IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 11, 2008
No. 06-40684
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREA GONZALEZ-PERALES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2628
Before GARWOOD, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
After Andrea Gonzalez-Perales was charged with transporting an illegal
alien for purposes of commercial advantage or private financial gain, in violation
of 8 U.S.C. § 1324, a jury found her guilty of the lesser-included offense of
transporting an illegal alien without commercial advantage or private financial
gain. She appeals her conviction and sentence, challenging several evidentiary
rulings and the jury instruction on the lesser-included offense. For the reasons
discussed below, we affirm.
*
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 R. 47.5, the court has determined that this opinion should not be published and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.
No. 06-40684
I. Facts
A. Gonzalez-Perales’s November 2005 Arrest for Transporting Three
Illegal Aliens
Border Patrol Agent Fernando Martinez testified at trial as follows. On
November 15, 2005, Andrea Gonzalez-Perales drove three female passengers to
the primary inspection lane of a border patrol checkpoint north of Laredo, Texas.
Agent Martinez conducted an immigration inspection there, inquiring into the
citizenship of the vehicle’s occupants. Gonzalez-Perales, a fluent English
speaker, stated that she was a resident alien. The three passengers claimed in
broken English to be United States citizens. Agent Martinez asked the
passengers in Spanish for the names of their birth hospitals, but the passengers
were unable to answer. Thereafter, he referred the vehicle to the secondary-
inspection area, where he and other agents interviewed the passengers and
ultimately determined that they were illegal aliens. Agent Martinez then
arrested Gonzalez-Perales and escorted her and the passengers into the
checkpoint office.
B. Gonzalez-Perales’s Post-Arrest Statements
Agent Martinez and his colleague, Agent Herman Marin, further testified
that upon her arrest, Gonzalez-Perales waived her Miranda rights and agreed
to speak with them. When questioned by Agent Martinez, Gonzalez-Perales first
stated that her passengers were nieces of her friend, Paolo, and that Paolo had
told her that his nieces were in the United States illegally. When questioned by
Agent Marin, however, Gonzalez-Perales claimed no knowledge of her
passengers’ illegal status and denied ever telling Agent Martinez otherwise.
Gonzalez-Perales explained to Agent Marin that she had come to Laredo
from Austin, Texas, the day before to pick up her divorce papers and to see her
ex-boyfriend. Meanwhile, Paolo had learned that she was in Laredo and had
asked her to take his three nieces to a Wal-Mart in San Antonio, Texas, on her
way back to Austin. Gonzalez-Perales agreed and told Paolo that she was
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No. 06-40684
staying at the Siesta Motel—a motel that, according to Agent Marin’s trial
testimony, had a reputation as a place where smugglers stash illegal aliens for
subsequent pickup.
The next morning, November 15, the three young women came to
Gonzalez-Perales’s motel room and knocked on the door. Gonzalez-Perales asked
them if they were Paolo’s nieces; they said yes; and she told them to stay in the
room while she left to get them some food.
C. Contreras-Puente’s Testimony
One of the illegal-alien passengers, Fabiola Beatriz Contreras-Puente,
testified at trial that she found a smuggler named Paolo to bring her illegally
from Mexico to the United States, and that her brother in Houston agreed to pay
him $1,000 upon her arrival in San Antonio. On November 14, Paolo drove her
and two other young women to Nuevo Laredo, Tamaulipas, Mexico, from where
they left the next morning with a guide who helped them cross the Rio Grande.
The guide then called someone to drive the young women to a motel. Each
of the women paid the driver $100. Gonzalez-Perales answered their knock at
the motel-room door and asked if they were Paolo’s nieces; they said yes, and
they all departed the motel together.
Contreras-Puente further testified that, shortly before the checkpoint,
Gonzalez-Perales asked the young women if they were Paolo’s nieces and they
said yes; but Contreras-Puente then stated that she was not Paolo’s niece but a
friend of the other women. In addition, Gonzalez-Perales twice told the young
women to say that they were United States citizens, but Contreras-Puente, who
does not speak English, was unable to say the words and could not answer the
agent’s questions. When the agent asked Contreras-Puente in Spanish about
her citizenship, she admitted that she was in the United States illegally from
Mexico. She also later testified that all three women were going to a house in
San Antonio and did not have plans to go to Wal-Mart.
