon his re-entry into the United States. Given the totality of
Marshall’s suspicious behavior, the evidence supports a finding Marshall was
subjectively aware of the probability of the existence of illegal conduct.
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No. 07-40208
2. Purposeful Contrivance to Avoid Learning of the Illegal Conduct
“If ‘the circumstances in this case were so overwhelmingly suspicious that
the defendants’ failure to conduct further inspection or inquiry suggests a
conscious effort to avoid incriminating knowledge,’ then [the] second prong can
be satisfied.” Nguyen, 493 F.3d at 621 (quoting United States v. Daniel, 957 F.2d
162, 169-70 (5th Cir. 1992)); see also United States v. Ricardo, 472 F.3d 277, 286
(5th Cir. 2006), cert. denied, U.S. , 127 S. Ct. 2076 (2007) (“[F]ailure to
conduct further inspection or inquiry suggests a conscious effort to avoid
incriminating knowledge.”). Circumstantial evidence can be used to support a
finding of purposeful contrivance. Nguyen, 493 F.3d at 621.
Marshall claims he picked the truck up at a car wash in Mexico, and it was
cleaned prior to coming back to the United States. Marshall, who is a mechanic
by trade and former owner of a mechanic shop, purportedly failed to notice the
excessive oil dripping from the vehicle and pooling on the ground. He also did
not notice that the bolts on the gas tank and taillights were tampered with prior
to his travels. With his extensive knowledge of vehicles, and his statement that
he intended to purchase the truck, Marshall presumably would have wanted to
inspect it prior to any purchase.
Even if this Court were to ignore Marshall’s failure to observe the obvious
tampering with the truck, any version of Marshall’s portrayal of events
demonstrates a purposeful lack of inquiry. See id. at 622 (“Not asking questions
can be considered a purposeful contrivance to avoid guilty knowledge.”). Despite
the illogical and suspicious nature of the requests made of Marshall, he
nonetheless attempted to bring the truck into the United States, while purposely
refusing to learn about the controlled substances hidden in the truck. Based on
the totality of the evidence, Marshall’s behavior is sufficient to show an inference
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No. 07-40208
of purposeful contrivance that satisfies the final part of the test.
In conclusion, we find the district court did not err in giving the deliberate
ignorance instruction during voir dire or in the final charge.
D. Responses to Jury Questions
Marshall contends the district court erred in its responses to two jury
questions. First, Marshall contends the jury disagreed over the interpretation
of a jury instruction and rather than responding to it, the court erroneously
issued an Allen charge.5 Second, Marshall claims the district court erred when
it failed to clarify the deliberate ignorance instruction in response to a second
jury question.
1. The Allen Charge
The district court received Jury Note Number 7, after more than nine
hours of deliberations, which stated, “We cannot reach an agreement because
one juror interprets the instructions differently than the others. We feel she is
not following the directions.”6 The jury did not specifically identify the jury
instruction in dispute. The district court interpreted the note as notice by the
jury that they were deadlocked. In response to the note, the district court issued
the Allen charge to the jury,7 using the instruction found in Fifth Circuit Pattern
5
The Allen charge is utilized when jurors are deadlocked to prompt them to reassess
their methods of deliberation in attempt to reach a consensus. Allen v. United States, 164 U.S.
492 (1896).
6
The district court provided a written copy of the final jury charge to the jury for their
use during deliberations.
7
It is unclear whether defense counsel timely objected to the district court’s first
response. The record supports a finding that an objection was not lodged until after the
response was sent to the jury. Therefore, a plain error standard might apply. However, an
abuse of discretion standard is used in the analysis. Concerning the second note, counsel did
not object; therefore, the plain error standard is applied.
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No. 07-40208
Jury Instructions.
An Allen charge is a permissible exercise of the district court’s discretion
if “the circumstances under which the district court gives the instruction are not
coercive, and the content of the charge is not prejudicial.” United States v.
McClatchy, 249 F.3d 348, 359 (5th Cir. 2001). “[T]he trial court ‘is vested with
broad discretion to evaluate whether an Allen charge is likely to coerce a jury
into returning a verdict it would not otherwise return.’” United States v.
