United States v. Romero-Chavez , 280 F. App'x 369 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 3, 2008
No. 07-10530
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MANUEL ROMERO-CHAVEZ
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:06-CR-59-ALL
Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
Manuel Romero-Chavez appeals his conviction for being an inmate in
possession of a prohibited object. He contends that insufficient evidence
supported his conviction; alternatively, he contends that the district court erred
by making an improper comment in front of the jury and by providing a
misleading answer to a request the jury made during deliberations. For the
reasons that follow, we AFFIRM.
*
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should not be published and is not precedent except under the limited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. 07-10530
1. Romero first contends that there was insufficient evidence to
support his conviction because the object he possessed (a vegetable
knife) is not a “prohibited object,” as that phrase is defined in 18
U.S.C. § 1791. A “prohibited object” is defined as, among other
things, a “weapon” or an object “designed or intended to be used as
a weapon.” 18 U.S.C. § 1791(d)(1). Thus, the Government needed
to prove that the vegetable knife was a weapon, an object designed
to be a weapon, or an object intended to be used a weapon. See
United States v. Johnson, 87 F.3d 133, 136 n.2 (5th Cir. 1996) (“[A]
disjunctive statute may be pleaded conjunctively and proved
disjunctively.” (internal citation and quotation marks omitted)).
Viewing the evidence in the light most favorable to the verdict, a
rational juror could have found that Romero possessed the knife to
defend himself (i.e., as an object intended to be used as a weapon)
and not simply as a ticket to solitary confinement, as he claimed at
trial. While some evidence indicated that Romero never intended
to use the knife as a weapon, other evidence (including Romero’s
own statements) indicated that he did. Given the conflicting
evidence, a rational juror could have found that Romero intended to
use the knife as a weapon.
2. Romero next contends that the evidence establishes that he met his
defense of duress as a matter of law. To prove his defense, Romero
needed to show, among other things, that he “had no reasonable
legal alternative to violating the law.” United States v. Willis, 38
F.3d 170, 175 (5th Cir. 1994) (internal citation omitted). Viewing
the evidence in the light most favorable to the verdict, a rational
juror could have concluded that Romero failed to establish that
element. A rational juror could have concluded that providing
prison officials with more detailed information about the threats he
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No. 07-10530
had received was a reasonable legal alternative to taking the knife.
While Romero testified why providing prison officials with more
information might not be a reasonable alternative, the jury was
entitled to conclude to the contrary.
3. Romero also contends that he was prejudiced when the district court
sustained a Government objection during his cross-examination and
purportedly made a comment that undermined his defense. Romero
argues that the comment signaled to the jury that the district court
agreed with the Government that he was providing elusive answers
and that his testimony was not credible. Because Romero did not
object below, we review for plain error.
The district court’s comment was within its wide discretion to
control the tone and tempo of the trial and did not constitute plain
error. See United States v. Saenz, 134 F.3d 697, 701, 704 (5th Cir.
1998). The court’s single comment was not quantitatively or
qualitatively substantial, and the district court instructed the jury
that it was not to consider such comments in its deliberations. See
id.; United States v. Bermea, 30 F.3d 1539, 1571–72 (5th Cir. 1994).
4. Finally, Romero contends that the district court prejudiced the
outcome of his trial by responding incompletely to the jury’s request
to review trial testimony. Romero argues that the district court did
not provide all of the transcript sections that were encompassed by
the jury’s request and omitted relevant evidence that may have
influenced the jury’s verdict. As Romero made no objection below,
our review is again for plain error.
“[A] trial judge has broad discretion in responding to the jury’s
request for the transcript of a particular witness’[s] testimony[.]”
United States v. Schmitt, 748 F.2d 249, 256 (5th Cir. 1984). The
testimony that Romero argues was improperly omitted was not
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No. 07-10530
responsive to the jury’s request; although the additional testimony
may have provided context to the excerpt provided to the jury, the
district court did not plainly err in limiting its response to the
portion of the transcript that was directly responsive.
AFFIRMED.
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