                                       PUBLISH

                      UNITED STATES COURT OF APPEALS

                                FOR THE TENTH CIRCUIT


 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                            No. 16-3330

 VICENCIO OLEA-MONAREZ,

        Defendant - Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                     (D.C. No. 2:14-CR-20096-JAR-1)


Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Office of the Federal Public Defender, Denver,
Colorado, for Defendant-Appellant.

Carrie N. Capwell, Assistant United States Attorney (Thomas E. Beall, United States
Attorney, and David P. Zabel, Assistant United States Attorney, with her on the brief),
Office of the United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.



Before MATHESON, BALDOCK and EID, Circuit Judges.


EID, Circuit Judge.



      Defendant-Appellant Vincencio Olea-Monarez was charged along with several co-

defendants in a thirty-one-count indictment related to a large drug-trafficking conspiracy.
Count 8 of the indictment alleged that on or about December 12, 2013, Olea-Monarez

knowingly and intentionally distributed more than fifty grams of methamphetamine in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii).


       During deliberations, the jury sent the district court two questions regarding Count

8. In the first, the jury asked what evidence would support Count 8. The judge responded

that testimony and exhibits had been admitted concerning the count, which the jury could

review upon their request. The second question asked whether the indictment for Count 8

had the incorrect date. The judge responded by noting that there had been four witnesses

who testified about Count 8, and that Exhibits 98 and 99 relating to the charge had been

admitted. Olea-Monarez now argues that both of the court’s responses to the jury questions

were erroneous and require reversal of his conviction for Count 8. We disagree and affirm

the district court. We hold that the trial court judge did not abuse its discretion in

responding to the jury’s questions because, although it at times directed the jury’s attention

to evidence, it made no evaluation of the evidence and therefore did not impinge on the

jury’s role as factfinder.


                                              I.


       At trial, several witnesses testified as to a controlled purchase of methamphetamine

by a confidential source from Olea-Monarez on December 12, 2013.


       First, Special Agent Timothy Swanson testified that at his direction, Craig Lee, the

confidential source, performed a controlled purchase with Olea-Monarez on December 4,


                                              2
2013. Agent Swanson noted that another controlled purchase occurred on December 12,

2013. However, because he did not personally participate in that purchase, the agent did

not testify further about it. Second, Deputy Evan Comerio, an FBI task force officer in the

investigation, testified that he supervised and directed Craig Lee to conduct a controlled

buy of methamphetamine from Olea-Monarez on December 12, 2013. Through Deputy

Comerio’s testimony, the government offered the 53.3 net grams of methamphetamine

purchased, and the lab report of the methamphetamine as Exhibits 98 and 99, respectively.

Third, Craig Lee, the confidential source, testified on behalf of the government. While Lee

could not testify as to the exact dates of the two controlled purchases, he was able to recall

that both purchases occurred in December 2013. Finally, Olea-Monarez took the stand and

admitted to two December 2013 controlled purchases with Craig Lee during cross-

examination.1


       After the fifteen-day trial, the jury began deliberations. During deliberations, the

jury sent a note to the district court asking: “With respect to Count No. 8, we can’t find

evidence to review with this charge. What is the evidence or government number?” Olea-

Monarez argued the district court should decline to answer the question directly and instead

tell the jury that it had received all the evidence in the case. Ultimately, the district court


1
  While Olea-Monarez’s testimony was at times contradictory, our review of the record
shows that he did admit to the controlled purchases with Craig Lee. For example, on cross
examination, he initially denied selling methamphetamine to Lee on two occasions in
December 2013. He soon after admitted: “[w]ell, I did sell up to like 2014 when it was
like controlled buys, but not before that.” Later, when asked whether he disputed Agent
Swanson’s testimony regarding his surveillance of a controlled purchase, Olea-Monarez
admitted that he participated in the purchase.
                                              3
responded: “There was testimony concerning Count No. 8, and there were exhibits

admitted concerning Count No. 8, which you have, except for the drug exhibit, which you

can view upon request.”


       Later, the jury asked another question: “We find evidence of a buy February 12.

