UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-4139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN MANUEL FUENTES-MORALES,
Defendant - Appellant.
No. 20-4219
Appeals from the United States District Court for the District of South Carolina, at Orangeburg. J. Michelle Childs, District Judge. (5:14-cr-00556-JMC-1)
Submitted: October 27, 2020 Decided: November 13, 2020 Before GREGORY, Chief Judge, and KING and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Derek J. Enderlin, ROSS & ENDERLIN, PA, Greenville, South Carolina, for Appellant. Brian A. Benczkowski, Assistant Attorney General, Thomas E. Booth, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Peter M. McCoy, Jr., United States Attorney, Kathleen M. Stoughton, Assistant United States Attorney, Columbia, South Carolina, J.D. Rowell, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Denver, Colorado, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2 PER CURIAM:
A jury convicted Juan Manuel Fuentes-Morales (“Fuentes”) of conspiracy to
kidnap, in violation of 18 U.S.C. §§ 2, 1201(a), (c); kidnapping, in violation of 18 U.S.C.
§§ 2, 1201(a)(1); hostage taking, in violation of 18 U.S.C. §§ 2, 1203; and making a
materially false statement to a federal agent, in violation of 18 U.S.C. § 1001(a). The
district court sentenced Fuentes to 500 months’ imprisonment. On appeal, Fuentes
contends that the district court erred in declining to instruct the jury on reasonable doubt,
as well as granting the Government’s motion in limine prohibiting him from arguing a
definition, and in denying his pretrial motion to suppress the victim’s identification of
Fuentes. Finding no reversible error, we affirm.
As for Fuentes’ first argument, he concedes that his argument is foreclosed by
circuit precedent. “The law is well-settled in this Circuit that a judge is not allowed to
define reasonable doubt unless requested to do so by the jury. Furthermore, a district court
may restrict counsel from arguing definitions of reasonable doubt.” United States v.
Patterson, 150 F.3d 382, 389 (4th Cir. 1998) (citation omitted). “[O]ne panel [of this court]
cannot overrule a decision issued by another panel.” United States v. Williams, 808 F.3d
253, 261 (4th Cir. 2015) (internal quotation marks omitted). Although Fuentes has filed a
motion for initial hearing en banc for us to reconsider this line of cases, we deny his motion.
See Fed. R. App. P. 35.
Fuentes also briefly argues that the Government erred during its closing arguments
in asking the jury to render a verdict that speaks the truth and to do its job, and that the
district court erred in instructing that the jury’s sole interest was to determine the truth.
3 Because Fuentes did not object in the district court to the Government’s arguments or the
court’s instructions, we review for plain error. See United States v. Catone, 769 F.3d 866,
871 (4th Cir. 2014). Thus, to succeed on his claim, Fuentes “must show (1) that the
[district] court erred, (2) that the error is clear and obvious, and (3) that the error affected
his substantial rights, meaning that it affected the outcome of the district court
proceedings.” Id. at 871 (internal quotation marks omitted). If Fuentes meets this burden,
“we retain discretion whether to recognize the error and will deny relief unless the district
court’s error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
We have previously concluded that a district court did not reversibly err in
instructing a jury that its duty was to search for the truth when the language was included
within the court’s general duty to deliberate instructions and separate from the reasonable
doubt instructions where it might imply that the standard of proof is less than reasonable
doubt. See United States v. Farkas, 474 F. App’x 349, 358 (4th Cir. 2012) (No. 11-4714).
Other circuits have also reached similar conclusions. See, e.g., United States v.
Shamsideen, 511 F.3d 340, 344-50 (2d Cir. 2008); United States v. Gonzalez-Balderas, 11
F.3d 1218, 1223 (5th Cir. 1994). Similarly, as for the Government’s remark during closing
arguments that the jury should render a verdict that speaks the truth, the First Circuit has
found that such a remark “asking the jury to deliver an honest verdict is proper and it is
inherently the prosecutor’s position that this test entails conviction.” United States v.
Jones, 674 F.3d 88, 93 (1st Cir. 2012). While the Government should not have exhorted
the jury to do its job, see United States v. Young, 470 U.S. 1, 18 (1985), we conclude that
4 Fuentes cannot show he was prejudiced by this isolated remark, see United States v. Rand,
835 F.3d 451, 465 (4th Cir. 2016). Therefore, we conclude that Fuentes cannot establish
plain error. See United States v. Garcia-Lagunas, 835 F.3d 479, 496 (4th Cir. 2016) (noting
that unpublished Fourth Circuit case contradicting appellant’s argument “suggests that
even if the district court erred, such error was not plain”); United States v. Rouse, 362 F.3d
256, 263 (4th Cir. 2004) (recognizing, in the absence of Supreme Court or Fourth Circuit
authority, “decisions by other circuit courts of appeals are pertinent to the question of
whether an error is plain” (internal quotation marks omitted)).
