U.S.A. v. Manjarrez
| Decision Date | 18 July 2001 |
| Docket Number | No. 00-3569,00-3569 |
| Citation | 258 F.3d 618 |
| Parties | (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Acencion Manjarrez, also known as Phil, also known as Felipe, Defendant-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 614--Ruben Castillo, Judge.
Before Bauer, Cudahy, and Easterbrook, Circuit Judges.
Manjarrez appeals his conviction for conspiracy and possession with intent to distribute marijuana, arguing that he did not knowingly and intelligently waive his right to testify on his own behalf, and that certain jury instructions and an argument made by the prosecutor during closing argument prejudiced his case and deprived him of a fair trial. We affirm.
On October 18, 1996, Jose Suarez asked Gustavo Marquez to pick up a 196-pound shipment of marijuana for Efren Terrazas. The shipment was en route from Laredo, Texas to the Yellow Freight warehouse in Chicago Ridge, Illinois. Marquez agreed to pick up the marijuana. The next day, Manjarrez rented a Ryder truck that Marquez drove to the Yellow Freight warehouse; Manjarrez and two passengers, Terrazas and a man named Joe, followed Marquez to the warehouse in Manjarrez's car, a blue Chevrolet Caprice.
When he arrived at the warehouse, Marquez discovered that the marijuana shipment had not yet arrived. (Unbeknownst to him, it had been intercepted by federal agents in Texas and was in the process of being sent from Texas to United States Customs personnel in Chicago.) Marquez left the warehouse and drove the truck to the Ryder rental facility, where he was met by Terrazas and Manjarrez. Manjarrez returned the truck.
On October 21, 1996, Suarez called Marquez and told him that the shipment had arrived at Yellow Freight. Marquez, Terrazas, and Joe then returned to the same Ryder rental facility and waited for Manjarrez, who eventually arrived and rented another truck. In the parking lot, Manjarrez handed Terrazas the keys to the truck, together with money to pay for the shipping costs. Terrazas handed these items to Marquez. While all four men were standing in the parking lot, Terrazas explained to Marquez that "they" (i.e., Terrazas, Manjarrez, and Joe) would be in the defendant's car watching to make sure that the truck was not being followed. Manjarrez was at Terrazas' side when he made this statement.
That afternoon, Marquez drove the truck to the warehouse. Customs agents had established surveillance at the warehouse, and they observed Marquez arrive and drive off with the marijuana- filled crate in the Ryder truck. From there, Marquez drove toward the planned delivery site at 147th and Loomis in Chicago, with Customs agents on his tail. Following Terrazas' instructions, Marquez took a long and circuitous route to the delivery site. Early on in the journey, the pursuing agents noticed Manjarrez's blue Caprice following the truck at every turn and performing counter-surveillance maneuvers--that is, maneuvers designed to detect the presence of pursuing law enforcement officers. After some 90 minutes of driving, the truck and Manjarrez's car approached the 147th Street exit off of Interstate 57 in Chicago. However, sensing that they were being followed by law enforcement officers, Manjarrez and his passengers decided to separate from the truck, and Manjarrez drove in the opposite direction on 147th Street.
Marquez eventually drove the truck to his own neighborhood in Chicago. Fearing apprehension, Terrazas abandoned the drug deal. However, the next day, Suarez, Mar quez, and another man, Luis Moreno, devised an alternate plan to deliver the marijuana. As part of this plan, Marquez and Moreno transported the marijuana to Moreno's garage, where they were arrested shortly thereafter.
Manjarrez was interviewed by Customs agents on January 28, 1997. He admitted renting a Ryder truck on October 21, 1996, but denied renting one on any other occasion. With respect to the October 19th rental, Manjarrez claimed that he rented the truck for a friend named Jose Rodriguez who needed the truck to move from his home, that he provided Rodriguez the keys to the truck and returned home immediately, and after later attempting to determine whether Rodriguez had returned the truck, he eventually reported the truck missing to the Chicago Police Department.
In August of 1998, Manjarrez was indicted and charged with conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. sec.sec. 846 and 841(a)(1) (Count One), and with possession of marijuana with intent to distribute in violation of 21 U.S.C. sec. 841(a)(1) and 18 U.S.C. sec. 2. (Count Two). He remained a fugitive until he was arrested by Customs agents at O'Hare airport in Chicago on February 17, 2000. After waiving his Miranda rights, Manjarrez spoke with the agents, again admitting that he had rented a Ryder truck on October 21, 1996. He again claimed that he had rented the truck for Jose Rodriguez, and he gave an account that was consistent with the story that he gave during his first interview, with one notable exception; this time, Manjarrez said that he was told by a member of the Ryder rental facility that the truck had been used to transport drugs. However, Manjarrez denied knowing Terrazas, Marquez, or Suarez, and persisted in his denial even after being shown pictures of all three men.
At trial, several witnesses testified for the government, including the Customs agent who discovered the marijuana-filled crate in Texas, two Chicago Customs agents who oversaw the investigation at different times (both of whom interviewed Manjarrez and one of whom participated in the October 21, 1996 surveillance), a narcotics expert with the Drug Enforcement Administration, and Marquez.1 The jury heard evidence of the conflicting statements that Manjarrez gave to law enforcement agents regarding his rental of Ryder trucks. The defense presented no evidence.
During the jury deliberations, the jury sent the district court notes requesting clarification on two separate occasions. In the first note, the jury asked the court whether they could return a not- guilty verdict on the possession charge even if they returned a guilty verdict on the conspiracy charge. After conferring with and receiving the blessing of counsel for both sides, the court instructed the jury to read the jury instructions and to keep deliberating. In the second note, the jury asked the court to provide guidance regarding the definition of reasonable doubt. After again conferring with both attorneys, the court informed the jury that it could not provide further guidance on the definition and asked them to continue their deliberations.
On May 10, 2000, the jury convicted Manjarrez on both counts. On September 20, 2000, the district court sentenced Manjarrez to 51 months in prison followed by three years of supervised release. Manjarrez appeals his conviction.
Manjarrez advances three grounds for the reversal of his conviction. He claims (1) that he did not knowingly and intelligently waive his right to testify in his own behalf, (2) that the district court erred in giving an "ostrich" jury instruction without also expressly instructing the jury that subjective good faith on Manjarrez's part was a defense to the charges, and (3) that the prosecutor made an improper and prejudicial remark during closing argument. Manjarrez argues that these errors (together or singly) deprived him of a fair trial, and quite likely prejudiced the outcome of the trial given what he characterizes as the "thinness" of the government's case and the confusion expressed by the jury during their deliberations. We address Manjarrez's arguments in turn.
Manjarrez contends that the record establishes that he did not knowingly and intelligently waive his right to testify on his own behalf. Near the close of the government's case-in-chief, the district court asked Manjarrez's counsel whether he intended to rest immediately after the close of the government's case (without putting on any evidence). He responded in the affirmative. The court then asked Manjarrez's counsel if he would like the court "to talk to Mr. Manjarrez right now about not testifying." Manjarrez's counsel responded that he would, and the court engaged in the following colloquy with Manjarrez:
COURT: Mr. Manjarrez, the Court understands that it's your decision in this case not to testify in your own defense. As you've heard me tell the jury several times, you have an absolute right not to testify, and I would be happy to continue to instruct the jury as I have already that they cannot draw any inference or suggestion of guilt from the fact that you did not testify.
On the other hand, you should know that you have an absolute right to testify in your own defense. Do youunderstand?
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