U.S. v. Rivas

• Decision Date: 23 October 1996
• Docket Number: No. 95-40519,95-40519
• Citation: 99 F.3d 170
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rene RIVAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 170

99 F.3d 170

UNITED STATES of America, Plaintiff-Appellee, v. Rene RIVAS, Defendant-Appellant.

No. 95-40519.

United States Court of Appeals, Fifth Circuit.

Oct. 23, 1996.

Rehearing Denied Nov. 22, 1996.

David C. Frederick, U.S. Dept. of Justice, Washington, D.C., Laurie Hamlett, U.S. Atty's Office, McAllen, TX, Paula Camille Offenhauser, James L. Powers, James Lee Turner, Gaynelle Griffin Jones, U.S. Atty's Office, Houston, TX, for plaintiff-appellee.

Francisco J. Enriquez, Noe Gonzalez, Rodriguez, Pruneda, Tovar, Enriquez and Calvillo, McAllen, TX, for defendant-appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, SMITH and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Appellant Rene Rivas ("Rivas") appeals his convictions for conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana, as well as the sentences imposed by the district court. Finding no reversible error, we affirm.

FACTS AND PROCEEDINGS

Law enforcement officers stopped an 18-wheeler hauling a load of watermelons from Texas to Florida on September 27, 1994. They found approximately 773 pounds of marijuana in a hidden compartment in the trailer. The driver, Rivas's co-defendant Ramon Rodriguez, pleaded guilty to a drug trafficking charge.

Juan Cano ("Cano"), who owned the truck, had been cooperating with law enforcement for about three weeks at the time of the stop and testified as a key witness against Rivas. Cano testified that on August 13, 1994 he received a mysterious phone call from an unidentified man that he later determined was Rivas. The caller stated that he was holding Cano's son Ruben and instructed Cano to deliver his pickup truck to a certain parking lot the next day. There were four or five more phone calls in which the same caller demanded a car and a large red tractor trailer rig ("the red truck"). After Cano complied with these demands, Ruben was released. In addition to the vehicle demands, the caller and his messenger who picked up the vehicles repeatedly asked Cano whether he was ready to do business or "ready to haul weed."

On September 7, 1994, Cano reported these incidents to the police and agreed to cooperate in an investigation into the demands and into the stolen vehicles. The caller contacted Cano again on September 21, 1994 and Cano agree to haul marijuana for him. The caller instructed Cano to locate a load of produce going to Florida, and to turn over another one of his tractor trailer rigs ("the pink truck"), in exchange for the return of the red truck. Cano reported this call to the police, who set up surveillance beginning with the turn-over of the pink truck and continuing through Rivas's arrest. Rivas met Cano at an agreed location and took the pink truck from him. Cano testified that this was the first time he had ever seen Rivas, but that he recognized his voice from the phone calls. Cano then arranged for the pink truck to take a load of watermelons to Florida. Rivas provided the driver, Ramon Rodriguez, and Cano provided $200 for fuel money.

The Texas Department of Public Safety ("DPS") officers who conducted the surveillance testified that Rivas picked up the pink truck and drove it to his house, where they observed one of the other vehicles Cano had reported stolen. Rivas then drove the pink truck to another house, where the red truck was parked. From September 23-27, surveillance officers observed Rivas meeting with Rodriguez at various parking lots, driving the red truck, inspecting the pink truck, and meeting the pink truck at the produce market where it picked up the watermelons.

On September 27, 1994, after the load of marijuana had been confiscated, the police executed a search warrant at Rivas's house, recovering a box of watermelons, $9,400 in currency and two vehicles that Cano had reported stolen. Rivas was not arrested at this time.

On September 29, 1994, after three aborted meetings in parking lots, Rivas came to Cano's house and wrote on a piece of paper, "Mr. Cano, if you take all the rap, I will pay you one percent, whatever it cost, what happened." A federal warrant for Rivas's arrest was issued on September 30, 1994 and executed on October 3, 1994.

Rivas was indicted for conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana for his role. A jury found him guilty on both counts. The district court sentenced him to 78 months in prison.