Count 8 references a buy December 12. Could Count 8 date be an incorrect date?” Olea-

Monarez again urged the court to respond only that the jurors should depend upon their

own notes and recollection of the evidence. Ultimately, the court responded: “There was

testimony from at least four witnesses about this buy. There was Exhibit 98—drug

evidence, which is available for your review upon request. Exhibit 99 is the lab report.

You must rely on your collective recollection of all of the evidence, including the testimony

and the admitted exhibits.” Less than an hour later, the jury found Olea-Monarez guilty on

all counts.


       Olea-Monarez now argues that both of the court’s responses to the jury questions

were erroneous and require reversal of his conviction for Count 8. We disagree.


                                             II.


       This court reviews a district court’s actions in response to questions from the jury,

as well as supplemental instructions given to the jury, for an abuse of discretion. See Allen

v. Minnstar, Inc., 97 F.3d 1365, 1372 (10th Cir. 1996). A district court abuses its discretion

when its decision is “arbitrary, capricious or whimsical” or falls outside “the bounds of




                                              4
permissible choice in the circumstances.” United States v. Mares, 441 F.3d 1152, 1156

(10th Cir. 2006) (quoting United States v. Shumway, 112 F.3d 1413, 1419 (10th Cir. 1997)).


       “When a jury makes explicit its difficulties a trial judge should clear them away

with concrete accuracy.” Bollenbach v. United States, 326 U.S. 607, 612–13 (1946); see

also United States v. Zimmerman, 943 F.2d 1204, 1213 (10th Cir. 1991) (citing

Bollenbach). “[A] district judge has a duty to guide the jury toward an intelligent

understanding of the legal and factual issues it must resolve, particularly when the jury asks

a question revealing its confusion over the central issue of a case.” Shultz v. Rice, 809 F.2d

643, 650 (10th Cir. 1986).


       The United States Supreme Court has explained that a trial judge may assist the jury

by “explaining and commenting upon the evidence” and by “drawing their attention” to

portions of the evidence it deems important, “provided he makes it clear to the jury that all

matters of fact are submitted to their determination.” Quercia v. United States, 289 U.S.

466, 469 (1933). There are, however, “inherent limitations” to a district court’s privilege

to comment on the facts. Id. at 470. The district court may not “assume the role of the

witness” and may not “distort” or “add to” the evidence. Id. Recognizing that juries place

great weight upon the words of the district court, the Supreme Court cautioned that district

courts must “use great care that an expression of opinion upon the evidence should be so

given as not to mislead, and especially that it should not be one-sided.” Id. (quotation

omitted).




                                              5
       Relying on Quercia, we have explained that a federal district court judge “has the

unquestioned right to comment reasonably upon the evidence, and to express his opinion

of it, provided it is made clear to the jury that it is not bound by his views and that they are

the sole judges of the facts.” United States v. Sowards, 339 F.2d 401, 403 (10th Cir. 1964).

As such, the district court must “exercise great care to maintain an impartial attitude and

not to become an advocate for one of the parties to the litigation or to mislead the jury.”

Id. With this understanding, we turn to the two queries posed by the jury in this case.


                                                A.


       The jury’s first question made clear that it was having some degree of confusion

regarding Count 8. Specifically the jury asked: “With respect to Count No. 8, we can’t

find evidence to review with this charge. What is the evidence or government number?”

The district court responded: “There was testimony concerning Count No. 8, and there

were exhibits admitted concerning Count No. 8, which you have, except for the drug

exhibit, which you can view upon request.” We conclude that the district court did not

abuse its discretion in making this response.


       The district court here stated that there was evidence “concerning” Count 8. It did

not specifically identify that evidence in any way, nor did it explain or even comment upon

it. Consistent with Quercia and Sowards, the district court was well within its discretion

to answer the jury’s question as it did. Quercia, 289 U.S. at 470; Sowards, 339 F.2d at

403.   Olea-Monarez argues that the court’s choice of the word “concerning” was

tantamount to the use of the word “supporting.” We disagree. “Concerning” is a neutral

                                                6
term meaning “relating to.” Concerning, Black’s Law Dictionary (5th ed. 1979). The

district court made no comment regarding the persuasive value or impact of any evidence

presented in the case. In essence, the district court told the jury to go back and look at the

evidence, which it was well within its discretion to do.


