United States v. Taing ( 2022 )

Case: 21-50408 Document: 00516420296 Page: 1 Date Filed: 08/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 4, 2022
No. 21-50408
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Christopher Taing,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-176-3
Before Richman, Chief Judge, and Wiener and Willett, Circuit
Judges.
Per Curiam:*
A jury convicted Christopher Taing of possession with intent to
distribute fifty grams or more of methamphetamine in violation of 21 U.S.C.
§ 841 and possession of a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c). Taing argues on appeal that several of his
statements to law enforcement authorities were obtained illegally and should
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
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have been suppressed. He also argues that the district court made multiple
errors in its jury instructions. We affirm the district court’s judgment.
I
Law enforcement officers suspected that Taing was involved in a drug
trafficking operation in Midland, Texas. Officer Joseph Beltran and DEA
Special Agent Jaye Johnson followed Taing as he drove away from a
suspected drug transaction and then parked in a hotel parking lot. They
followed him through the lobby and into the hotel’s hallway. Taing carried a
backpack. The officers ordered Taing to stop and show his hands. He did
not comply. Taing reached under his waistband, which led the officers to
suspect he was reaching for a weapon, so they detained him in the hallway.
The officers recorded what transpired on a body camera. As Taing
was handcuffed on the floor, the officers asked him if he had a weapon. He
said yes, and after frisking him, the officers recovered a loaded Glock 17 pistol
from Taing’s waistband. They asked his room number and whether there
were additional people or guns in the room. Taing told the officers a room
number, and he said no one and no weapons were inside. Then the officers
asked Taing if he had anything illegal in his backpack. He responded that
there was “some ice” inside. Taing gave the officers his consent to search
the backpack, and, relevant here, they found approximately four ounces of
methamphetamine. At that point, the officers read Taing his Miranda rights
for the first time.1
The officers took Taing to the police station. An audio recording
reveals that they gave a second Miranda warning, and Taing confirmed that
he understood his rights. Officer Beltran began an interrogation as follows:
“Obviously, you got caught up with some meth and a pistol, okay, it’s not a
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
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secret, we know what’s going on. So right now, your opportunity is now to
either make yourself look honest or to make yourself look like a liar. So, what
happened tonight?” Over the next thirty minutes, Taing confessed that he
paid $1,000 for the methamphetamine, sold methamphetamine for the
previous two months, and asserted he was carrying the Glock in his waistband
for protection.
Relevant here, a grand jury charged Taing with a § 841 drug offense
and § 924(c)(1) firearm offense. Before trial, Taing moved to suppress his
post-arrest statement that he had “ice” in his backpack. The district court
heard live testimony from Officer Beltran, and it considered the body camera
video of Taing’s arrest along with the audio interview of the station-house
interrogation. The court granted Taing’s suppression motion in part. It
suppressed Taing’s un-Mirandized statement that he had “some ice” in his
backpack, but the court ruled that his subsequent warned confession, which
took place at the station house, was admissible. Applying Missouri v. Seibert,2
the court reasoned that the officers did not employ a deliberate two-step
strategy to circumvent the Miranda rule. It then concluded that Taing’s
warned confession was voluntary and therefore admissible. The court
emphasized that Taing had waived his Miranda rights and that the station-
house interrogation was calm and cooperative. Accordingly, the
Government introduced Taing’s confession at trial, and the jury convicted
Taing of the firearm and drug offenses.
I
Taing raises three challenges in this appeal. First, he argues that his
warned confession at the station house should have been suppressed because
the officers deliberately employed a two-step interrogation technique to
2
542 U.S. 600 (2004).
3
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circumvent Miranda. Second, he asserts that an error in the district court’s
jury instructions regarding the § 924(c) offense constructively amended his
indictment. Third, he argues that the district court failed to instruct the jury
that it must not let racial prejudice influence its decision-making.
A
“Where a district court has denied a motion to suppress evidence, we
review its factual findings for clear error and its conclusions of law de novo.”3
“[W]hether Miranda’s guarantees have been impermissibly denied to a
criminal defendant . . . is a matter of constitutional law . . . .”4 “We view the
evidence most favorably to the party prevailing below, except where such a
view is inconsistent with the trial court’s findings or is clearly erroneous
considering the evidence as a whole.”5 Additionally, when the denial of a
suppression motion is based on live testimony, as in this case, our review is
“particularly deferential” to the court below.6
The Fifth Amendment provides that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.”7 To
safeguard that right, “Miranda warnings must be administered prior to
‘custodial interrogation.’”8 A suspect is subject to custodial interrogation
when he is “placed under formal arrest or when a reasonable person in the
suspect’s position would have understood the situation to constitute a
3
United States v. Lim, 897 F.3d 673, 685 (5th Cir. 2018) (quoting United States v.
