United States v. Manjarrez, Acencion ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3569
United States of America,
Plaintiff-Appellee,
v.
Acencion Manjarrez, also known as Phil,
also known as Felipe,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 614--Ruben Castillo, Judge.
Argued April 2, 2001--Decided July 18, 2001
Before Bauer, Cudahy, and Easterbrook,
Circuit Judges.
Bauer, Circuit Judge. Manjarrez appeals
his conviction for conspiracy and
possession with intent to distribute mar
ijuana, arguing that he did not knowingly
and intelligently waive his right to
testify on his own behalf, and that
certain jury instructions and an argument
made by the prosecutor during closing
argument prejudiced his case and deprived
him of a fair trial. We affirm.
BACKGROUND
On October 18, 1996, Jose Suarez asked
Gustavo Marquez to pick up a 196-pound
shipment of marijuana for Efren Terrazas.
The shipment was en route from Laredo,
Texas to the Yellow Freight warehouse in
Chicago Ridge, Illinois. Marquez agreed
to pick up the marijuana. The next day,
Manjarrez rented a Ryder truck that
Marquez drove to the Yellow Freight
warehouse; Manjarrez and two passengers,
Terrazas and a man named Joe, followed
Marquez to the warehouse in Manjarrez’s
car, a blue Chevrolet Caprice.
When he arrived at the warehouse,
Marquez discovered that the marijuana
shipment had not yet arrived.
(Unbeknownst to him, it had been
intercepted by federal agents in Texas
and was in the process of being sent from
Texas to United States Customs personnel
in Chicago.) Marquez left the warehouse
and drove the truck to the Ryder rental
facility, where he was met by Terrazas
and Manjarrez. Manjarrez returned the
truck.
On October 21, 1996, Suarez called
Marquez and told him that the shipment
had arrived at Yellow Freight. Marquez,
Terrazas, and Joe then returned to the
same Ryder rental facility and waited for
Manjarrez, who eventually arrived and
rented another truck. In the parking lot,
Manjarrez handed Terrazas the keys to the
truck, together with money to pay for the
shipping costs. Terrazas handed these
items to Marquez. While all four men were
standing in the parking lot, Terrazas
explained to Marquez that "they" (i.e.,
Terrazas, Manjarrez, and Joe) would be in
the defendant’s car watching to make sure
that the truck was not being followed.
Manjarrez was at Terrazas’ side when he
made this statement.
That afternoon, Marquez drove the truck
to the warehouse. Customs agents had
established surveillance at the
warehouse, and they observed Marquez
arrive and drive off with the marijuana-
filled crate in the Ryder truck. From
there, Marquez drove toward the planned
delivery site at 147th and Loomis in
Chicago, with Customs agents on his tail.
Following Terrazas’ instructions, Marquez
took a long and circuitous route to the
delivery site. Early on in the journey,
the pursuing agents noticed Manjarrez’s
blue Caprice following the truck at every
turn and performing counter-surveillance
maneuvers--that is, maneuvers designed to
detect the presence of pursuing law
enforcement officers. After some 90
minutes of driving, the truck and
Manjarrez’s car approached the 147th
Street exit off of Interstate 57 in
Chicago. However, sensing that they were
being followed by law enforcement
officers, Manjarrez and his passengers
decided to separate from the truck, and
Manjarrez drove in the opposite direction
on 147th Street.
Marquez eventually drove the truck to
his own neighborhood in Chicago. Fearing
apprehension, Terrazas abandoned the drug
deal. However, the next day, Suarez, Mar
quez, and another man, Luis Moreno,
devised an alternate plan to deliver the
marijuana. As part of this plan, Marquez
and Moreno transported the marijuana to
Moreno’s garage, where they were arrested
shortly thereafter.
Manjarrez was interviewed by Customs
agents on January 28, 1997. He admitted
renting a Ryder truck on October 21,
1996, but denied renting one on any other
occasion. With respect to the October
19th rental, Manjarrez claimed that he
rented the truck for a friend named Jose
Rodriguez who needed the truck to move
from his home, that he provided Rodriguez
the keys to the truck and returned home
immediately, and after later attempting
to determine whether Rodriguez had
returned the truck, he eventually
reported the truck missing to the Chicago
Police Department.
