United States v. Rivas

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40519

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RENE RIVAS,

Defendant-Appellant.

Appeals from the United States District Court
For the Southern District of Texas
October 23, 1996

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

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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

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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

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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

Allen1 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

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Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L.
Ed. 528 (1896).

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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.

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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, 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.

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 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 claim is without merit.

SUFFICIENCY OF THE EVIDENCE

When reviewing a challenge to the sufficiency of the evidence

in a criminal case, this Court must determine whether a “reasonable

trier of fact could find that the evidence establishes guilt beyond

a reasonable doubt.” United States v. Bell, 678 F.2d 547, 549 (5th

Cir. Unit B 1982) (en banc), aff’d on other grounds, 462 U.S. 356,

103 S. Ct. 2398, 76 L. Ed. 2d 638 (1983).

Rivas argues that key testimony provided by Juan Cano should

not be believed because it was implausible and because a government

witness who was involved in the investigation characterized Cano’s

version of the facts as a “wild and far-fetched” story. Rivas

points out that Ruban Cano, the alleged kidnap victim, did not

mention the incident in his own probation revocation hearing. He

also emphasizes that both Ruban and Juan Cano had previous

convictions for drug-related violations while Rivas had no previous

criminal history.

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 The jury was entitled to credit Cano’s testimony, regardless

of Rivas’s position that it was implausible. Rivas has failed to

show that a reasonable trier of fact could not have found that the

evidence established guilt beyond a reasonable doubt. See Bell,

678 F.2d at 549.

ALLEN CHARGE

Rivas contends that the district court erred by giving the

jury an Allen charge when the jury had only deliberated for a short

time, in effect coercing a jury verdict. The instruction given by

the district court mirrors the one which this court approved in

United States v. Nguyen, 28 F.3d 477, 484 (5th Cir. 1994), and

Rivas does not challenge the actual content of the charge.

The jury had deliberated from 11 a.m. until 5:00 p.m. with a

break for lunch on the first day, then two more hours the following

day. The jury had twice informed the court it was deadlocked

before the Allen charge was given. After the court gave the

charge, the jury sent two more notes concerning the instructions

and deliberated until 4:50 p.m.

The district court has broad discretion to give an Allen

charge when the jury indicates that it is deadlocked. United

States v. Pace, 10 F.3d 1106, 1125 (5th Cir. 1993), cert. denied,

114 S. Ct. 2180, 128 L. Ed. 2d 899 (1994). Rivas has not shown

that the district court abused its discretion in giving the Allen

charge under these circumstances.

MOTION TO SUPPRESS EVIDENCE

Rivas contends that the district court erred when it denied

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his motions to suppress evidence seized in the search of his house

and its premises. This Court reviews factual findings in the

district court’s order denying a motion to suppress for clear error

and resolves questions of law de novo. United States v. Kelley,

981 F.2d 1464, 1467 (5th Cir.), cert. denied, 508 U.S. 944, 113 S.

Ct. 2427, 124 L. Ed. 2d 647 (1993).

Rivas filed motions to suppress the evidence found during a

search of his home, arguing that the state search warrant

authorizing the search of the premises was invalid and that he did

not validly consent to the warrantless search of his home. Rivas

challenges the district court’s denial of those motions.

a. Search of the interior of the house.

Danny Pena, a DPS trooper, testified at the suppression

hearing that he went to Rivas’s house with other officers, driving

up to the house with his emergency lights on at about 10:20 p.m. on

September 27, 1994. Pena saw someone look out the window and then

run back into the house. Pena and another officer went to the

front door and knocked. Rivas’s wife opened the door. Pena, who

was in uniform, identified himself as a police officer and asked

Mrs. Rivas for permission to enter the house. According to the

officer, she agreed. Pena informed Mrs. Rivas that they were there

to retrieve some vehicles and that they had a search warrant.

Joe Ortiz, another DPS officer, testified that he was sent to

Rivas’s house to execute a search warrant and that he participated

in the search. When he arrived, he went to the back of the house

and saw Rivas leaving through the back door. Ortiz met Rivas,

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identified himself as a DPS officer and Rivas, in turn, identified

himself. Another officer walked up and stated that he had detected

the odor of marijuana at the house and on Rivas. Rivas admitted

that he had been smoking a joint. The officers then requested

permission to search the house. Rivas was given a “Consent to

Search” form, and Ortiz testified that Rivas stated that “they”

were already searching his house. Ortiz informed Rivas that no one

was searching his house, but that the officers were only explaining

to his wife that they were going to be on the property, seizing

certain vehicles that had been reported stolen. Ortiz testified

that Rivas said that he understood and signed the consent form.

Officer Segundo testified that Rivas added the words, “After

officers already in house” and “reluctantly” to the consent form

when he signed it. Segundo asked Rivas whether that “mean[t] we

can go in, or does it mean that we can’t.” According to Segundo,

Rivas responded that they could search the house.

