UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40519
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RENE RIVAS,
Defendant-Appellant.
Appeals from the United States District Court For the Southern District of Texas October 23, 1996
Before WISDOM, SMITH and PARKER, Circuit Judges.
PARKER, Circuit Judge:
Appellant Rene Rivas (“Rivas”) appeals his convictions for
conspiracy to possess with intent to distribute marijuana and
possession with intent to distribute marijuana, as well as the
sentences imposed by the district court. Finding no reversible
error, we affirm.
FACTS AND PROCEEDINGS
Law enforcement officers stopped an 18-wheeler hauling a load
of watermelons from Texas to Florida on September 27, 1994. They
1 found approximately 773 pounds of marijuana in a hidden compartment
in the trailer. The driver, Rivas’s co-defendant Ramon Rodriguez,
pleaded guilty to a drug trafficking charge.
Juan Cano (“Cano”), who owned the truck, had been cooperating
with law enforcement for about three weeks at the time of the stop
and testified as a key witness against Rivas. Cano testified that
on August 13, 1994 he received a mysterious phone call from an
unidentified man that he later determined was Rivas. The caller
stated that he was holding Cano’s son Ruben and instructed Cano to
deliver his pickup truck to a certain parking lot the next day.
There were four or five more phone calls in which the same caller
demanded a car and a large red tractor trailer rig (“the red
truck”). After Cano complied with these demands, Ruben was
released. In addition to the vehicle demands, the caller and his
messenger who picked up the vehicles repeatedly asked Cano whether
he was ready to do business or “ready to haul weed.”
On September 7, 1994, Cano reported these incidents to the
police and agreed to cooperate in an investigation into the demands
and into the stolen vehicles. The caller contacted Cano again on
September 21, 1994 and Cano agree to haul marijuana for him. The
caller instructed Cano to locate a load of produce going to
Florida, and to turn over another one of his tractor trailer rigs
(“the pink truck”), in exchange for the return of the red truck.
Cano reported this call to the police, who set up surveillance
beginning with the turn-over of the pink truck and continuing
through Rivas’s arrest. Rivas met Cano at an agreed location and
2 took the pink truck from him. Cano testified that this was the
first time he had ever seen Rivas, but that he recognized his voice
from the phone calls. Cano then arranged for the pink truck to
take a load of watermelons to Florida. Rivas provided the driver,
Ramon Rodriguez, and Cano provided $200 for fuel money.
The Texas Department of Public Safety (“DPS”) officers who
conducted the surveillance testified that Rivas picked up the pink
truck and drove it to his house, where they observed one of the
other vehicles Cano had reported stolen. Rivas then drove the pink
truck to another house, where the red truck was parked. From
September 23-27, surveillance officers observed Rivas meeting with
Rodriguez at various parking lots, driving the red truck,
inspecting the pink truck, and meeting the pink truck at the
produce market where it picked up the watermelons.
On September 27, 1994, after the load of marijuana had been
confiscated, the police executed a search warrant at Rivas’s house,
recovering a box of watermelons, $9,400 in currency and two
vehicles that Cano had reported stolen. Rivas was not arrested at
this time.
On September 29, 1994, after three aborted meetings in
parking lots, Rivas came to Cano’s house and wrote on a piece of
paper, “Mr. Cano, if you take all the rap, I will pay you one
percent, whatever it cost, what happened.” A federal warrant for
Rivas’s arrest was issued on September 30, 1994 and executed on
October 3, 1994.
Rivas was indicted for conspiracy to possess with intent to
3 distribute marijuana and possession with intent to distribute
marijuana for his role. A jury found him guilty on both counts.
The district court sentenced him to 78 months in prison.
THE DISTRICT COURT’S “CEASE DELIBERATING” INSTRUCTION
During deliberations at trial, the jury twice informed the
judge that they had reached a verdict on one count, but that they
were having trouble reaching a verdict on the other. The second
time, they inquired, “Are we allowed to have a hung decision on a
count?” The court responded:
If you have reached a verdict as to any count, please have the foreperson make the appropriate entries on the verdict forms as to that count. Then have the foreperson sign the verdict form, date it, and enclose and seal it in the attached envelope. As to any count for which you have not reached a verdict, please advise if further deliberations will assist you in reaching a verdict.
Rivas objected on the basis that any further deliberation on the
undecided count would in effect force a coerced verdict. The jury
filled out the jury form and sealed it, in compliance with the
court’s instructions. The district court then gave the jury an
Allen1 charge, adding, “You are no longer to address the count for
which you have received a unanimous verdict.” After giving the
Allen charge, the court gave the jury an identical verdict form and
stated again that it was “to apply only to the count [on] which you
have not reached a verdict.”