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No. 06-40684
D. Gonzalez-Perales’s Involvement in the October 2005 Alien-
Transporting Encounter
Customs Officer Martina Ramos testified at trial that on October 5, 2005,
a male driver, with Gonzalez-Perales as the front passenger, drove a minivan to
the primary inspection lane of an international bridge that connects Laredo and
Nuevo Laredo. Officer Ramos asked Gonzalez-Perales about her citizenship, and
she claimed to be a United States citizen. Gonzalez-Perales stated that her two
young, female passengers were her daughters, and each passenger gave Officer
Ramos a birth certificate. Officer Ramos did not believe that the women were
Gonzalez-Perales’s daughters because Gonzalez-Perales’s clean appearance
contrasted with the dirty, muddy appearance of the two young women. Nor did
Officer Ramos believe Gonzalez-Perales’s story that she was bringing her
daughters to the United States for the first time and that the women had been
living with their grandmother in Mexico. Consequently, Officer Ramos referred
the vehicle to the secondary-inspection area.
Officer Ramos then fingerprinted the two young women and ran their
prints in the Customs IDENT/IAFIS computer system, which she testified she
and the other agents use frequently. She further testified about the computer
system as follows:
It’s a system operated by Customs. It’s called IDENT/IAFIS, where
all the apprehensions by Border Patrol, Customs, INS. And all the
people that we prosecute or send back, they have to be fingerprinted
and we have to enroll. So any time the aliens are fingerprinted, all
their record is going to come up there.
The computer check revealed that the two women had been stopped the day
before by Border Patrol for entry without documents. That encounter had been
entered into the computer and the women had been returned to Mexico without
prosecution. After the officers entered the new encounter into the computer
system, they confiscated the birth certificates, sent the two women back to
Mexico, and released Gonzalez-Perales and the driver into the United States.
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No. 06-40684
The defense did not present any evidence after the government rested its
case.
II. Discussion
Gonzalez-Perales argues that the district court erred by: (1) admitting
testimony regarding her involvement in the October 2005 alien-transporting
encounter because it was hearsay, a violation of the Confrontation Clause, and
a violation of Federal Rule of Evidence 404(b); (2) admitting “guilt by
association” testimony regarding the Siesta Motel’s reputation as a place where
smugglers stash illegal aliens for subsequent pickup; and (3) submitting a
pattern jury instruction on the lesser-included offense.
A. The October 2005 Alien-Transporting Encounter Testimony
1. The Public Records Hearsay Exception
For the first time on appeal, Gonzalez-Perales argues that Officer Ramos’s
testimony regarding the October encounter was inadmissible hearsay under
Federal Rule of Evidence 803(8) because the results of the Customs computer
system check involved matters observed by law enforcement in a criminal case.
At trial, Gonzalez-Perales objected to the admission of this testimony solely upon
the grounds of the Confrontation Clause and Federal Rule of Evidence 404(b).
Accordingly, because she now raises an argument that is different from the one
raised in the district court, this Court reviews her hearsay argument for plain
error. See United States v. Jimenez, 256 F.3d 330, 340 (5th Cir. 2001) (“When
a defendant . . . urges a different ground for the objection on appeal than before
the district court, we review for plain error.” (citing United States v. Heath, 970
F.2d 1397, 1407 (5th Cir. 1992))).
The public records hearsay exception provides that the following is
admissible despite the general prohibition against hearsay:
(8) Public records and reports. Records, reports, statements, or
data compilations, in any form, of public offices or agencies, setting
forth (A) the activities of the office or agency, or (B) matters
observed pursuant to duty imposed by law as to which matters there
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No. 06-40684
was a duty to report, excluding, however, in criminal cases matters
observed by police officers and other law enforcement personnel, or
(C) in civil actions and proceedings and against the Government in
criminal cases, factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of
information or other circumstances indicate a lack of
trustworthiness.
