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| FindLaw: Laws: Cases and Codes: 9TH CIRCUIT COURT Opinions | |
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http://laws.findlaw.com/9th/9950289.html
UNITED STATES OF AMERICA, No. 99-50289 Plaintiff-Appellee, D.C. No. v. CR-98-02831-JNK THOMAS ALBERTO ROMERO-AVILA, OPINION Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Judith N. Keep, District Judge, Presiding
Argued and Submitted
February 10, 2000--Pasadena, California
Filed April 26, 2000
Before: Robert Boochever, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Hawkins
_________________________________________________________________
COUNSEL
Gary P. Burcham (argued) and Michelle D. Anderson, Federal
Defenders of San Diego, Inc., San Diego, California, for the
defendant-appellant.
Daniel S. Drosman, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
_________________________________________________________________
OPINION
HAWKINS, Circuit Judge:
Thomas Alberto Romero-Avila ("Romero-Avila") appeals
his conviction for possessing and importing marijuana and
falsely claiming U.S. citizenship. Romero-Avila alleges that
there was a fatal variance between the indictment and the evi-
dence at trial; that the district court committed plain error by
allowing the government to point to his poverty as a possible
motive; that the district court erred by failing to instruct the
jury on his theory of the defense; and that the district court
erred by failing to inquire into a possible conflict on the jury.
For the reasons set forth below, we affirm Romero-Avila's
conviction.
I. BACKGROUND
On August 19, 1998, Romero-Avila attempted to enter the
United States through the Calexico Port of Entry driving a
1986 Nissan pick-up truck. According to the testimony of
Jesse Ceron, an inspector for the Immigration and Naturaliza-
tion Service, Romero-Avila stated upon questioning that he
was a United States citizen. He also stated that he lived in
Ontario, California, and that he had driven to Mexico to find
a "unique gift" for his daughter, though he was unable to
describe the gift. Ceron thought Romero-Avila appeared ner-
vous (his voice was shaking and he was looking away), so he
directed him to a secondary inspection station.
At secondary inspection, Romero-Avila was met by U.S.
Customs Inspector Salvador Nieblas. Nieblas testified that he
asked Romero-Avila whether he was a U.S. citizen and that
Romero-Avila replied yes. Romero-Avila also told Nieblas
that he had been in Mexico all day looking for a "unique gift"
for his daughter. Nieblas asked Romero-Avila to step out of
the car and noticed that he began pacing nervously. Nieblas
then inspected the car. He noticed two pine-scented air fresh-
eners on the gear shift, which he testified made him suspi-
cious because air fresheners are often used to mask the smell
of marijuana. He also noticed that as he inspected the dash-
board, Romero-Avila became increasingly nervous. When
Nieblas popped off the cover of the dashboard, he found 35
packages containing 39.7 pounds of marijuana.
Romero-Avila was arrested and questioned by U.S. Senior
Special Customs Agent Manuel Rascon. During questioning,
Romero-Avila stated that he had been born in Mexico but was
a naturalized citizen of the United States. Rascon checked this
by computer and discovered that Romero-Avila was not a
U.S. citizen, but was a resident alien. He also checked the
Department of Motor Vehicles database and learned that
Romero-Avila owned the truck he had driven to the border.
Romero-Avila was charged in an indictment with importation
of marijuana, in violation of 21 U.S.C. SS 952 and 960; pos-
session of marijuana with intent to distribute, in violation of
21 U.S.C. S 841(a)(1); and false claim of United States citi-
zenship, in violation of 18 U.S.C. S 911.
On the morning of trial, the prosecutor informed the district
judge that he had discovered an error in the indictment the
night before. Count 3 of the indictment stated that Romero-
Avila had falsely and willfully represented "to United States
Immigration and Naturalization Service Inspector II C. Perez,
a person having good reason to inquire into the nationality
status of the defendant, that he was a citizen of the United
States." The prosecutor explained that the reference to C.
