U.S. v. Clayton

• Decision Date: 12 April 1999
• Docket Number: No. 97-60712,97-60712
• Parties: UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Ronald Joseph CLAYTON, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 347

172 F.3d 347

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Ronald Joseph CLAYTON, Defendant-Appellant-Cross-Appellee.

No. 97-60712.

United States Court of Appeals, Fifth Circuit.

April 12, 1999.

Rebecca K. Troth, U.S. Dept. of Justice, Mark L. Gross, U.S. Dept. of Justice, Civil Rights Div., Washington, DC, John R. Hailman, Calvin D. Buchanan, Oxford, MS, for United States.

Michael R. Wall, J.P. Hughes, Oxford, MS, for Clayton.

Appeals from the United States District Court for the Northern District of Mississippi.

Before JOLLY, WIENER and PARKER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Ronald Joseph Clayton, former Chief Deputy Sheriff of DeSoto County, Mississippi, stands convicted of violating the civil rights of an arrested woman by kicking her in the head. He also was convicted of making a false statement of material fact to the FBI when he denied the use of unreasonable force during the incident of arrest. On appeal, Clayton challenges the district court's denial of his motion for judgment of acquittal on the grounds that the government had failed to establish venue. Clayton also contends that the district court gave an improper modified Allen charge to the jury. Finally, Clayton challenges the sufficiency of the evidence supporting his convictions.

The government cross-appeals. It contends that the district court erred in failing to enhance Clayton's offense level by two levels, first, under § 3A1.3 and, second, under § 3C1.1 of the United States Sentencing Guidelines because Freeman was physically restrained (handcuffed) during the time she was kicked, and because Clayton obstructed the federal investigation of the incident by warning officers at the scene of the offense to keep silent about what they saw.

We affirm each of Clayton's convictions, and his sentence for making a false statement of material fact. We vacate Clayton's sentence with respect to the civil rights conviction and remand for resentencing.

I

We do not retry a case in the appellate court. We therefore view the facts in the light most favorable to the verdict. We will very briefly state those facts. Clayton, during the drug-related arrests of Jaefis Totten and Jennifer Freeman on January 13, 1994, kicked Freeman in the head as she lay facedown and handcuffed. Clayton was also charged with kicking Totten and striking him with a police-issued flashlight. On March 9, 1995, during the course of a federal investigation of the incident conducted by the FBI, Clayton expressly denied kicking, striking, or using force against the pair.

Some two years later, on May 22, 1997, the grand jury indicted Clayton on one count of depriving Totten of his right to be secure from unreasonable force by one acting under the color of law, ¹ one count of depriving Freeman of her right to be secure from unreasonable force by one acting under the color of law, and one count of making a false statement of material fact to the FBI. ²

The case was tried to a jury in July 1997. The jury, after five and one-half hours of deliberating, informed the district court that it was unable to reach a verdict on one of the charges. The court gave the jury a modified Allen charge, instructing it to keep deliberating. The jury returned the split verdict, now the subject of this appeal, forty-five minutes after the district court gave the charge. The jury found Clayton guilty of count 2, violating Freeman's civil rights and count 3, making a false statement of material fact to the FBI. The jury, however, acquitted Clayton of depriving Totten of his civil rights.

On October 15, 1997, the district court sentenced Clayton to twelve months and one day imprisonment for the civil rights conviction and twelve months and one day imprisonment for the false statement conviction. The district court ordered Clayton's sentences to be served concurrently. It also fined him a total of ten thousand dollars, five thousand for each conviction. The district court further ordered Clayton to be placed on supervised release after his imprisonment for a term of three years. Finally, in sentencing Clayton, the district court rejected the government's argument that under U.S.S.G. § 3A1.3 Clayton's offense level should be adjusted upward by two-levels because he assaulted Freeman while she was handcuffed. The district court also rejected the government's recommendation for the two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1 on the grounds that Clayton obstructed the subsequent FBI investigation of the incident when, at the scene of the offense, he threatened the officers with termination unless they kept quiet about what they had seen.

