     Case: 11-51020       Document: 00512064200         Page: 1     Date Filed: 11/27/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 27, 2012

                                       No. 11-51020                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

JESUS ENRIQUE DIAZ, JR.

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:09-CR-1469-1


Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
PER CURIAM:*
       This criminal appeal was brought by a Customs and Border Patrol (CBP)
agent, Jesus Enrique Diaz, who was convicted after a jury trial of depriving
another of his rights under color of law, 18 U.S.C. § 242, and of making false
statements about material aspects of the incident that led to his conviction, 18
U.S.C. § 1001. Diaz now challenges his convictions on a number of grounds.
Having reviewed Diaz’s arguments, we AFFIRM the district court’s judgment.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-51020        Document: 00512064200   Page: 2   Date Filed: 11/27/2012



                                   No. 11-51020

                                 BACKGROUND
      On the night of October 16, 2008, at least three individuals attempted to
illegally enter the United States while transporting drugs in the Rosetta Farms
Pecan Orchard, a location near the Rio Grande River well known to CBP officers
as a migratory path for illegal aliens and drug smugglers. CBP officers detected
the illegal activity and began searching for the individuals. One individual was
reportedly spotted from a distance, fled, and escaped back to Mexico. Later, two
other individuals were found hiding in the same spot where the first man had
initially been spotted.
      The first individual, Sanchez, was a young man with gang-style tattoos on
his body. He was arrested, placed in a prone position, and remained there
without incident. The other individual, M.B.E., was younger, smaller, and had
no visible tattoos.   He, too, was arrested and placed in a prone position.
Testimony at trial stated that both remained still and compliant throughout the
duration of their arrest and time in custody. One officer estimated that once the
individuals had been secured, approximately 10 to 15 agents were in the area.
      Appellant Diaz arrived after the individuals were in custody. According
to accounts, he immediately began asking, “Where is the marijuana?” and took
custody of the smaller, younger individual, M.B.E. At this time, M.B.E. was
laying face-down on the ground with his hands handcuffed behind his back.
What happened next is disputed by the parties. At trial, the Government
presented the testimony of multiple CBP agents, who testified that Diaz placed
his knee on M.B.E.’s back, grabbed the chain of his handcuffs, and pushed
M.B.E.’s arms toward his head up to a 90-degree angle, causing M.B.E. to cry out
in pain as Diaz asked about the marijuana; Diaz performed this action after
asking someone to hold down M.B.E.’s legs; Diaz stood M.B.E. up and then swept
his legs out from under him, taking him to the ground; and, some testimony
indicated, Diaz kicked M.B.E.        The government’s witnesses gave varying

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                                  No. 11-51020

accounts as to the frequency with which Diaz performed these actions. All
officers agreed that, while in Diaz’s custody, M.B.E. never made any aggressive
gestures or attempted to flee.
      After Diaz finished these attempts to extract information from M.B.E., he
reportedly told the trainees to “take a walk” and “[g]o look for the [marijuana].”
Some testimony suggested that he said this multiple times and later added aloud
that “the trainees will turn on you in a heartbeat.” Other officers then took
custody of M.B.E. and Sanchez and took them to the patrol vehicles. At booking,
M.B.E. complained of shoulder pain and grunted when his arm was raised for
fingerprinting. His body was inspected for bruising and cuts, but no significant
marks were found. Later, he visited a doctor who did not diagnose M.B.E. with
any injuries but gave him an ointment to treat his sore shoulder.
      The next morning, a number of the officers who had been present the night
before reported the incident. Internal Affairs (IA) began an investigation shortly
thereafter. In a taped interview and in a written statement, both of which were
admitted as evidence at trial, Diaz denied using any more than “minimal force,”
telling the trainees to “take a walk,” requesting that someone hold down
M.B.E.’s legs, or questioning M.B.E. about the marijuana. Diaz also told IA
investigators that M.B.E. tried to escape and that Diaz took him down.
Investigators found these statements inconsistent with the statements of the
other CBP officers.
      Authorities eventually charged Diaz with five counts of making a false
statement under 18 U.S.C. § 1001 and with one count of depriving another
person of his rights thereby causing “bodily injury” under 18 U.S.C. § 242. After
an initial jury trial that resulted in a mistrial due to juror misconduct, Diaz was
re-tried and convicted on all six counts by a unanimous jury.




