United States v. Severa

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 9, 1996
• Docket: 96-40032
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-40032

Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee,

versus SHAWN ANTHONY SEVERA Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas USDC No. L-95-115

October 8, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Shawn Anthony Severa appeals his conviction and sentence for

possessing marijuana with intent to distribute it, 21 U.S.C. §

841(a)(1). Contrary to his contention, the evidence was amply

sufficient for a jury to convict. United States v. Lopez, 74 F.3d

575 (5th Cir.), cert. denied, 116 S.Ct. 1867 (1996). Among other

things, the defendant was caught with $1.7 million worth of

marijuana secreted in his truck, and demonstrated no surprise when

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. it was found. United States v. Del Aguila-Reyes, 722 F.2d 155, 157

(5th Cir. 1983). When arrested, he was carrying a semi-automatic

pistol and almost $2,000 in cash. United States v. Romero-Reyna,

867 F.2d 834, 836 (5th Cir. 1989). Severa said that he inspected

the trailer and did not smell anything even though four agents

testified that the odor coming from the trailer was very strong.

Severa had in his cab tools that would quickly and easily dismantle

the compartment behind which the drugs were hidden. The jury heard

testimony about false license plates and bills of sale for

different trailers that were also in the truck. Severa gave a

false account to border agents about his involvement with the

trailer, an account that clashed with evidence the jury heard at

trial. The jury was free to disbelieve Severa. A rational jury

had sufficient evidence to convict Severa. United States v. Diaz-

Carreon, 915 F.2d 951 (5th Cir. 1990); United States v. Anchondo-

Sandoval, 910 F.2d 1234 (5th Cir. 1990).

We also find no plain error in (1) what Severa alleged to be

constructive amendment of the indictment; (2) Severa’s not being

sentenced for simple possession of marijuana;(3) the district

court’s curtailment of his cross-examination of two witnesses; (4)

what Severa alleged to be prosecutorial misconduct; and (5) the

modified Allen charge given to the jury. See United States v.

Calverly, 37 F.3d 160, 162 (5th Cir. 1994) (en banc), cert. denied,

2 115 S.Ct. 1266 (1995). We comment briefly about appellant’s

contentions of constructive amendment and the Allen charge.

The record shows that both the prosecutor and the defense

counsel correctly informed the jury that the Government had to

prove beyond a reasonable doubt that Severa possessed the drugs

with intent to distribute. The court expounded forcefully on the

knowledge element. In open court, the judge asked the foreman of

the jury about the handwritten portion of the jury forms, and then

polled the jury. The jury members confirmed that they voted to

convict Severa on the count in charge two. The court asked the

jurors whether they all understood the elements of count two, and

they nodded in agreement. With no objections, the court released

the jury. There was no constructive amendment of the indictment.

United States v. Holley, 23 F.3d 902, 912 (5th Cir.), cert. denied

115 S.Ct. 635 (1994), 115 S.Ct. 737 (1995).

There was no plain error in the Allen charge given to the

jury. A court may give a charge to a jury to iron out their

differences and reach a verdict, sometimes called an “Allen charge”

after Allen v. United States, 164 U.S. 492 (1896). We review Allen

charges to make sure (1) the semantic deviation from approved Allen

charges is not so prejudicial as to require reversal, and (2) the

circumstances surrounding the giving of an approved Allen charge

are not coercive. United States v. Heath, 970 F.2d 1397, 1406 (5th

Cir. 1992), cert. denied, 507 U.S. 1004 (1993). The entire

3 instruction given by Judge Kazen was substantially the same as the

Fifth Circuit District Judges Association Pattern Jury Instructions

(Criminal Cases) (1990), approved in United States v. Pace, 10 F.3d

1106, 1122 n. 15 (5th Cir. 1993), cert. denied, 114 S.Ct. 2180

(1994). The charge given to Severa’s jury was even less coercive

than the pattern instruction because the court emphasized (1) the

jurors’ not surrendering their positions, and (2) the fact that the

court would not detain them if they found they were unable to

agree. See United States v. Kimmel, 777 F.2d 290, 295 (5th Cir.

1985), cert. denied, 476 U.S. 1104 (1986).

Judgment AFFIRMED.