In August of 1998, Manjarrez was
indicted and charged with conspiracy to
possess with intent to distribute
marijuana in violation of 21 U.S.C.
sec.sec. 846 and 841(a)(1) (Count One),
and with possession of marijuana with
intent to distribute in violation of 21
U.S.C. sec. 841(a)(1) and 18 U.S.C. sec.
2. (Count Two). He remained a fugitive
until he was arrested by Customs agents
at O’Hare airport in Chicago on February
17, 2000. After waiving his Miranda
rights, Manjarrez spoke with the agents,
again admitting that he had rented a
Ryder truck on October 21, 1996. He again
claimed that he had rented the truck for
Jose Rodriguez, and he gave an account
that was consistent with the story that
he gave during his first interview, with
one notable exception; this time,
Manjarrez said that he was told by a
member of the Ryder rental facility that
the truck had been used to transport
drugs. However, Manjarrez denied knowing
Terrazas, Marquez, or Suarez, and
persisted in his denial even after being
shown pictures of all three men.
At trial, several witnesses testified
for the government, including the Customs
agent who discovered the marijuana-filled
crate in Texas, two Chicago Customs
agents who oversaw the investigation at
different times (both of whom interviewed
Manjarrez and one of whom participated in
the October 21, 1996 surveillance), a
narcotics expert with the Drug
Enforcement Administration, and
Marquez./1 The jury heard evidence of
the conflicting statements that Manjarrez
gave to law enforcement agents regarding
his rental of Ryder trucks. The defense
presented no evidence.
During the jury deliberations, the jury
sent the district court notes requesting
clarification on two separate occasions.
In the first note, the jury asked the
court whether they could return a not-
guilty verdict on the possession charge
even if they returned a guilty verdict on
the conspiracy charge. After conferring
with and receiving the blessing of
counsel for both sides, the court
instructed the jury to read the jury
instructions and to keep deliberating. In
the second note, the jury asked the court
to provide guidance regarding the
definition of reasonable doubt. After
again conferring with both attorneys, the
court informed the jury that it could not
provide further guidance on the
definition and asked them to continue
their deliberations.
On May 10, 2000, the jury convicted
Manjarrez on both counts. On September
20, 2000, the district court sentenced
Manjarrez to 51 months in prison followed
by three years of supervised release.
Manjarrez appeals his conviction.
DISCUSSION
Manjarrez advances three grounds for the
reversal of his conviction. He claims (1)
that he did not knowingly and
intelligently waive his right to testify
in his own behalf, (2) that the district
court erred in giving an "ostrich" jury
instruction without also expressly
instructing the jury that subjective good
faith on Manjarrez’s part was a defense
to the charges, and (3) that the
prosecutor made an improper and
prejudicial remark during closing
argument. Manjarrez argues that these
errors (together or singly) deprived him
of a fair trial, and quite likely
prejudiced the outcome of the trial given
what he characterizes as the "thinness"
of the government’s case and the
confusion expressed by the jury during
their deliberations. We address
Manjarrez’s arguments in turn.
A. Manjarrez’s waiver of his right to
testify
Manjarrez contends that the record
establishes that he did not knowingly and
intelligently waive his right to testify
on his own behalf. Near the close of the
government’s case-in-chief, the district
court asked Manjarrez’s counsel whether
he intended to rest immediately after the
close of the government’s case (without
putting on any evidence). He responded in
the affirmative. The court then asked
Manjarrez’s counsel if he would like the
court "to talk to Mr. Manjarrez right now
about not testifying." Manjarrez’s
counsel responded that he would, and the
court engaged in the following colloquy
with Manjarrez:
COURT: Mr. Manjarrez, the Court
understands that it’s your decision in
this case not to testify in your own
defense. As you’ve heard me tell the jury
several times, you have an absolute right
not to testify, and I would be happy to
continue to instruct the jury as I have
already that they cannot draw any
inference or suggestion of guilt from the
fact that you did not testify.
