UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4307
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES ANDREW WALL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge; Anthony A. Alaimo, Senior District Judge, sitting
by designation. (CR-00-130)
Submitted: October 6, 2004 Decided: December 13, 2004
Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Robert C.
Conrad, Jr., United States Attorney, Jennifer Marie Hoefling,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Defendant James A. Wall appeals his conviction for conspiracy
to distribute less than five kilograms of cocaine and at least
1,000 kilograms of marijuana in violation of 21 U.S.C Sections
841(a)(1) and 846. Specifically, he contends that the district
court 1) improperly instructed the jury out of his presence in
violation of Rule 43(a) of the Federal Rules of Criminal Procedure,
and 2) improperly coerced the jury into returning a guilty verdict
by indicating that the jury could not recess for the night.
Because we do not find reversible error, we affirm Mr. Wall’s
conviction.
I.
Mr. Wall was indicted for conspiring to possess with intent to
distribute at least five kilograms of cocaine, at least five
kilograms of cocaine base, and at least one thousand kilograms of
marijuana. He pleaded not guilty and proceeded to trial, along
with three co-defendants. At trial, the government presented
evidence of a large drug distribution enterprise that utilized
truck drivers carrying legitimate loads to transport cocaine and
marijuana from Texas to North Carolina. Mr. Wall was connected to
the conspiracy by at least eight witnesses who testified to, among
other things, Mr. Wall personally transporting drugs and money on
his trucking routes and instructing other drivers on how to avoid
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detection as they transported drugs. Additionally, the government
presented testimony from an officer of the Texas Highway Patrol who
stopped Mr. Wall’s truck and, upon conducting a consensual search
of the truck, found marijuana and other contraband.
Mr. Wall testified at trial, arguing that he was not part of
a drug conspiracy and did not know many of the witnesses testifying
against him other than by name and face. Additionally, he claimed
that he did not know that there were drugs in his truck when he was
stopped by the highway patrol because he was not present on the
loading dock when his truck was packed. Finally, Mr. Wall informed
the jury that he had no prior record of drug offense convictions.
Following the close of evidence after three days of trial, the
jury retired to deliberate at 3:30 PM. All of the parties examined
the evidence being sent to the jury room and agreed on the record
that it was in order before sending it to the jury room. At 5:09
PM, the court convened the parties to read a communication from the
jury, which stated, “We will not finish by 6:00 p.m. How long past
that are we expected to stay, or should we come back tomorrow?”
The district judge then informed the parties that he would take a
court reporter to the jury room door with him and deal with the
“housekeeping” matters involving the jury. The judge then had the
following conversation with the jurors:
THE COURT: I have your last communication,
members of the jury. In a criminal case, a
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jury may not be separated during
deliberations. Therefore, I cannot recess you
for the night and have you come back tomorrow.
So I assume you will want to have us send out
for some food for you . . . . I guess we had
better order some pizza then.
THE CLERK: Yes, sir.
JUROR TURNER: How late could we stay?
THE COURT: Until you---
JUROR FOWLER: This evidence we’re permitted
to have was agreed on by the defense and
prosecution, right?
THE COURT: Yes.
JUROR FESTER: This was agreed to?
THE COURT: Yes, it was.
Approximately three hours later, the jury returned with a
verdict, convicting Mr. Wall of conspiracy to distribute less than
five kilograms of cocaine and at least 1,000 kilograms of
marijuana. Although all four defendants at trial were found guilty
of the conspiracy, for none of the defendants did the jury find
that the conspiracy involved at least five kilograms of cocaine,
and only for Mr. Wall did the jury find that the conspiracy
involved at least 1,000 kilograms of marijuana. After the verdict
was announced, each juror stated on the record that the verdict had
been freely and voluntarily made. The district court sentenced Mr.
Wall to ten years imprisonment. He timely appeals.
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II.
The parties agree that we review the district court’s ex parte
communication with the jury for plain error because Mr. Wall did
not object to the communication at trial. See United States v.
Rolle, 204 F.3d 133, 138 (4th Cir. 2000) (citing Fed. R. Crim. P.
52(b)). For us to reverse the district court under that standard,
(1) there must be error, i.e., a deviation
from a legal rule; (2) the error must be plain
under current law; (3) the plain error must
affect substantial rights, which typically
means that the defendant is prejudiced by the
error in that it "affected the outcome" of the
proceedings; and (4) the error must seriously
affect "the fairness, integrity or public
reputation of judicial proceedings.”
Id. (citing, inter alia, United States v. Olano, 507 U.S. 725, 733-
36 (1993)).
