US v. Roger Meraz-Fugon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:16-cr-00018-LO-1 Copies to all parties and the district court/agency. [1000021260].. [16-4506]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4506

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROGER HEDILBERTO MERAZ-FUGON,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam O’Grady, District
Judge. (1:16-cr-00018-LO-1)

Submitted:

January 31, 2017

Before FLOYD and
Circuit Judge.

HARRIS,

Decided:

Circuit

Judges,

February 10, 2017

and

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Todd M. Richman,
Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Jonathan P.
Robell, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A

jury

importation
(2012).
in

convicted

of

cocaine,

Roger
in

Hedilberto

violation

of

Meraz-Fugon

21

U.S.C.

of

§ 952(a)

The district court sentenced Meraz-Fugon to 16 months

prison

and

3

years

of

supervised

release.

Meraz-Fugon

appeals, asserting that the trial court erred in (1) declining
to instruct the jury on his theory of defense; giving a coercive
jury charge of the type condemned in Allen v. United States, 164
U.S. 492 (1896); (3) responding to several questions from the
jury; and (4) permitting the cumulative effect of these errors
to deprive him a fair trial.

Finding no error, we affirm.

“In general, we defer to a district court’s decision to
withhold a defense in a proposed jury instruction in light of
that

court’s

superior

position

formulate the jury instruction.”
F.3d

350,

356

(4th

Cir.

quotation marks omitted).

to

evaluate

evidence

and

United States v. Powell, 680

2012)

(alterations

and

internal

Reversible error in refusing to give

such an instruction results “only when the instruction (1) was
correct; (2) was not substantially covered by the court’s charge
to the jury; and (3) dealt with some point in the trial so
important,

that

failure
the

to

give

defendant’s

the

requested

ability

seriously

impaired

defense.”

United States v. Passaro, 577 F.3d 207, 221 (4th Cir.

2009) (internal quotation marks omitted).
2

to

instruction
conduct

his

A “district court

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d[oes] not abuse its discretion” by refusing to give a proposed
instruction

that

was

“clearly

covered

by

the

instructions

given,” just because “a more specific instruction might have
been desirable to” the defendant.
F.3d 360, 378 (4th Cir. 2010).

United States v. Green, 599
Here, assuming arguendo that

Meraz-Fugon’s proposed instruction was a correct statement of
the law, we conclude that the substance of the instruction was
substantially covered by the instructions given to the jury and
that

the

district

court’s

failure

to

give

the

requested

instruction did not impair Meraz-Fugon’s ability to conduct his
defense.
Next, Meraz-Fugon contends that the district court gave a
coercive Allen charge after the jury informed the court that it
was deadlocked and could not reach a verdict.

He argues that

the Allen charge given was coercive to jurors in the minority
and that the instruction improperly made reference to the costs
of retrial.

We review the content of an Allen charge for abuse

of discretion.

United States v. Cornell, 780 F.3d 616, 625 (4th

Cir. 2015), cert. denied, 136 S. Ct. 127 (2015).

In determining

whether an Allen charge has an impermissible coercive effect on
jury deliberations, we consider the content of the instruction
as well as the context.

Jenkins v. United States, 380 U.S. 445,

446 (1965).

3

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The traditional, “pure” Allen charge, “informed the jury
(1) that a new trial would be expensive for both sides; (2) that
there is no reason to believe that another jury would do a
better job; (3) that it is important that a unanimous verdict be
reached; and (4) that jurors in the minority should consider
whether the majority’s position is correct.”
Burgos, 55 F.3d 933, 936 (4th Cir. 1995).

United States v.

Based on the concern

that the instruction to the minority members may be coercive,
this Court has “strongly recommended” the modification of any
Allen charge to “address all jurors, both in the minority and in
the majority, to give equal consideration to each other’s views”
so that the charge is “less coercive with respect to jurors in
the minority.”

United States v. Hylton, 349 F.3d 781, 788 (4th

Cir. 2003) (internal quotation marks omitted).
concern”

in

reviewing

Allen

charges

“is

to

“The principal

ensure

that

they

apply pressure to the jury in a way that preserves all jurors’
independent judgments and that they do so in a balanced manner.”
Id.

Thus, “an Allen charge must not coerce the jury, and it

must be fair, neutral and balanced.”

United States v. Cropp,

127 F.3d 354, 359-60 (4th Cir. 1997).
After reviewing the record, we conclude that the district
court’s

charge

was

fair,

neutral

coercive to the minority jurors.
reference

to

the

costs

of

a

and

and

was

not

The district court’s brief

retrial
4

balanced

“did

not

place

undue

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emphasis on this factor when considered in the context of the
entire instruction[;] [n]or was it unduly coercive.”
States v. West, 877 F.2d 281, 291 (4th Cir. 1989).
district

court

division

render

particularly
indicating
majority

judge’s

in

the

charge

light

they

were

favored

knowledge

of

of

the

coercive

the

fact

divided

numerical

this

instance,

the

did

not

or

conviction

Nor did the

jury’s

in

that

United

identify

acquittal.

jury’s

note

whether

the

Furthermore,

supplemental instructions by the court and further deliberation
by the jury occurred between receipt of that note and the note
triggering the Allen charge.

Finally, the speed with which a

jury returns a verdict after receiving a modified Allen charge
is not decisive.
235,

240-41

minutes

See, e.g., Lowenfield v. Phelps, 484 U.S. 231,

(1988)

after

court

(fact

that

gave

jury

returned

supplemental

its

verdict

instruction

was

30
not

necessarily indicative of coercion); United States v. Chigbo, 38
F.3d 543, 545-46 (11th Cir. 1994) (affirming conviction when
verdict returned 15 minutes after the instruction).
Next, Meraz-Fugon argues that the district court’s answers
to the jury’s questions (1) created confusion and improperly
steered the jury away from considering his theory of defense and
(2)

failed

to

give

him

the

opportunity

regarding the supplemental instructions.

to

address

the

jury

This Court reviews the

form and content of a district court’s response to the jury’s
5

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question for an abuse of discretion.
684 F.3d 445, 453 (4th Cir. 2012).
character
matters
United

of

any

within
States

(citations

supplemental

the
v.

sound

Horton,

omitted).

United States v. Burgess,

“[T]he necessity, extent and

instructions

discretion
921

“[T]he

F.2d
trial

to

the

jury

of

the

district

540,

546

(4th

court

must

court.”

Cir.

take

are

1990)

care,

in

responding to a jury question, not to encroach upon its factfinding power.”

United States v. Cooper, 482 F.3d 658, 664 (4th

Cir.

“In

2007).

responding

to

a

jury’s

request

for

clarification on a charge, the district court’s duty is simply
to respond to the jury’s apparent source of confusion fairly and
accurately

without

creating

prejudice.”

United

States

v.

Foster, 507 F.3d 233, 244 (4th Cir. 2007) (brackets and internal
quotation marks omitted).

“An error requires reversal only if

it is prejudicial in the context of the record as a whole.”

Id.

We have reviewed the record and conclude that the trial
court’s

supplemental

misleading.

instructions

were

neither

incorrect

nor

Meraz-Fugon, who never sought an opportunity below

to address the jury concerning the supplemental instructions,
has failed to demonstrate any prejudice caused by the lack of
such opportunity.
Because we find no error, individually or cumulatively, we
affirm the district court’s judgment.

We dispense with oral

argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

7