REVISED December 18, 2013
Appeals from the United States District Court for the Southern District of Texas
Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
A jury found Jose Julian Andaverde-Tiñoco guilty of illegal reentry subsequent to removal after conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). The district court sentenced him to 70 months of imprisonment and three years of supervised release. It also revoked a previously imposed term of supervised release and sentenced him to eight months of imprisonment, four months of which were to run consecutively and four concurrently to the 70-month sentence, for a total of 74 months. He appeals. For the reasons that follow, we AFFIRM his conviction and sentence.
On March 9, 2011, United States Border Patrol agent Carlos Ortega observed four individuals attempting to make their way north from the Rio Grande. Ortega called two other agents, Luis Garza and Ernest Granado, to the scene. The agents detained and handcuffed the individuals, including Defendant-Appellant Jose Julian Andaverde-Tiñoco ("Andaverde-Tiñoco"). According to Andaverde-Tiñoco's testimony on cross-examination, the agents read him his Miranda rights in Spanish while in the field.
Granado transported the individuals by car to a nearby Border Patrol station. Granado testified that, during the ride, one of Andaverde-Tiñoco's companions said that the companions had been "beaten and robbed" on the Mexican side of the river but did not specify when or where that had happened or mention anything about being forced to cross the river. Granado also testified that there were no marks or indications of recent physical abuse on any of the individuals. Granado did not follow up on this information, pass it along to the other agents, or write any report.
At the station, the four companions were processed, and the other three were granted voluntary returns to Mexico. Andaverde-Tiñoco was not eligible for a voluntary return because of his criminal and immigration history, so he was processed as a criminal alien. Agent Eron Hernandez testified that he interviewed Andaverde-Tiñoco at the station and that the first thing he did was read Andaverde-Tiñoco his Miranda rights in Spanish. A written record of the interview—which Hernandez prepared and Andaverde-Tiñoco read, approved, and signed—showed that Andaverde-Tiñoco admitted that he was a Mexican citizen, that he had entered the United States on March 9, 2011 by swimming across the Rio Grande, that he had previously been deported or removed from the United States and never applied for permission to return, and that he did not fear any persecution or torture if he were to be removed to Mexico. According to Hernandez's testimony, Andaverde-Tiñoco did not mention that he had been robbed on the other side of the Rio Grande, nor did other agents mention to Hernandez that any of Andaverde-Tiñoco's companions had claimed to have been robbed.
A one-count indictment charged Andaverde-Tiñoco with illegal reentry subsequent to removal after conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). The government also moved to revoke a previously imposed term of supervised release that resulted from a prior illegal-reentry conviction.
At trial, Andaverde-Tiñoco stipulated to the elements of the offense, yet presented the defense that he reentered under duress and hence was not criminally responsible for his actions. Andaverde-Tiñoco called border agent David Montoya, who testified that he had interviewed the other individuals and that one of them had said they had been robbed before crossing. Andaverde-Tiñoco testified and described how, on the day of the arrest, he and three friends were driving in Mexico when armed men stopped them and robbed them of their vehicle and money. He further testified that the men brought him and his friends to the river and told them to cross or be shot, that he begged the men not to make him cross because he would be sent to prison, and that he crossed the river because he felt he had no choice. He admitted that he did not mention the robbery when initially detained or during transport to the station, but then he stated that he told the agents about the robbery while they fingerprinted and interviewed him and that the agents did not write anything down or record the conversation.
Approximately two hours after starting deliberations, the jury sent a note stating that the jurors were deadlocked at a six-to-six vote. The district court proposed that it give an Allen charge to the jury. Andaverde-Tiñoco objected—arguing that the jurors had not been deliberating for long, the trial was short, and most of the evidence was uncontroverted—and requested a mistrial. The district court overruled the objection, denied the motion for a mistrial, and sent the Allen charge to the jury. Approximately two-and-a-half hours after receiving the charge, the jury found Andaverde-Tiñoco guilty.