       Olea-Monarez further argues that the district court made the same error here that

was made in United States v. Ayeni, 374 F.3d 1313, 1316 (D.C. Cir. 2004), where the

district court allowed supplemental closing arguments by both sides in response to the

jurors’ questions and then allowed the parties to “fashion responses targeted precisely” to

the jury’s concerns. Olea-Monarez’s reliance on Ayeni is misplaced. Here, there was no

supplemental argumentation in response to the jury’s questions, which was the primary

concern of the Ayeni court. Id. at 1315. In addition, there was no “targeted response.” As

noted above, the court did not direct the jury to particular evidence. Therefore, we find

Ayeni to be readily distinguishable. Accordingly, we conclude that the district court did

not abuse its discretion with regard to its answer to the first query made by the jury.


                                             B.


       The jury’s confusion regarding Count 8 continued with a second note, which stated:

“We find evidence of a buy February 12. Count 8 references a buy December 12. Could

Count 8 date be an incorrect date?” The court responded: “There was testimony from at

least four witnesses about this buy. There was Exhibit 98—drug evidence, which is

available for your review upon request. Exhibit 99 is the lab report. You must rely on your

collective recollection of all of the evidence, including the testimony and the admitted

                                              7
exhibits.” Olea-Monarez contends that this response was an abuse of discretion. More

particularly, Olea-Monarez argues that the court’s response presents two issues. First, by

stating there were “at least four” witnesses who testified about the December 12 controlled

buy, the judge misled the jury. Second, by telling the jury there were four witnesses who

testified regarding the buy and pointing directly to Exhibits 98 and 99, the judge invaded

the role of the jury as factfinder.


       The district court’s statement that four witnesses had testified about the December

12 buy was not misleading. After reviewing the record, we find that there were indeed four

witnesses who testified about the December 12 controlled purchase from Craig Lee: Agent

Swanson, Deputy Comerio, as well as Craig Lee and Olea-Monarez themselves. But Olea-

Monarez does not claim that the statement was misleading because a different number of

witnesses testified about a December 12 buy. Rather, he argues that three of those

witnesses—Swanson, Lee, and Olea-Monarez himself—failed to provide meaningful

testimony about a December 12 buy, so the court’s answer indicated the existence of more

evidence than there actually was.      We disagree.     Evaluating testimony, including

determining whether it is meaningful or not, is a job for the factfinder. See United States

v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005). And merely stating that four witnesses

testified about a certain topic—without mentioning who the witnesses are—does not

indicate the existence of meaningful evidence pointing one way or another. As such, the

district court’s response was not misleading.




                                            8
       With regard to Olea-Monarez’s second contention, we acknowledge that the district

court’s response to this jury query poses a more difficult question than its response to the

first query, as the district court directed the jury’s attention to specific evidence. However,

the court did not in any way evaluate or comment upon that evidence.                This fact

distinguishes the D.C. Circuit’s decision in United States v. Miller, 738 F.3d 361 (D.C. Cir.

2013), upon which Olea-Monarez relies.


       There, the jury sent several notes, relating to nearly twenty separate charges, asking

for clarification of the dates and times of incriminating recorded calls as listed in the

indictment. Id. at 380–81. In response, the district court pointed the jury to specific phone

calls. For example, in response to a question about Count 59—charging Miller with

unlawful use of a communication facility on or about April 15, 2004—the district court

pointed the jury to a call that took place six days before, on April 9, 2004. Id. at 384. This

response foreclosed an independent evaluation of the evidence by the jury because the

charges called for the jury to find that certain calls occurred “on or about” certain dates.

The Miller court stated that the jury reasonably could have found that the difference of six

days between the time listed on the indictment and the time of the phone call could be too

temporally remote to support Count 59. Id. As such, the jury’s fact-finding function was

invaded.


