United States v. Wall , 117 F. App'x 252 ( 2004 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 02-4307
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    JAMES ANDREW WALL,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte. Richard L. Voorhees,
    District Judge; Anthony A. Alaimo, Senior District Judge, sitting
    by designation. (CR-00-130)
    Submitted:   October 6, 2004              Decided:   December 13, 2004
    Before WILLIAMS, SHEDD, and DUNCAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
    Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
    DEFENDER, Raleigh, North Carolina, for Appellant.     Robert C.
    Conrad, Jr., United States Attorney, Jennifer Marie Hoefling,
    Assistant United States Attorney, OFFICE OF THE UNITED STATES
    ATTORNEY, Charlotte, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Defendant James A. Wall appeals his conviction for conspiracy
    to distribute less than five kilograms of cocaine and at least
    1,000 kilograms of marijuana in violation of 21 U.S.C Sections
    841(a)(1) and 846.    Specifically, he contends that the district
    court 1) improperly instructed the jury out of his presence in
    violation of Rule 43(a) of the Federal Rules of Criminal Procedure,
    and 2) improperly coerced the jury into returning a guilty verdict
    by indicating that the jury could not recess for the night.
    Because we do not find reversible error, we affirm Mr. Wall’s
    conviction.
    I.
    Mr. Wall was indicted for conspiring to possess with intent to
    distribute at least five kilograms of cocaine, at least five
    kilograms of cocaine base, and at least one thousand kilograms of
    marijuana.    He pleaded not guilty and proceeded to trial, along
    with three co-defendants.     At trial, the government presented
    evidence of a large drug distribution enterprise that utilized
    truck drivers carrying legitimate loads to transport cocaine and
    marijuana from Texas to North Carolina.   Mr. Wall was connected to
    the conspiracy by at least eight witnesses who testified to, among
    other things, Mr. Wall personally transporting drugs and money on
    his trucking routes and instructing other drivers on how to avoid
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    detection as they transported drugs.     Additionally, the government
    presented testimony from an officer of the Texas Highway Patrol who
    stopped Mr. Wall’s truck and, upon conducting a consensual search
    of the truck, found marijuana and other contraband.
    Mr. Wall testified at trial, arguing that he was not part of
    a drug conspiracy and did not know many of the witnesses testifying
    against him other than by name and face.    Additionally, he claimed
    that he did not know that there were drugs in his truck when he was
    stopped by the highway patrol because he was not present on the
    loading dock when his truck was packed. Finally, Mr. Wall informed
    the jury that he had no prior record of drug offense convictions.
    Following the close of evidence after three days of trial, the
    jury retired to deliberate at 3:30 PM.    All of the parties examined
    the evidence being sent to the jury room and agreed on the record
    that it was in order before sending it to the jury room.     At 5:09
    PM, the court convened the parties to read a communication from the
    jury, which stated, “We will not finish by 6:00 p.m.    How long past
    that are we expected to stay, or should we come back tomorrow?”
    The district judge then informed the parties that he would take a
    court reporter to the jury room door with him and deal with the
    “housekeeping” matters involving the jury.     The judge then had the
    following conversation with the jurors:
    THE COURT:  I have your last communication,
    members of the jury. In a criminal case, a
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    jury    may    not   be    separated    during
    deliberations. Therefore, I cannot recess you
    for the night and have you come back tomorrow.
    So I assume you will want to have us send out
    for some food for you . . . . I guess we had
    better order some pizza then.
    THE CLERK:    Yes, sir.
    JUROR TURNER:    How late could we stay?
    THE COURT:    Until you---
    JUROR FOWLER: This evidence we’re permitted
    to have was agreed on by the defense and
    prosecution, right?
    THE COURT:    Yes.
    JUROR FESTER:    This was agreed to?
    THE COURT:    Yes, it was.
    Approximately three hours later, the jury returned with a
    verdict, convicting Mr. Wall of conspiracy to distribute less than
    five   kilograms   of   cocaine   and    at   least   1,000   kilograms   of
    marijuana. Although all four defendants at trial were found guilty
    of the conspiracy, for none of the defendants did the jury find
    that the conspiracy involved at least five kilograms of cocaine,
    and only for Mr. Wall did the jury find that the conspiracy
    involved at least 1,000 kilograms of marijuana.         After the verdict
    was announced, each juror stated on the record that the verdict had
    been freely and voluntarily made. The district court sentenced Mr.
    Wall to ten years imprisonment.         He timely appeals.
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    II.
    The parties agree that we review the district court’s ex parte
    communication with the jury for plain error because Mr. Wall did
    not object to the communication at trial.             See United States v.
    Rolle, 
    204 F.3d 133
    , 138 (4th Cir. 2000) (citing Fed. R. Crim. P.
    52(b)). For us to reverse the district court under that standard,
    (1) there must be error, i.e., a deviation
    from a legal rule; (2) the error must be plain
    under current law; (3) the plain error must
    affect substantial rights, which typically
    means that the defendant is prejudiced by the
    error in that it "affected the outcome" of the
    proceedings; and (4) the error must seriously
    affect "the fairness, integrity or public
    reputation of judicial proceedings.”
    
    Id.