On the other hand, you should know that
you have an absolute right to testify in
your own defense. Do youunderstand?
MANJARREZ: (Through Interpreter)/2 Yes.
COURT: You understand that you can
testify in your own defense if you decide
you want to.
MANJARREZ: (Through Interpreter) Well,
yes.
COURT: Okay. I also want you to know
that being realistic about this, even
though sometimes I instruct the jury not
to draw any inference or suggestion of
guilt from the fact that you didn’t
testify, it could be that some jurors are
going to draw that type of inference. Do
you understand that?
MANJARREZ: (Through Interpreter) Yes,
that’s fine.
COURT: Knowing all of this, is it your
desire not to testify in this case?
MANJARREZ: (Through Interpreter) No. I
mean my lawyer’s here to answer
everything that needs to be answered.
COURT: Okay. Has anyone forced you in
any way or threatened you in order to get
you not to testify?
MANJARREZ: (Through Interpreter) No.
COURT: Okay. And let me just tell you,
Mr. Manjarrez, you’re free to continue to
talk to Mr. Halprin [defense counsel],
and if you decide at any point that you
want to testify, that’s strictly up to
you. Do you understand that?
MANJARREZ: (Through Interpreter) That’s
fine.
COURT: Okay. I’ll leave it at that.
Trans. at 223-24.
Manjarrez asserts that nowhere in the
above dialogue is there evidence that he
knowingly and intelligently waived his
right to testify. While the court did ask
a series of basic questions regarding
Manjarrez’s intentions not to testify and
elicited a series of "yes" responses from
him through the interpreter, Manjarrez
contends that this was insufficient since
the court "did nothing to satisfy itself
that [Manjarrez], who did not speak or
understand fluent English, understood the
substance of what it means to testify."
In addition, he notes that at no time
during the colloquy did his counsel state
on the record that he had explained to
him what it means to testify. Finally,
Manjarrez seizes on his response to the
court’s fourth question, wherein he
stated that his lawyer was "here to
answer everything that needs to be
answered," and argues that it
demonstrates a "total lack of
understanding of what it means to
testify," since it seems to imply that he
thought that his lawyer could testify and
offer evidence on his behalf as a
witness. According to Manjarrez, all of
this indicates that he waived his
fundamental constitutional right to take
the stand without adequately
comprehending either the nature of his
right or the consequences of waiving it.
Manjarrez maintains that this deprived
him of a fair trial and, in light of what
he considers to be the weakness of the
government’s case as well as the jury’s
confusion during their deliberations,
that it probably affected the outcome of
the trial. On these grounds Manjarrez
urges us to reverse his conviction or to
remand for an evidentiary hearing on the
issue of whether his waiver of his right
to testify was knowing and intelligent.
We reject both Manjarrez’s arguments and
his request.
A criminal defendant has a
constitutional right to testify on his
own behalf. See Rock v. Arkansas, 483
U.S. 44, 49-53 (1987); Morgan v. Krenke,
232 F.3d 562, 569 (7th Cir. 2000). This
right is "an aspect of the [criminal
defendant’s] right to defend himself,"
Underwood v. Clark, 939 F.2d 473, 475
(7th Cir. 1991), which arises from the
Sixth Amendment’s guarantee of compulsory
process to obtain favorable witnesses,
see Stephens v. Miller, 13 F.3d 998, 1002
(7th Cir. 1994) (en banc), as well as the
Fifth Amendment’s due process clause./3
It is also a "necessary corollary" of the
Fifth Amendment’s guarantee against
compelled testimonial self-incrimination.
See id. (citations omitted). The right to
take the stand on one’s own behalf is
personal to the defendant, which means it
can only be waived by the defendant
himself, and not by his counsel. See
Jones v. Barnes, 463 U.S. 745, 751 (1983)
("the accused has the ultimate authority
to make certain fundamental decisions
regarding the case, as to whether to . .
. testify in his or her own behalf . .
