United States v. Ambo ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60712
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISIAH AMBO, also known as Isiah Ambos,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:00-CR-38-1-GR
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March 10, 2003
Before JOLLY, JONES and WIENER, Circuit Judges.
PER CURIAM:*
Isiah Ambo appeals his jury trial conviction for conspiracy
to possess with intent to distribute an undetermined amount of
cocaine base. After the court gave an instruction pursuant to
Allen v. United States, 164 U.S. 492, 501 (1896), and another
supplemental instruction, the jury reached a partial verdict
finding Ambo guilty of conspiracy. However, the jury failed to
agree on a drug quantity as requested in a separate
*
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that this opinion should not be published and is not precedent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.
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interrogatory. On defense counsel’s request, the court assessed
the drug amount at less than five grams the lowest statutory
amount and the lowest option of the unanswered interrogatory.
Ambo contends that the supplemental jury instruction was
coercive and constituted a directed verdict of guilt on Count 1.
Under any standard of review, this claim provides no basis for
relief. Neither the original charge nor the Allen charge were
defective or coercive under the circumstances. When the
supplemental instruction is considered along with the original
charge and the Allen charge, it was not coercive. See United
States v. Monoz, 150 F.3d 401, 408 (5th Cir. 1998) (charges
considered “as a whole”). The court did not abuse its discretion
by giving the supplemental instruction. See United States v.
Duvall, 846 F.2d 966, 977 (5th Cir. 1988).
Ambo contends that the trial court should have granted a
mistrial when the jury indicated difficulty agreeing on a
verdict. The trial judge was in the best position to determine
whether there was a reasonable possibility that the jury could
reach an impartial verdict. United States v. Gordy, 526 F.2d
631, 636 (5th Cir. 1976). The trial court did not abuse its
“wide discretion” by declining to declare a mistrial on grounds
of a deadlocked jury. See Lowenfield v. Phelps, 817 F.2d 285,
293 (5th Cir. 1987) (citations omitted); United States v.
DeLaughter, 453 F.2d 908, 910 (5th Cir. 1972).
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Ambo contends that the jury’s failure to agree on drug
quantity invalidates his conviction because there was not a
unanimous verdict on all the elements of his offense. Under
Apprendi v. New Jersey, 530 U.S. 466 (2000), a jury must
unanimously agree on drug quantity only if the punishment exceeds
the statutory maximum for a minimal or nonspecified drug
quantity. Ambo’s assertion that the jury did not unanimously
find all the elements of the offense is baseless because he was
not sentenced to a term greater than that allowed under the
jury’s unanimous partial verdict. See 21 U.S.C. § 841(b)(1)(C);
see also United States v. Carbajal, 290 F.3d 277, 288 (5th Cir.),
cert. denied, 123 S. Ct. 34 (2002).
Ambo contends that a substantial and significant portion of
the record has not been provided for appeal. The trial court
provided what it designated as a complete copy if the jury notes
in chronological order; “that determination, absent a showing of
intentional falsification or plain unreasonableness, is
conclusive.” United States v. Margetis, 975 F.2d 1175, 1177 (5th
Cir. 1992) (internal quotations and citation omitted).
Ambo also asserts that he has been denied transcripts of
discussions between his lawyer, the court, and the prosecutor
that allegedly occurred in camera and outside his presence
concerning the jury notes and the mistrial motions. No reversal
or remand is warranted because “it can be readily determined from
the balance of the record” that no error was made during any
No. 01-60712
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untranscribed proceedings. United States v. Selva, 559 F.2d
1303, 1306 n.5 (5th Cir. 1977).
Ambo asserts that his exclusion from in camera conferences
deprived him of his right to counsel and his right to be present
at all critical stages of the proceeding. Ambo was adequately
represented by counsel, who attended the conferences, and Ambo
does not show that he was denied the right to consult with his
counsel before or after conferences or to review the jury notes.
Ambo does not explain how his absence prevented a just and fair
hearing of the apparently routine and duplicative mistrial
motions, and it is difficult to imagine how his presence would
have contributed anything to the process. See United States v.
Gagnon, 470 U.S. 522, 526-27 (1985).
Ambo contends that his trial counsel provided ineffective
assistance by failing to object to the “directed verdict” and by
failing to ask for a poll of the jury. The record is
sufficiently developed to permit us to fairly evaluate of these
ineffective-assistance claims on direct appeal. United States v.
Navejar, 963 F.2d 732, 735 (5th Cir. 1992). Ambo’s claim that
counsel should have objected to the “directed verdict” lacks
merit because the court’s instructions were not coercive, and
counsel is not ineffective for failing to raise a meritless
objection. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir.
1994). All 12 jurors signed the verdict form. Absent some
indication that the jury’s verdict was not unanimous, counsel did
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not perform deficiently by declining to poll the jury. See
United States v. Costa, 691 F.2d 1358, 1363-64 (11th Cir. 1982).
Ambo contends that his offense level should not have been
increased by two levels due to his role in the offense. The
unrebutted PSR and the trial record provide ample evidence that
Ambo was “the organizer, leader, manager, or supervisor of one or
more other participants.” U.S.S.G. § 3B1.1(c) and comment.
(n.2). (Nov. 2000); see United States v. Ayala, 47 F.3d 688, 690
(5th Cir. 1995).
Ambo argues that, under Apprendi, it was wrong for the court
to conclude that the relevant-conduct drug quantity for
sentencing purposes was 772.5 grams when the jury could not agree
on more than five grams. Apprendi does not apply to drug
quantities that increase only the relevant conduct under the
sentencing guidelines. United States v. Keith, 230 F.3d 784, 787
(5th Cir. 2000). Ambo’s 240-month sentence does not exceed the
20-year statutory maximum for offenses involving an unspecified
drug quantity. See 21 U.S.C. §§ 841(b)(1)(C), 846. Further, the
trial record and unrebutted PSR indicate that Ambo dealt in large
quantities of crack over a period of years. See Ayala, 47 F.3d
at 690.
The judgment of the district court is AFFIRMED.
Ambo requests appointment of counsel for oral argument. The
motion is DENIED. FED. R. APP. P. 34(a)(2)(C).
JUDGMENT AFFIRMED; MOTION DENIED.