At sentencing, Andaverde-Tiñoco attempted to present an affidavit of Daniel Reyna Flores, one of his companions on the night of the arrest, who corroborated most of his story. The government objected. The district court refused to admit the affidavit because it was hearsay, but allowed the investigator who obtained the affidavit to testify as to some of the statements Reyna Flores made to him, including that he had been forced across the river. Andaverde-Tiñoco pleaded "true" to the facts alleged in the petition for revocation of supervised release. The district court sentenced him to 70 months of imprisonment and three years of supervised released. It also revoked the previously imposed term of supervised release and sentenced him to eight months of imprisonment, four months of which were to run consecutively to the 70-month sentence, for a total of 74 months. Andaverde-Tiñoco timely appealed the conviction and sentence.
Andaverde-Tiñoco argues first that the district court abused its discretion by giving an Allen charge to the jury. The relevant inquiry on appeal is whether: (1) any semantic deviation from approved Allen-charge language was so prejudicial that it requires reversal and (2) the circumstances surrounding the use of the charge were coercive. United States v. Winters, 105 F.3d 200, 203 (5th Cir. 1997). Generally, we review the use of an Allen charge for abuse of discretion. Id. Where a defendant does not object to its use, review is for plain error. United States v. Hitt, 473 F.3d 146, 153 (5th Cir. 2006). The government argues that Andaverde-Tiñoco's objection to the charge in the district court failed to preserve his challenge on appeal. "A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for our review." United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011) (internal quotation marks and footnote omitted). "[T]he touchstone is whether the objection was specific enough to allow the trial court to take testimony, receive argument, or otherwise explore the issue raised." United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997).
Andaverde-Tiñoco objected to the Allen charge as follows:
As the Court is aware, this is a very short trial. Most of it was completely uncontroverted. The controverted evidence is extremely short, and the fact that the jurors already said that they couldn't reach a verdict and they're divided numerically six to six, your Honor, I believe an Allen charge would not be appropriate at this time, and we ask for a mistrial.
Andaverde-Tiñoco cites United States v. Montalvo, 495 F.App'x 391, 392 n.2 (5th Cir. 2012) (unpublished), to argue that a general objection to an Allen charge that does not mention the language itself is sufficient to preserve that issue for appeal. However, our unpublished Montalvo decision is inapposite. There, although the government argued that Montalvo had not objected to the language of the Allen charge, Montalvo himself did not make the language argument on appeal. Thus, the court looked only to the circumstances of the charge, an objection that the court found Montalvo had adequately made below. Id. at 392-93 & n.2; cf. Hitt, 473 F.3d at 153 & n.5 (reviewing for plain error where defendant objected to charge in toto but not to language specifically); United States v. Hill, 334 F.App'x 640, 645 (5th Cir. 2009) (unpublished) (reviewing language for plain error where objection to charge did not include objection to its language). The objection does not reference the language of the charge, so the district court "could not have understood, " Gutierrez, 635 F.3d at 152, that Andaverde-Tiñoco wanted additional or adjusted language included in the charge, particularly because the district court used the language from the then-applicable Fifth Circuit Pattern Jury Instructions. Fifth Circuit Pattern Jury Instructions (Criminal), § 1.45 (West 2001). However, the objection does directly address the coerciveness of the charge under the circumstances and thus preserves that issue for appeal. Therefore, we review the language of the charge for plain error and the use of the charge for abuse of discretion.
Under the first prong of the Allen analysis, we inquire whether any semantic deviation from approved Allen-charge language was so prejudicial that it requires reversal. Winters, 105 F.3d at 203. As stated above, we review the language of the charge in this case for plain error. To prevail under plain error, an appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to correct the error, but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. In reviewing jury instructions, "plain error occurs only when the instruction, considered as a whole, was so clearly erroneous as to result in the likelihood of a grave miscarriage of justice." United States v. Garcia, 567 F.3d 721, 728 (5th Cir. 2009) (internal quotation marks and citation omitted).