."); United States v. Curtis, 742 F.2d
1070, 1076 (7th Cir. 1984). Moreover,
because the defendant’s right to testify
is a fundamental constitutional right
"essential to due process of law in a
fair adversary process," Rock, 483 U.S.
at 51 (quotation omitted), the
defendant’s waiver of the right must be
knowing and intelligent. See United
States v. Pennycooke, 65 F.3d 9, 11 (3d
Cir. 1995) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 241 (1973));
United States v. Teague, 953 F.2d 1525,
1533 (11th Cir. 1992) (ruling that "there
can be no effective waiver of a
fundamental constitutional right unless
there is an ’intentional relinquishment
or abandonment of a known right or
privilege’ Johnson v. Zerbst, 304 U.S.
458, 464 . . . (1938)"); see also United
States v. Webber, 208 F.3d 545, 550 (6th
Cir. 2000). However, we have repeatedly
held that the Constitution does not
require a trial court to question a
defendant sua sponte in order to ensure
that his decision not to testify was
undertaken knowingly and intelligently
unless there is some indication that the
defendant has been prevented from
exercising that right. See, e.g.,
Liegakos v. Cooke, 106 F.3d 1381, 1386
(7th Cir. 1997) (rejecting defendant’s
argument that a judge must inquire on the
record whether the defendant understands
the advantages of testifying and must
elicit a former waiver of the right to
testify); United States v. Thompson, 944
F.2d 1331, 1345 (7th Cir. 1991) (ruling
that "courts have no affirmative duty to
determine whether a defendant’s silence
is the result of a knowing and voluntary
decision not to testify" (citations
omitted), and that a court is not
constitutionally required to make such an
inquiry "absent some indication that the
defendant has been prevented from
exercising [his] right [to testify]").
Indeed, we have discouraged district
court judges from directly questioning a
defendant concerning his decision not to
testify for fear that in so doing judges
will insert themselves into a sensitive
aspect of trial strategy, thereby
intruding inappropriately on the
attorney-client relationship. See
Liegakos, 106 F.3d at 1386; United States
v. Campione, 942 F.2d 429, 439 (7th Cir.
1991); Underwood, 939 F.2d at 476. For
this reason, we have suggested that
courts refrain from questioning a
defendant regarding his decision not to
take the stand unless there is some
indication that either the defendant
actually wants to testify and is being
prevented from doing so or that there is
a conflict between the defendant and his
lawyer on the matter. See Thompson, 944
F.2d at 1345; see generally Ortega v.
O’Leary, 843 F.2d 258, 260-61 (7th Cir.
1988).
There is nothing in the record which
required the district court to do
anything more than it did to insure that
Manjarrez’s waiver of his right to
testify was knowing and intelligent.
Manjarrez does not claim that he
expressed a desire to testify which his
counsel refused to honor. See Campione,
942 F.2d at 439. Nor does he argue that
his counsel failed either to inform him
of his right to testify or adequately to
explain the right and the consequences of
waiving it. Indeed, Manjarrez has not
even submitted an affidavit stating that
he did not understand any of these things
at the time of the waiver. Further, the
case for finding a knowing and
intelligent waiver of the right to
testify is stronger here than in several
other cases wherein we have found such a
waiver. The district court posed a series
of clear and straightforward questions
through an interpreter, informing
Manjarrez of his right to testify and of
the consequences of waiving it, and
repeatedly asked Manjarrez if he
understood what the court was saying and
whether he wished to waive his right.
Manjarrez repeatedly indicated that he
did understand and that he did wish to
waive his right to testify. This is not a
case wherein we have to infer a
defendant’s waiver from his mere silence
(i.e., from his mere failure to take the
stand and to object when his counsel
rested without calling him as a witness).
Rather, we have unambiguous affirmative
indications of waiver from Manjarrez’s
own lips.
Nevertheless, Manjarrez claims that his
response to the fourth question in the
colloquy shows that he was laboring under
a fundamental misapprehension regarding
what it means to testify, and that once
the trial court was put on notice of this
it was obligated to take further steps to
insure that he fully and correctly
understood the right that he was waiving.
