U.S. v. Hernandez-Garcia

• Decision Date: 23 April 1990
• Docket Number: No. 89-2046,D,HERNANDEZ-GARCI,89-2046
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dulceefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 875

901 F.2d 875

UNITED STATES of America, Plaintiff-Appellee, v. Dulce HERNANDEZ-GARCIA, Defendant-Appellant.

No. 89-2046.

United States Court of Appeals, Tenth Circuit.

April 23, 1990.

Tova Indritz, Federal Public Defender, Albuquerque, New Mexico, for defendant-appellant.

Presiliano A. Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before SEYMOUR and McWILLIAMS, Circuit Judges, and BRIMMER, District Judge. ^*

McWILLIAMS, Circuit Judge.

Dulce Hernandez-Garcia (Hernandez) was convicted on three counts of transporting illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(B). Each count involved a different illegal alien. Hernandez appeals, contending that the district court erred in its instructions to the jury, as well as in its polling of the jury when the verdicts were received. We perceive no reversible error and accordingly affirm.

The jury was instructed that in each count of the indictment Hernandez was charged with knowingly and in reckless disregard of the fact that a named individual was an alien who had entered the United States in violation of the law, transported said alien in furtherance of such violation of the law. 8 U.S.C. Sec. 1324(a)(1)(B) (1970).

A subsequent instruction advised the jury that one essential element of the crime charged was that the defendant knew that the alien named in each count of the indictment was not lawfully in the United States or was in reckless disregard of the fact that the alien named had entered the United States in violation of the law.

In a written communication to the district court, the jury noted that the indictment charged the defendant with "knowingly and in reckless disregard" of the fact that the person he was transporting was an illegal alien, whereas the subsequent instruction setting forth the essential elements of the crime charged stated that one element was that the defendant "knew ... or was in reckless disregard of the fact" that the person he was transporting was an illegal alien.

The thrust of the jury's inquiry was whether the government had to prove that the defendant both "knew" and "was in reckless disregard" of the fact that the person he was transporting was an illegal alien, or whether the government need only show that the defendant "knew" or "was in reckless disregard" of the fact that the person he was transporting was an illegal alien. The gist of the district court's response to this inquiry was that the first instruction advised the jury of what was in the indictment, whereas the subsequent instruction advised the jury "what the government must prove beyond a reasonable doubt."

The jury then resumed deliberations and about two hours later sent a second written communication to the district court, which read as follows:

"It appears that we are having a problem reaching a verdict and that it is unlikely that we will be able to agree. What action can we take?"

After consultation with counsel, the district judge, without objection, proceeded to give the jury a so-called Allen instruction. ¹ However, the district judge first asked the jury if it still had problems with his answer to the jury's first inquiry. When informed that there was still "confusion," the district judge gave a further instruction on that matter. The district judge, after noting that the third essential element of the crimes charged was that the defendant "knew" or "was in reckless disregard" of the fact that the person he was transporting was an illegal alien, spoke as follows:

"This third element means that the government is required to prove beyond a reasonable doubt either of these two things, but not necessarily both."

The district judge next gave the jury the so-called Allen instruction, which is set forth in its entirety as Attachment A to this opinion.

The jury resumed again its deliberations and returned guilty verdicts on all three counts about one and a half hours later. The jury was polled, and the first six jurors, when polled, indicated the guilty verdicts were his, or her, verdicts. However, the seventh juror when polled indicated uncertainty. The colloquy between the district judge and the seventh juror, Mr. Jamie L. Lucero, is set forth in its entirety as Attachment B to this opinion.

As indicated, there was no objection to the district court's giving of an Allen instruction, nor was there any objection to the content of the instruction itself. Accordingly, on appeal our only concern is whether the giving of the instruction constitutes "plain error." "Plain error," in this context, is error that "affects the [defendant's] fundamental right to a fair and impartial trial." Burroughs v. United States, 365 F.2d 431 (10th Cir.1966). We find no such error in the present record.

