                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                                                              March 16, 2004
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                  Clerk


                             No. 02-20702
                           Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,
versus

JERMAINE CARLOS DIAZ,

                                          Defendant-Appellant.


                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                        (H-01-CR-528-ALL)
                       - - - - - - - - - -

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant     Jermaine   Carlos   Diaz   appeals       his

conviction, following a jury trial, on charges of transporting a

minor in interstate commerce for purposes of prostitution, and for

aiding and abetting, in violation of 18 U.S.C. §§ 2423(a) and 2.

The district court sentenced Diaz to 51 months in prison and three

years supervised release.

     Diaz, who was only 14 years old at the time of the July 1998

offense, contends that the district court reversibly erred by

failing to (a) determine whether his waiver of his right to a


     *
        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this opinion should not be published and is not precedent except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.
juvenile proceeding was voluntary and knowing and (b) require that

his juvenile court records be on file with the court before it

transferred him for adult prosecution. As Diaz raises these claims

for the first time on appeal, we review them for plain error only.

See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)

(en   banc).   Under    the   plain-error   standard,   we   may   correct

forfeited errors only when the appellant shows the existence of an

error that was “clear” or “obvious” and affected his substantial

rights.   Id. at 162-64.      Furthermore, even if these criteria are

met, we will not exercise our discretion to correct a forfeited

error unless it seriously affects the fairness, integrity, or

public reputation of judicial proceedings. United States v. Olano,

507 U.S. 725, 735-36 (1993).

      The Juvenile Justice and Delinquency Protection Act (“JJDPA”)

provides the means by which the federal government may proceed

against a juvenile who has been accused of committing an act of

juvenile delinquency.     See 18 U.S.C. § 5032.    “A juvenile who is

alleged to have committed an act of juvenile delinquency and who is

not surrendered to State authorities shall be proceeded against

under this chapter unless he has requested in writing upon advice

of counsel to be proceeded against as an adult.”             § 5032, ¶ 4

(emphasis added).   It is not disputed that Diaz, his attorney, and

his guardian complied with this provision by signing a written

request that he be proceeded against as an adult.            As Diaz has

cited no binding or non-distinguishable legal authority requiring

a district court to ensure that the juvenile’s request is knowing


                                    2
and voluntary, and Diaz has not explicitly asserted that his

request was in fact unknowing or involuntary, he has failed to

establish plain error.

     Diaz has also failed to show plain error with respect to his

claim that the district court failed to comply with § 5032's

requirement that transfer to adult prosecution shall not occur

before the district court has received “any prior juvenile court

records.”     The magistrate judge’s July 3, 2001, detention order

reflects that such records were obtained and reviewed by the court.

     Diaz also contends that trial evidence was insufficient to

establish that, by the time he and the female minor left Arkansas

for Houston, he had already formed the intent for the minor to

engage   in   prostitution   there.        Generally,      the   standard   for

reviewing a claim of insufficient evidence is whether “a rational

trier of fact could have found that the evidence establishes the

essential elements of the offense beyond a reasonable doubt.”

United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).              When, as

here, the defendant fails “to renew his motion for judgment of

acquittal at the close of the trial, we review his claim [only] to

determine ‘whether there was a manifest miscarriage of justice.’”

United   States   v.   Burton,   324   F.3d   768,   770    (5th   Cir.   2003)

(citation omitted).     “That occurs only where the record is devoid

of evidence pointing to guilt or contains evidence on a key element

of the offense [that is] so tenuous that a conviction would be

shocking.”    Id. (citations and internal quotation marks omitted).


                                       3
Under 18 U.S.C. § 2423(a), the intent that a minor engage in

prostitution need only be a “dominant motive” of the transportation

across state lines; it need not be the only motive.    United States

v. Campbell, 49 F.3d 1079, 1082 (5th Cir. 1995) (citing Mortensen

v. United States, 322 U.S. 369, 374 (1944)).

