UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4506
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROGER HEDILBERTO MERAZ-FUGON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:16-cr-00018-LO-1)
Submitted: January 31, 2017 Decided: February 10, 2017
Before FLOYD and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Todd M. Richman,
Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Jonathan P.
Robell, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Roger Hedilberto Meraz-Fugon of
importation of cocaine, in violation of 21 U.S.C. § 952(a)
(2012). The district court sentenced Meraz-Fugon to 16 months
in prison and 3 years of supervised release. Meraz-Fugon
appeals, asserting that the trial court erred in (1) declining
to instruct the jury on his theory of defense; giving a coercive
jury charge of the type condemned in Allen v. United States, 164
U.S. 492 (1896); (3) responding to several questions from the
jury; and (4) permitting the cumulative effect of these errors
to deprive him a fair trial. Finding no error, we affirm.
“In general, we defer to a district court’s decision to
withhold a defense in a proposed jury instruction in light of
that court’s superior position to evaluate evidence and
formulate the jury instruction.” United States v. Powell, 680
F.3d 350, 356 (4th Cir. 2012) (alterations and internal
quotation marks omitted). Reversible error in refusing to give
such an instruction results “only when the instruction (1) was
correct; (2) was not substantially covered by the court’s charge
to the jury; and (3) dealt with some point in the trial so
important, that failure to give the requested instruction
seriously impaired the defendant’s ability to conduct his
defense.” United States v. Passaro, 577 F.3d 207, 221 (4th Cir.
2009) (internal quotation marks omitted). A “district court
2
d[oes] not abuse its discretion” by refusing to give a proposed
instruction that was “clearly covered by the instructions
given,” just because “a more specific instruction might have
been desirable to” the defendant. United States v. Green, 599
F.3d 360, 378 (4th Cir. 2010). Here, assuming arguendo that
Meraz-Fugon’s proposed instruction was a correct statement of
the law, we conclude that the substance of the instruction was
substantially covered by the instructions given to the jury and
that the district court’s failure to give the requested
instruction did not impair Meraz-Fugon’s ability to conduct his
defense.
Next, Meraz-Fugon contends that the district court gave a
coercive Allen charge after the jury informed the court that it
was deadlocked and could not reach a verdict. He argues that
the Allen charge given was coercive to jurors in the minority
and that the instruction improperly made reference to the costs
of retrial. We review the content of an Allen charge for abuse
of discretion. United States v. Cornell, 780 F.3d 616, 625 (4th
Cir. 2015), cert. denied, 136 S. Ct. 127 (2015). In determining
whether an Allen charge has an impermissible coercive effect on
jury deliberations, we consider the content of the instruction
as well as the context. Jenkins v. United States, 380 U.S. 445,
446 (1965).
3
The traditional, “pure” Allen charge, “informed the jury
(1) that a new trial would be expensive for both sides; (2) that
there is no reason to believe that another jury would do a
better job; (3) that it is important that a unanimous verdict be
reached; and (4) that jurors in the minority should consider
whether the majority’s position is correct.” United States v.
Burgos, 55 F.3d 933, 936 (4th Cir. 1995). Based on the concern
that the instruction to the minority members may be coercive,
this Court has “strongly recommended” the modification of any
Allen charge to “address all jurors, both in the minority and in
the majority, to give equal consideration to each other’s views”
so that the charge is “less coercive with respect to jurors in
the minority.” United States v. Hylton, 349 F.3d 781, 788 (4th
Cir. 2003) (internal quotation marks omitted). “The principal
concern” in reviewing Allen charges “is to ensure that they
apply pressure to the jury in a way that preserves all jurors’
independent judgments and that they do so in a balanced manner.”
Id. Thus, “an Allen charge must not coerce the jury, and it
must be fair, neutral and balanced.” United States v. Cropp,
127 F.3d 354, 359-60 (4th Cir. 1997).
After reviewing the record, we conclude that the district
court’s charge was fair, neutral and balanced and was not
coercive to the minority jurors. The district court’s brief
reference to the costs of a retrial “did not place undue
4
emphasis on this factor when considered in the context of the
entire instruction[;] [n]or was it unduly coercive.” United
States v. West, 877 F.2d 281, 291 (4th Cir. 1989). Nor did the
district court judge’s knowledge of the jury’s numerical
division render the charge coercive in this instance,
particularly in light of the fact that the jury’s note
indicating they were divided did not identify whether the
majority favored conviction or acquittal. Furthermore,
supplemental instructions by the court and further deliberation
by the jury occurred between receipt of that note and the note
triggering the Allen charge. Finally, the speed with which a
jury returns a verdict after receiving a modified Allen charge
is not decisive. See, e.g., Lowenfield v. Phelps, 484 U.S. 231,
235, 240-41 (1988) (fact that jury returned its verdict 30
minutes after court gave supplemental instruction was not
necessarily indicative of coercion); United States v. Chigbo, 38
F.3d 543, 545-46 (11th Cir. 1994) (affirming conviction when
verdict returned 15 minutes after the instruction).
Next, Meraz-Fugon argues that the district court’s answers
to the jury’s questions (1) created confusion and improperly
steered the jury away from considering his theory of defense and
(2) failed to give him the opportunity to address the jury
regarding the supplemental instructions. This Court reviews the
form and content of a district court’s response to the jury’s
5
question for an abuse of discretion. United States v. Burgess,
684 F.3d 445, 453 (4th Cir. 2012). “[T]he necessity, extent and
character of any supplemental instructions to the jury are
matters within the sound discretion of the district court.”
United States v. Horton, 921 F.2d 540, 546 (4th Cir. 1990)
(citations omitted). “[T]he trial court must take care, in
responding to a jury question, not to encroach upon its fact-
finding power.” United States v. Cooper, 482 F.3d 658, 664 (4th
Cir. 2007). “In responding to a jury’s request for
clarification on a charge, the district court’s duty is simply
to respond to the jury’s apparent source of confusion fairly and
accurately without creating prejudice.” United States v.
Foster, 507 F.3d 233, 244 (4th Cir. 2007) (brackets and internal
quotation marks omitted). “An error requires reversal only if
it is prejudicial in the context of the record as a whole.” Id.
We have reviewed the record and conclude that the trial
court’s supplemental instructions were neither incorrect nor
misleading. Meraz-Fugon, who never sought an opportunity below
to address the jury concerning the supplemental instructions,
has failed to demonstrate any prejudice caused by the lack of
such opportunity.
Because we find no error, individually or cumulatively, we
affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately
6
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
7