Fuentes also argues that the district court erred in denying his pretrial motion to
suppress. “When reviewing a district court’s ruling on a motion to suppress, we review
factual findings for clear error and legal determinations de novo,” construing “the evidence
in the light most favorable to the prevailing party.” United States v. Lull, 824 F.3d 109,
114-15 (4th Cir. 2016) (internal quotation marks omitted). Due process concerns arise
“when law enforcement officers use an identification procedure that is both suggestive and
unnecessary.” Perry v. New Hampshire, 565 U.S. 228, 238-39 (2012). The defendant
bears the burden of proof in challenging the admissibility of an out-of-court identification.
See United States v. Johnson, 114 F.3d 435, 441 (4th Cir. 1997). “First, the defendant must
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-4139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN MANUEL FUENTES-MORALES,
Defendant - Appellant.
No. 20-4219
Appeals from the United States District Court for the District of South Carolina, at Orangeburg. J. Michelle Childs, District Judge. (5:14-cr-00556-JMC-1)
Submitted: October 27, 2020 Decided: November 13, 2020 Before GREGORY, Chief Judge, and KING and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Derek J. Enderlin, ROSS & ENDERLIN, PA, Greenville, South Carolina, for Appellant. Brian A. Benczkowski, Assistant Attorney General, Thomas E. Booth, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Peter M. McCoy, Jr., United States Attorney, Kathleen M. Stoughton, Assistant United States Attorney, Columbia, South Carolina, J.D. Rowell, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Denver, Colorado, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2 PER CURIAM:
A jury convicted Juan Manuel Fuentes-Morales (“Fuentes”) of conspiracy to
kidnap, in violation of 18 U.S.C. §§ 2, 1201(a), (c); kidnapping, in violation of 18 U.S.C.
§§ 2, 1201(a)(1); hostage taking, in violation of 18 U.S.C. §§ 2, 1203; and making a
materially false statement to a federal agent, in violation of 18 U.S.C. § 1001(a). The
district court sentenced Fuentes to 500 months’ imprisonment. On appeal, Fuentes
contends that the district court erred in declining to instruct the jury on reasonable doubt,
as well as granting the Government’s motion in limine prohibiting him from arguing a
definition, and in denying his pretrial motion to suppress the victim’s identification of
Fuentes. Finding no reversible error, we affirm.
As for Fuentes’ first argument, he concedes that his argument is foreclosed by
circuit precedent. “The law is well-settled in this Circuit that a judge is not allowed to
define reasonable doubt unless requested to do so by the jury. Furthermore, a district court
may restrict counsel from arguing definitions of reasonable doubt.” United States v.
Patterson, 150 F.3d 382, 389 (4th Cir. 1998) (citation omitted). “[O]ne panel [of this court]
cannot overrule a decision issued by another panel.” United States v. Williams, 808 F.3d
253, 261 (4th Cir. 2015) (internal quotation marks omitted). Although Fuentes has filed a
motion for initial hearing en banc for us to reconsider this line of cases, we deny his motion.
See Fed. R. App. P. 35.
Fuentes also briefly argues that the Government erred during its closing arguments
in asking the jury to render a verdict that speaks the truth and to do its job, and that the
district court erred in instructing that the jury’s sole interest was to determine the truth.
3 Because Fuentes did not object in the district court to the Government’s arguments or the
court’s instructions, we review for plain error. See United States v. Catone, 769 F.3d 866,
871 (4th Cir. 2014). Thus, to succeed on his claim, Fuentes “must show (1) that the
[district] court erred, (2) that the error is clear and obvious, and (3) that the error affected
his substantial rights, meaning that it affected the outcome of the district court
proceedings.” Id. at 871 (internal quotation marks omitted). If Fuentes meets this burden,
“we retain discretion whether to recognize the error and will deny relief unless the district
court’s error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
We have previously concluded that a district court did not reversibly err in
instructing a jury that its duty was to search for the truth when the language was included
within the court’s general duty to deliberate instructions and separate from the reasonable
doubt instructions where it might imply that the standard of proof is less than reasonable
doubt. See United States v. Farkas, 474 F. App’x 349, 358 (4th Cir. 2012) (No. 11-4714).