After the jury returned to deliberations, Rivas made the
additional objection that the court’s instruction improperly
1 Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
4 prevented the jurors from deliberating further on the count upon
which they had agreed. The district court overruled the objection.
After a question from the jury about the definition of “possession”
and in response to the court’s instruction, Rivas reurged his
previous objections and moved for judgment of acquittal “on the
basis that the jury has already returned one verdict; consequently,
any further deliberations constitute double jeopardy on the
remaining count.” The district court denied the motion.
After further deliberations, the jury returned both verdict
forms, finding Rivas guilty on both counts. A poll of the jury
confirmed that the guilty verdicts were unanimous.
Rivas contends that the district court erred because its
instructions (1) coerced the jury into surrendering its views for
the purpose of rendering its verdict; (2) set a time limit for the
deliberations; (3) constituted a comment on the evidence; and (4)
resulted in a directed verdict. Rivas argues that the procedure
prevented further deliberation on a count when the jury had not yet
reached a final verdict. Rivas relies on United States v. Straach,
987 F.2d 232 (5th Cir. 1993), where this Court stated that
a jury has not reached a valid verdict until deliberations are over, the result is announced in open court, and no dissent by a juror is registered. Even at this point, where the verdict is announced in open court and no dissent is voiced, the verdict may not be accepted by the court if a poll taken before the verdict is recorded indicates a lack of unanimity. . . . This applies particularly where more than one count has been submitted to the jury, for continuing deliberations may shake views expressed on counts previously considered. Jurors are not bound by votes in the jury room and remain free to register dissent even after the verdict has been announced, though before the verdict is recorded.
5 Id. at 243, quoting United States v. Taylor, 507 F.2d 166, 168 (5th
Cir. 1975).
The Government points out that Rivas failed to object to the
district court’s instructions on the basis now presented as error
until after the instruction had been sent to the jury and they had
begun to deliberate. Objections made to instructions after they
have been given to the jury and the jury has retired to deliberate
are reviewed for plain error. United States v. Winn, 948 F.2d 145,
159 (5th Cir. 1991), cert. denied, 503 U.S. 976, 112 S. Ct. 1599,
118 L. Ed. 2d 313 (1992). See FED. R. CRIM. P. 30.
In order to establish that the instruction constituted plain
error, Rivas must show that (1) there was error; (2) the error was
clear or obvious; and (3) the obvious error affected substantial
rights. United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir
1994) cert. denied, 115 S. Ct. 1266, 131 L. Ed. 2d 145 (1995). We
find that the district court erred and that the error was clear.
However, the error did not affect Rivas’s substantial rights.
There is no indication that the jury was less than unanimous in its
verdict on Count One at any time. The jurors were polled after
both verdicts were returned and all jurors indicated that the
verdict on Count One was their verdict. We therefore decline to
reverse on the basis of the district court’s erroneous “cease
deliberating” instruction. Our affirmance should not be read to
approve the procedure used by the district court. However, we are
unpersuaded that the procedure prejudiced Rivas, given the specific
circumstances of this case.
6 Rivas also contends that the “cease deliberating” instruction
constituted a directed verdict on Count One and resulted in a
double jeopardy violation. He argues that by ending jury
deliberations on Count One, the district court in effect directed
a verdict on that count. He argues that jeopardy therefore
attached and further deliberations on the remaining count were
prohibited by the double jeopardy clause. Because the district
court did not accept in open court a final verdict on Count One
until after the jury had finished deliberating on Count Two,
Rivas’s double jeopardy claim is without merit.
SUFFICIENCY OF THE EVIDENCE
When reviewing a challenge to the sufficiency of the evidence
in a criminal case, this Court must determine whether a “reasonable
trier of fact could find that the evidence establishes guilt beyond
a reasonable doubt.” United States v. Bell, 678 F.2d 547, 549 (5th
Cir. Unit B 1982) (en banc), aff’d on other grounds, 462 U.S. 356,
103 S. Ct. 2398, 76 L. Ed. 2d 638 (1983).
Rivas argues that key testimony provided by Juan Cano should
not be believed because it was implausible and because a government
witness who was involved in the investigation characterized Cano’s
version of the facts as a “wild and far-fetched” story. Rivas
points out that Ruban Cano, the alleged kidnap victim, did not
mention the incident in his own probation revocation hearing. He
also emphasizes that both Ruban and Juan Cano had previous
convictions for drug-related violations while Rivas had no previous
criminal history.
