UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60464
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL JEFFERSON,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Mississippi
July 16, 2001
Before EMILIO M. GARZA and PARKER, Circuit Judges, and HINOJOSA,
District Judge.*
ROBERT M. PARKER, Circuit Judge:
Michael Jefferson was tried and convicted by a jury in the
United States District Court for the Southern District of
Mississippi for committing the offense of aiding and abetting and
carjacking in violation of 18 U.S.C. §§ 2 and 2119. Jefferson
*
District Judge of the Southern District of Texas, sitting by
designation.
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received a sentence of 168 months imprisonment, a three year term
of supervised release, restitution of $2,865 and a $100 special
assessment. He now appeals that conviction and sentence. For the
reasons below, we AFFIRM Jefferson’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
On February 27, 1999, Jefferson and Cornell Campbell
approached Leonard Miller, a security guard at the DeVille
Apartments where Jefferson and Campbell lived, about purchasing for
$300 Miller’s .357 revolver, which was then in the possession of
Miller’s brother at another apartment complex. Jefferson and
Miller did not come to an agreement on the purchase. Nevertheless,
Miller requested Jefferson to take Miller’s car and go retrieve the
handgun from his brother as Miller could not leave his guard booth
to go get the handgun.
After retrieving the handgun, Jefferson and Campbell drove to
the Metrocenter Mall in Jackson, Mississippi, where Dorothy
Touchberry sat alone in a rented green 1998 Subaru car parked in
front of Dillards department store. While Touchberry waited on her
granddaughter to return from inside the mall, a single individual
jerked open the car door, grabbed Touchberry by the hair and put a
gun in her face. Touchberry wrestled with the assailant and
managed to get out of the car for a moment, only to be subsequently
struck on the back of the head and forced back into the vehicle.
Touchberry then feigned being knocked out while she quietly tried
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to locate the door handle. Upon finding the handle, Touchberry
proceeded to open the door and jumped out of the moving vehicle as
the assailant, followed by Miller’s car, fled in the green Subaru
containing Touchberry’s purse and other personal effects.
While making their get away, the driver of Miller’s car lost
control on a wet road as he approached a stop light and collided
into the back of the green 1998 Subaru causing extensive damage to
the rear of the Subaru and the front of Miller’s car. The driver
then abandoned Miller’s car at the intersection where police later
recovered it. In the days following the carjacking, someone used
Touchberry’s credit cards to purchase two video cameras, other
electronic equipment, and miscellaneous items.
On March 3, 1999, police arrested Jefferson inside the Union
Planter’s Bank as he attempted to obtain money from Touchberry’s
account. At the time of arrest, Jefferson possessed one of
Touchberry’s checks made payable to Michael Jefferson in the amount
of $700. Additionally, police arrested Campbell as he sat in the
passenger seat of a damaged green 1998 Subaru parked outside the
bank in the drive through lane. Inside the Subaru police found two
video cameras, a credit card receipt on Touchberry’s account for
the video cameras, Miller’s .357 revolver, and other items.
Campbell testified that Jefferson actually committed the
carjacking offense and that he, Campbell, only watched and drove
Miller’s car from the mall. Touchberry testified that she did not
recognize Jefferson as being her attacker but did identify
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Campbell, from a video tape made by Jefferson and Campbell and left
in one of the video cameras in the Subaru.
While delivering the verdict, the jury foreperson stated that
the jury had reached a unanimous decision. The jury foreperson
then passed the verdict form to the court security officer at which
time the Clerk read aloud the form of the verdict finding Jefferson
guilty as charged by a unanimous decision. The court then
proceeded to poll each juror, “whether this is your verdict”,
whereupon all twelve jurors answered affirmatively. Then, the
following exchange took place:
UNIDENTIFIED JUROR: I said guilty, but I do – I have reservations.
THE COURT: Is this your verdict?
UNIDENTIFIED JUROR: (Juror nods head in affirmative response.)
THE COURT: It is unanimous. The jury has found the defendant
guilty as charged.
Jefferson argues on appeal that 1) the verdict of the jury was
not unanimous, 2) the sentence was erroneously enhanced by a
finding that the victim was abducted, 3) the government was
erroneously allowed to make a Golden Rule argument during closing,
4) that he, Jefferson, was entitled to an adjustment in sentencing
for acceptance of responsibility, 5)that the sentence was
erroneously enhanced by a finding that a gun was “otherwise used”
as defined in U.S.S.G. § 2B3.1(b)(2)(B), 6)that the sentence was
erroneously enhanced by a finding that the victim received bodily
injury as defined in U.S.S.G. § 2B3.1(b)(3)(A), 7) the government
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was erroneously allowed to argue that its evidence was undisputed
and to otherwise comment on the fact that he, Jefferson, did not
testify, and 8)the conviction was not adequately and sufficiently
supported by the weight of the evidence.