       Miller is distinguishable from the facts presented here. While the district court did

direct the jury to evidence supporting a charge, the response did not eliminate the jury’s

fact-finding function. Rather than pointing to a piece of admitted evidence with a date and

                                              9
time stamp on it, as the district court did in Miller, the district court here noted for the jury

that there was testimony from at least four witnesses about the December 12 purchase and

directed the jury to the relevant exhibits. The district court did not state who the four

witnesses were, what they said regarding the controlled purchase, or how the jury should

evaluate such evidence.


       Particularly troubling for the Miller court was that the district court indicated that it

was conveying the “prosecution’s view of what calls the grand jury intended to support the

counts.” Id. at 385. The Miller case involved thousands of recorded calls. Though there

were several calls that could have supported several charges, the district court directly

pinpointed which calls should support which charge. Here, by contrast, the district court

did not convey the prosecution’s view of what drug evidence the grand jury intended to

support the counts or select from several plausible pieces of evidence—the only direct drug

evidence offered relating to Count 8 was the methamphetamine from the controlled

purchase and its supporting drug lab report. Further, the jury here did not require guidance

on any other charge, while in Miller, the jury struggled with and submitted questions about

nearly twenty charges.


       Our review of the record reveals that it is true that the methamphetamine exhibit did

not have a date affixed to it that would have assisted the jury in connecting it to the related

charge, and that the lab report’s date of analysis was December 26. However, the jury’s

exclusive province to interpret the intended scope of the indictment in deciding whether

the prosecution had met its burden of proof on the charged offense was not affected by the

                                               10
trial judge directing them to this evidence. Indeed, given the lack of dates on the drug

evidence, and the December 26 date on the lab report, a reasonable jury could have

determined the evidence was not reasonably related to the December 12 purchase, even

after being directed to it. And the district court reminded the jury that they must rely on

their collective recollection of all of the evidence, including the testimony and admitted

exhibits.


       In essence, Olea-Monarez argues that a district court can never point to particular

evidence in response to a jury’s question. We decline to adopt this reasoning and instead

look at the overall circumstances and context of the question posed by the jury. In this

case, the record makes apparent that the jury was confused regarding Count 8. As noted,

the jury did not struggle with any of the remaining thirty charges, but submitted two

questions regarding Count 8 specifically. Though it is the prosecution’s duty to prove its

case beyond a reasonable doubt, the Supreme Court and our own case law reaffirm our

conclusion that a federal trial judge “has the unquestioned right to comment reasonably

upon the evidence, and to express his opinion of it, provided it is made clear to the jury that

it is not bound by his views and that they are the sole judges of the facts.” Sowards, 339

F.2d at 403 (citing Quercia, 289 U.S. at 469). The district court’s response did not

comment upon the ultimate factual issue, nor add to or evaluate the evidence regarding

Count 8. United States v. Nickl, 427 F.3d 1286, 1293 (10th Cir. 2005) (“It is improper for

a judge to comment directly on the factual issue to be decided by the jury.”). Instead, the

response guided the jury toward an intelligent understanding of the factual issues. See


                                              11
Shultz, 809 F.2d at 650 (“[A] district judge has a duty to guide the jury toward an intelligent

understanding of the legal and factual issues it must resolve, particularly when the jury asks

a question revealing its confusion over the central issue of a case.”). The second response

was a permissible choice given the circumstances of the jury’s evident confusion and the

fact that it was a fifteen-day trial involving multiple counts. And the district court followed

it up with an important reminder that the jury needed to rely on its own recollection of all

the evidence. Sowards, 339 F.2d at 403. Accordingly, we hold that the district court did

not abuse its discretion in the second response.


       In a final argument, Olea-Monarez argues that the district court should have simply

answered “no” to the jury’s question, thus informing the jury that the date was not in error.

While this might have been a permissible answer, the question here is whether the answer

the court did give was an abuse of discretion. We find that it was not.


                                             III.


       For the reasons stated above, we AFFIRM Olea-Monarez’s conviction on Count 8

of the indictment.




                                              12