     (citing, inter alia, United States v. Olano, 
    507 U.S. 725
    , 733-
    36 (1993)).
    Rule 43(a) of the Federal Rules of Criminal Procedure provides
    that a defendant has the right to be present at every stage of
    trial, including when the judge communicates with the jury.             Fed.
    R. Crim. P. 43; Rogers v. United States, 
    422 U.S. 35
    , 39 (1975).
    Therefore, Mr. Wall argues, the district court committed plain
    error by answering questions in the jury room without him present.
    We disagree.
    Assuming arguendo that the district court clearly erred by
    communicating with the jury outside of Mr. Wall’s presence, that
    error    still   did   not   affect   Mr.   Wall’s   substantial   rights   by
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    affecting the outcome of the proceedings, nor did it seriously
    impair the fairness, integrity or public reputation of judicial
    proceedings.   The trial judge correctly informed the jury that the
    evidence that they had in the jury room was in order and had been
    agreed to by the parties.        Indeed, Mr. Wall does not contend
    otherwise. Nor does he suggest how his presence would have changed
    the conversation between the judge and jury.*              In addition, the
    government presented strong evidence against Mr. Wall:                  eight
    witnesses testified against him, and marijuana was found in his
    truck.   Accordingly,   Mr.    Wall       has   not   demonstrated   that   the
    district court’s conversation with the jury would have affected the
    outcome of the proceedings and, accordingly, has not met the
    requirements for showing plain error.
    III.
    Mr. Wall also argues that the district court improperly
    coerced a verdict against him by telling the jury that it “may not
    be separated during deliberations,” and that it could not be
    recessed for the night.       These instructions, Mr. Wall contends,
    could have caused the jury to find against him solely because it
    *Mr. Wall objected to some of the evidence as it was presented
    at trial but has chosen not to pursue those objections on appeal.
    Accordingly, the issue before us is not whether the district judge
    properly admitted the evidence, but simply whether the judge’s
    subsequent ex parte conversation with the jury concerning that
    evidence could have possibly affected the outcome of the
    proceedings.
    6
    wanted to go home. We review these instructions for abuse of
    discretion.       See United States v. Weaver, 
    282 F.3d 302
    , 314 (4th
    Cir. 2002) (holding that allegations that a district court deprived
    a defendant of a fair trial are reviewed for abuse of discretion);
    Chaudhry v. Gallerizzo, 
    174 F.3d 394
    , 408 (4th Cir. 1998) (“We
    review challenges to jury instructions for abuse of discretion.”).
    In addition, if the allegedly erroneous jury instructions were
    harmless, we will not upset the district court’s discretion.                          See
    United      States   v.     Obi,    
    239 F.3d 662
    ,   666    (4th    Cir.2000).
    Considering the arguments of the parties and the record before us,
    we   hold    that,   whether       or   not       the   district     court   abused   its
    discretion in allowing the instructions, such abuse was harmless
    error and, therefore, not reversible.
    We note initially, as the government concedes, that the
    district court was incorrect in its assertion that a deliberating
    jury in a criminal case may never be separated.                             This is not,
    however, dispositive.              Specifically, the record in this case
    provides substantial evidence that the incorrect instruction did
    not improperly coerce the jury or otherwise deprive Mr. Wall of a
    fair trial.
    First, the district court’s instruction, while incorrect, was
    not facially prejudicial in favor of the government.                          Cf. United
    States      v.   Russell,    
    971 F.2d 1098
    ,      1107-08     (4th    Cir.   1992)
    (distinguishing cases in which an instruction to keep deliberating
    7
    was facially prejudicial from cases in which “there is no basis for
    an     inference   that   [the    defendant]     was   prejudiced   by   the
    [instruction]”).       Second, the jury in this case deliberated in
    total for approximately four and one half hours, and three hours of
    that    deliberation   occurred    after   the   judge’s   comments.     The
    substantial deliberation after the trial judge made his comments
    “provides adequate assurance that the jury was not improperly
    coerced by the district court's instruction.” Russell, 
    971 F.2d at 1108
    ;    see also United States v. Cropp, 
    127 F.3d 354
    , 360 (4th Cir.
    1997) (“Although the length of deliberations following an Allen
    charge is not certain evidence that the jury was not coerced by
    that charge, lengthy deliberations can reassure a reviewing court
    that coercion did not occur.” (internal citation omitted)). Third,
    the jury verdict both distinguished among the various defendants
    and found that the conspiracy did not involve at least five
    kilograms of cocaine.       In other words, the verdict represents a
    thoughtful consideration of the case and not a hasty acquiescence
    to the government’s arguments.       Finally, each juror stated on the
    record that the verdict had been freely and voluntarily made.
    Considering all of these factors, we hold that the district court’s
    instruction did not improperly coerce the jury into finding against
    Mr. Wall.    Accordingly, we hold that the district court’s abuse of
    discretion, if any, in allowing the jury instructions was harmless.
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    IV.
    Having reviewed the arguments of the parties and the record
    before us, we hold that the district court did not commit plain
    error in conducting an ex parte communication with the jury.
    Additionally, we hold that any abuse of discretion in informing the
    jury that it could not be recessed was harmless error.   Therefore,
    we affirm Mr. Wall’s conviction.
    AFFIRMED
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