Other circuits have also reached similar conclusions. See, e.g., United States v.
Shamsideen, 511 F.3d 340, 344-50 (2d Cir. 2008); United States v. Gonzalez-Balderas, 11
F.3d 1218, 1223 (5th Cir. 1994). Similarly, as for the Government’s remark during closing
arguments that the jury should render a verdict that speaks the truth, the First Circuit has
found that such a remark “asking the jury to deliver an honest verdict is proper and it is
inherently the prosecutor’s position that this test entails conviction.” United States v.
Jones, 674 F.3d 88, 93 (1st Cir. 2012). While the Government should not have exhorted
the jury to do its job, see United States v. Young, 470 U.S. 1, 18 (1985), we conclude that
4 Fuentes cannot show he was prejudiced by this isolated remark, see United States v. Rand,
835 F.3d 451, 465 (4th Cir. 2016). Therefore, we conclude that Fuentes cannot establish
plain error. See United States v. Garcia-Lagunas, 835 F.3d 479, 496 (4th Cir. 2016) (noting
that unpublished Fourth Circuit case contradicting appellant’s argument “suggests that
even if the district court erred, such error was not plain”); United States v. Rouse, 362 F.3d
256, 263 (4th Cir. 2004) (recognizing, in the absence of Supreme Court or Fourth Circuit
authority, “decisions by other circuit courts of appeals are pertinent to the question of
whether an error is plain” (internal quotation marks omitted)).
Fuentes also argues that the district court erred in denying his pretrial motion to
suppress. “When reviewing a district court’s ruling on a motion to suppress, we review
factual findings for clear error and legal determinations de novo,” construing “the evidence
in the light most favorable to the prevailing party.” United States v. Lull, 824 F.3d 109,
114-15 (4th Cir. 2016) (internal quotation marks omitted). Due process concerns arise
“when law enforcement officers use an identification procedure that is both suggestive and
unnecessary.” Perry v. New Hampshire, 565 U.S. 228, 238-39 (2012). The defendant
bears the burden of proof in challenging the admissibility of an out-of-court identification.
See United States v. Johnson, 114 F.3d 435, 441 (4th Cir. 1997). “First, the defendant must
show that the photo identification procedure was impermissibly suggestive.” United States
v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007). If the procedure was improper, we must
“consider[] whether the identification was nevertheless reliable in the context of all of the
circumstances.” Id. at 389-90. Factors to be considered in evaluating the reliability of the
identification include: “the opportunity of the witness to view the criminal at the time of
5 the crime, the witness’ degree of attention, the accuracy of the witness’ prior description
of the criminal, the level of certainty demonstrated by the witness at the confrontation, and
the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U.S. 188,
199-200 (1972).
Assuming that the identification procedure was unduly suggestive, we conclude that
the victim’s identification was reliable. The strongest factor weighing against the
reliability of the victim’s identification is that Fuentes was holding a weapon on one
occasion when the victim saw him. See United States v. Greene, 704 F.3d 298, 308 (4th
Cir. 2013) (relying on social science research and concluding a witness’ “degree of
attention to the robber at the time of the offense was greatly diminished due to her
reasonable fear and the distraction of having a weapon pointed at her”). Additionally, the
fact that the victim was blindfolded also weighs against finding the identification reliable.
See id. (considering fact “that the witness’s opportunity to view the perpetrator was
limited” because the robber was in the bank for a short time and “was wearing a long wig
and sunglasses”).
However, we conclude that the other factors weigh in favor of reliability. Fuentes
matched the victim’s description of a Mexican male with black hair and a thin beard.
Brostrom showed the victim the photographs the day of the rescue, less than a week after
his initial capture. See Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (noting two-day
gap between crime and line-up in finding identification was reliable). Although the victim
was blindfolded the majority of the time, he stated that he could see under his blindfold
and his overall description of his ordeal was detailed. See United States v. Saint Louis, 889
6 F.3d 145, 153-54 (4th Cir. 2018) (finding witness’ ability to “recall specific details about
her captivity, showing a high degree of attention during that time,” supported reliability of
identification). Furthermore, Brostrom testified that the victim was confident in his
identification. See id. (noting witness “showed a high level of certainty when she picked
[the] photo from the array”). Therefore, we conclude that the district court appropriately
allowed the victim to identify Fuentes.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED