USA v. Ceja

Filing

USA v. Ceja

Doc. 0

Case: 09-50025

Document: 00511175182

Page: 1

Date Filed: 07/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50025 S u m m a r y Calendar July 15, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, Plaintiff - Appellee v. A L B E R T O CEJA, Defendant - Appellant

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:08-CR-55-1

B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* A lb e r t o Ceja appeals his jury-trial conviction for conspiracy to distribute c o c a in e and methamphetamine1 and for possession with intent to distribute at le a s t 50 grams of meth and aiding and abetting.2 Before getting to the merits, w e must address Ceja's motions to supplement the record with juror

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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21 U.S.C. §§ 841 & 846. 21 U.S.C. § 841; 18 U.S.C. § 2.

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q u e s t io n a r ie s and with notes between the jury and judge.3 F e d e r a l Rule of Appellate Procedure 10(e)(2)(C) grants us authority to s u p p le m e n t the record with "anything material to either party" that has been " o m it t e d from or misstated in the record by error or accident." Ceja urges that t h e juror questionnaires were erroneously omitted from the record, and he needs t o evaluate them for his Batson4 claim of race-based peremptory challenges. We D E N Y the request, because Ceja cannot show the documents to be "material." H e has, in fact, waived his Batson claim. We have held that "a defendant waives o b je c t io n to a peremptory challenge by failing to dispute the prosecutor's e x p la n a t io n s ."5 Ceja questioned the prosecution's striking of a man and a

w o m a n venireperson, each a minority. The prosecution explained it struck the w o m a n for falling asleep and the man for working a similar job as the defendant. The prosecution, of its own initiative and by way of comparative analysis, noted fo u r other venirepersons (presumably not minorities) struck for the same workr e la t e d reason. Ceja did not challenge these race-neutral explanations,6

Although Ceja moved the district court for these documents, he did so after filing his notice of appeal ­ so the district court did not have jurisdiction to grant the request. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) ("The filing of a notice of appeal is an event of jurisdictional significance ­ it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.").
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Batson v. Kentucky, 476 U.S. 79 (1986).

United States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (citing United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990) ("Once the Government has offered reasons for its peremptory challenges, defense counsel must expressly indicate an intention to pursue the Batson claim.")); see also United States v. Brent, 300 F. App'x 267, 270, 272 (5th Cir. 2008) (unpublished) (explaining that the defendant waived his Batson claim because he "objected to the government's peremptory strike but did not challenge the prosecution's race-neutral explanation"). Though the caselaw contains some contradiction, Arce's waiver rule may not apply in capital cases, see Fields v. Thaler, 588 F.3d 270, 276 & n.3 (5th Cir. 2009) (noting the inconsistency), but this is not a capital case.
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See Voir Dire Proceedings (Sealed), Supp. R. at 61­62 ("Nothing further, Judge.").

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a p p e a r in g to acquiesce in them.7 T h e jury notes here are similarly immaterial. The government concedes t h a t a defendant has the right to be notified when the court receives c o m m u n ic a t io n s from the jury so that he can be afforded the opportunity to be h e a r d .8 The record reflects that the jury sent three notes to the judge, and the p a r tie s agree it is unclear whether the defendant ever knew about the notes. This court, in the interest of judicial economy, has looked at the sealed jury n o te s , which: (1) ask for a smoke break; (2) request lunch; and (3) inform the ju d g e they have reached a verdict. None of these communications plausibly a ffe c t Ceja's appeal, so we DENY the request to supplement. We also DENY as m o o t Ceja's alternative motion to file supplemental briefing. M o v in g to the substance of Ceja's appeal, he argues that ­ after he did not t e s t ify at trial ­ the district court erred in failing to give a no adverse inference in s t r u c t io n to the jury. Ceja concedes that plain-error review applies. "A

c r im in a l defendant has a Fifth Amendment right for a judge, upon the d e fe n d a n t's request, to instruct a jury not to make any adverse inferences based o n the defendant's election not to testify."9 Ceja did not request the instruction,

See Arce, 997 F.2d at 1127. We note that even if Ceja had not waived his Batson claim, the full voir dire proceeding contained in the appellate record supports the prosecution's race-neutral explanations and Ceja did not before this court brief his Batson claim's merits. See United States v. Bieganowski, 313 F.3d 264, 293 (5th Cir. 2002) (stating the rule and noting this court must review for harmless error). United States v. Percel, 553 F.3d 903, 909 (5th Cir. 2008) (citing Carter v. Kentucky, 450 U.S. 288, 300 (1981)) (emphasis supplied); see also Beathard v. Johnson, 177 F.3d 340, 350 (5th Cir. 1999) ("Upon request of a defendant, a trial court shall instruct jurors that they may not draw any adverse inference from a defendant's failure to testify . . . ." (emphasis supplied)); United States v. Flores, 63 F.3d 1342, 1376 (5th Cir. 1995) ("As the Carter Court itself clarified, `a criminal trial judge must give a `no-adverse-inference' jury instruction when requested by a defendant to do so.'" (quoting Carter, 450 U.S. at 300) (emphasis in original)). The Supreme Court has long interpreted Carter to require the no adverse inference instruction only when the defendant requests it. See, e.g., Portuondo v. Agard, 529 U.S. 61, 67 (2000) ("The defendant's right to hold the prosecution to proving its case without his assistance is not to be impaired by the jury's counting the defendant's silence at trial against him ­ and upon request the court must instruct the jury to that effect."); James v. Kentucky, 466 U.S. 341, 349 (1984)
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s o it is hard to see how he could show any error to be "plain." In any event, he c a n n o t meet plain-error review's third prong, which "requires the defendant to s h o w that the error `affected the outcome of the district court proceedings.'" 1 0 I n United States v. Percel, this court refused to find plain error where the d is t r ic t judge gave the wrong no adverse inference jury instruction, because " t h e r e [wa]s not a reasonable likelihood that the jury would have applied the ju d g e 's erroneous oral instructions unconstitutionally."1 1 Key to the court's a n a ly s is was that the district judge had given the proper instruction during voir d ir e .1 2 In United States v. Flores, this court concluded that the district court's fa ilu r e spontaneously to give the no adverse inference instruction did not affect t h e defendant's substantial rights, based in part on the overwhelming evidence a g a in s t him.1 3 United States v. Ramirez came out the same way.1 4 T h e district judge here gave the proper instruction several times at voir d ir e and ­ immediately before reading the final instructions ­ explained to the ju r y that for hundreds of years juries have not been allowed to consider the fact t h a t the defendant did not testify. The evidence against Ceja was overwhelming, in c lu d in g half-a-dozen witnesses consistently describing how Ceja ran a drug d is t r ib u t io n ring. In short, we are not persuaded that the district court's

o m is s io n resulted in a "substantial and injurious effect or influence in

("Carter holds that if asked to do so the trial court must tell the jury not to draw the impermissible inference."). Additionally, this court has held that the district judge must instruct the jury when the prosecution comments on the defendant's silence. See United States v. Griffith, 118 F.3d 318, 325 n.7 (5th Cir. 1997). Here, Ceja never requested the instruction and the prosecution never commented on his silence. United States v. John, 597 F.3d 263, 284 (5th Cir. 2010) (quoting Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)).
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See 553 F.3d at 909­10. See id. See 63 F.3d at 1375­76. See 810 F.2d 1338, 1343­44 (5th Cir. 1987).

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d e t e r m in in g the verdict." 1 5 T h e district court committed no reversible error. AFFIRMED.

United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004) (quotation marks and alteration omitted).

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