     The trial evidence shows that Diaz enticed the minor and

another girl to travel with him from their Arkansas hometown to

Houston by telling them that he would find them work there as

strippers.   Within less than one hour after Diaz and the minor

checked into a motel in Houston, Diaz appeared with two other

pimps, brandished a handgun, and told the minor that she “was down

here to prostitute.”   The minor testified that she was “afraid” to

disobey.   That evening, Diaz and a second pimp took the minor to a

“modeling studio,” which in fact was a “whore house,” where the

minor signed a job application using false identification provided

by Diaz and had sex with men for money.     The minor acknowledged

that she had never worked as a prostitute before and that it was

“apparent” that Diaz “knew how these modeling studios worked.” The

minor also testified that Diaz “knew what to do when [they] went”

inside the first of two studios at which she worked.   This evidence

and reasonable inferences to be drawn from it were more than

sufficient to support the finding of fact that before leaving

Arkansas, Diaz had formed the intent for the minor to engage in

prostitution in Texas.   See United States v. Haas, 171 F.3d 259,

265-66 (5th Cir. 1999) (criminal intent may be established by

circumstantial evidence).


                                 4
     Diaz asserts further that the district court erred in failing

to declare a mistrial when the minor testified that she was

“afraid” of Diaz because he had allegedly “done drive-bys” in their

Arkansas hometown.      The district court’s denial of Diaz’s motion

for mistrial was not an abuse of discretion.                United States v.

Millsaps, 157 F.3d 989, 993 (5th Cir. 1998).          The comment was made

only one time, and the district court gave a sufficient curative

instruction.      See   id.    Juries      are   presumed   to   follow   such

instructions.     Id.   Diaz has not established that there was “a

significant    possibility    that   the    prejudicial     evidence   had   a

substantial impact upon the jury verdict, viewed in light of the

entire record.”   United States v. Paul, 142 F.3d 836, 844 (5th Cir.

1998).

     Diaz next contends, again for the first time on appeal, that

the district court erred by answering several written jury notes

without ensuring that Diaz and his attorney were present.                  The

parties dispute whether the record even shows that Diaz and his

attorney were not present when the court entertained these notes;

there is nothing in the record to confirm their absence at those

times.   (Diaz is represented by a new attorney on appeal.)               But

even if we assume arguendo that Diaz and his attorney were not

present, we are satisfied that Diaz has not established plain

error, because he has failed to establish that the purported error

was anything but harmless.      See United States v. Bieganowski, 313

F.3d 264, 293 (5th Cir. 2002), cert. denied, 123 S. Ct. 1956

(2003); Calverley, 37 F.3d at 162-64. He suggests that the court’s


                                     5
answer to only one of five jury notes was unresponsive, but, even

with respect to the question posed in that particular note, the

court had already instructed the jury properly.

     Diaz also urges that the district court abused its discretion

by giving an abbreviated Allen1 charge after the jury submitted a

note, several hours into its deliberations, stating that it was

deadlocked as to the count of conviction.    As this contention is

raised for the first time on appeal, it too is reviewed for plain

error only.2   See Calverley, 37 F.3d at 162-64.   The trial court

instructed the jury, inter alia, to return the following morning

and “spend at least 30 minutes or so deliberating on this issue and

then tell me as soon as possible whether or not you think you can

reach agreement as to that particular issue.”   Although the court

failed explicitly to “make it plain” that each juror had a “duty

conscientiously to adhere to his own honest opinion,” see United

States v. Sylvester, 143 F.3d 923, 927 (5th Cir. 1998) (citations

and internal quotation marks omitted), the charge did not contain

the coercive elements that we have found impermissible under Allen.

See United States v. McClatchy, 249 F.3d 348, 359 (5th Cir. 2001);

United States v. Solomon, 565 F.2d 364, 365-66 (5th Cir. 1978).   No

error is apparent, plain or otherwise.

     AFFIRMED.

     1
         Allen v. United States, 164 U.S. 492, 501 (1896).
     2
       Diaz contends that he preserved this contention for
appellate review by moving for a mistrial as soon as he learned
that the jury was deadlocked. This did not absolve him of the
burden, however, of objecting to the propriety or adequacy of the
district court’s subsequent Allen charge.

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