United States v. Andaverde-Tiñoco

• Decision Date: 17 December 2013
• Docket Number: 12–40477.,Nos. 12–40472,s. 12–40472
• Citation: 741 F.3d 509
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Jose Julian ANDAVERDE–TIÑOCO, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Jose Julian Andaverde–Tiñoco, also known as Julian Rodriguez–Hernandez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

741 F.3d 509

UNITED STATES of America, Plaintiff–Appellee

v.Jose Julian ANDAVERDE–TIÑOCO, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Jose Julian Andaverde–Tiñoco, also known as Julian Rodriguez–Hernandez, Defendant–Appellant.

Nos. 12–40472, 12–40477.

United States Court of Appeals, Fifth Circuit.

Dec. 17, 2013.

Julia Bowen Stern, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

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

Before SMITH, DENNIS, AND HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

A jury found Jose Julian Andaverde–Tiñoco guilty of illegal reentry subsequent to removal after conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). The district court sentenced him to 70 months of imprisonment and three years of supervised release. It also revoked a previously imposed term of supervised release and sentenced him to eight months of imprisonment, four months of which were to run consecutively and four concurrently to the 70–month sentence, for a total of 74 months. He appeals. For the reasons that follow, we AFFIRM his conviction and sentence.

I.

On March 9, 2011, United States Border Patrol agent Carlos Ortega observed four individuals attempting to make their way north from the Rio Grande. Ortega called two other agents, Luis Garza and Ernest Granado, to the scene. The agents detained and handcuffed the individuals, including Defendant–Appellant Jose Julian Andaverde–Tiñoco (“Andaverde–Tiñoco”). According to Andaverde–Tiñoco's testimony on cross-examination, the agents read him his Miranda rights in Spanish while in the field.

Granado transported the individuals by car to a nearby Border Patrol station. Granado testified that, during the ride, one of Andaverde–Tiñoco's companions said that the companions had been “beaten and robbed” on the Mexican side of the river but did not specify when or where that had happened or mention anything about being forced to cross the river. Granado also testified that there were no marks or indications of recent physical abuse on any of the individuals. Granado did not follow up on this information, pass it along to the other agents, or write any report.

At the station, the four companions were processed, and the other three were granted voluntary returns to Mexico. Andaverde–Tiñoco was not eligible for a voluntary return because of his criminal and immigration history, so he was processed as a criminal alien. Agent Eron Hernandez testified that he interviewed Andaverde–Tiñoco at the station and that the first thing he did was read Andaverde–Tiñoco his Miranda rights in Spanish. A written record of the interview—which Hernandez prepared and Andaverde–Tiñoco read, approved, and signed—showed that Andaverde–Tiñoco admitted that he was a Mexican citizen, that he had entered the United States on March 9, 2011 by swimming across the Rio Grande, that he had previously been deported or removed from the United States and never applied for permission to return, and that he did not fear any persecution or torture if he were to be removed to Mexico. According to Hernandez's testimony, Andaverde–Tiñoco did not mention that he had been robbed on the other side of the Rio Grande, nor did other agents mention to Hernandez that any of Andaverde–Tiñoco's companions had claimed to have been robbed.

A one-count indictment charged Andaverde–Tiñoco with illegal reentry subsequent to removal after conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). The government also moved to revoke a previously imposed term of supervised release that resulted from a prior illegal-reentry conviction.

At trial, Andaverde–Tiñoco stipulated to the elements of the offense, yet presented the defense that he reentered under duress and hence was not criminally responsible for his actions. Andaverde–Tiñoco called border agent David Montoya, who testified that he had interviewed the other individuals and that one of them had said they had been robbed before crossing. Andaverde–Tiñoco testified and described how, on the day of the arrest, he and three friends were driving in Mexico when armed men stopped them and robbed them of their vehicle and money. He further testified that the men brought him and his friends to the river and told them to cross or be shot, that he begged the men not to make him cross because he would be sent to prison, and that he crossed the river because he felt he had no choice. He admitted that he did not mention the robbery when initially detained or during transport to the station, but then he stated that he told the agents about the robbery while they fingerprinted and interviewed him and that the agents did not write anything down or record the conversation.