Perez was a typographical error and that Romero-Avila had in
fact lied about his citizenship to several other officers, not to
C. Perez. The prosecutor argued that the name of the officer
was immaterial and that the government was not required to
include any name in the indictment. He also asked the judge
not to give the indictment to the jurors because it would likely
confuse them.
Counsel for Romero-Avila argued that the name was mate-
rial. He pointed out that under Ninth Circuit case law, a
defendant cannot be convicted of violating section 911 unless
the misrepresentation is made to someone with good reason
to inquire about the defendant's citizenship. As a result, he
argued, the person to whom Romero-Avila allegedly lied
about his citizenship must be specifically named in the indict-
ment.
The district judge rejected this argument. Although she
agreed with defense counsel that section 911 requires that the
misrepresentation be made to someone with good reason to
inquire, she ruled that the person's name was immaterial and
need not be included in the indictment.
At the close of the prosecution's case, counsel for Romero-
Avila moved for a judgment of acquittal on count 3, arguing
that the government had failed to "introduce any evidence
demonstrating that [Romero-Avila] made a false claim of citi-
zenship to I.N.S. Inspector II C. Perez." The judge denied the
motion. She repeated her earlier finding that "the identifica-
tion of the agent as to Count 3 is not material. " She then said,
"It is true that it's not C. Perez. That's an error. But I find it's
not a fatal variance since, clearly, there was an open discovery
in this case. Everybody knew the circumstances, date, time,
place, and so on."
Romero-Avila was convicted on all three counts and sen-
tenced to twelve months custody on each count, to run con-
currently, and to three years of supervised release on each
count, also to run concurrently. His judgment of conviction
was filed on March 25, 1999, and he filed this timely appeal
on March 29, 1999.
II. DISCUSSION
A. Variance Claim
Romero-Avila argues that there was a fatal variance
between the indictment and the evidence introduced at trial
and that as a result there was insufficient evidence to convict
him of the crime charged. In reviewing this claim, we must
ask "whether, when the evidence is viewed in the light most
favorable to the government, a reasonable jury could find the
defendant[ ] guilty beyond a reasonable doubt of each essen-
tial element of the crime charged." United States v. Universal
Trade and Indus., Inc., 695 F.2d 1151, 1153 (9th Cir. 1983).
[1] Section 911 of Title 18 has three identifiable elements.
First, a defendant must falsely claim to be a U.S. citizen. Sec-
ond, the misrepresentation must be willful. Third, the misrep-
resentation must be made to someone with good reason to
inquire into the defendant's citizenship. The first two ele-
ments come from the language of the statute itself. 1 The third
element derives from our case law. See Smiley v. United
States, 181 F.2d 505, 507-08 (9th Cir. 1950).
[2] Romero-Avila does not dispute that there was sufficient
evidence to prove that he falsely and willfully misrepresented
his citizenship to three border officers. Nor does he dispute
that there was sufficient evidence to prove that these officials
had good reason to inquire into his citizenship. He argues
only that there was insufficient evidence to prove that the per-
son to whom he lied about his citizenship was C. Perez and
that this was a material element of the crime. To support this
argument, he points to our decision in Smiley . See 181 F.2d
at 507-08. He contends that because Smiley imposes a require-
ment that the misrepresentation be made to someone with
good reason to inquire, the exact person to whom the state-
ment was made is an element of the charged crime.
[3] We disagree. Our decision in Smiley did not make exact
identity an element of the crime. It only made an element of
the crime that the statement be made to someone with good
reason to inquire. In this case, the government presented evi-
dence that Romero-Avila made the statement to three border
guards, each of whom had good reason to inquire into the citi-
zenship of the defendant. Therefore, there was sufficient evi-
dence to prove this element of the crime.
We rejected a similar variance claim in United States v.