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                                  No. 11-51020

                                 DISCUSSION
      Diaz raises four arguments on appeal. He contends that (1) the court
erroneously excluded photos of the victim’s accomplice; (2) the jury charge
incorrectly stated the law relating to § 242; (3) the evidence was insufficient to
support his convictions; and (4) jury misconduct should have led to a mistrial.
We disagree.
                                        A.
      Diaz argues that the district court erred in refusing to admit photographs
of Sanchez’s gang-related tattoos at trial. Evidentiary rulings by the district
court are reviewed for abuse of discretion, subject to harmless error review.
United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011). “A trial court abuses
its discretion when its ruling is based on an erroneous view of the law or a
clearly erroneous assessment of the evidence.” Id. However, a district court’s
decision to refuse admission of evidence on Rule 403 grounds should be “rarely”
disturbed and only when there has been a “clear abuse of discretion.” United
States v. Maggitt, 784 F.2d 590, 597 (5th Cir. 1986).
      In making its ruling, the district court found that the potential prejudice
of these pictures outweighed any probative value. Diaz argues that the court
abused its discretion because the photos were probative on the issue of whether
Diaz acted “willfully” as required by § 242. According to Diaz, the photographs
would have shown that Diaz was under a heightened state of anxiety and that
the potential for danger was great, particularly in light of the unapprehended
third coconspirator who was reportedly seen.
      Great deference is given to the trial court regarding evidentiary rulings,
particularly under Federal Rule of Evidence 403. See Maggitt, 784 F.2d at 597.
The district court, in making its ruling, noted that Diaz would be permitted to
testify about the tattoos in order to establish his state of mind but reasoned that
the prejudicial effect on the government’s case of admitting the photographs

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                                   No. 11-51020

outweighed their probative value.      Moreover, because testimony was offered
regarding the tattoos, the photographs were cumulative and only marginally
probative. Accordingly, the district court did not abuse its discretion when it
excluded the photographs.
                                         B.
      Diaz argues that the jury charge incorrectly stated the law with respect
to 18 U.S.C. § 242. Specifically, Diaz argues that the jury charge on “bodily
injury” was improper because including “physical pain” in the definition meant
including injuries that this circuit had held to be de minimis. Because Diaz
preserved his challenge as to the jury charge, we review “under an abuse of
discretion standard, affording the trial court substantial latitude in describing
the law to the jurors.” Jimenez v. Wood Cnty., 660 F.3d 841, 845 (5th Cir. 2011).
                                         1.
      To prove a violation of § 242, the government must establish that the
defendant (1) willfully (2) deprived another of a “right[] . . . secured or protected
by the Constitution or laws of the United States” (3) under color of law. 18
U.S.C. § 242; see United States v. Brugman, 364 F.3d 613, 616 (5th Cir. 2004).
The Fourth Amendment’s “protection against unreasonable search and seizures
requires that officers refrain from using excessive force, that is, more force than
is reasonably necessary, when effectuating an arrest.” Id. (citation omitted). “It
is clearly established law in this circuit that in order to state a claim for
excessive force in violation of the [Fourth Amendment], a plaintiff must allege
(1) an injury, which (2) resulted directly and only from the use of force that was
clearly excessive to the need; and the excessiveness of which was (3) objectively
unreasonable.” Bazan v. Hidalgo Cnty., 246 F.3d 481, 487 (5th Cir. 2001).
      To satisfy the injury requirement, “it is not necessary for the jury to find
that the victim suffered ‘significant injury,’” Brugman, 364 F.3d at 618 (citation
omitted), but the government must show that the victim suffered “some” injury

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                                   No. 11-51020

beyond “de minimis” injury. Id. (citation omitted). To determine whether a
Fourth Amendment injury is more than de minimis, a court must:
      look to the context in which that force was deployed[] . . . [as] related
      to the amount of force that is constitutionally permissible under the
      circumstances. What constitutes an injury in an excessive force
      claim is therefore subjective—it is defined entirely by the context in
      which the injury arises.
Brugman, 364 F.3d at 618 (internal quotation marks and citation omitted).
Determining whether the district court abused its discretion by charging the jury
that § 242’s bodily injury requirement could be satisfied by a finding of physical
pain involves a context-sensitive and fact-specific analysis.
                                          2.
      Because determining whether a Fourth Amendment injury is more than
de minimis depends on the context in which the injury arose, see id., we cannot
categorically say that the district court may never charge the jury that “bodily
injury” may include “physical pain.” Moreover, Diaz’s argument that including
“physical pain” in the definition of “bodily injury” means including injuries that
this circuit has held to be de minimis is foreclosed by Brugman.
      In Brugman, the defendant willfully kicked and struck Miguel Jimenez-
Saldana, who was in a group of approximately ten individuals caught attempting
to enter the United States illegally, even though Jimenez-Saldana was, at the
time, no longer fleeing or actively resisting the authority of the CBP officers
present. Id. at 614, 619. Although there was no visible manifestation of injury,
Jimenez-Saldana testified that upon being kicked, he felt pain and lost his
breath, and that he felt residual pain for approximately three days following the
incident. Id. at 619. Additionally, a CPB officer testified that he heard Jimenez-
Saldana emit a “grunting noise” while being kicked and struck. Id. We reasoned
that this was sufficient to clear the de minimis threshold even though there was
no visible manifestation of injury. Id.