THE DISTRICT COURT'S "CEASE DELIBERATING" INSTRUCTION

During deliberations at trial, the jury twice informed the judge that they had reached a verdict on one count, but that they were having trouble reaching a verdict on the other. The second time, they inquired, "Are we allowed to have a hung decision on a count?" The court responded:

If you have reached a verdict as to any count, please have the foreperson make the appropriate entries on the verdict forms as to that count. Then have the foreperson sign the verdict form, date it, and enclose and seal it in the attached envelope.

As to any count for which you have not reached a verdict, please advise if further deliberations will assist you in reaching a verdict.

Rivas objected on the basis that any further deliberation on the undecided count would in effect force a coerced verdict. The jury filled out the jury form and sealed it, in compliance with the court's instructions. The district court then gave the jury an Allen ¹ charge, adding, "You are no longer to address the count for which you have received a unanimous verdict." After giving the Allen charge, the court gave the jury an identical verdict form and stated again that it was "to apply only to the count [on] which you have not reached a verdict."

After the jury returned to deliberations, Rivas made the additional objection that the court's instruction improperly prevented the jurors from deliberating further on the count upon which they had agreed. The district court overruled the objection. After a question from the jury about the definition of "possession" and in response to the court's instruction, Rivas reurged his previous objections and moved for judgment of acquittal "on the basis that the jury has already returned one verdict; consequently, any further deliberations constitute double jeopardy on the remaining count." The district court denied the motion.

After further deliberations, the jury returned both verdict forms, finding Rivas guilty on both counts. A poll of the jury confirmed that the guilty verdicts were unanimous.

Rivas contends that the district court erred because its instructions (1) coerced the jury into surrendering its views for the purpose of rendering its verdict; (2) set a time limit for the deliberations; (3) constituted a comment on the evidence; and (4) resulted in a directed verdict. Rivas argues that the procedure prevented further deliberation on a count when the jury had not yet reached a final verdict. Rivas relies on United States v. Straach, 987 F.2d 232 (5th Cir.1993), where this Court stated that

a jury has not reached a valid verdict until deliberations are over, the result is announced in open court, and no dissent by a juror is registered. Even at this point, where the verdict is announced in open court and no dissent is voiced, the verdict may not be accepted by the court if a poll taken before the verdict is recorded indicates a lack of unanimity.... This applies particularly where more than one count has been submitted to the jury, for continuing deliberations may shake views expressed on counts previously considered.

Jurors are not bound by votes in the jury room and remain free to register dissent even after the verdict has been announced, though before the verdict is recorded.

Id. at 243, quoting United States v. Taylor, 507 F.2d 166, 168 (5th Cir.1975).

The Government points out that Rivas failed to object to the district court's instructions on the basis now presented as error until after the instruction had been sent to the jury and they had begun to deliberate. Objections made to instructions after they have been given to the jury and the jury has retired to deliberate are reviewed for plain error. United States v. Winn, 948 F.2d 145, 159 (5th Cir.1991), cert. denied, 503 U.S. 976, 112 S.Ct. 1599, 118 L.Ed.2d 313 (1992). See FED.R.CRIM.P. 30.

In order to establish that the instruction constituted plain error, Rivas must show that (1) there was error; (2) the error was clear or obvious; and (3) the obvious error affected substantial rights. United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir.1994) cert. denied, --- U.S. ----, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995). We find that the district court erred and that the error was clear. However, the error did not affect Rivas's substantial rights. There is no indication that the jury was less than unanimous in its verdict on Count One at any time. The jurors were polled after both verdicts were returned and all jurors indicated that the verdict on Count One was their verdict. We therefore decline to reverse on the basis of the district court's erroneous "cease deliberating" instruction. Our affirmance should not be read to approve the procedure used by the district court. However, we are unpersuaded that the procedure prejudiced Rivas, given the specific circumstances of this case.

Rivas also contends that the "cease deliberating" instruction constituted a directed verdict on Count One and resulted in a double jeopardy violation. He argues that by ending jury deliberations on Count One, the district court in effect directed a verdict on that count. He argues that jeopardy therefore attached and further deliberations on the remaining count were prohibited by the double jeopardy clause. Because the district court did not accept in open court a final verdict on Count One until after the jury had finished deliberating on Count Two, Rivas's double jeopardy...