United States Court of Appeals
Fifth Circuit
F I L E D
March 16, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-20702
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERMAINE CARLOS DIAZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(H-01-CR-528-ALL)
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jermaine Carlos Diaz appeals his
conviction, following a jury trial, on charges of transporting a
minor in interstate commerce for purposes of prostitution, and for
aiding and abetting, in violation of 18 U.S.C. §§ 2423(a) and 2.
The district court sentenced Diaz to 51 months in prison and three
years supervised release.
Diaz, who was only 14 years old at the time of the July 1998
offense, contends that the district court reversibly erred by
failing to (a) determine whether his waiver of his right to a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
juvenile proceeding was voluntary and knowing and (b) require that
his juvenile court records be on file with the court before it
transferred him for adult prosecution. As Diaz raises these claims
for the first time on appeal, we review them for plain error only.
See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)
(en banc). Under the plain-error standard, we may correct
forfeited errors only when the appellant shows the existence of an
error that was “clear” or “obvious” and affected his substantial
rights. Id. at 162-64. Furthermore, even if these criteria are
met, we will not exercise our discretion to correct a forfeited
error unless it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Olano,
507 U.S. 725, 735-36 (1993).
The Juvenile Justice and Delinquency Protection Act (“JJDPA”)
provides the means by which the federal government may proceed
against a juvenile who has been accused of committing an act of
juvenile delinquency. See 18 U.S.C. § 5032. “A juvenile who is
alleged to have committed an act of juvenile delinquency and who is
not surrendered to State authorities shall be proceeded against
under this chapter unless he has requested in writing upon advice
of counsel to be proceeded against as an adult.” § 5032, ¶ 4
(emphasis added). It is not disputed that Diaz, his attorney, and
his guardian complied with this provision by signing a written
request that he be proceeded against as an adult. As Diaz has
cited no binding or non-distinguishable legal authority requiring
a district court to ensure that the juvenile’s request is knowing
2
and voluntary, and Diaz has not explicitly asserted that his
request was in fact unknowing or involuntary, he has failed to
establish plain error.
Diaz has also failed to show plain error with respect to his
claim that the district court failed to comply with § 5032's
requirement that transfer to adult prosecution shall not occur
before the district court has received “any prior juvenile court
records.” The magistrate judge’s July 3, 2001, detention order
reflects that such records were obtained and reviewed by the court.
Diaz also contends that trial evidence was insufficient to
establish that, by the time he and the female minor left Arkansas
for Houston, he had already formed the intent for the minor to
engage in prostitution there. Generally, the standard for
reviewing a claim of insufficient evidence is whether “a rational
trier of fact could have found that the evidence establishes the
essential elements of the offense beyond a reasonable doubt.”
United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When, as
here, the defendant fails “to renew his motion for judgment of
acquittal at the close of the trial, we review his claim [only] to
determine ‘whether there was a manifest miscarriage of justice.’”
United States v. Burton, 324 F.3d 768, 770 (5th Cir. 2003)
(citation omitted). “That occurs only where the record is devoid
of evidence pointing to guilt or contains evidence on a key element
of the offense [that is] so tenuous that a conviction would be
shocking.” Id. (citations and internal quotation marks omitted).
3
Under 18 U.S.C. § 2423(a), the intent that a minor engage in
prostitution need only be a “dominant motive” of the transportation
across state lines; it need not be the only motive. United States
v. Campbell, 49 F.3d 1079, 1082 (5th Cir. 1995) (citing Mortensen
v. United States, 322 U.S. 369, 374 (1944)).
The trial evidence shows that Diaz enticed the minor and
another girl to travel with him from their Arkansas hometown to
Houston by telling them that he would find them work there as
strippers. Within less than one hour after Diaz and the minor
checked into a motel in Houston, Diaz appeared with two other
pimps, brandished a handgun, and told the minor that she “was down
here to prostitute.” The minor testified that she was “afraid” to
disobey. That evening, Diaz and a second pimp took the minor to a
“modeling studio,” which in fact was a “whore house,” where the
minor signed a job application using false identification provided
by Diaz and had sex with men for money. The minor acknowledged
that she had never worked as a prostitute before and that it was
“apparent” that Diaz “knew how these modeling studios worked.” The
minor also testified that Diaz “knew what to do when [they] went”
inside the first of two studios at which she worked. This evidence
and reasonable inferences to be drawn from it were more than
sufficient to support the finding of fact that before leaving
Arkansas, Diaz had formed the intent for the minor to engage in
prostitution in Texas. See United States v. Haas, 171 F.3d 259,
265-66 (5th Cir. 1999) (criminal intent may be established by
circumstantial evidence).
4
Diaz asserts further that the district court erred in failing
to declare a mistrial when the minor testified that she was
“afraid” of Diaz because he had allegedly “done drive-bys” in their
Arkansas hometown. The district court’s denial of Diaz’s motion
for mistrial was not an abuse of discretion. United States v.
Millsaps, 157 F.3d 989, 993 (5th Cir. 1998). The comment was made
only one time, and the district court gave a sufficient curative
instruction. See id. Juries are presumed to follow such
instructions. Id. Diaz has not established that there was “a
significant possibility that the prejudicial evidence had a
substantial impact upon the jury verdict, viewed in light of the
entire record.” United States v. Paul, 142 F.3d 836, 844 (5th Cir.
1998).
Diaz next contends, again for the first time on appeal, that
the district court erred by answering several written jury notes
without ensuring that Diaz and his attorney were present. The
parties dispute whether the record even shows that Diaz and his
attorney were not present when the court entertained these notes;
there is nothing in the record to confirm their absence at those
times. (Diaz is represented by a new attorney on appeal.) But
even if we assume arguendo that Diaz and his attorney were not
present, we are satisfied that Diaz has not established plain
error, because he has failed to establish that the purported error
was anything but harmless. See United States v. Bieganowski, 313
F.3d 264, 293 (5th Cir. 2002), cert. denied, 123 S. Ct. 1956
(2003); Calverley, 37 F.3d at 162-64. He suggests that the court’s
5
answer to only one of five jury notes was unresponsive, but, even
with respect to the question posed in that particular note, the
court had already instructed the jury properly.
Diaz also urges that the district court abused its discretion
by giving an abbreviated Allen1 charge after the jury submitted a
note, several hours into its deliberations, stating that it was
deadlocked as to the count of conviction. As this contention is
raised for the first time on appeal, it too is reviewed for plain
error only.2 See Calverley, 37 F.3d at 162-64. The trial court
instructed the jury, inter alia, to return the following morning
and “spend at least 30 minutes or so deliberating on this issue and
then tell me as soon as possible whether or not you think you can
reach agreement as to that particular issue.” Although the court
failed explicitly to “make it plain” that each juror had a “duty
conscientiously to adhere to his own honest opinion,” see United
States v. Sylvester, 143 F.3d 923, 927 (5th Cir. 1998) (citations
and internal quotation marks omitted), the charge did not contain
the coercive elements that we have found impermissible under Allen.
See United States v. McClatchy, 249 F.3d 348, 359 (5th Cir. 2001);
United States v. Solomon, 565 F.2d 364, 365-66 (5th Cir. 1978). No
error is apparent, plain or otherwise.
AFFIRMED.
1
Allen v. United States, 164 U.S. 492, 501 (1896).
2
Diaz contends that he preserved this contention for
appellate review by moving for a mistrial as soon as he learned
that the jury was deadlocked. This did not absolve him of the
burden, however, of objecting to the propriety or adequacy of the
district court’s subsequent Allen charge.
6