Approximately two hours after starting deliberations, the jury sent a note stating that the jurors were deadlocked at a six-to-six vote. The district court proposed that it give an Allen charge to the jury. Andaverde–Tiñoco objected—arguing that the jurors had not been deliberating for long, the trial was short, and most of the evidence was uncontroverted—and requested a mistrial. The district court overruled the objection, denied the motion for a mistrial, and sent the Allen charge to the jury. Approximately two-and-a-half hours after receiving the charge, the jury found Andaverde–Tiñoco guilty.

At sentencing, Andaverde–Tiñoco attempted to present an affidavit of Daniel Reyna Flores, one of his companions on the night of the arrest, who corroborated most of his story. The government objected. The district court refused to admit the affidavit because it was hearsay, but allowed the investigator who obtained the affidavit to testify as to some of the statements Reyna Flores made to him, including that he had been forced across the river. Andaverde–Tiñoco pleaded “true” to the facts alleged in the petition for revocation of supervised release. The district court sentenced him to 70 months of imprisonment and three years of supervised released. It also revoked the previously imposed term of supervised release and sentenced him to eight months of imprisonment, four months of which were to run consecutively to the 70–month sentence, for a total of 74 months. Andaverde–Tiñoco timely appealed the conviction and sentence.

II.

Andaverde–Tiñoco argues first that the district court abused its discretion by giving an Allen charge to the jury. The relevant inquiry on appeal is whether: (1) any semantic deviation from approved Allen-charge language was so prejudicial that it requires reversal and (2) the circumstances surrounding the use of the charge were coercive. United States v. Winters, 105 F.3d 200, 203 (5th Cir.1997). Generally, we review the use of an Allen charge for abuse of discretion. Id. Where a defendant does not object to its use, review is for plain error. United States v. Hitt, 473 F.3d 146, 153 (5th Cir.2006). The government argues that Andaverde–Tiñoco's objection to the charge in the district court failed to preserve his challenge on appeal. “A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for our review.” United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir.2011) (internal quotation marks and footnote omitted). “[T]he touchstone is whether the objection was specific enough to allow the trial court to take testimony, receive argument, or otherwise explore the issue raised.” United States v. Burton, 126 F.3d 666, 673 (5th Cir.1997).

Andaverde–Tiñoco objected to the Allen charge as follows:

As the Court is aware, this is a very short trial. Most of it was completely uncontroverted. The controverted evidence is extremely short, and the fact that the jurors already said that they couldn't reach a verdict and they're divided numerically six to six, your Honor, I believe an Allen charge would not be appropriate at this time, and we ask for a mistrial.

Andaverde–Tiñoco cites United States v. Montalvo, 495 Fed.Appx. 391, 392 n. 2 (5th Cir.2012) (unpublished), to argue that a general objection to an Allen charge that does not mention the language itself is sufficient to preserve that issue for appeal. However, our unpublished Montalvo decision is inapposite. There, although the government argued that Montalvo had not objected to the language of the Allen charge, Montalvo himself did not make the language argument on appeal. Thus, the court looked only to the circumstances of the charge, an objection that the court found Montalvo had adequately made below. Id. at 392–93 & n. 2;cf. Hitt, 473 F.3d at 153 & n. 5 (reviewing for plain error where defendant objected to charge in toto but not to language specifically); United States v. Hill, 334 Fed.Appx. 640, 645 (5th Cir.2009) (unpublished) (reviewing language for plain error where objection to charge did not include objection to its language). The objection does not reference the language of the charge, so the district court “could not have understood,” Gutierrez, 635 F.3d at 152, that Andaverde–Tiñoco wanted additional or adjusted language included in the charge, particularly because the district court used the language from the then-applicable Fifth Circuit Pattern Jury Instructions. Fifth Circuit Pattern Jury Instructions (Criminal), § 1.45 (West 2001). However, the objection does directly address the coerciveness of the charge under the circumstances and thus preserves that issue for appeal. Therefore, we review the language of the charge for plain error and the use of the charge for abuse of discretion.

A.

Under the first prong of the Allen ana...