US v. Roger Meraz-Fugon


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-4506 Doc: 25 Filed: 02/10/2017 Pg: 1 of 7 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4506 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROGER HEDILBERTO MERAZ-FUGON, Defendant -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 HARRIS, Decided: Circuit Judges, February 10, 2017 and DAVIS, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4506 Doc: 25 Filed: 02/10/2017 Pg: 2 of 7 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 Appeal: 16-4506 Doc: 25 Filed: 02/10/2017 Pg: 3 of 7 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 Appeal: 16-4506 Doc: 25 Filed: 02/10/2017 Pg: 4 of 7 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 Appeal: 16-4506 Doc: 25 Filed: 02/10/2017 Pg: 5 of 7 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 Appeal: 16-4506 Doc: 25 Filed: 02/10/2017 Pg: 6 of 7 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 6 Appeal: 16-4506 Doc: 25 Filed: 02/10/2017 Pg: 7 of 7 presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 7

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