We are not persuaded. After informing
Manjarrez of his absolute right to
testify and of the possibility that
jurors might draw an adverse inference
from his failure to testify, the court
asked Manjarrez, "knowing all this, is it
your desire not to testify in this case?"
Manjarrez responded, "No. I mean my
lawyer’s here to answer everything that
needs to be answered." He never expressed
confusion regarding the meaning of his
right to testify nor asked the court for
clarification, despite having been asked
several times whether he understood.
Moreover, his response does not clearly
demonstrate a lack of understanding
regarding the meaning or significance of
his right to testify. Manjarrez said
merely that his lawyer would "answer
everything that needs to be answered." He
did not say that his lawyer would
"testify" on his behalf. Given this, his
response can reasonably be taken to mean
that Manjarrez thought that his lawyer
would do everything that needed to be
done by way of presenting a defense
(i.e., that his lawyer would make any
arguments on Manjarrez’s behalf that
needed to be made, without the aid of
Manjarrez’s testimony), and not that he
thought that his lawyer would testify for
him.
Thus, we do not hesitate to hold
Manjarrez bound by his waiver. While
there may be cases wherein a defendant’s
conduct clearly indicates a fundamental
lack of understanding regarding the
meaning of the right to testify and/or
the consequences of waiving it, this is
not such a case. We will not vacate
Manjarrez’s conviction or require further
proceedings on the basis of an
unsubstantiated, post hoc claim that he
did not understand his right to testify
when he waived it, cf. Underwood, 939
F.2d at 476, especially when the claim is
belied by the record.
B. Ostrich instruction
Manjarrez claims that the district court
erred in giving this court’s pattern
"ostrich" jury instruction without also
expressly instructing the jury that it
may consider evidence of Manjarrez’s
subjective good faith as a defense. The
court gave the following instruction,
based on Fed. Crim. Jury Instructions of the
Seventh Circuit sec. 4.06 (1998), over
Manjarrez’s objection:
When the word "knowingly" is used in
these instructions, it means that the
defendant realized what he was doing and
was aware of the nature of his conduct
and did not act through ignorance,
mistake, or accident. Knowledge may be
proved by the defendant’s conduct and by
all the facts and circumstances
surrounding the case.
You may infer knowledge from a
combination of suspicion and indifference
to the truth. If you find that a person
had a strong suspicion that things were
not what they seemed or that someone had
withheld some important facts, yet shut
his eyes for fear of what he would learn,
you may conclude that he acted knowingly
as I have used that word. You may not
conclude that the defendant had knowledge
if he was merely negligent in not
discovering the truth.
We have approved the giving of this
instruction "in cases in which there is
evidence that the defendant, knowingly or
strongly suspecting that he is involved
in shady dealings, takes steps to make
sure that he does not acquire full or
exact knowledge of the nature and extent
of those dealings." United States v.
Wallace, 212 F.3d 1000, 1004 (7th Cir.
2000) (citation and internal quotation
omitted). We have ruled that the
instruction is appropriate "when a
defendant claims a lack of guilty
knowledge and there are facts and
evidence that support an inference of
deliberate ignorance." Id. (citation and
internal quotation omitted). Manjarrez
does not argue that it was improper for
the court to give the ostrich instruction
in his case as a general matter. Rather,
he asserts that the ostrich instruction
should be given only together with
instructions that the jury may consider
evidence of the defendant’s subjective
good faith as a defense, and he maintains
that the district court’s failure to
include such a good faith defense
instruction in the jury charge unfairly
induced the jury to convict him despite
"extremely weak" evidence of his culpable
mental state. Manjarrez contends that it
is highly likely that he would have been
acquitted on one or both counts absent
the error, especially given what he
characterizes as the thinness of the
government’s case against him (which he
claims consisted primarily of the
testimony of a co-defendant who had
received a sentencing benefit in exchange
for his testimony), and the jury’s
confusion regarding the law (as
illustrated by the notes they sent to the
trial court during their deliberations).