FED. R. EVID. 803(8).
It is well settled that “[c]ustoms . . . officials are ‘law enforcement
personnel’ within the meaning of [this rule].” United States v. Puente, 826 F.2d
1415, 1417 (5th Cir. 1987) (citation omitted). This Circuit makes a distinction,
however, between “law enforcement reports prepared in a routine, non-
adversarial setting, and those resulting from the arguably more subjective
endeavor of investigating a crime and evaluating the results of that
investigation.” United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985).
In other words, “documents recording routine, objective observations, made as
part of the everyday function of the preparing official or agency” are admissible
under Rule 803(8)(B), even if the documents are prepared by a police officer or
other law enforcement official. Id.
Here, the Customs computer information that the passengers had been
returned to Mexico was recorded by Officer Ramos as part of a routine,
administrative procedure in a non-adversarial setting. Officer Ramos testified
that she and the other officers use the Customs computer system frequently to
record encounters with aliens, including the aliens’ fingerprints, whether those
aliens are prosecuted or returned to Mexico. In addition, she testified that the
particular computer check at issue revealed that the two passengers had been
apprehended in the same clothing by Border Patrol for “[e]ntry without
documents” on October 4, 2005, that the encounter was recorded into the
computer system, and that the women were returned to Mexico without
prosecution.
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No. 06-40684
Gonzalez-Perales baldly asserts that while our precedent allows for the
admission of public records that “reflect objective facts,” the instant
IDENT/IAFIS records reflect “criminal interrogations and law enforcement
investigative measures.” To the contrary, the repetitive, everyday IDENT/IAFIS
notations are exactly the kind of “mechanically register[ed,] . . . unambiguous
factual matter[s]” that this Circuit has found to be inherently reliable.1 See id.
And “[t]here is no reason to believe that because this information was later
retrieved in connection with litigation, it is less reliable than when first
recorded.” Puente, 826 F.2d at 1418.
Accordingly, Officer Ramos’s testimony regarding the October alien-
transporting encounter was admissible under the public records hearsay
exception. Gonzalez-Perales has not shown any error, let alone plain error.
2. The Confrontation Clause
Gonzalez-Perales also asserts that the testimony regarding the October
alien-transporting encounter violated the Confrontation Clause. As discussed
above, however, because this evidence meets the public records hearsay
exception, it is not “testimonial” and, therefore, does not implicate the
Confrontation Clause. See United States v. Lopez-Moreno, 420 F.3d 420, 437
(5th Cir. 2005) (noting that computer records that satisfy the public records
hearsay exception are non-testimonial such that the requirements of the
Confrontation Clause do not apply).
3. Federal Rule of Evidence 404(b)
Gonzalez-Perales further contends that the prosecutor’s closing argument
was improper because it exceeded the limited purposes for which the testimony
regarding the October encounter was admitted under Federal Rule of Evidence
1
What is more, no computer records or printouts were even admitted in the instant case; rather, Officer Ramos
simply testified about the information retrieved from the IDENT/IAFIS. In addition, because Officer Ramos never
testified about any statements made by the passengers, there is no hearsay-within-hearsay problem either.
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No. 06-40684
404(b).2 Because Gonzalez-Perales did not timely object, this Court reviews her
claim of improper closing argument for plain error. United States v. Thompson,
482 F.3d 781, 785 (5th Cir. 2007) (“As [the defendant] failed to object timely to
the prosecutor’s comments, we review them for plain error.” (footnote omitted)).
We hold that the prosecutor’s closing argument did not violate Rule 404(b).
2
Gonzalez-Perales challenges the following three portions of the prosecutor’s closing argument:
(1) . . . What’s important is she was caught a month before trying to smuggle aliens in.
That’s what you can infer that she was doing. Now, if someone has tried to smuggle aliens
across the Rio Grande before and you have three people showing up at your hotel who
wanted a ride and they all had wet pants, what do you think? Do you think they just came
across the river? It’s probably a pretty good chance. And you can look at that piece of
evidence and the circumstance in connection with all the other pieces of evidence.