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                                   No. 11-51020

      Thus, “physical pain” may, depending on the context in which the injury
arose, constitute “bodily injury” sufficient to overcome the de minimis threshold.
Accordingly, we cannot say that the district court abused its discretion in its
charge to the jury.
                                         C.
      Diaz challenges as insufficient the evidence in support of his convictions
under § 242 and § 1001. Where, as here, the defendant fails to renew his Rule
29 motion for acquittal at the close of his case, review of the decision to deny that
motion is for plain error. E.g., United States v. Delgado, 672 F.3d 320, 328-30
(5th Cir. 2012). We will reverse a denied sufficiency challenge only when faced
with a “manifest miscarriage of justice,” which exists only if “the record is devoid
of evidence pointing to guilt or if the evidence is so tenuous that a conviction is
shocking.” Id. at 330-31 (internal quotation marks and citation omitted).
                                         1.
      Diaz argues that even granting every favorable inference and credibility
determination in favor of the prosecution, the evidence is insufficient to support
his conviction under § 242. Viewing all of the evidence in the light most
favorable to Diaz, M.B.E. suffered the following injuries: while on his stomach
with his hands handcuffed behind him, his arms were raised up and were then
lowered back down causing him pain; he had a knee placed on his back which
caused him pain; he was kicked “soccer style”; and, though there was no bone or
ligament damage or bruising, M.B.E.’s shoulder was sore for “one or two days.”
Under this circuit’s precedent, Diaz maintains these injuries do not pass the de
minimis threshold and, thus, cannot form a conviction under § 242.
      As previously discussed, to establish a constitutional violation predicated
on an excessive use of force, the victim must have suffered “some injury” which
is more than de minimis. Brugman, 364 F.3d at 618. Determining what
constitutes “some injury” is highly fact-specific and dependant on the

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circumstances of the individual case. See id.; see also United States v. Harris,
293 F.3d 863, 871 (5th Cir. 2002) (suggesting that “bodily injury would include
a cut or bruise or physical pain”). Here, the record is not devoid of evidence in
support of the jury’s finding that Diaz’s conduct resulted in “bodily injury,”
which, under the circumstances here, is satisfied by a mere showing of physical
pain. There was no plain error.
      Diaz also challenges the sufficiency of the evidence regarding the intent
element of willfulness. However, the only complaints Diaz offers regarding the
evidence turn on credibility determinations made by the jury, which are beyond
attack in plain-error review of a denied sufficiency challenge.
      Diaz contends that because of the gang-related tattoos, the at-large
coconspirator, and the risks associated with CBP actions against drug
smugglers, among other things, the evidence was insufficient to establish that
Diaz acted willfully and not in aid of some legitimate police objective. However,
the Government presented evidence that the at-large coconspirator had already
returned to Mexico, numerous CPB agents were present, the scene was secure,
and M.B.E. and Sanchez remained still and compliant throughout the incident.
Moreover, Diaz was described as “mad,” “angry,” and “yelling” during the
incident. Accordingly, the record is not devoid of evidence supporting the jury’s
finding of willfulness in support of § 242’s requirements.
                                          2.
      Diaz also challenges the sufficiency of the evidence to support his
convictions under the four counts of making false statements. To establish a
violation of 18 U.S.C. § 1001, the Government must establish: “(1) a statement,
that is (2) false (3) and material, (4) made with the requisite specific intent, [and]
(5) within the purview of government agency jurisdiction.” United States v.
Jimenez, 593 F.3d 391, 399 (5th Cir. 2010) (internal quotation marks and
citation omitted). Here, Diaz challenges the falsity element for Count Two

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                                   No. 11-51020