Rivas testified that: (1) he did not read the Consent to

Search form and that the officers insisted that he sign it; (2) he

understood what the officers were saying to him and he knew he was

signing a Consent to Search form; (3) no one told him that he did

not have to sign the form, but no one threatened him; and (4) he

finished the eleventh grade in school. Mrs. Rivas testified that

officers knocked on the front door of the house and she answered

the knock. She said that the officers pushed their way into the

house without an invitation and she never consented to a search of

the house.

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 The voluntariness of consent is a question of fact to be

determined from the totality of all the circumstances. Kelley, 981

F.2d at 1469. This Court has set forth a six-factor test for

reviewing the voluntariness of a consent to search: (1) the

defendant’s custodial status; (2) the presence or absence of

coercive police tactics; (3) the nature and extent of the

defendant’s cooperation with officers; (4) the defendant’s

knowledge of his ability to decline to give consent; (5) the

defendant’s intelligence and educational background; and (6) the

defendant’s belief that no incriminating evidence will be found.

Kelley, 981 F.2d at 1470. First Rivas was not in custody when they

requested his consent. Second, the only evidence of police

coercion is Rivas’s uncorroborated testimony that the officers

insisted that he sign the form and the fact that the police arrived

after 10:00 p.m. Third, there is no evidence that Rivas was

uncooperative with the officers. Fourth, the form clearly stated

that Rivas could refuse to give his consent, although Rivas

asserted that he did not read the form before signing it. The fact

that he added “reluctantly,” to the form and then told Segundo that

they could go ahead with the search evidenced his awareness that he

had the right to refuse to consent to the search. Fifth, his

eleventh grade education and the notations he made on the consent

form indicate an intelligence level sufficient to made a knowing

waiver. Finally, Rivas did not believe that the officers would

find any contraband in the house except a small amount of

marijuana. Although the late hour of the search weighs as a

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coercive factor, the district court’s finding of voluntariness was

not clearly erroneous given the balance of the evidence in the

record.

b. Search of the exterior of Rivas’s house.

The officers found two vehicles that Cano told the officers

Rivas had extorted from him and a box of watermelons. Rivas

contends that the search warrant issued by a Texas justice of the

peace is invalid under FED. R. CRIM. P. 41(a) because: (1) a justice

of the peace is not a “court of record” under the rule; (2) the

warrant does not authorize the search in the nighttime; and (3) the

affidavit attached to the warrant did not establish probable cause.

In United States v. McKeever, 905 F.2d 829, 832 (5th Cir.

1990), cert. denied, 498 U.S. 1070, 111 S. Ct. 790, 112 L. Ed. 2d

852 (1991), this Court held that “the 1972 amendment to Rule 41

reflects a Congressional intent that none of Rule 41's requirements

apply to state warrants.” Rule 41(a) applies only to warrants

sought by federal officers. See id. The warrant in this case was

obtained by state DPS officers from a state justice of the peace.

Thus, Rivas’s arguments under Rule 41 are meritless.

Rivas next contends that the warrant was invalid because Texas

Code of Criminal Procedure, Article 18.01(c) does not list justices

of the peace as judicial officers empowered to issue search

warrants under Article 18.02. The Government responds that this

Court has held that the Texas Code of Criminal Procedure provides

that justices of the peace are “magistrates” who are authorized to

issue search warrants. United States v. Conine, 33 F.3d 467, 469

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(5th Cir. 1994); TEX.CODE CRIM.PROC.ANN. art. 2.09 (Vernon Supp.1994).

Rivas’s assertion that the affidavit attached to the state

warrant did not establish probable cause is unsupported by any

argument. Because issues that are raised on appeal but not briefed

are deemed abandoned, this Court will not address this alleged

point of error. See United States v. Gipson, 46 F.3d 472, 474-75

(5th Cir. 1995).

The district court’s factual determination that Rivas gave

valid consent for the search of his home was not clearly erroneous.

Further, Rivas did not establish that the warrant executed on the

outside premises was invalid. We therefore conclude that the

district court did not err in denying Rivas’s motions to suppress

the evidence found during the search.

SENTENCE ENHANCEMENT FOR MANAGERIAL ROLE

The district court’s finding that a defendant played a

managerial role in the offense is a factual finding that this Court

reviews for clear error. United States v. Narvaez, 38 F.3d 162,

166 (5th Cir. 1994), cert. denied, 115 S. Ct. 1803, 131 L. Ed. 2d

729 (1995).

Pursuant to U.S.S.G. § 3B1.1(c): “If the defendant was an

organizer, leader, manager or supervisor in any criminal activity

other than described in (a) or (b), increase by 2 levels.”

Subsections (a) and (b) discuss three and four-level enhancements

for more aggravating roles. In this case, the evidence showed that

Rivas obtained the vehicle used to transport the marijuana to

Florida by extorting the vehicle from Juan Cano. Rivas attempted

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to recruit Cano into the conspiracy and succeeded in persuading

Cano to locate a load of produce bound for Florida to facilitate

the crime. Rivas has not shown that the district court’s decision

to enhance Rivas’s offense level by the minimum amount provided for

in § 3B1.1 was clearly erroneous.

CONCLUSION

For the foregoing reasons, we affirm Rivas’s convictions and

sentence.

AFFIRMED.

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