United States v. Darnelld Colman ( 2013 )

FILED
NOT FOR PUBLICATION MAR 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10015
Plaintiff - Appellee, D.C. No. 2:11-cr-00414-SMM-1
v.
MEMORANDUM *
DARNELLD REBECA COLMAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted February 14, 2013
San Francisco, California
Before: REINHARDT and M. SMITH, Circuit Judges, and CARR, Senior District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3 .
**
The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
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Colman appeals her jury conviction for importation of cocaine in violation
of 21 U.S.C. §§ 952.960(a) and 960(b)(1)(B)(ii), and possession with intent to
distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii).
Colman contends the district court committed reversible error by:
(1) failing to hold a voluntariness hearing to determine the voluntariness of
statements made during her custodial interrogation; (2) permitting the jury
members to view the cocaine seized from her car; (3) using the Ninth Circuit’s
model jury instruction on reasonable doubt; and (4) misstating the Ninth Circuit’s
model jury instruction on possession when reading the written instructions aloud to
the jury members.
For the following reasons, we uphold Colman’s conviction.
Confessions in criminal cases are admissible if voluntarily given, but
“[b]efore such confession is received in evidence, the trial judge shall, out of the
presence of the jury, determine any issue as to voluntariness.” 18 U.S.C. § 3501(a).
Despite the mandatory phrasing of the statute, this court has consistently held if
“the issue of admissibility is never raised, the trial court is not required sua sponte
to hold a § 3501(a) voluntariness hearing.” United States v. Smith, 638 F.2d 131,
133 (9th Cir. 1981). Colman did not contest the voluntariness of her statements
prior to or during trial. As such, the district court was not required to hold a
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voluntariness hearing.“Federal Rule of Criminal Procedure 12(b)(3) requires that
motions to suppress evidence be raised prior to trial; under Rule 12(f) failure to
bring a timely suppression motion constitutes a waiver of the issue.” United States
v. Wright, 215 F.3d 1020, 1026 (9th Cir. 2000).
With regard to allowing the jury members to view a sample of the cocaine
seized, the issue is whether the district court abused its discretion under Federal
Rule of Evidence 403. A district court properly applies Federal Rule of Evidence
403 “‘[a]s long as it appears from the record as a whole that the trial judge
adequately weighed the probative value and prejudicial effect of proffered
evidence before its admission[.]’” United States v. Verduzco, 373 F.3d 1022, 1029
n.2 (9th Cir. 2004) (quoting United States v.Sangrey, 586 F.3d 1312, 1315 (1978)).
In this case, the defendant claimed she did not know she had 40 pounds of
cocaine in the roof of her car. The government countered that it would be
extremely difficult for someone to place such a large volume of drugs in the roof of
her car without her knowledge. The district court agreed with the state that the
volume of the drugs seized was probative of the defendant’s knowledge of the
drugs in the car.
However, aware of the potential prejudicial effect of putting such a large
quantity of cocaine on display before the jury, the district court carefully
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considered and discussed admission with the parties. Ultimately, the district court
restricted the length of observation to approximately fifteen minutes. During the
viewing, the district court cautioned the jury members that the drugs were not
evidence and were being displayed only to allow the jurors to see what the drugs
taken out of the vehicle looked like. The district court explicitly stated to the jury
members that the drugs were not proof of any fact at issue. Moreover, the district
court stated, both at the time of viewing and in its final instructions, that the drugs
were shown for “demonstrative purposes only.”
Given the foregoing, we find the district court carefully balanced the
probative value of allowing the jury members to view the drugs against the
potential prejudice to the defendant. As such, the district court did not abuse its
discretion in admitting the evidence.
With respect to the reasonable doubt instruction, we find the district court
did not err in using the Ninth Circuit’s model jury instruction. “The test for
determining the adequacy of a reasonable doubt instruction is whether the
supplemental instruction detracts from the heavy burden suggested by the use of
the term ‘reasonable doubt’ standing alone.”United States v. Velasquez, 980 F.2d
1275, 1278 (9th Cir. 1992). This court has consistently held that the “firmly
convinced” language in the model instruction does not detract from or imply a
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lesser burden than the ‘reasonable doubt’ language standing alone. See United
States v. Ruiz, 462 F.3d 1082, 1087 (9th Cir. 2006); See also Velasquez, 980 F.2d
at 1278–79. Accordingly, we find that the district court did not err in using the
model instruction.
Lastly, we find the district court’s misstatement of the proper written jury
instruction on possession does not amount to reversible error. “On appeal, the
adequacy of jury instructions is not determined by the giving of any one
instruction, but by examining the instructions as a whole.” United States v.
Ancheta, 38 F.3d 1114, 1116 (9th Cir. 1994) (quotations and citation omitted). This
court has previously held that a district court’s misstatement while reading
instructions aloud does not constitute reversible error if it provides proper written
jury instructions to the jury members. Id. at 1117 (stating that the district court’s
misstatement of jury instructions did not amount to plain error because “the court
provided the jury with written instructions that properly stated the government’s
burden of proof”).
In this case, the district court provided the jury members with proper written
instructions and explicitly suggested that they reference the instructions during
their deliberations. As such, although the district court’s slip of the tongue was
plain error, it is unlikely to have affected the outcome of the proceedings. See
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United States v. Fuchs, 218 F.3d 957, 962 (9th Cir. 2000). Accordingly, the
misstatement does not constitute reversible error.
AFFIRMED.
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