UNANIMITY OF THE VERDICT
Jefferson argues that a juror’s expression of reservations
concerning her verdict during the polling of the jury indicated a
lack of unanimity and the subsequent questioning employed by the
trial judge was in violation of FED.R.CRIM.P. 31. Furthermore,
Jefferson argues that the court erred in denying his motion for new
trial on the grounds that the jury’s verdict was not unanimous. We
review these claims for abuse of discretion. United States v.
Asibor, 109 F.3d 1023 (5th Cir. 1997); United States v. McWain,
243 F.3d 871 (5th Cir. 2001).
In pertinent part, FED.R.CRIM.P. 31 states:
(a) Return. The verdict shall be unanimous. It shall be
returned by the jury to the judge in open court.
(d) Poll of Jury. After a verdict is returned but before the
jury is discharged, the court shall, on a party’s request, or
may on its own motion, poll the jurors individually. If the
poll reveals a lack of unanimity, the court may direct the jury
to deliberate further or may declare a mistrial and discharge
the jury.
The purpose of a jury poll
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“is to give each juror an opportunity, before theverdict [sic]
is recorded, to declare in open court his assent to the verdict
which the foreman has returned and thus to enable the court and
the parties to ascertain with certainty that a unanimous
verdict has in fact been reached and that no juror has been
coerced or induced to agree to a verdict to which he had not
fully assented.”
United States v. Sexton, 456 F.2d 961, 966 (5th Cir. 1972)
(citations omitted).
In the instant case, the jury deliberated for more than three
hours before the jury foreperson announced that they had reached a
unanimous decision. The form of the verdict, signed by all twelve
members of the jury was read aloud in open court. “We the jury
find the defendant, Michael Jefferson, guilty as charged. So say
we all . . . .” Upon its own motion, the court then polled all
twelve members of the jury individually, “whether this is your
verdict” to which all twelve jurors answered affirmatively. Only
after this did a juror indicate that she had voted guilty but had
reservations. Upon hearing the juror express that she had
reservations, the court inquired of the juror, “[i]s this your
verdict?” whereupon the juror nodded her head affirmatively. The
court then received, announced and recorded the verdict.
Jefferson argues that the trial judge’s questioning of a juror
subsequent to the polling was an abuse of discretion in violation
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of FED.R.CRIM.P. 31(d) as the expression of reservations by the
juror indicated a lack of unanimity and therefore, the trial
judge’s only options were to direct the jury to deliberate further
or declare a mistrial and discharge the jury. In support of this
contention, Jefferson cites a litany of cases where a verdict has
been found to lack unanimity due to inconsistencies between
verdicts rendered by individual jurors and statements made during
a jury polling. Cook v. United States, 379 F.2d 966 (5th Cir.
1967); United States v. Deerman, 837 F.2d 684 (5th Cir. 1988);
United States v. Sexton, 456 F.2d 961 (5th Cir. 1972); United
States v. Edwards, 469 F.2d 1362 (5th Cir. 1972).
The instant case is distinguishable from the cases cited by
Jefferson because a juror stated that she had reservations only
after twice delivering a guilty verdict and then subsequently
affirmed her verdict of guilty. Upon hearing the juror express
reservations, the trial judge inquired as to whether the juror’s
verdict was truly one of guilty. The juror did not dissent, fail
to vote in the deliberations, express doubt, withdraw her verdict,
or do anything else that revealed a lack of unanimity. Rather, she
affirmed the guilty verdict.
Prior to deliberations, the jury was given instructions
concerning the standard of beyond a reasonable doubt. While a
juror’s expression of reservations may indicate the need for
further inquiry to ascertain with certainty that the juror assents
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to the verdict as rendered, simply expressing reservations in
conjunction with a guilty verdict, in and of itself, is not
sufficient to indicate a lack of unanimity. The standard of beyond
a reasonable doubt does not require a juror to find with absolutely
certainty that a defendant is guilty. A juror may have
reservations and still find the evidence presented to be sufficient
to meet the burden established by the standard of beyond a
reasonable doubt. United States v. Antwine, 873 F.2d 1144, 1148
(8th Cir. 1989).
“In a trial by jury in a federal court, the judge is not a
mere moderator, but is the governor of the trial for the purpose of
assuring its proper conduct and of determining questions of law.