Ortiz, 781 F.3d 221, 226 (5th Cir. 2015)).
4
United States v. Harrell, 894 F.2d 120, 122-23 (5th Cir. 1990).
5
Lim, 897 F.3d at 685 (internal quotation marks omitted).
6
Id. (quoting Ortiz, 781 F.3d at 226).
7
U.S. Const. amend. V.
8
United States v. Bengivenga, 845 F.2d 593, 595 (5th Cir. 1988) (en banc); see also
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
4
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restraint on freedom of movement of the degree which the law associates
with formal arrest.”9 “Generally, statements obtained during a custodial
interrogation without providing adequate warnings under Miranda are
inadmissible.”10
When officers question the same suspect in multiple custodial
interrogations, “[a] subsequent administration of Miranda warnings to a
suspect who has given a voluntary but unwarned statement ordinarily should
suffice to remove the conditions that precluded admission of the earlier
statement.”11 The Supreme Court’s decision in Oregon v. Elstad12 explained
that “[t]here is no warrant for presuming coercive effect where the suspect’s
initial inculpatory statement, though technically in violation of Miranda, was
voluntary.”13 “The relevant inquiry is whether, in fact, the second statement
was also voluntarily made.”14 “As in any such inquiry, the finder of fact must
examine the surrounding circumstances and the entire course of police
conduct with respect to the suspect in evaluating the voluntariness of his
statements.”15
9
Bengivenga, 845 F.2d at 596; see also Howes v. Fields, 565 U.S. 499, 509 (2012)
(“Determining whether an individual’s freedom of movement was curtailed, however, is
simply the first step in the analysis, not the last. . . . We have ‘decline[d] to accord
talismanic power’ to the freedom-of-movement inquiry, and have instead asked the
additional question whether the relevant environment presents the same inherently
coercive pressures as the type of station house questioning at issue in Miranda.” (internal
citation omitted) (quoting Berkemer v. McCarty, 468 U.S. 420, 437 (1984)).
10
United States v. Courtney, 463 F.3d 333, 336 (5th Cir. 2006).
11
Oregon v. Elstad, 470 U.S. 298, 314 (1985).
12
470 U.S. 298.
13
Id. at 318.
14
Id.15
Id.5
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However, if “deliberately coercive or improper tactics” were used
“in obtaining the initial statement,” Elstad is not applicable.16 In Missouri v.
Seibert,17 a divided Supreme Court addressed the consequences of a
“deliberate two-step strategy” that was “designed to circumvent
Miranda.”18 Officers “relied on the defendant’s prewarning statement to
obtain the postwarning statement used against her at trial” by “cross-
examin[ing]” her with the unwarned statements during the Mirandized
interview.19 Concurring in the judgment, Justice Kennedy provided the
fifth vote to affirm the suppression of the defendant’s warned statements.20
Under Justice Kennedy’s test, if a “deliberate two-step strategy has
been used, postwarning statements that are related to the substance of
prewarning statements must be excluded unless curative measures are taken
before the postwarning statement is made.”21 The “[c]urative measures
should be designed to ensure that a reasonable person in the suspect’s
situation would understand the import and effect of the Miranda warning and
of the Miranda waiver.”22
After Seibert, courts determining the admissibility of warned
statements that follow unwarned statements must first assess whether the
16
Id. at 314.
17
542 U.S. 600 (2004).
18
Id. at 618, 622 (Kennedy, J., concurring in judgment).
19
Id. at 621.
20
Id. at 622; see also United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006)
(“It is well established that when we are confronted with a plurality opinion, we look to that
position taken by those Members who concurred in the judgments on the narrowest
grounds. Therefore, we find Seibert’s holding in Justice Kennedy’s opinion concurring in
the judgment.” (internal quotation marks and citations omitted)); Marks v. United States,
430 U.S. 188, 193 (1977).
21
Seibert, 542 U.S. at 622 (Kennedy, J., concurring in judgment).