Manjarrez’s arguments are unavailing.
First, his counsel never tendered a "good
faith" instruction to the district court.
As we have noted, "we require a formal
submission of a proposed charge,
otherwise we will consider alleged
defects in the court’s instructions only
under the plain error doctrine." See
United States v. Holland, 831 F.2d 717,
723 (7th Cir. 1987) (citation and
quotation omitted)./4 In addi-tion,
under the circumstances presented here,
we find that the district court committed
no error, much less plain error, in
giving the ostrich instruction without an
accompanying good faith instruction. A
defendant is not entitled to a specific
good faith instruction so long as,
"considering the instructions as a whole,
the jury was adequately instructed upon
his theory of defense." See United States
v. Given, 164 F.3d 389, 394 (7th Cir.
1999) (citation omitted). When the jury
instructions actually given "as a whole
treat a case fairly and accurately," a
defendant is not prejudiced by a district
court’s failure to give a particular
instruction, and under such circumstances
we will not disturb the jury instructions
on appeal. See United States v. Koster,
163 F.3d 1008, 1011 (7th Cir. 1998)
(citation omitted). Put another way, it
is unnecessary to give a particular
defense instruction if its essential
points are covered in another
instruction. See Holland, 831 F.2d at
723; see also Koster, 163 F.3d at 1011
("We defer to the substantial discretion
of the district court for the specific
wording of the instructions, and in
rejecting a proposed instruction, so long
as the essential points are covered by
the instructions given.") (citation and
quotation omitted). Considering as a
whole the jury charge given in this case,
it is clear that the district court accu
rately and amply instructed the jury
regarding the mental state which needed
to be proven in order to sustain a
conviction on both counts charged. For
example, in addition to the ostrich
instruction, the district court issued
the following instruction, which was a
modified version of the theory-of-defense
instruction proposed by the defendant:
The gist of the offense of conspiracy is
the agreement among the conspirators to
commit an offense. Those without
knowledge of the conspiracy are not
conspirators. One who, without more,
furnishes supplies or services to one
engaged in a criminal activity is not
guilty of conspiracy even though his sale
of goods or services may have furthered
the object of a conspiracy so long as the
seller of the goods or services has no
knowledge of the conspiracy.
Moreover, while the court declined to
issue various instructions proposed by
the defense (each of which presented a
variation of the "mere presence" defense
to the charge of conspiracy), the court
ultimately gave this Circuit’s pattern
"mere presence" instruction, which reads:
A defendant’s presence at the scene of a
crime and knowledge that a crime is being
committed is not alone sufficient to
establish the defendant’s guilt. A
defendant’s association with conspirators
is not by itself sufficient to prove his
participation or membership in a
conspiracy.
See Fed. Crim. Jury Instructions of the Seventh
Circuit sec. 5.11(a) (1999).
Finally, the district court provided the
jury with careful and accurate
definitions of the crimes charged,
informing the jurors that they could not
find Manjarrez guilty of either charge
unless they found that the government
proved his guilt beyond a reasonable
doubt as to each element of each offense,
including Manjarrez’s knowledge or intent
with respect to the charged offenses.
Specifically, the court instructed the
jury that:
In order to establish the offense of
conspiracy as charged in Count 1, the
government must prove:
First, that the conspiracy charged in
count 1 existed; And, second, that the
defendant knowingly became a member of
the conspiracy with an intention to
further the conspiracy. . . . If . . .
you find from your consideration of all
the evidence that any of these
propositions has not been proved beyond a
reasonable doubt, than you should find
the defendant not guilty. . . .
To be a member of the conspiracy, . . .
the government must prove beyond a
reasonable doubt that the defendant was
aware of the common purpose and was a
willing participant. . . .
Trans. at 317-19.
In order to establish the offense of
possession with intent to distribute
marijuana as charged in count 2, the
government must prove the following
propositions: First, that the defendant
knowingly or intentionally possessed
marijuana. Second, that the defendant
possessed marijuana with the intent to
deliver it to another person. It does not
matter whether the defendant knew the
substance was marijuana. It is sufficient
that the defendant knew that it was some
kind of prohibited drug.