Although trial counsel did not object to the Allen instruction, appellate counsel argues that it is one-sided and "impermissibly coercive" in its effect. ² Appellate counsel takes particular aim at that part of the Allen instruction which states that if the jury should fail to agree on a verdict, "the case is left open and must be tried again." Counsel argues that such statement is incorrect, since, if the present jury should not agree, the government thereafter might elect not to pursue the matter further, or there might be a plea bargain, or for other reasons the matter might not be retried.

The Allen instruction which the district court gave the jury in the instant case appears as footnote 4 in United States v. Bottom, 638 F.2d 781 (5th Cir.1981). That instruction was prepared by the Committee on Pattern Jury Instructions District Judges Association Fifth Circuit 1975, and provides, inter alia, that if "you should fail to agree on a verdict the case is left open and must be tried again." (emphasis added). In this regard, however, it is of interest to note that the district judge in Bottom replaced the word "must" with "may," so that he instructed the jury that if it did not agree on a verdict "the case is left open and may be tried again." (emphasis added). It would appear to us that in this context the use of the word "may" is preferable to the use of "must." Be that as it may, we do not deem such to be reversible error.

United States v. Smith, 857 F.2d 682 (10th Cir.1988) sheds light on our present problem. There the district court advised the jury in its Allen instruction that if it failed to reach a verdict "the parties will be put to the expense of another trial and will once again have to endure the mental and emotional strain of a trial" and that "[i]f the case is retried, a future jury must be selected in the same manner and from the same source as you have been chosen ..." (emphasis added). In Smith we agreed with the appellant that actually "there were many reasons why there might not be another trial if the jury fails to reach a verdict."

Notwithstanding, in Smith we declined to find reversible error in the wording of the Allen instruction. We observed that it probably would have been "more accurate" to have added qualifying language such as "unless, for some reason the case does not have to be retried again...." However, we concluded that such "exhaustive amplification is unnecessary."

In Smith, counsel made a specific objection in the trial court to that part of the instruction which indicated that the case would be retried should the jury not reach a verdict. In Smith we found "no harmful error" in the Allen instruction. In the instant case, no objection was made in the trial court to the instruction, and under the rationale of Smith we decline to find "plain error."

Hernandez' principal contention in this court is that the district court committed reversible error in its polling of juror Lucero. The district court's polling of juror Lucero is set forth in Attachment B to this opinion. Counsel points out that the district judge asked juror Lucero five times if the guilty verdicts signed by the jury foreman were his verdicts, and that only on the fifth attempt did juror Lucero give a flat "yes" answer to the inquiry. Such, argues counsel, indicates that juror Lucero was "coerced" by the district judge, and, in a sense, by his fellow jurors, into giving an affirmative answer. From his "coercion" argument, counsel argues that the verdicts in reality were not "unanimous verdicts." We are not persuaded by this line of reasoning.

In Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948), the Supreme Court held that "[u]nanimity in jury verdicts is required where the Sixth and Seventh Amendments apply." Fed.R.Crim.P. 31(a) provides that "[t]he verdict shall be unanimous. It shall be returned by the jury to the judge in open court." Fed.R.Crim.P. 31(d) provides as follows:

"When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not a unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged."

United States v. Morris, 612 F.2d 483 (10th Cir.1979) sheds light on this aspect of the case. In that case we commented as follows:

We start with the proposition that in a federal, criminal case the requirement of unanimity applies not only by reason of F.R.Crim.P., Rule 31(a), but also by reason of the Sixth Amendment. It is a right so fundamental that it may not be waived.

Polling is one means of ensuring unanimity. It is available on request of any party or on the court's own motion. F.R.Crim.P., Rule 31(d). Where upon a poll one or more jurors express some uncertainty as to the verdict, the trial judge is vested with discretion under F.R.Crim.P., Rule 31(d), to direct the jury to retire for further deliberations or to discharge the jury. Although not expressly so stated in the rule, the power to repoll the jury is also among the judge's discretionary powers. This power is most helpful...