On appeal, Clayton argues that the district court erred in denying his motion for judgment of acquittal because the government failed to prove that venue for the indicted offenses lay in the Northern Judicial District of Mississippi. Second, Clayton contends that the district court's modified Allen charge was prejudicial and coercive. Finally, Clayton challenges the sufficiency of the evidence.

On cross-appeal, the government contends that because Freeman was handcuffed when Clayton kicked her in the head, the district court erred in failing to enhance Clayton's offense level under the victim restraint adjustment, U.S.S.G. § 3A1.3. The government further contends that because Clayton threatened officers with termination if they reported the offense, the district court erred in refusing to apply the obstruction of justice adjustment, U.S.S.G. § 3C1.1.

After a careful review of the record, we are satisfied that the government adequately established venue of the charged offenses. ³ We also find that the sufficiency of the evidence supports Clayton's convictions for violating Freeman's civil rights ⁴ and for making a false statement of material fact the FBI. ⁵ We therefore turn to address Clayton's remaining argument and the arguments raised by the government on cross-appeal.

II

A

Clayton argues that each of his convictions should be reversed because the district court's modified Allen charge ⁶ was both prejudicial and coercive. Specifically, Clayton contends that the Allen charge was coercive because the district court alluded to sequestering the jury in the course of its deliberations. Clayton argues that the coercive effect of the district court's threat of sequestration is supported by the fact that the jury returned a split verdict against him in only forty-five minutes after receiving the instruction. Clayton further argues that the Allen charge was prejudicial because no reference was made to the government's burden of proving the charges against him beyond a reasonable doubt. Clayton therefore contends that the instruction encouraged the jury to accept a level of proof below a reasonable doubt.

B

Because Clayton failed to object to the jury charge at trial, we review the district court's modified Allen charge for plain error, a very difficult standard to satisfy, indeed. Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1424 (5th Cir.1996) (en banc) (citations omitted). Under the plain error standard, forfeited errors are subject to review only where the errors are "obvious," "clear," or "readily apparent," and they affect the defendant's substantial rights. Id.; United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir.1994) (en banc), abrogated in part by, Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997). We will not exercise our discretion to correct the forfeited errors, however, unless they "seriously affect the fairness, integrity, or public reputation of the judicial proceeding." Calverley, 37 F.3d at 164 (citations omitted). Applying these standards to the record before us, we do not find that the district court erred, plain or otherwise, in giving the jury the modified Allen charge.

We permit district courts to give modified versions of the Allen charge, so long as the circumstances under which the district court gives the instruction are not coercive, and the content of the charge is not prejudicial. United States v. Heath, 970 F.2d 1397, 1406 (5th Cir.1992) (citations omitted). The district court specifically instructed the jury, in part:

[I]f I dismissed you for the night--it would be very difficult at this time to get accommodations for you. I know several of you live pretty far away, so that might be impractical but it is not impossible that you could go home for the night and come back tomorrow if you thought that would help, give you a fresh start tomorrow.

Because nothing in this record plausibly can be read to suggest that the district court coerced the jury to reach its verdict by threatening sequestration, we find no "clear" nor "obvious" error in the charge. Nor do we find the jury's return of a verdict after only a forty-five minute deliberation, in and of itself, to be proof that its verdict was coerced. Even under the more stringent abuse of discretion standard, we have approved Allen charges where the jury later deliberated for as short as twenty-five minutes. United States v. Scruggs, 583 F.2d 238, 241 (5th Cir.1978) (citations omitted).

We are also satisfied that the Allen charge was not prejudicial. The district court, in its final jury charge, admonished the jury at least eleven times that the government had the burden of proving Clayton's guilt beyond a reasonable doubt. The district court also took care in its final charge to define the term "reasonable doubt" and the phrase "proof beyond a reasonable doubt." Given the district court's constant emphasis on the reasonable doubt standard, the exclusion of the standard from the Allen charge could not have prejudiced the jury's understanding of the level of proof necessary to convict Clayton, so as to have affected his substantial rights--the outcome of his trial.

Even if we assumed plain error on the part of the district court, Clayton can not show that the modified...