Heron v. Southern Pac. CO., 283 U.S. 91, 95, 51 S.Ct. 383, 384, 75
L.Ed. 857 “If truth and fairness are not to be sacrificed, the
judge must exert substantial control over the proceedings.”
Geeders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 1335, 47
L.Ed.2d 592. Here, prompted by the juror’s guilty verdict and
expression of reservations, the trial judge’s inquiry to ascertain
with certainty the juror’s assent to the guilty verdict was an
appropriate exercise of control over the trial proceedings. The
trial court correctly denied Jefferson’s motion for new trial and
therefore, we find no abuse of discretion.
ABDUCTION
Jefferson asserts that the trial court erred in administering
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a four-level sentencing increase for abduction pursuant to U.S.S.G.
§ 2B3.1(b)(4)A. “We review the application of the sentencing
guidelines de novo and the district court’s findings of fact for
clear error.” United States v. Hawkins, 87 F.3d 722, 725 (5th Cir.
1996) (citation omitted).
Jefferson argues that there was no abduction because
Touchberry was not moved from one location to another but rather
she got out of her vehicle, fell back into the vehicle, and then
got out of the vehicle again before it moved an appreciable
distance. “ ‘Abducted’ means that a victim was forced to accompany
an offender to a different location.” Hawkins, 87 F.3d at 726
(citation omitted). Interpretation of the term “a different
location” is to be applied on a case by case basis to the
particular facts presented and thus is flexible and susceptible of
multiple interpretations. Hawkins, 87 F.3d at 728-29. Here, the
assailant jerked the car door open while Touchberry was inside,
grabbed Touchberry by the hair and put a gun in her face. After
wrestling with the assailant and managing to get out of the car,
the assailant subsequently struck Touchberry on the back of the
head and forced her back into the vehicle. As the assailant
proceeded to flee in Touchberry’s car, she managed to escape from
the vehicle. We find movement of Touchberry to constitute movement
to “a different location” sufficient to support a finding of an
abduction for purposes of sentence enhancement.
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GOLDEN RULE ARGUMENT
Jefferson next argues that the district court erred in denying
his motion for new trial based upon prejudicial remarks resulting
from the government’s use of a Golden Rule argument made during
closing argument. We review denial of motion for a new trial based
upon prejudicial remarks made by the government during closing
argument for abuse of discretion. United States v. Thomas, 120
F.3d 564, 573-74 (5th Cir. 1997). The focus is on whether the
prosecution’s statement, “[i]t could have been any woman in this
courtroom, any woman in this city” is sufficiently prejudicial to
warrant the granting of a new trial. Even assuming that the
statement violated the Golden Rule, we do not find it to be
sufficiently prejudicial to warrant the granting of a new trial
under all the facts and circumstances of this case. Therefore, we
find no abuse of discretion in denying Jefferson’s motion for new
trial.
ACCEPTANCE OF RESPONSIBILITY
Whether the district court erred in denying Jefferson a two-
level decrease in the offense level for acceptance of
responsibility is reviewed under the standard of great deference.
United States v. Vital, 68 F.3d 114, 121 (5th Cir. 1995).
In a statement made during the presentence interview,
Jefferson claims to accept responsibility “for [his] participation
in the crime of aiding and abetting” because he witnessed the
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incident but did not call the police. However, Jefferson maintains
that he only knew that a car was going to be stolen, he did not
know that a carjacking was going to take place and he did not
commit a carjacking. Furthermore, in the presentence report
(“PSR”), Jefferson states, “my reason for going to trial was mainly
to prove to my family that I didn’t commit a carjacking.”
Jefferson has not admitted the conduct comprising the offense of
carjacking and thus has not accepted responsibility. Therefore, we
find no error on the part of the district court in denying a two-
level reduction in the offense level for acceptance of
responsibility.
OTHERWISE USING A FIREARM
The trial court imposed a six-level sentencing increase
pursuant to U.S.S.G. § 2B3.1(b)(2)B for ‘otherwise using’ a
firearm. Jefferson argues that the firearm was not otherwise used
but only brandished and thus the applicable sentence enhancement
for brandishing a firearm is not a six-level increase but rather a
five-level increase pursuant to U.S.S.G. § 2B3.1(b)(2)C. The
application of the sentencing guidelines are reviewed de novo and
the district court’s findings of fact are reviewed for clear error.
United States v. Hawkins, 87 F.3d 722, 725 (5th Cir. 1996)
(citation omitted). “We have held that making threats while
brandishing a firearm constitutes ‘otherwise using’ a firearm.”