. . . If . . . you find from your
consideration of all the evidence that
any of these propositions has not been
proved beyond a reasonable doubt, then
you should find the defendant not guilty.
Trans. at 320-21.
Taken together, these careful and
straightforward explanations of the
degree of knowledge and intent that the
government must prove to convict
Manjarrez on each charge, coupled with
the repeated admonitions not to convict
unless such a degree of guilty intent is
established beyond a reasonable doubt,
make it highly unlikely that the jury
found Manjarrez guilty of either charge
without also finding beyond a reasonable
doubt that he had the required mental
state. See Koster, 163 F.3d at 1012
(upholding the lower court’s denial of
defendant’s good faith defense
instructions where instructions on the
knowledge element of the charges
"encompassed any good faith defense");
United States v. Smith, 995 F.2d 662, 675
(7th Cir. 1993). In addition, the ostrich
instruction itself made it clear that a
defendant does not act "knowingly" when
he acts through "ignorance, mistake, or
accident," or where "he was merely
negligent in not discovering the truth."
This alone might well obviate any need
for a separate good faith instruction.
See Given, 164 F.3d at 394-95. Finally,
the theory-of-defense instruction and the
"mere presence" instruction given by the
district court contain the substance of
the good faith instruction that the
defendant now claims should have been
proposed by his trial counsel and issued
by the court. Each instruction conveys
the proposition that if Manjarrez did not
know about the conspiracy to commit the
charged offense, or did not know that he
was assisting a drug deal, that he was
not guilty. Therefore, "even without a
separate instruction . . . [t]he jury was
given a sufficient opportunity to
consider whether [the defendant] acted in
good faith," because the defendant’s
"theory of defense was already part of
the district court’s charge." Koster, 163
F.3d at 1012; see also Given, 164 F.3d at
394-95 (holding that the district court
did not err by refusing to give a good
faith instruction where the instructions
as a whole "made it abundantly clear to
the jury that if [the defendant] acted in
good faith, he was not guilty of mail
fraud."); United States v. Paiz, 905 F.2d
1014, 1023 (7th Cir. 1990) (abrogated on
other grounds by Gozlon-Peretz v. United
States, 498 U.S. 395 (1991)) (holding
that while the issuance of an ostrich
instruction was improper as to one of the
conspiracy defendants, it was
nevertheless harmless error where its
effect was "neutralized" by the court’s
issuance of "mere presence" and "willing
participation" instructions, both of
which "tend[ed] to negate any chance that
the jury would convict [the defendant] on
any finding other than that he knowingly
joined and participated in the
conspiracy") (citation omitted); United
States v. Grizaffi, 471 F.2d 69, 75 (7th
Cir. 1972). Therefore, the district
court’s failure to give a good faith
instruction sua sponte was not plain
error. Indeed, considering the other
instructions given as a whole, even if
Manjarrez’s counsel had tendered a good-
faith jury instruction the court would
have been justified in refusing it, and
we would affirm such a decision.
C. Prosecutor’s remarks during closing
argument
Manjarrez’s final claim of error can be
dismissed with dispatch. Manjarrez argues
that the government improperly suggested
to the jury that a defendant could be
found guilty of conspiracy under an
aiding-and-abetting theory of liability.
He notes, correctly, that the district
court had earlier rejected the
government’s proposed instruction which
specifically addressed aiding-and-
abetting liability in the context of a
conspiracy charge, and instead
subsequently issued an aiding and
abetting instruction which was not
expressly tied to either the conspiracy
charge (Count One) or to the substantive
offense (Count Two). Manjarrez maintains
that given the weakness of the
government’s case and the subsequent
juror confusion, the Assistant United
States Attorney (AUSA)’s "improper
argument" was prejudicial and likely
induced the jury to convict in derogation
of the trial court’s instructions and in
violation of Manjarrez’s due process
right to a fair trial./5
We disagree. As we recently noted,
[i]n reviewing allegations of improper
comments by a prosecutor, we employ a
two-step process. We first look at the
comments in isolation to determine if
they were improper. . . . If we find the
comments are proper, the analysis ends.