Here, the language of the modified Allen charge was almost identical to the charge found in the then-applicable 2001 Pattern Jury Instructions, a fact we previously have noted in upholding Allen charges. See United States v. Allard, 464 F.3d 529, 536 (5th Cir. 2006). The only modification was the addition of a sentence that reminded the jury not to reveal the exact numerical breakdown of its voting, an addition that Andaverde-Tiñoco does not challenge. Instead, Andaverde-Tiñoco argues that the charge was unbalanced because it focused on the government's burden of proof on the elements of the illegal entry offense, which Andaverde-Tiñoco had conceded, and did not address his burden of proof on the duress defense.
The failure to include additional language about the duress defense was not a clear or obvious error. Andaverde-Tiñoco acknowledges that the charge was equivalent to the then-applicable pattern instruction. The cases that Andaverde-Tiñoco cites do not stand for the proposition that failure to include additional language in an otherwise-approved pattern instruction constitutes error.
Even if he had shown a clear or obvious error, Andaverde-Tiñoco has not shown that the failure to include language about his duress defense affected his substantial rights. To make that showing, he must "demonstrate that the error affected the outcome of the district court proceedings." United States v. Broussard, 669 F.3d 537, 553 (5th Cir. 2012). Because Andaverde-Tiñoco stipulated to the offense,  his theory for why the jury should find him not guilty become only his affirmative duress defense. The Allen charge asked the jurors who believed Andaverde-Tiñoco was guilty to reconsider this conclusion in light of the fact that other jurors believed him to be not guilty. The Allen charge also instructed the jurors to follow their initial instructions, which included the duress defense, and we presume that jurors follow their instructions. See, e.g., United States v. Turner, 674 F.3d 420, 430 (5th Cir. 2012). Finally, the jury deliberated for more than two hours after receiving the Allen charge, presumably on the duress defense because that was the only issue at trial. For these independent reasons, Andaverde-Tiñoco has not shown that the district court plainly erred in the language of the Allen charge.
Under the second prong of an Allen-charge analysis, we inquire whether the circumstances surrounding the use of the charge were coercive. Winters, 105 F.3d at 203. We evaluate the "totality of the circumstances" surrounding the use of the charge in assessing its coercive effect. United States v. Lindell, 881 F.2d 1313, 1321 (5th Cir. 1989). The district court has "broad discretion to evaluate whether an Allen charge is likely to coerce a jury into returning a verdict it would not otherwise return." Allard, 464 F.3d at 536 (internal quotation marks and citation omitted). As stated above, we review the use of the charge in this case for abuse of discretion.
Andaverde-Tiñoco argues that the use of the Allen charge after approximately two hours of deliberations "sent a strong message that failure to reach a verdict was not an option"; that the jury received the charge close to midday on a Friday, which "surely raised fears that inability to reach a verdict that day would result in the jury's being called in for deliberations on Saturday"; that the jury's decision to deliberate without taking a lunch break suggests that it felt pressure to reach a verdict before the weekend; that skipping lunch "created the possibility that some jurors might cave in simply because of overwhelming feelings of hunger"; and that the jury reached a verdict only two hours after receiving the charge, which "is strongly suggestive of the coercive effect of the Allen charge."
We have affirmed Allen charges in more stringent circumstances than those here. In United States v. Betancourt, 427 F.2d 851, 854 (5th Cir. 1970), we affirmed a charge where the trial had begun at 9 a.m. on the day of the verdict, the jury did not receive the case until 6:13 p.m., it reported itself deadlocked at 8:19 p.m., and it returned its verdict at 10:23 p.m. on a stormy night. In United States v. Bottom, 638 F.2d 781, 788 (5th Cir. Unit B Mar. 1981), we affirmed an Allen charge, explaining: "The jury deliberated another three hours after the 'Allen' charge was given from 9:56 A.M. to 1:40 P.M., not an unduly short amount of time. The time of the day was not late. The day was not Friday or the day before a holiday. The weather was not alleged to be inclement." Here, although the district court gave the charge on a Friday, it was not late in the day or close to a holiday, and the jury deliberated for about two-and-a-half hours after receiving the charge. The timing here also presented less potential for coerciveness than it did in Betancourt. Cf. Montalvo, 495 F.App'x at 393-94 (rejecting challenge to Allen charge that jury received less than four days before Christmas because it was not issued on the day before a holiday; there was no indication that the jury expressed concern about, or that the judge mentioned, the approaching holiday; and the circumstances that may have pressured the jury were less extreme than those in Betancourt).