22
Id.6
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officers deliberately used a two-step strategy to circumvent Miranda.23 If law
enforcement authorities did employ such a strategy, courts evaluate whether
appropriate curative measures were taken.24 If there was no deliberate two-
step strategy, however, the admissibility of the warned statements is
“governed by the principles of Elstad.”25
In United States v. Nunez-Sanchez,26 we applied the Seibert and Elstad
frameworks to affirm the denial of a motion to suppress a warned confession
that followed an unwarned interrogation.27 Officers stopped the defendant
and asked him his name, age, and immigration status, to which he responded
that he had entered the country illegally.28 They then gave the Miranda
warnings, and he confessed to several drug and firearm offenses.29 As to the
Seibert inquiry, we determined that “there was nothing in the circumstances
or the nature of the questioning to indicate that” the officers used a deliberate
two-step strategy, emphasizing that the defendant was “calm and
cooperative” and the police “did not act with aggressiveness or hostility.”30
Turning to Elstad, we concluded that the defendant did not allege that the
police had used coercive tactics during his confessions, and therefore they
were voluntary and admissible.31
23
Id.; United States v. Nunez-Sanchez, 478 F.3d 663, 668 (5th Cir. 2007).
24
Seibert, 542 U.S. at 622 (Kennedy, J., concurring in judgment).
25
Id.; see also Courtney, 463 F.3d at 338 (explaining that the Elstad test applies
unless there was a deliberate two-step strategy).
26
478 F.3d 663.
27
Id. at 668-69.
28
Id. at 665.
29
Id.30
Id. at 668-69.
31
Id. at 669.
7
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Here, the district court determined that the police failed to provide
Taing with the necessary Miranda warnings when he was first questioned
about the contents of his backpack at the hotel. The court suppressed
Taing’s statement that he had “ice” in his bag, but it admitted Taing’s
subsequent, Mirandized confession at the station house. The district court
reasoned that the officers did not use a deliberate two-step interrogation
strategy, so it applied the Elstad voluntariness inquiry. The court concluded
that Taing’s warned statements were voluntary, so it admitted them.
We agree with the district court that the officers in this case did not
employ a deliberate two-step strategy to circumvent Miranda. As an initial
matter, Taing argues that it is the Government’s burden to disprove
deliberateness, citing the standard in the Second and Eighth Circuits.32 We
have not addressed the burden issue previously, and we need not resolve it to
decide this case.33 Assuming without deciding that the burden was on the
Government, the preponderance of the evidence suggests that the officers
did not use “coercion or other improper tactics” to circumvent Miranda.34
The officers never “cross-examin[ed]” Taing with his unwarned statement
32
See United States v. Capers, 627 F.3d 470, 479-80 (2d Cir. 2010) (placing the
burden on the Government to disprove deliberateness under a preponderance of the
evidence standard); United States v. Ollie, 442 F.3d 1135, 1142-43 (8th Cir. 2006) (same).
33
See, e.g., United States v. Lim, 897 F.3d 673, 692 (5th Cir. 2018) (holding that
there was not a deliberate two-step strategy without addressing the burden of proof); United
States v. Tovar, 719 F.3d 376, 388 (5th Cir. 2013) (same); United States v. Nunez-Sanchez,
478 F.3d 663, 668-69 (5th Cir. 2007) (same); see also United States v. Blevins, 755 F.3d 312,
327 (5th Cir. 2014) (holding that the defendant “has not shown that her post-Miranda
inculpatory statements were in any way the product of coercive tactics,” but without
explicitly stating that was the defendant’s burden).
34
See Nunez-Sanchez, 478 F.3d at 668.
8
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that there was “ice” in his backpack.35 They referenced only the physical
evidence that was discovered at the scene—the pistol and drugs.
The cooperative nature of Taing’s interrogations provide additional
support for our conclusion that there was not a deliberate two-step strategy
in this case. In Seibert, “[t]he unwarned interrogation was conducted in the
station house, and the questioning was systematic, exhaustive, and managed
with psychological skill.”36 Here, however, Taing’s unwarned interrogation
took place at the hotel, not the station house, and it was relatively brief. The
officers had just handcuffed Taing after he reached for his waistband, and he
was lying on the floor of the hotel’s hallway. They asked him whether he had
any weapons, and they discovered his pistol. Then they asked him which
hotel room was his and whether other people or weapons would be found
there, as well as whether there was anything illegal in his backpack. As in
Nunez-Sanchez, the officers also never displayed any “aggressiveness or
hostility” during the interviews.37 We therefore conclude that “nothing in
the circumstances or the nature of the questioning . . . indicate . . . coercion”
or “a deliberate attempt to employ a two-step strategy.”38
Turning to the Elstad inquiry, we must assess whether “the second
statement was also voluntarily made” by “examin[ing] the surrounding
circumstances and the entire course of police conduct with respect to the
suspect.”39 “In cases such as this, ‘[a] subsequent administration of Miranda
warnings to a suspect who has given a voluntary but unwarned statement
ordinarily should suffice to remove the conditions that precluded admission
35
See Seibert, 542 U.S. at 621 (Kennedy, J., concurring in judgment).