(minimal force), Count Three (attempt to flee), Count Four (did not question
M.B.E.), and Count Five (asked someone to hold down M.B.E.’s legs). Diaz
challenges both the falsity and materiality elements for Count Six (“take a
walk”).
        Diaz’s falsity challenges focus on inconsistencies and other imperfections
in the testimony offered by the Government’s witnesses. With regard to Count
Three, Diaz attacks the testimony of other the CBP officers because they were
not in physical contact with M.B.E. and, as such, would not have been able to
gauge whether he was struggling or attempting to flee. Diaz also argues that
inconsistencies between M.B.E.’s testimony and that of the CBP agents
undermine the proof of falsity for Counts Four and Five. For Count Four,
M.B.E. testified that only one agent asked him about the marijuana whereas
several CPB officers testified that they asked and that they heard Diaz ask. For
Count Five, M.B.E. testified that no one grabbed his legs whereas two CPB
agents said they heard Diaz ask someone to hold down M.B.E.’s legs and one
officer testified that he held M.B.E.’s legs down for a brief moment. In making
his falsity challenges, Diaz simply disagrees with the credibility determinations
made by the jury. Under our deferential standard of review, we cannot say the
record is devoid of any evidence in support of Diaz’s convictions. On each count,
there was at least some evidence to enable the jury to find Diaz guilty under §
1001.
        With respect to Count Six, Diaz not only challenges the falsity of his
statement but also contends that even if he had lied about saying “take a walk,”
the evidence was insufficient to establish that this statement was material,
which we have defined as evidence having “a natural tendency to influence, or
. . . capable of influencing, the decision of the [agency].” United States v. Brown,
303 F.3d 582, 601 (5th Cir. 2002). Diaz argues that it is unclear how his
statement could have influenced the investigation.

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                                  No. 11-51020

      There was sufficient evidence for a reasonable jury to conclude that Diaz’s
denial that he said “take a walk” was material. A reasonable jury could have
concluded that, by denying that he made the statement, Diaz was attacking the
credibility of the other CBP officers who spoke to investigators. Because a
reasonable jury could believe that such conduct has “a natural tendency to
influence” the investigation, see Brown, 303 F.3d at 601, the record is not devoid
of evidence supporting the jury’s finding that statement Diaz made relating to
Count Six was material.
                                        D.
      Diaz argues that jury misconduct during his second trial should have
resulted in a mistrial. A district court’s refusal to grant a mistrial based on the
introduction of extrinsic material to the jury is generally reviewed for abuse of
discretion. United States v. Ruggiero, 56 F.3d 647, 653 (5th Cir. 1995). We thus
“accord great weight to the trial court’s finding that the [extrinsic material] in
no way interfered with any juror’s decision.” Id.
      During jury deliberations, a juror conducted independent legal research
on her phone by looking up the legal definition of “assault.” The jury foreman
alerted the judge, who in turn informed the parties.         Consequently, Diaz
requested that the juror be identified and replaced with an alternate and for the
judge to determine whether the research was discussed and to what extent those
discussion tainted the other jurors. The judge then conducted an ex parte voir
dire of the jury, as a group, to determine the nature of these events and report
back to the parties.
      The jurors explained that Juror #11 had conducted the outside research
and had, in the light of that research, become convinced that medical testimony
was necessary to establish “bodily injury” under the charge. The rest of the jury,
however, maintained that it was required to confine its deliberations to the jury
instructions. The judge shared these findings with the parties, explaining that

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                                       No. 11-51020

the rest of the jury was unaffected by the outside research and that Juror #11
had insisted on holding the prosecution to a heightened standard. On Diaz’s
request, the judge dismissed Juror #11 and replaced her with an alternate juror.
The deliberations then proceeded and Diaz was convicted on all counts.
       On a colorable showing that extrinsic evidence has been introduced into
the jury room, the district court must investigate whether there has been any
impropriety. Ruggiero, 56 F.3d at 652. Once such a showing has been made,
there is a rebuttable presumption of prejudice against the defendant, and the
government bears the burden of demonstrating the harmlessness of the breach.
Id. In determining whether “the government has successfully rebutted the
presumption of prejudice and shown that there is no reasonable possibility that
the jury was improperly influenced,” the district court must examine “the
content of the extrinsic material, the manner in which it came to the jury’s
attention, and the weight of the evidence against the defendant.” Id. at 652-53
(internal quotation marks and citations omitted).
       Here, the district court followed the appropriate protocol when the
extrinsic evidence was brought to its attention. Specifically, the court examined
“the content of the extrinsic material, the manner in which it came to the jury’s
attention, and the weight of the evidence against the defendant.” Id. at 653.1
Ultimately, the court concluded that “there was no reasonable possibility that
the jury’s verdict was influenced” by Juror #11’s outside research. See United
States v. Davis, 393 F.3d 540, 549 (5th Cir. 2004). This is particularly true in
light of the judge’s finding that the rest of the jury insisted on following on the
instructions it had been given. Accordingly, the district court did not abuse its
discretion in its investigation and decisions regarding jury misconduct.


       1
        Moreover, the district court’s decision to question the jury collectively, rather than
individually, was fully within its discretion in overseeing the jury. The district court is not
required to question each juror individually in carrying out its required examination.

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                           No. 11-51020

                          CONCLUSION
  For the foregoing reasons, we AFFIRM the district court’s judgment.




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