If we find they are improper, we must
then examine the comments in light of the
record as a whole to determine whether
the comments deprived the defendant of a
fair trial.
United States v. Castillo, 148 F.3d 770,
775 (7th Cir. 1998) (citations omitted).
A close reading of the allegedly improper
remark and of the context in which it
occurred reveals that the AUSA made the
remark in an attempt to demonstrate
Manjarrez’s guilt of the possession
charge, not the conspiracy charge. The
AUSA stated:
I believe Judge Castillo is going to
instruct you . . . that [the defendant
is] guilty if he’s aiding and abetting
someone else’s possession of the
marijuana. That is, Mr. Manjarrez is
renting the truck or driving the counter-
surveillance, or both, so that he could
help someone else possess this marijuana
and move it . . . and he does that
knowingly, then he is guilty of that
charge. (emphasis supplied).
The plain language of the statement
refers exclusively to the possession
charge, and the AUSA made the statement
while discussing the facts and evidence
pertinent to that charge, after he had
finished discussing the conspiracy
charge. The district court ultimately
gave a generic aiding-and-abetting
instruction, and Manjarrez does not argue
(nor can he) that the jury could not find
him guilty of the possession charge if
they determined that he aided and abetted
the commission of that offense.
Therefore, the AUSA’s comment was
entirely consistent both with the
instructions given by the district court
and with the law. Hence, we find that the
remark was perfectly proper. It caused
Manjarrez no prejudice, and it certainly
did not deprive him of a fair trial.
CONCLUSION
We have considered Manjarrez’s other
arguments, and find them meritless. For
the foregoing reasons, we AFFIRM
Manjarrez’s conviction.
FOOTNOTES
/1 Marquez was separately charged with conspiring to
possess with intent to distribute marijuana in
connection with the same transaction. He pled
guilty to the charge, and received a sentencing
benefit in exchange for agreeing to testify
against Manjarrez.
/2 Manjarrez, a native Spanish speaker, required the
assistance of an interpreter at trial. Two for-
eign language interpreters were sworn in at the
trial’s outset, and throughout the course of the
trial they translated the words spoken at trial
into Spanish, as well as the words spoken by
Manjarrez into English.
/3 Rock held that the right of the accused to
testify on his own behalf in a state trial
arises, in part, from the due process clause of
the Fourteenth Amendment. Rock, 483 U.S. at 51.
However, a defendant’s right to testify on his
own behalf in a federal criminal proceeding like
the one at issue here stems from the due process
clause of the Fifth Amendment, which is applica-
ble to the federal government.
/4 In a single "throw-away" sentence and without any
supporting argument or citation to pertinent
authority, Manjarrez also claims that his trial
counsel rendered ineffective assistance of coun-
sel by failing to ask the district court to issue
a good faith defense instruction once he learned
that the court was planning to issue the ostrich
instruction. As we have recently stated, "we are
generally reluctant to hear ineffective assis-
tance of counsel claims on direct appeal because
most trial records, unsupplemented by a 28 U.S.C.
sec. 2255 hearing, lack the evidence necessary to
fashion a successful claim." United States v.
Pergler, 233 F.3d 1005, 1009 (7th Cir. 2000)
(citation omitted). In addition, Manjarrez’s
ineffective assistance argument is presented in
a cursory manner which makes us even less in-
clined to address it. We find the argument waived
because it is insufficiently developed. See
United States v. Wimberley, 60 F.3d 281, 287 (7th
Cir. 1995) ("perfunctory and undeveloped argu-
ments, and arguments that are unsupported by
pertinent authority, are waived . . .") (citation
omitted).
/5 Manjarrez also suggests without developed argu-
ment or citation to authority that his trial
counsel rendered ineffective assistance by fail-
ing to move for a mistrial in response to the
AUSA’s improper comments. This argument meets the
same fate as Manjarrez’s other ineffective assis-
tance claim; it is waived.