36
Id. at 616 (plurality opinion).
37
See United States v. Nunez-Sanchez, 478 F.3d 663, 669 (5th Cir. 2007).
38
See id. at 668.
39
Oregon v. Elstad, 470 U.S. 298, 318 (1985).
9
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of the earlier statement.’”40 As in Nunez-Sanchez, Taing failed to allege that
the officers used any coercive tactics to obtain his warned confession.41 The
audio evidence shows the tone of the interrogation was conversational. Taing
was never verbally or physically threatened. The officers also read Taing his
Miranda rights and Taing confirmed that he understood them before they
began the questioning. We therefore agree with the district court that
Taing’s Mirandized confession was not coerced, and we conclude that the
court correctly denied Taing’s motion to suppress his confession.
B
Next, we address Taing’s argument that the district court
constructively amended the indictment in its jury instructions. A grand jury
indicted Taing for “knowingly possess[ing] a firearm . . . in furtherance of [a]
drug trafficking crime” in violation of § 924(c). At the close of evidence,
however, the district court instructed the jury that to find Taing guilty, the
Government had to prove that Taing “knowingly used or carried a firearm
during and in relation to” the drug-trafficking crime.
The Fifth Amendment provides that “[n]o person shall be held to
answer for a capital, or otherwise infamous crime, unless on . . . indictment
of a Grand Jury.”42 This provision “guarantees criminal defendants a right
to be tried solely on allegations in an indictment returned by the grand
jury.”43 “Consequently, once an indictment issues, only the grand jury may
broaden or alter it.”44 “A constructive amendment occurs when [the court]
40
Nunez-Sanchez, 478 F.3d at 669 (quoting Elstad, 470 U.S. at 318).
41
See id.42
U.S. Const. amend. V.
43
United States v. Thompson, 647 F.3d 180, 183 (5th Cir. 2011).
44
Id. at 184.
10
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permits the defendant to be convicted upon a factual basis that effectively
modifies an essential element of the offense charged or permits the
government to convict the defendant on a materially different theory or set
of facts than that with which she was charged.”45
As an initial matter, Taing asserts that constructive amendments are
structural errors, rendering them per se prejudicial. Before the Supreme
Court’s decision in United States v. Olano,46 this court had held that
constructive amendments are reversible error per se.47 After Olano,
however, we concluded that if a defendant fails to preserve his objection
below, “plain error review applies even if there has been a constructive
amendment.”48 Taing did not preserve his constructive amendment
argument below, so we review the district court’s instruction for plain
error.49 Under plain error review, we ask if the district court committed an
error that is clear and obvious and whether that error affected Taing’s
substantial rights.50 If yes, “the decision whether to correct a forfeited error
remains soundly within our discretion,” and we may exercise that discretion
only if the error “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.”51
45
Id. (quoting United States v. McMillan, 600 F.3d 434, 451 (5th Cir. 2010)).
46
507 U.S. 725 (1993).
47
United States v. Bohuchot, 625 F.3d 892, 897 (5th Cir. 2010).
48
Id.; see also United States v. Griffin, 800 F.3d 198, 202 (5th Cir. 2015) (“A
‘constructive amendment’ of the indictment is reversible error per se—assuming that the
defendant preserved his objection below—while a ‘variance’ is subject to harmless error
review.” (footnote omitted)).
49
United States v. Stanford, 805 F.3d 557, 566 (5th Cir. 2015).
50
Id.51
Id. (quoting Olano, 507 U.S. at 735-36).