Nguyen, 28 F.3d 477, 484 (5th Cir. 1994) (quoting United States v. Gordon, 780
F.2d 1165, 1177 (5th Cir. 1986)).
Marshall believes that giving the charge was generally inappropriate. He
fails, however, to identify any evidence proving the charge had a coercive effect
on the jury or prejudiced his case. In fact, the note in question was received by
the district court at 11:45 a.m. The jury reached its verdicts five hours later.
Given the time lapse, there is no evidence the jury was coerced into reaching
verdicts it might not otherwise have reached. United States v. Clayton, 172 F.3d
347, 352 (5th Cir. 1999) (time lapses of twenty-five and forty-five minutes
between an Allen instruction and the rendering of verdicts is not indicative of
coercion). The trial court did not err when it provided the Allen charge to the
jury. Marshall’s complaint to the Allen charge is without merit.
2. The Deliberate Ignorance Jury Question
The district court received Jury Note Number 8, stating, “Can you give us
a definition of the word deliberately as used in the definition knowingly.” The
district court sent a response back to the jury stating, “In response to Jury Note
Number 8, you are instructed that the Final Jury Instructions contain all of the
definitions and instructions that you will receive during your deliberations.”
Marshall objects to the district court’s response for the first time on appeal. He
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No. 07-40208
argues that this response merely referred the jury back to the same deliberate
ignorance instruction that caused the jury’s confusion in the first instance and
did not assist the jury.
“When a deliberating jury expresses confusion and difficulty over an issue
submitted to it, the trial court’s task is to clear that confusion away with
concrete accuracy.” United States v. Stevens, 38 F.3d 167, 169-70 (5th Cir. 1994)
(quotation omitted). “When evaluating the adequacy of supplemental jury
instructions, we ask whether the court’s answer was reasonably responsive to
the jury’s question and whether the original and supplemental instructions as
a whole allowed the jury to understand the issue presented to it.” Id. at 170. A
trial judge is afforded great discretion in formulating a response to jury
questions. Id.; see also United States v. Duvall, 846 F.2d 966, 977 (5th Cir.
1988).
In the present case, the district court did not send a supplemental
instruction to the jury in response to the question. The district court instead
referred the jury to the final jury instructions already before it. If, in response
to a jury question, the trial court directs the jury’s attention to the original
instructions, the response will be deemed sufficient if the original charge is an
accurate statement of the law. United States v. Arnold, 416 F.3d 349, 359 n.13
(5th Cir. 2005) (citing United States v. Valdiosera-Godinez, 932 F.2d 1093, 1098
(5th Cir. 1991) (if a judge refers the jury to a presumptively accurate charge, the
ensuing conviction is not invalid due to alleged confusion)).
The jury charge as a whole, and the deliberate ignorance instruction in
particular, are correct statements of the law and referring the jury to the
instructions was not error. As previously stated, the district court charged the
jury with the pattern jury deliberate ignorance charge. The jury requested a
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No. 07-40208
definition of “deliberately,” not specifically defined in the charge. The word
“deliberately” is a term within a juror’s common understanding. See United
States v. Varkonyi, 645 F.2d 453, 460 (5th Cir. Unit A May 1981); see also Ellis
v. Lynaugh, 873 F.2d 830, 839 (5th Cir. 1989). It is not so technical or specific
as to require a specific legal definition. Therefore, Marshall fails to establish
that plain error was committed by the trial court’s response and its reference to
the original jury instructions.
E. Extrinsic Evidence
Marshall claims the district court erred when it admitted testimony of
Marshall’s arrest warrant for unauthorized use of a motor vehicle.8 Marshall
contends this extrinsic evidence was irrelevant and prejudicial under Federal
Rule of Evidence 404(b). The Government argues Marshall invited the
introduction of the extrinsic evidence, or in the alternative, that error, if any,
was harmless.
“We review a district court’s decision to admit or exclude evidence for
abuse of discretion.” United States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th
Cir. 2002). “Review of evidentiary rulings is heightened in a criminal case.” Id.
The invited error doctrine
provides that when injection of inadmissable evidence is
attributable to the actions of the defense, the defense cannot
later object to such “invited error.” Under this doctrine, a
defendant cannot complain on appeal of alleged errors which
he invited or induced, especially where the defendant may not
have been prejudiced by the error. We will not reverse on the
basis of invited error, absent manifest injustice.