Rule 43(a) of the Federal Rules of Criminal Procedure provides
that a defendant has the right to be present at every stage of
trial, including when the judge communicates with the jury. Fed.
R. Crim. P. 43; Rogers v. United States, 422 U.S. 35, 39 (1975).
Therefore, Mr. Wall argues, the district court committed plain
error by answering questions in the jury room without him present.
We disagree.
Assuming arguendo that the district court clearly erred by
communicating with the jury outside of Mr. Wall’s presence, that
error still did not affect Mr. Wall’s substantial rights by
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affecting the outcome of the proceedings, nor did it seriously
impair the fairness, integrity or public reputation of judicial
proceedings. The trial judge correctly informed the jury that the
evidence that they had in the jury room was in order and had been
agreed to by the parties. Indeed, Mr. Wall does not contend
otherwise. Nor does he suggest how his presence would have changed
the conversation between the judge and jury.* In addition, the
government presented strong evidence against Mr. Wall: eight
witnesses testified against him, and marijuana was found in his
truck. Accordingly, Mr. Wall has not demonstrated that the
district court’s conversation with the jury would have affected the
outcome of the proceedings and, accordingly, has not met the
requirements for showing plain error.
III.
Mr. Wall also argues that the district court improperly
coerced a verdict against him by telling the jury that it “may not
be separated during deliberations,” and that it could not be
recessed for the night. These instructions, Mr. Wall contends,
could have caused the jury to find against him solely because it
*Mr. Wall objected to some of the evidence as it was presented
at trial but has chosen not to pursue those objections on appeal.
Accordingly, the issue before us is not whether the district judge
properly admitted the evidence, but simply whether the judge’s
subsequent ex parte conversation with the jury concerning that
evidence could have possibly affected the outcome of the
proceedings.
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wanted to go home. We review these instructions for abuse of
discretion. See United States v. Weaver, 282 F.3d 302, 314 (4th
Cir. 2002) (holding that allegations that a district court deprived
a defendant of a fair trial are reviewed for abuse of discretion);
Chaudhry v. Gallerizzo, 174 F.3d 394, 408 (4th Cir. 1998) (“We
review challenges to jury instructions for abuse of discretion.”).
In addition, if the allegedly erroneous jury instructions were
harmless, we will not upset the district court’s discretion. See
United States v. Obi, 239 F.3d 662, 666 (4th Cir.2000).
Considering the arguments of the parties and the record before us,
we hold that, whether or not the district court abused its
discretion in allowing the instructions, such abuse was harmless
error and, therefore, not reversible.
We note initially, as the government concedes, that the
district court was incorrect in its assertion that a deliberating
jury in a criminal case may never be separated. This is not,
however, dispositive. Specifically, the record in this case
provides substantial evidence that the incorrect instruction did
not improperly coerce the jury or otherwise deprive Mr. Wall of a
fair trial.
First, the district court’s instruction, while incorrect, was
not facially prejudicial in favor of the government. Cf. United
States v. Russell, 971 F.2d 1098, 1107-08 (4th Cir. 1992)
(distinguishing cases in which an instruction to keep deliberating
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was facially prejudicial from cases in which “there is no basis for
an inference that [the defendant] was prejudiced by the
[instruction]”). Second, the jury in this case deliberated in
total for approximately four and one half hours, and three hours of
that deliberation occurred after the judge’s comments. The
substantial deliberation after the trial judge made his comments
“provides adequate assurance that the jury was not improperly
coerced by the district court's instruction.” Russell, 971 F.2d at
1108; see also United States v. Cropp, 127 F.3d 354, 360 (4th Cir.
1997) (“Although the length of deliberations following an Allen
charge is not certain evidence that the jury was not coerced by
that charge, lengthy deliberations can reassure a reviewing court
that coercion did not occur.” (internal citation omitted)). Third,
the jury verdict both distinguished among the various defendants
and found that the conspiracy did not involve at least five
kilograms of cocaine. In other words, the verdict represents a
thoughtful consideration of the case and not a hasty acquiescence
to the government’s arguments. Finally, each juror stated on the
record that the verdict had been freely and voluntarily made.
Considering all of these factors, we hold that the district court’s
instruction did not improperly coerce the jury into finding against
Mr. Wall. Accordingly, we hold that the district court’s abuse of
discretion, if any, in allowing the jury instructions was harmless.
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IV.
Having reviewed the arguments of the parties and the record
before us, we hold that the district court did not commit plain
error in conducting an ex parte communication with the jury.
Additionally, we hold that any abuse of discretion in informing the
jury that it could not be recessed was harmless error. Therefore,
we affirm Mr. Wall’s conviction.
AFFIRMED
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