11
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Not every misstatement of an offense in a jury instruction is
impermissible.52 “The accepted test is that a ‘constructive amendment
occurs if the jury is permitted to convict on an alternative basis permitted by
the statute but not charged in the indictment.’”53 “[T]he key inquiry is
whether the jury charge broadened the indictment; if it only narrowed the
indictment, no constructive amendment occurred.”54 Also, even if there was
an error, what matters is “not whether the instruction ‘could have’ been
applied in an unconstitutional manner, but whether there is a reasonable
likelihood that the jury did so apply it.”55
We conclude that the district court’s jury instruction did not broaden
Taing’s indictment. Section 924(c) provides as follows:
[A]ny person who, during and in relation to any . . . drug
trafficking crime . . . for which the person may be prosecuted in
a court of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime of violence
or drug trafficking crime [be sentenced to an additional term of
years.]56
Relevant here, the statute criminalizes “us[ing] or carr[ying] a firearm”
“during and in relation to” a drug trafficking crime and “possess[ing] a
firearm” “in furtherance of” the crime.57
52
Griffin, 800 F.3d at 202.
53
United States v. Broadnax, 601 F.3d 336, 340 (5th Cir. 2010) (quoting United
States v. Daniels, 252 F.3d 411, 413-14 (5th Cir. 2001)).
54
Griffin, 800 F.3d at 202.
55
United States v. Phipps, 319 F.3d 177, 190 (5th Cir. 2003) (quoting Victor v.
Nebraska, 511 U.S. 1, 6 (1994)).
56
18 U.S.C. § 924(c)(1)(A) (emphasis added).
57
Id.12
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Congress added the “in furtherance” language to § 924(c) after the
Supreme Court’s decision in Bailey v. United States,58 which held that “use”
requires “active employment.”59 In United States v. Ceballos-Torres,60 we
defined “in furtherance” to mean “furthering, advancing, or helping
forward” a drug trafficking crime.61 We recognized that our definition
“seemingly renders” the “uses or carries” portion of § 924(c) superfluous.62
This was so because “every use of a firearm during and in relation to drug
trafficking . . . [and] carrying a firearm during and in relation to drug
trafficking will also always seem to constitute possession in furtherance.”63
Nevertheless, we concluded that our definition was correct given that
Congress amended § 924(c) to “broaden [its] reach.”64
Here the grand jury charged Taing with “knowingly possess[ing] a
firearm . . . in furtherance of” a drug trafficking crime. At the close of
evidence, however, the court instructed the jury that it could find Taing
58
516 U.S. 137 (1995).
59
Id. at 143; see also United States v. Ceballos-Torres, 218 F.3d 409, 413 (5th Cir.
2000) (“In response to [Bailey], however, Congress amended § 924 to add the ‘possession-
in-furtherance’ language.” (footnote omitted)).
60
218 F.3d 409.
61
Id. at 412-14.
62
Id. at 412-13.
63
Id. at 413 (internal quotation marks omitted); see also id. at 413 n.4 (“It is possible
that a situation exists that would fall within the ‘use-or-carrying-during-and-in-relation-to’
element but not the ‘possession-in-furtherance’ element. But because we cannot imagine
what that situation would be, for the purposes of the present analysis, we must conclude
that the latter element renders the former superfluous.”); United States v. McGilberry, 480
F.3d 326, 330 n.2 (5th Cir. 2007) (“It appears that the ‘possession in furtherance of’
language completely swallows the ‘uses or carries during and in relation to’ language,” and
“[i]t is difficult and maybe impossible to concoct a situation where a firearm is actively
employed during a drug crime but not possessed in furtherance of that crime.”).
64
Ceballos-Torres, 218 F.3d at 413.
13
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guilty if the evidence showed that he used or carried a firearm during and in
relation to a drug trafficking crime, and it defined “use” as active
employment. Taing reached for a loaded pistol in his waistband when the
police approached him, he admitted that he purchased the gun for his
protection while he sold drugs, and an expert testified at trial that those who
sell drugs commonly carry guns for their safety. Those facts are sufficient for
a conviction under either the “use-or-carrying-during-and-in-relation-to”
provisions or the “possession-in-furtherance” provision of § 924(c).65 In
Ceballos-Torres, we observed that evidence supporting a conviction under the
“use-or-carrying-during-and-in-relation-to” provisions seemingly would
always also satisfy the “possession in furtherance” provisions.66 The facts
of this case do not present the “difficult and maybe impossible”
circumstance in which these varying provisions have a meaningful difference.