7 The jury was entitled to credit Cano’s testimony, regardless
of Rivas’s position that it was implausible. Rivas has failed to
show that a reasonable trier of fact could not have found that the
evidence established guilt beyond a reasonable doubt. See Bell,
678 F.2d at 549.
ALLEN CHARGE
Rivas contends that the district court erred by giving the
jury an Allen charge when the jury had only deliberated for a short
time, in effect coercing a jury verdict. The instruction given by
the district court mirrors the one which this court approved in
United States v. Nguyen, 28 F.3d 477, 484 (5th Cir. 1994), and
Rivas does not challenge the actual content of the charge.
The jury had deliberated from 11 a.m. until 5:00 p.m. with a
break for lunch on the first day, then two more hours the following
day. The jury had twice informed the court it was deadlocked
before the Allen charge was given. After the court gave the
charge, the jury sent two more notes concerning the instructions
and deliberated until 4:50 p.m.
The district court has broad discretion to give an Allen
charge when the jury indicates that it is deadlocked. United
States v. Pace, 10 F.3d 1106, 1125 (5th Cir. 1993), cert. denied,
114 S. Ct. 2180, 128 L. Ed. 2d 899 (1994). Rivas has not shown
that the district court abused its discretion in giving the Allen
charge under these circumstances.
MOTION TO SUPPRESS EVIDENCE
Rivas contends that the district court erred when it denied
8 his motions to suppress evidence seized in the search of his house
and its premises. This Court reviews factual findings in the
district court’s order denying a motion to suppress for clear error
and resolves questions of law de novo. United States v. Kelley,
981 F.2d 1464, 1467 (5th Cir.), cert. denied, 508 U.S. 944, 113 S.
Ct. 2427, 124 L. Ed. 2d 647 (1993).
Rivas filed motions to suppress the evidence found during a
search of his home, arguing that the state search warrant
authorizing the search of the premises was invalid and that he did
not validly consent to the warrantless search of his home. Rivas
challenges the district court’s denial of those motions.
a. Search of the interior of the house.
Danny Pena, a DPS trooper, testified at the suppression
hearing that he went to Rivas’s house with other officers, driving
up to the house with his emergency lights on at about 10:20 p.m. on
September 27, 1994. Pena saw someone look out the window and then
run back into the house. Pena and another officer went to the
front door and knocked. Rivas’s wife opened the door. Pena, who
was in uniform, identified himself as a police officer and asked
Mrs. Rivas for permission to enter the house. According to the
officer, she agreed. Pena informed Mrs. Rivas that they were there
to retrieve some vehicles and that they had a search warrant.
Joe Ortiz, another DPS officer, testified that he was sent to
Rivas’s house to execute a search warrant and that he participated
in the search. When he arrived, he went to the back of the house
and saw Rivas leaving through the back door. Ortiz met Rivas,
9 identified himself as a DPS officer and Rivas, in turn, identified
himself. Another officer walked up and stated that he had detected
the odor of marijuana at the house and on Rivas. Rivas admitted
that he had been smoking a joint. The officers then requested
permission to search the house. Rivas was given a “Consent to
Search” form, and Ortiz testified that Rivas stated that “they”
were already searching his house. Ortiz informed Rivas that no one
was searching his house, but that the officers were only explaining
to his wife that they were going to be on the property, seizing
certain vehicles that had been reported stolen. Ortiz testified
that Rivas said that he understood and signed the consent form.
Officer Segundo testified that Rivas added the words, “After
officers already in house” and “reluctantly” to the consent form
when he signed it. Segundo asked Rivas whether that “mean[t] we
can go in, or does it mean that we can’t.” According to Segundo,
Rivas responded that they could search the house.
Rivas testified that: (1) he did not read the Consent to
Search form and that the officers insisted that he sign it; (2) he
understood what the officers were saying to him and he knew he was
signing a Consent to Search form; (3) no one told him that he did
not have to sign the form, but no one threatened him; and (4) he
finished the eleventh grade in school. Mrs. Rivas testified that
officers knocked on the front door of the house and she answered
the knock. She said that the officers pushed their way into the
house without an invitation and she never consented to a search of
the house.
10 The voluntariness of consent is a question of fact to be
determined from the totality of all the circumstances. Kelley, 981
F.2d at 1469. This Court has set forth a six-factor test for
reviewing the voluntariness of a consent to search: (1) the
defendant’s custodial status; (2) the presence or absence of
coercive police tactics; (3) the nature and extent of the
defendant’s cooperation with officers; (4) the defendant’s
knowledge of his ability to decline to give consent; (5) the
defendant’s intelligence and educational background; and (6) the
defendant’s belief that no incriminating evidence will be found.