(2) The way to [ensure that the alien smuggling goes smoothly] is to hire someone
who knows what they’re doing and to make sure they get there. And here’s the defendant.
Does she know what she’s doing? Well, she’s experienced. She did it just one month
before. So, she’d probably be a good person to hire . . . .
The way [alien smugglers] do it is not to trick someone into taking your load north
and it’s not to ask for favors. It’s to pay someone who knows what they’re doing, who
knows they’re aliens and who’s experienced and is going to do it right. That’s how you
know that she knows what she’s doing.
(3) . . . She’s a pro. That’s why she’s hired to do this. She did it once before, a month
before. That’s . . . exactly why she was hired.
. . . You only get your money if the aliens make it to San Antonio. And so if that’s
your goal, who are you going to hire? You’re going to hire someone who knows what
they’re doing and you’re going to hire someone who knows they’re aliens and you’re going
to hire someone who’s experienced. You know she’s experienced. You heard evidence of
that.
The third portion was the prosecutor’s response to defense counsel’s closing argument that the driver had not
given any instructions about what to do or say upon dropping the aliens off at the motel room. It was at that
point—after the prosecutor had already argued the October encounter evidence without objection in his initial closing
and earlier in the rebuttal closing—that defense counsel belatedly objected:
Your Honor, I’d object to this line of argument. It’s inappropriate. That it’s argument to
the jury. It’s not part of the law. That they be given an instruction that it’s supposed to be
considered for a limited purpose only.
As requested, the court instructed the jury as follows:
Ladies and gentleman—your objection is overruled—but let me emphasize that the evidence
submitted to you as to the prior offense was submitted to you for a limited purpose that is defined for
you in the instructions and the law, which you are bound to follow the Court’s instructions for
purpose that the evidence should be considered for.
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No. 06-40684
First, the prosecutor argued that based on the October encounter testimony
admitted at trial, the jury could “infer” that Gonzalez-Perales “was caught a
month before trying to smuggle aliens in.” The prosecutor argued that the prior
incident established her intent to transport the three alien passengers illegally
in November 2005, her knowledge of how to do so, and her absence of mistake
in doing so—all of which fall within the bounds of Rule 404(b). See United States
v. Washington, 44 F.3d 1271, 1278 (5th Cir. 1995) (“[A] prosecutor is not
prohibited from recit[ing] to the jury those inferences and conclusions he wishes
[the jury] to draw from the evidence so long as those inferences are grounded
upon the evidence.” (internal quotation marks and footnote omitted)).
Second, the prosecutor’s statement regarding Gonzalez-Perales’s
knowledge of alien smuggling constituted a fair response to and explanation of
defense counsel’s closing argument that the driver had not given any
instructions about what to do or say upon dropping the aliens off at the motel.
See United States v. Vaccaro, 115 F.3d 1211, 1217 (5th Cir. 1997) (“‘The
prosecution [is] entitled to make a fair response in rebuttal’ to the arguments of
defense counsel.” (quoting United States v. Williams, 822 F.2d 512, 518 (5th Cir.
1987))). And this Court assumes that the jury was sufficiently competent to
discount the prosecutor’s hyperbolic characterization of Gonzalez-Perales as a
“pro.” See id. at 1216 (“[W]e assume that the jury has the common sense to
discount the hyperbole of an advocate, discounting the force of the argument.”).
Third, as Gonzalez-Perales requested in her belated objection, the district
court instructed the jury to consider the testimony regarding the October
encounter for the limited purposes specified in the jury instructions. The jury
instructions showed that this testimony was admitted for the limited purposes
of showing state of mind, intent, knowledge, plan, preparation for the
commission of a crime, or absence of mistake. As a result, even assuming a risk
of prejudice, the district court’s cautionary instruction effectively mitigated any
potential harm. See Zafiro v. United States, 506 U.S. 534, 540 (1993) (noting
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No. 06-40684
that a potential risk of prejudice can be cured with proper instructions, and that
“juries are presumed to follow their instructions” (internal quotation marks and
citation omitted)); see also United States v. Levine, 80 F.3d 129, 136 (5th Cir.