Von Stoll, 726 F.2d 584 (9th Cir. 1984). In that case, the
indictment charged the defendant with transporting in inter-
state commerce $10,000 taken by fraud from Ron McCallum,
while the evidence showed that the defendant took the money
from McCallum's business partner. We held that even if there
was a variance between the indictment and the evidence, it
did not affect the defendant's substantial rights because the
"identity of the defrauded person is irrelevant to a conviction
under 18 U.S.C. S 2314." Id. at 587. Likewise, in United
States v. Momeni, 991 F.2d 493 (9th Cir. 1993), we rejected
a variance claim where the indictment charged the defendant
with fraudulent use of a credit card at one hotel, while the evi-
dence showed that the card was used fraudulently at several
other hotels as well. The defendant argued that the variance
was fatal because his use of the credit card at the first hotel
did not meet the statutory minimum of $1,000, and it was
only by producing evidence of the credit card's use at other
hotels that the government was able to meet this requirement.
We disagreed, holding that the variance "did not affect
Momeni's substantial rights because the place where the
credit card charges were made is irrelevant to conviction
under 18 U.S.C. S 1029(a)(2), and the record shows Momeni
had notice the government would offer evidence of the
charges at other hotels and that he did not object to its intro-
duction at trial." Id. at 495.
[4] The same analysis applies here. The exact identity of
the border official to whom Romero-Avila lied is not an ele-
ment of the offense under 18 U.S.C. S 911. In addition,
Romero-Avila had notice that the prosecution would offer
evidence of his statements to other officers. Finally, although
Romero-Avila challenged the sufficiency of the evidence at
trial, he never objected to the testimony of the other border
officers. Therefore, his fatal variance claim must fail.
B. Poverty Evidence
During closing argument, the prosecution made the follow-
ing statement about Romero-Avila: "He was unemployed, as
you heard. He had no position. And he was hoping to make
some money. Now, of course, that's not an element of the
offense, not something the Government has to prove, but
that's the obvious motive behind it." Romero-Avila did not
object to this statement at trial, but he challenges it on appeal.
Specifically, he argues that the prosecution improperly
pointed to evidence of his poverty to suggest a motive for the
crime.
When a defendant raises an issue on appeal not raised
before the district court, this court may review only for plain
error. See Fed. R. Crim. P. 52(b); United States v. Vences, 169
F.3d 611, 613 (9th Cir. 1999). "Plain error is found only
where there is (1) error, (2) that was clear or obvious, (3) that
affected substantial rights, and (4) that seriously affected the
fairness, integrity, or public reputation of the judicial proceed-
ings." Id. (quotations omitted). "In applying the plain error
standard we consider all circumstances at trial including the
strength of the evidence against the defendant." United States
v. Campbell, 42 F.3d 1199, 1204 (9th Cir. 1994) (quotations
omitted).
[5] The government conceded at oral argument that the
prosecutor's statement was error. In two recent cases, we held
that "evidence of poverty or poor financial condition is inad-
missible to prove motive where it is offered to show`the mere
fact that the defendant is poor.' " United States v. Bensimon,
172 F.3d 1121, 1129 (9th Cir. 1999) (quoting United States
v. Jackson, 882 F.2d 1444, 1449 (9th Cir. 1989)); see also
United States v. Mitchell, 172 F.3d 1104, 1108-09 (9th Cir.
1999). "To be admissible . . . poverty evidence must be
accompanied by something more, such as an `unexplained,
abrupt change in circumstances.' " Bensimon, 172 F.3d at
1129 (quoting Mitchell, 172 F.3d at 1108-09).
The government argues, however, that the error was not
clear or obvious. It notes that Bensimon and Mitchell were
decided more than two months after Romero-Avila's trial.
And it points to our statement in United States v. Turman, 122
F.3d 1167, 1170 (9th Cir. 1997), that an error is not clear or
obvious "[w]hen the state of the law is unclear at trial and
only becomes clear as a result of later authority . . . ."
We find the government's argument unpersuasive.
Although Bensimon and Mitchell were decided after Romero-
Avila's trial, we reached the same conclusion more than a
decade ago in Jackson. In that case, we approved the use of
poverty evidence when related to an "unexplained and abrupt
change" in the defendant's financial status, but stated that
"poverty alone does not indicate a motive to commit, or the
commission of, a crime." Jackson, 882 F.2d at 1450. We also
cited with approval decisions from the Sixth and D.C. Circuits
barring the use of general poverty evidence to suggest motive.