United States v. Solis, 299 F.3d 420, 452 (5th Cir. 2002) (quotations omitted); see
8
The nature of the criminal charge giving rise to the arrest warrant was not disclosed
to the jury.
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No. 07-40208
also United States v. Raymer, 876 F.2d 383, 388-89 (5th Cir. 1989).
Under Rule 404(b), evidence of other crimes, wrongs, or acts is not
admissible to prove a defendant acted in conformity with some character trait.
Such evidence, however, is admissible for other reasons such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. This Court established a two-part test to determine the
admissibility of extrinsic evidence: (1) “it must be determined that the extrinsic
offense evidence is relevant to an issue other than the defendant’s character,”
and (2) “the evidence must possess probative value that is not substantially
outweighed by its undue prejudice and must meet the other requirements of
[R]ule 403.” United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en
banc). Trial courts need not make balancing test findings on the record, unless
requested by the defendant. United States v. Nguyen, 504 F.3d 561, 574 (5th
Cir. 2007), cert. denied, Tran v. United States, U.S. , 128 S. Ct. 1324 (2008).
During cross examination of an agent, Marshall’s counsel elicited
testimony highlighting the time of arrest versus the time of the discovery of the
narcotics.9 The Government, on redirect of its witness, sought admission of
evidence that Marshall had been arrested due to the existence of an outstanding
warrant. Marshall’s counsel objected and the following argument then ensued
at the bench:
[Prosecutor]: Judge, [defense counsel] made a big issue
9
The colloquy between defense counsel and the agent was as follows:
Q: When did you – take Mr. Marshall into custody?
A: 11:49
Q: You actually took him into custody at that time?
A: Yes, sir.
Q: Before you found the drugs?
A: Yes, sir.
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No. 07-40208
about the time line, and he’s trying to imply that they took a
long time before they- they took Mr. Marshall into custody.
The reason they took Mr. Marshall into custody right away
was because he had an outstanding warrant on that
unauthorized use of a motor vehicle. And [defense counsel]’s
portraying that they took him in early without finding any
drugs. There was a reason for taking him in early because he
came out positive on a hit, and I think I should be allowed to
bring that out.
[Defense Counsel]: Your Honor, it has nothing to do
with that. The questioning has nothing to do with why he
was taken into custody. It’s simply that he was in custody
and that nobody spoke to him. That’s the only point that was
made.
THE COURT: I’m going to allow the question. Thank
you.
[Defense Counsel]: Your Honor, if I may for the record,
I believe it’s unfairly prejudicial and it has nothing to do with
these charges and–
THE COURT: I understand you have an objection. It’s
overruled.
The line of questioning elicited on cross examination by Marshall attempted to
establish that the agents prematurely arrested Marshall. It appears from the
record that, if the district court had allowed questioning to end on that note, the
jury would have been left with a false impression; Marshall invited the
admission of the warrant testimony.
Additionally, the only two brief references made to the arrest warrant
were the Government’s question to the agent and one reference during the
closing argument. The district court also provided a “similar acts” instruction
in the final charge and repeatedly instructed the jury of the Government’s
burden of proof, thus minimizing the danger of undue prejudice. United States
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No. 07-40208
v. Sanders, 343 F.3d 511, 518 (5th Cir. 2003); see also United States v. Gonzalez-
Lira, 936 F.2d 184, 192 (5th Cir. 1991). In light of the overwhelming evidence
of Marshall’s guilt, the minimal references to the existence of a warrant, and the
trial court’s limiting instruction, this Court cannot say that Marshall’s right to
a fair trial was prejudiced. The trial court, therefore, did not abuse its discretion
in admitting the evidence of the warrant.
F. Cumulative Effect of Errors
Marshall’s final contention is that his convictions require reversal because
of the cumulative effect of the multiple claimed errors. A cumulative error
analysis is unnecessary due to the individual findings noted above. Marshall’s
substantial rights to a fair trial were not violated.
III. CONCLUSION
For the above reasons, we find the district court did not err during the
trial of the case and the evidence is sufficient to support the appellant’s
convictions. We AFFIRM the convictions and judgment in this case.
AFFIRMED
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