1996) (holding that the district court’s curative instructions minimized any
prejudice arising from the prosecutor’s closing argument).
Accordingly, the prosecutor’s closing argument regarding the October
encounter did not violate Rule 404(b). Gonzalez-Perales has failed to show any
error, much less plain error.3
B. Testimony Regarding the Siesta Motel’s Reputation
At trial, Gonzalez-Perales objected to testimony regarding the Siesta
Motel’s reputation as a place where smugglers stash illegal aliens for subsequent
pickup on the grounds of relevancy and undue prejudice. She argues that this
evidence allowed the jury to find her “guilty by association” with the motel.4 We
review the district court’s evidentiary ruling for abuse of discretion. United
States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th Cir. 2002) (citation omitted).
Our precedent is well settled that the Government may “not attempt to
prove a defendant’s guilt by showing that she associates with ‘unsavory
characters.’” United States v. Polasek, 162 F.3d 878, 884 (5th Cir. 1998) (citation
3
Given that the evidence was uncontradicted and unchallenged that Gonzalez-Perales transported illegal alien
Contreras-Puente, the only issue as to the offense of conviction was Gonzalez-Perales’s knowledge or state of mind at
the time.
4
On direct examination, Officer Marin testified about the Siesta Motel’s reputation as follows:
Q. . . . And based on your experience in that four years and seven months as a Border Patrol
officer, have you come to learn if there’s any particular reputation of the Siesta Motel?
A. Yes, sir.
Q. What is that reputation?
A. It’s a place where they stash a lot of illegal aliens.
Q. Who is “they”?
A. The smugglers. Usually the smugglers put illegal aliens in that motel to then go later on
and pick them up.
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No. 06-40684
omitted). The Government correctly argues that this precedent involves guilt by
association with particular people rather than with a particular place. Even
assuming arguendo, however, that this precedent should be applied in the
context of a place rather than a person, and that therefore it was error to admit
the testimony regarding the Siesta Motel’s reputation for alien smuggling, any
such error was harmless. See Gutierrez-Farias, 294 F.3d at 663 (“Although we
find that the district court abused its discretion by permitting the challenged
portion of [the agent’s] testimony, we nonetheless affirm [the defendant’s]
conviction because the error was harmless.”). The testimony comprised a small
part of an otherwise strong case given Gonzalez-Perales’s inconsistent responses
to the agents regarding her knowledge of the passengers’ illegal-alien status, the
Rule 404(b) evidence of her involvement in the October encounter, and, most of
all, Contreras-Puente’s testimony regarding Gonzalez-Perales’s role in the
smuggling scheme. See id. (holding that the district court’s erroneous admission
of challenged testimony was harmless in part because “the statements made by
[the agent] constituted only a small portion of an otherwise strong case” (citation
omitted)).
Accordingly, the district court’s admission of the testimony regarding the
Siesta Motel’s reputation was, at most, harmless error.
C. The Pattern Jury Instruction On the Lesser-Included Offense
In the district court, Gonzalez-Perales objected to submission of
instructions for both alien transporting for financial gain and simple alien
transporting and argued for submission of only the lesser offense. She did not
object, however, that this Circuit’s pattern jury instruction on lesser-included
offenses was erroneous. Accordingly, we review her argument for plain error.
See United States v. Daniels, 281 F.3d 168, 183 (5th Cir. 2002) (“When a
defendant has failed to properly preserve an issue for appeal, this court will only
review it for plain error.” (citing United States v. Caucci, 635 F.2d 441, 447 (5th
Cir. 1981))).
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No. 06-40684
Gonzalez-Perales contends that the district court should not have
submitted the pattern jury instruction on lesser-included offenses because it
allows for consideration of the lesser offense if after “reasonable efforts” the jury
cannot agree on the greater offense.5 Instead, she argues, the court should have
submitted an “acquittal-first” instruction, which requires the jury to
unanimously agree to acquit on the greater offense before considering the lesser
offense. She relies on United States v. Williams, 449 F.3d 635 (5th Cir. 2006),
which she claims “firmly placed [this Court] in the ‘acquittal first’ camp.”