See id. at 1449. And we noted that "those courts admitting
evidence of financial motive have been confronted with more
than the mere fact that the defendant is poor." Id.
[6] Both Bensimon and Mitchell cited Jackson for the con-
clusion they reached. In addition, the court in Mitchell took
note of the "traditional view that evidence of poverty is not
admissible to show motive, because it is of slight probative
value and would be unfairly prejudicial to poor people
charged with crimes." Mitchell, 172 F.3d at 1108 (emphasis
added). Thus, it seems apparent that the law on poverty evi-
dence was clearly established at the time of Romero-Avila's
trial and that it was an obvious error for the district court to
allow the prosecution's statement.2
[7] Nonetheless, we cannot reverse the conviction because
Romero-Avila has not demonstrated that this clear and obvi-
ous error affected his substantial rights. To meet this test, a
defendant must show that the error "affected the outcome of
the district court proceedings." United States v. Olano, 507
U.S. 725, 734 (1993). Here, Romero-Avila argues that the
prosecution's statement shifted the jury's attention away from
the relevant evidence and invited it to convict him because he
is poor. However, the prosecution presented strong indepen-
dent evidence of Romero-Avila's guilt. Two officers testified
that he appeared nervous, especially when the dashboard of
the truck was inspected. Romero-Avila lied about his citizen-
ship when, as a resident alien, he had no reason to. And
although he told officers that he had traveled three hours to
Mexico to find a "unique gift" for his daughter, he was unable
to describe the gift he was seeking. Given this evidence, and
given that Romero-Avila bears the burden of persuasion on
the issue of prejudice, see Olano, 507 U.S. at 734, we cannot
conclude that the error affected the outcome of the proceed-
ings.
C. Proposed Jury Instruction
During trial, Romero-Avila filed proposed jury instructions
that included a "theory of the defense" instruction. This pro-
posed instruction read as follows:
Mr. Romero's theory of the case is that the mari-
juana was placed inside his car without his knowl-
edge prior to him crossing the border on August 19,
1998. Because he was unaware of the marijuana's
presence, he is not guilty.
Mr. Romero does not have to prove his innocence
nor does he bear the burden of having to prove any
fact in this case. If the prosecution fails to prove
beyond a reasonable doubt that Mr. Romero knew
that the marijuana was hidden in the car, you must
return a not guilty verdict.
The district judge rejected the instruction, finding that the
defendant's theory of the case was adequately covered by
another instruction. That instruction stated that "a person may
not be convicted of illegal possession of marijuana unless he
knows a prohibited drug is present and is capable of exerting
dominion and control over it. Mere proximity to the prohib-
ited drug alone is insufficient to establish possession."
Romero-Avila challenges the district judge's ruling.
[8] "A defendant is entitled to have the judge instruct the
jury on his theory of the defense, provided that it is supported
by law and has some foundation in the evidence." United
States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990). "A fail-
ure to give such instruction is reversible error; but it is not
reversible error to reject a defendant's proposed instruction on
his theory of the case if other instructions adequately cover
the defense theory." Id. We "review de novo the question of
whether the district court's instructions adequately cover the
defense theory." Id.
[9] Romero-Avila's proposed instruction consisted of three
distinct points: (1) he could not be convicted unless he knew
about the marijuana; (2) he was not required to prove any
facts in the case; and (3) the government was required to
prove his knowledge beyond a reasonable doubt. Each of
these points was adequately covered by the judge in her
charge to the jury. The first point was covered by the "mere
proximity" instruction. The second point was covered when
the judge told the jury that "the defendant is presumed to be
innocent and does not have to testify or present any evidence
to prove innocence." And the third point was covered when
the judge explained that the "government has the burden of
proving every element of the charges beyond a reasonable
doubt." In addition to these instructions, the judge also told
the jury that the prosecution was required to prove knowledge
and that "an act is done knowingly if the defendant is aware
of the act and does not act through ignorance, mistake, or
accident."
