United States v. Ramiret B. Davis ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13986 ELEVENTH CIRCUIT
AUGUST 5, 2011
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:10-cr-00035-JA-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRET B. DAVIS,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 5, 2011)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Ramiret Davis appeals his convictions for conspiracy to commit Hobbs Act
robbery, in violation of 18 U.S.C. § 371 (Count One), Hobbs Act robbery, in violation
of 18 U.S.C. § 1951(a), (b) and 18 U.S.C. § 2 (Count Two), and carrying and
possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A), (c)(1)(C), (c)(3) and 18 U.S.C. § 2 (Count Three). On appeal, Davis
argues that the district court gave a supplemental jury instruction, in the form of an
Allen charge,1 that was coercive because the jury may have misheard or
misunderstood the instructions. After careful review, we affirm.
Ordinarily, our review of “a district court’s decision to give an Allen charge is
limited to evaluating the coercive impact of the charge.” United States v. Trujillo,
146 F.3d 838, 846 (11th Cir. 1998). We will reverse only if we find under the totality
of the circumstances that the charge was inherently coercive. United States v.
Chigbo, 38 F.3d 543, 545 (11th Cir. 1994). “However, when a party agrees with a
court’s proposed instructions, the doctrine of invited error applies, meaning that
review is waived even if plain error would result.” United States v. Frank, 599 F.3d
1221, 1240 (11th Cir. 2010); see also United States v. Silvestri, 409 F.3d 1311, 1337
(11th Cir. 2005) (holding that the defendant waived the right to review where defense
1
“An ‘Allen charge’ is a trial court’s admonition to a deadlocked jury, instructing it to
make further attempts to reach a verdict.” United States v. Polar, 369 F.3d 1248, 1254 (11th Cir.
2004) (referring to Allen v. United States, 164 U.S. 492 (1896)).
2
counsel stated that the jury instructions “covered the bases”); United States v.
Fulford, 267 F.3d 1241, 1247 (11th Cir. 2001) (holding that the defendant invited the
error when defense counsel indicated the jury instructions were “acceptable” to him).
In this case, Davis did more than simply fail to object to the use of the modified
Allen charge. After hearing the proposed jury instructions, defense counsel stated,
“I certainly don’t have any problem with the instruction itself.” This is analogous to
the statements in Fulford that the instructions were “acceptable” to defense counsel.
Here, defense counsel only stated that he was unclear on whether the jury note from
the previous day indicated that the jury was already deadlocked, and if so, he
“wonder[ed]” whether “an Allen charge would be necessary or would help under the
circumstances.” After the court informed defense counsel that it was not under the
impression that the jury was already deadlocked since they asked to resume
deliberations after their break, defense counsel did not raise any additional concerns.
With regard to the additional language proposed by the court, not only did defense
counsel state he had no objections to this language, when the court asked if the parties
specifically agreed, defense counsel stated, “Yes, Your Honor.” By expressly
agreeing to the modified Allen charge, defense counsel invited the error. Frank, 599
F.3d at 1240. Therefore, Davis has waived review of any such error on appeal.
Accordingly, we affirm his convictions.
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AFFIRMED.
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