Additionally, we have rejected a claim that the jury's decision to forego a meal renders an Allen charge coercive. United States v. Reeves, 892 F.2d 1223, 1229 (5th Cir. 1990). We have also rejected claims of coerciveness with similarly short and even shorter deliberation periods. See Bottom, 638 F.2d at 788 (charge given after eight hours of deliberation, verdict returned three hours after Allen charge); United States v. Scruggs, 583 F.2d 238, 241 (5th Cir.1978) (charge given after four-and-a-half hours of deliberation, verdict returned 48 minutes after charge); United States v. Bailey, 468 F.2d 652, 664-65 (5th Cir. 1972) (charge given after three-and-a-half hours of deliberation, verdict returned one-and-a-half hours after charge); Andrews v. United States, 309 F.2d 127, 129 (5th Cir. 1962) (charge given after one hour and five minutes of deliberation, verdict returned 25 minutes after charge). We conclude here that Andaverde-Tiñoco has not shown that the district court abused its discretion in its use of the Allen charge.
Second, Andaverde-Tiñoco argues that the government improperly elicited testimony and argued to the jury that he had remained silent instead of immediately informing the agents that he had been forced to cross the river, in violation of Doyle v. Ohio, 426 U.S. 610, 619 (1976). Crucial to our ruling, Andaverde-Tiñoco did not object to the alleged Doyle violations in the district court, hence review is for plain error. See United States v. Garcia-Flores, 246 F.3d 451, 457 (5th Cir. 2001). Andaverde-Tiñoco must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett 556 U.S. at 135. If he makes such a showing, we have the discretion to correct the error, but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.; see also Henderson v. United States, 133 S.Ct. 1121, 1130 (2013).
Under the first and second prongs of plain error review, we inquire whether there was an error that was clear or obvious. As a threshold matter, the government argues that "the vast state of the evidence was that Andaverde was not read his [Miranda] rights until he arrived at the Border Patrol station." As such, the government contends that commentary on Andaverde-Tiñoco's silence during the ride to the station could not have violated Doyle. To support its argument, the government attempts to explain the following exchange between the prosecutor and Andaverde-Tiñoco on cross-examination:
Cross-Examination of Andaverde-Tiñoco by Prosecutor
Q: But you said when Border Patrol arrived you hunkered down in the field, right?
A: Yes, yes.
Q: And you hunkered down so they wouldn't see you, didn't you?
Q: And they handcuffed you, didn't they?
Q: And they read you your rights in Spanish?
Q: And they placed you in the back of a vehicle?
The government claims that the prosecutor "simply made a mistake" when asking this question and that the question did not differentiate between the field and the station, so Andaverde-Tiñoco's answer was "technically correct." This argument is unpersuasive. There is no dispute in the existing record over whether the agents read Andaverde-Tiñoco his rights in the field. There is no evidence beyond the government's ipse dixit that the prosecutor made a mistake, and the context of the question belies the government's claim. The question came in chronological order after a question about Andaverde-Tiñoco's behavior in the field and before a question about his ride to the station. The only persuasive reading of this testimony and exchange is that the agents read Andaverde-Tiñoco his rights in the field. Nothing in the record contradicts that (even Agent Hernandez's affirmative testimony that he read Andaverde-Tiñoco his rights at the station) because the prosecutor never confirmed with the agents themselves, testifying at trial, if they read the rights in the field. We credit the trial record that the agents read Andaverde-Tiñoco his rights in the field.
Having testified to that Miranda factual predicate, Andaverde-Tiñoco asserts that there were five Doyle violations that occurred during his trial. We set them out below ...