United States v. Burton, 126 F.3d 666, 678 (5th Cir. 1997)
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(citation omitted). Touchberry was clearly grabbed by the hair and
had a gun stuck in her face. Furthermore, Jefferson’s PSR
indicates that the suspect told the victim “I’m going to kill you,
you white ho.” Here, the threat of death to Touchberry in
conjunction with the brandishing of the firearm constitutes
‘otherwise using’ a firearm. Therefore, we find no error on the
part of the district court in administering a six-level enhancement
in the offense level.
BODILY INJURY
Jefferson complains of the two-level sentencing increase
pursuant to U.S.S.G. § 2B3.1(b)(3)A, due to a finding that
Touchberry received bodily injuries. Jefferson contends that the
district court erred in administering a two-level sentence
enhancement because there is no evidence that Touchberry received
any bodily injury and alternatively, that a bodily injury
enhancement is not applicable because the indictment against him
did not allege any bodily injury. “We review the application of
the sentencing guidelines de novo and the district court’s findings
of fact for clear error.” United States v. Hawkins, 87 F.3d 722,
725 (5th Cir. 1996) (citation omitted).
“[I]f no relevant affidavits or other evidence is submitted to
rebut the information contained in the PSR, the court is free to
adopt its findings without further inquiry or explanation.” United
States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995). Here, the PSR
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indicates that Touchberry “received an injury to her head . . .
described as a ‘knot’, in addition to cuts, scrapes, and bruises.”
Furthermore, it is now well settled in this circuit that “a fact
used in sentencing that does not increase a penalty beyond the
statutory maximum need not be alleged in the indictment and
prove[n] to a jury beyond a reasonable doubt.” United States v.
Keith, 230 F.3d 784, 787 (5th Cir. 2000). Here, bodily injury (as
opposed to serious bodily injury) is not an element of the crime of
carjacking under 18 U.S.C. § 2119, but rather a fact used in
determining the appropriate sentence. Jefferson’s total offense
level including the sentencing enhancement for bodily injury
pursuant to U.S.S.G. § 2B3.1(b)(3)(A) was 34 with a criminal
history category of 2 and resulted in a sentence of 168 months.
Jefferson’s sentence is below the statutory maximum of 180 months
applicable to 18 U.S.C. § 2119. Therefore, we find no error in the
district court’s administration of a sentence enhancement for
bodily injury pursuant to U.S.S.G. § 2B3.1(b)(3)(A).
UNDISPUTED EVIDENCE AND FAILURE TO TESTIFY
Jefferson next asserts that the district court erred in
denying his motion for new trial based upon prejudicial remarks
made during closing argument by the government concerning the
government’s undisputed evidence and Jefferson’s failure to
testify. We review denial of motion for a new trial based upon
prejudicial remarks made by the government during closing argument
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for abuse of discretion. United States v. Thomas, 120 F.3d 564,
573-74 (5th Cir. 1997).
Specifically, Jefferson points to the prosecution’s statements
such as it’s not disputed that two people were at the mall at the
time of the carjacking, it’s not disputed that Jefferson drove
around Greenville in the stolen car that was carjacked, and its not
disputed that Jefferson took Touchberry’s checks to the bank to
cash them. Jefferson argues that these statements were designed to
point out to the jury that Jefferson did not take the witness stand
to defend himself and thus are prejudicial. “While it is improper
to comment upon the failure of a defendant to take the stand, it is
well established that one may point out that the testimony of
witnesses is uncontradicted.” United States v. Jennings, 527 F.2d
862, 871 (5th Cir. 1976) (citation omitted). To determine if a
statement was improper we must determine "whether or not the
statement was manifestly intended or was of such character that a
jury would naturally and necessarily take it to be a comment on the
failure of the accused to testify." Jennings, 527 F.2d at 871
(citation omitted).
“[C]ommenting on the absence of specific evidence in the
record does not constitute a comment on the defendant's failure to
testify when witnesses other than the defendant could have
testified to such information." United States v. Morrow, 177 F.3d
272, 300 (5th Cir. 1999) (citation omitted). Jefferson fails to
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persuade us that the comments made by the prosecutor in the instant
case were “manifestly intended” or were of such character that a
jury “naturally and necessarily” took them as comments on the
failure of Jefferson to testify. We find no abuse of discretion on
the part of the district court.
After reviewing Jefferson’s last contention concerning the
lack of sufficiency of the evidence, we find it to be without merit
and find the evidence sufficient to sustain the conviction and
sentencing.
CONCLUSION
For the reasons discussed above, the judgment and sentence of
the district court is affirmed.
AFFIRMED.
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