Accordingly, we conclude that the district court did not constructively
amend Taing’s indictment.67
Taing argues that a decision from one of our sister circuits supports
vacating his conviction. In United States v. Madden,68 the Eleventh Circuit
held that a similar jury instruction constructively amended Madden’s
indictment.69 The court reasoned that “during and in relation to” is broader
65
See Ceballos-Torres, 218 F.3d at 413 (“Carrying must fall within the definition of
possess. And carrying a firearm always serves to protect the holder. Because the carrying
must be during drug trafficking, the carrying also furthers the trafficking by protecting the
holder during that activity.”).
66
See 218 F.3d at 412-14.
67
See United States v. Thompson, 647 F.3d 180, 186 (5th Cir. 2011).
68
733 F.3d 1314 (11th Cir. 2013).
69
Id. at 1319. The indictment stated that the defendant “did knowingly possess a
firearm in furtherance of . . . a drug trafficking crime.” Id. at 1316 (emphasis added). Like
here, however, the court instructed the jury that the “indictment alleges that the defendant
14
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than “in furtherance of,” so adding the “carrying-during-and-in-relation-to”
offense to the jury instruction “broadened the possible bases for
conviction.”70 Although we concluded in Ceballos-Torres that “during and
in relation to” is broader than “in furtherance of,” we reasoned that once
“during and in relation to” is combined with the “use” or “carry”
requirement, as it is in § 924(c), the resulting “use-or-carrying-during-and-
in-relation-to element” will “always seem to constitute possession in
furtherance.”71 Under our circuit precedent, the district court’s jury
instruction did not constructively amend Taing’s indictment.
C
Lastly, we turn to Taing’s argument that his conviction must be
vacated because the district court did not instruct the jury that it must not let
racial bias influence its verdict. At the close of the evidence, the court told
the jury that its duty is “to base your verdict solely upon the evidence,
without prejudice or sympathy” and that it must “decide this case only on
the evidence which has been admitted into court during trial.” It did not
discuss racial bias specifically.
We first address the standard of review. As in his constructive
amendment argument, Taing asserts that a racial bias jury instruction error
is structural, requiring an automatic reversal. Incorrect jury instructions are
generally “not considered structural errors,” and because Taing did not raise
knowingly carried a firearm during and in relation to a drug trafficking offense or possessed
a firearm in furtherance of a drug trafficking offense.” Id. at 1317 (emphasis added).
70
Id. at 1319 (citing Ceballos-Torres, 218 F.3d at 413).
71
218 F.3d at 413 & n.4 (internal quotation marks omitted); see also 18 U.S.C.
§ 924(c)(1)(A).
15
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this argument in the district court, we review the instruction for plain error.72
As discussed, under plain error review, we have the discretion to correct an
error only if the error is clear and obvious and affected Taing’s substantial
rights.73
We do not need to decide whether the district court committed a clear
and obvious error because, even assuming that it did, Taing failed to establish
that it affected his substantial rights. Taing argues that “to the extent that
the jury . . . convicted Taing based upon his race,” it “could have” meant
the difference between conviction and acquittal. But he fails to provide any
evidence that the jury actually considered racial stereotypes or animus. He
offers two facts: that he is Asian-American and only 2.3% of the population of
the jury pool shared his race. “There is no constitutional presumption of
juror bias,” however, either “for or against members of any particular racial
or ethnic groups.”74 Accordingly, we conclude that Taing has not met his
burden to establish a likelihood that the alleged error could have “meant the
difference between [his] acquittal and conviction.”75
72
United States v. Percel, 533 F.3d 903, 908-09 (5th Cir. 2008); see also Jimenez v.
Wood Cnty., 660 F.3d 841, 847 (5th Cir. 2011).
73
United States v. Stanford, 805 F.3d 557, 566 (5th Cir. 2015).
74
Rosales-Lopez v. United States, 451 U.S. 182, 190 (1981).
75
United States v. Vasquez, 899 F.3d 363, 378 (5th Cir. 2018) (quoting United States
v. Fairley, 880 F.3d 198, 208 (5th Cir. 2018)); see also id. at 380 (“Even assuming for the
sake of argument that the instruction was erroneous, Vasquez’s mere speculation that the
jury may not have found a substantive connection for some of the many charged murders
is not enough to demonstrate a ‘likelihood’ that the instruction ‘could have meant the
difference between acquittal and conviction.’” (quoting United States v. McClatchy, 249
F.3d 348, 357 (5th Cir. 2001))).
16
Case: 21-50408 Document: 00516420296 Page: 17 Date Filed: 08/04/2022
No. 21-50408
* * *
For the foregoing reasons, we AFFIRM the district court’s
judgment.
17