United States v. Ambo

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 11, 2003
• Docket: 01-60712
• Status: Unpublished

Opinion

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.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:00-CR-38-1-GR -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-60712 -2-

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). No. 01-60712 -3-

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 -4-

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 No. 01-60712 -5-

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.