[10] It is true that the judge did not use Romero-Avila's
precise words in giving these instructions. But"[a] defendant
is not entitled to any particular form of instruction." See
United States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir.
1992). Accordingly, we reject Romero-Avila's challenge to
the jury instructions.
D. Juror Note
During jury deliberations, the jury foreperson sent the
judge a note that read: "If we have one juror that is not fol-
lowing the instructions given, can we ask that person be
replaced with an alternate?" The judge conferred with the
attorneys for both sides and then sent the following response:
"Are there any instructions that we can give you that will help
at this point?" The jury did not respond to this question, but
a few minutes later indicated that it had reached a verdict.
Before the jury was brought out, defense counsel requested
that the judge inquire further into the previous note from the
jury. Counsel argued that the judge should either question the
person referred to in the note or ask the jury foreperson about
the matter. The judge declined, stating that it might be
improper to take either step given that the jury had reached a
verdict. She also stated that she would poll the jury to make
sure all jurors agreed with the verdict. On appeal, Romero-
Avila challenges the district judge's ruling.
We review a district judge's response to a question from
the jury for abuse of discretion. See United States v. Warren,
984 F.2d 325, 329 (9th Cir. 1993). Under the abuse of discre-
tion standard, we cannot reverse absent a definite and firm
conviction that the court below committed a clear error in
judgment in the conclusion it reached upon the weighing of
the relevant factors. See Valley Eng'rs, Inc. v. Electric Eng'g
Co., 158 F.3d 1051, 1057 (9th Cir. 1998).
[11] In United States v. Hanley , 190 F.3d 1017, 1030 (9th
Cir. 1999), the defendant received a note from one juror
reporting that another juror had made comments throughout
the trial, such as "good" and "leave him alone," in response
to the questioning of witnesses. On the basis of that note, the
defendant moved for dismissal of the second juror. The dis-
trict court denied the motion, "reasoning that the alleged com-
ments were too vague to draw a conclusion that [the juror]
was biased." Id. On appeal, the defendant argued that the
court erred by refusing to dismiss the juror and by ruling on
the motion without holding an evidentiary hearing. We
rejected the challenge, stating that "[a]n evidentiary hearing is
not mandated every time there is an allegation of jury miscon-
duct or bias. Rather, in determining whether a hearing must
be held, the court must consider the content of the allegations,
the seriousness of the alleged misconduct or bias, and the
credibility of the source." Id. at 1031 (quotations omitted).
We then held that the district court had followed the proper
course: "It considered the content and seriousness of the
alleged statements and properly determined that such vague
statements did not expose Defendants to unfair prejudice. In
the circumstances, the district court's refusal to hold an evi-
dentiary hearing was not an abuse of discretion. " Id.
[12] In this case, the district judge also followed a proper
course. Upon receiving the first note, the judge conferred with
the two attorneys and sent the jury a response. Then, when the
jury announced that it had reached a verdict a few minutes
later, the judge declined to inquire into the matter further. The
judge reasoned that the conflict had been cleared up, and this
assumption seems reasonable: None of the jurors expressed
disagreement with the verdict when polled, and Romero-Avila
has not presented any evidence from jurors that they were
coerced into finding him guilty. Accordingly, we conclude
that the district judge did not abuse her discretion.
AFFIRMED.
_______________________________________________________________
FOOTNOTES
1 Section 911 provides: "Whoever falsely and willfully represents him-
self to be a citizen of the United States shall be fined under this title or
imprisoned for not more than three years, or both. " 18 U.S.C. S 911.
2 We also reject the government's assertion that Romero-Avila is barred
from challenging the prosecution's statement because the evidence of his
unemployment came out during defense counsel's cross-examination of a
government witness. It is one thing for the jury to hear incidental testi-
mony that a defendant is unemployed. It is quite another for a prosecutor
to tell the jury, in effect, that a defendant is guilty because he is poor. We
pointed out this distinction between witness testimony and the prosecu-
tion's use of that testimony in United States v. Whitehead, 200 F.3d 634,
639 (9th Cir. 2000).
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