5
The district court instructed the jury on the elements of the greater offense of alien transporting for financial
gain as follows:
For you to find the defendant guilty of this crime, you must first be convinced that the
government has proven each of the following beyond a reasonable doubt:
First: That an alien had entered or remained in the United States in violation of law;
Second: The defendant knew or recklessly disregarded the fact that the alien was in the
United States in violation of law;
Third: That the defendant transported the alien within the United States with the intent to
further the alien’s unlawful presence; and
Fourth: That the offense was committed for the purpose of commercial advantage or private
gain.
The court later submitted this circuit’s pattern jury instruction on lesser-included offenses:
We have just talked about what the government has to prove for you to convict the
defendant of the crime charged in the indictment, transportation of illegal aliens for commercial
advantage or private financial gain by means of a motor vehicle. Your first task is to decide whether
the government has proved beyond a reasonable doubt that the defendant committed that crime. If
your verdict on that is guilty, you are finished. But if your verdict is not guilty, or if after all
reasonable efforts you are unable to reach a verdict, you should go on to consider whether the
defendant is guilty of transportation of illegal aliens by means of a motor vehicle. You should find
the defendant guilty of transportation of illegal aliens by means of a motor vehicle if the government
has proved beyond a reasonable doubt that the defendant did everything we discussed before except
that it did not prove that the defendant committed the offense for commercial advantage or private
financial gain.
The court also instructed the jury on the first three elements of alien transporting recited above, and submitted a verdict
form that tracked the jury instructions.
During the deliberations, the court advised the parties of a jury note that the jury was deadlocked on the first
question, but had reached a verdict on the second question, and that the jury wanted to know whether it had to decide
the first question. The court instructed the jury to return to the jury room and make sure that it was unable to reach
a verdict on the first question, and if so, then to answer the second question. The jurors returned a verdict of guilty
of simple alien transporting.
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No. 06-40684
Gonzalez-Perales is correct that Williams quotes with approval the
proposition that “‘[w]hen a greater and lesser offense are charged to the jury, the
proper course is to tell the jury to consider first the greater offense, and to move
on to consideration of the lesser offense only if they have some reasonable doubt
as to the guilt of the greater offense.’” Id. at 641 (quoting Fuller v. United States,
407 F.2d 1199, 1227 (D.C. Cir. 1968) (en banc)). Williams did so, however, not
to address the propriety of a “reasonable-efforts” instruction versus an
“acquittal-first” instruction, but rather to explain that the district court there
had reversed the order of consideration of greater and lesser offenses by
improperly instructing the jury to consider the lesser offense first and then the
greater offense. See id. Even then, the reason that Williams vacated the
defendant’s conviction was not because of this erroneous ordering but because
the district court entered a judgment of guilty on the greater offense despite the
fact that the jury did not unanimously agree to every element of that offense.
See id. at 647-49. Williams, therefore, does not apply.
Although Gonzalez-Perales cites several cases from other jurisdictions that
use the “acquittal-first” instruction instead of the “reasonable-efforts”
instruction, she has not pointed to any case from this Circuit that invalidates the
longstanding pattern jury instruction at issue. In addition, although she
contends that she should have been given the choice between the two types of
instructions, she never requested that the district court submit anything other
than this Circuit’s “reasonable-efforts” pattern jury instruction. See United
States v. Tsanas, 572 F.2d 340, 346-47 (2d Cir. 1978) (holding that neither the
acquittal-first instruction nor the reasonable-efforts instruction is “wrong as a
matter of law. The court may give the one that it prefers if the defendant
expresses no choice,” and that, as a result, defense counsel’s failure to request
the instruction advocated on appeal did not amount to plain error).
Accordingly, the district court did not plainly err in submitting the pattern
jury instruction on the lesser-included offense.
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III. Conclusion
Finding no reversible error in the district court’s rulings, we AFFIRM.
14