Kelley, 981 F.2d at 1470. First Rivas was not in custody when they
requested his consent. Second, the only evidence of police
coercion is Rivas’s uncorroborated testimony that the officers
insisted that he sign the form and the fact that the police arrived
after 10:00 p.m. Third, there is no evidence that Rivas was
uncooperative with the officers. Fourth, the form clearly stated
that Rivas could refuse to give his consent, although Rivas
asserted that he did not read the form before signing it. The fact
that he added “reluctantly,” to the form and then told Segundo that
they could go ahead with the search evidenced his awareness that he
had the right to refuse to consent to the search. Fifth, his
eleventh grade education and the notations he made on the consent
form indicate an intelligence level sufficient to made a knowing
waiver. Finally, Rivas did not believe that the officers would
find any contraband in the house except a small amount of
marijuana. Although the late hour of the search weighs as a
11 coercive factor, the district court’s finding of voluntariness was
not clearly erroneous given the balance of the evidence in the
record.
b. Search of the exterior of Rivas’s house.
The officers found two vehicles that Cano told the officers
Rivas had extorted from him and a box of watermelons. Rivas
contends that the search warrant issued by a Texas justice of the
peace is invalid under FED. R. CRIM. P. 41(a) because: (1) a justice
of the peace is not a “court of record” under the rule; (2) the
warrant does not authorize the search in the nighttime; and (3) the
affidavit attached to the warrant did not establish probable cause.
In United States v. McKeever, 905 F.2d 829, 832 (5th Cir.
1990), cert. denied, 498 U.S. 1070, 111 S. Ct. 790, 112 L. Ed. 2d
852 (1991), this Court held that “the 1972 amendment to Rule 41
reflects a Congressional intent that none of Rule 41's requirements
apply to state warrants.” Rule 41(a) applies only to warrants
sought by federal officers. See id. The warrant in this case was
obtained by state DPS officers from a state justice of the peace.
Thus, Rivas’s arguments under Rule 41 are meritless.
Rivas next contends that the warrant was invalid because Texas
Code of Criminal Procedure, Article 18.01(c) does not list justices
of the peace as judicial officers empowered to issue search
warrants under Article 18.02. The Government responds that this
Court has held that the Texas Code of Criminal Procedure provides
that justices of the peace are “magistrates” who are authorized to
issue search warrants. United States v. Conine, 33 F.3d 467, 469
12 (5th Cir. 1994); TEX.CODE CRIM.PROC.ANN. art. 2.09 (Vernon Supp.1994).
Rivas’s assertion that the affidavit attached to the state
warrant did not establish probable cause is unsupported by any
argument. Because issues that are raised on appeal but not briefed
are deemed abandoned, this Court will not address this alleged
point of error. See United States v. Gipson, 46 F.3d 472, 474-75
(5th Cir. 1995).
The district court’s factual determination that Rivas gave
valid consent for the search of his home was not clearly erroneous.
Further, Rivas did not establish that the warrant executed on the
outside premises was invalid. We therefore conclude that the
district court did not err in denying Rivas’s motions to suppress
the evidence found during the search.
SENTENCE ENHANCEMENT FOR MANAGERIAL ROLE
The district court’s finding that a defendant played a
managerial role in the offense is a factual finding that this Court
reviews for clear error. United States v. Narvaez, 38 F.3d 162,
166 (5th Cir. 1994), cert. denied, 115 S. Ct. 1803, 131 L. Ed. 2d
729 (1995).
Pursuant to U.S.S.G. § 3B1.1(c): “If the defendant was an
organizer, leader, manager or supervisor in any criminal activity
other than described in (a) or (b), increase by 2 levels.”
Subsections (a) and (b) discuss three and four-level enhancements
for more aggravating roles. In this case, the evidence showed that
Rivas obtained the vehicle used to transport the marijuana to
Florida by extorting the vehicle from Juan Cano. Rivas attempted
13 to recruit Cano into the conspiracy and succeeded in persuading
Cano to locate a load of produce bound for Florida to facilitate
the crime. Rivas has not shown that the district court’s decision
to enhance Rivas’s offense level by the minimum amount provided for
in § 3B1.1 was clearly erroneous.
CONCLUSION
For the foregoing reasons, we affirm Rivas’s convictions and
sentence.
AFFIRMED.