                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-4506


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROGER HEDILBERTO MERAZ-FUGON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:16-cr-00018-LO-1)


Submitted:   January 31, 2017               Decided:    February 10, 2017


Before FLOYD and    HARRIS,     Circuit   Judges,      and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Geremy C. Kamens, Federal Public Defender, Todd M. Richman,
Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Jonathan P.
Robell, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       A     jury        convicted       Roger        Hedilberto        Meraz-Fugon      of

importation        of     cocaine,      in    violation       of   21   U.S.C.     § 952(a)

(2012).       The district court sentenced Meraz-Fugon to 16 months

in   prison       and     3    years    of    supervised       release.        Meraz-Fugon

appeals, asserting that the trial court erred in (1) declining

to instruct the jury on his theory of defense; giving a coercive

jury charge of the type condemned in Allen v. United States, 164

U.S. 492 (1896); (3) responding to several questions from the

jury; and (4) permitting the cumulative effect of these errors

to deprive him a fair trial.                  Finding no error, we affirm.

       “In general, we defer to a district court’s decision to

withhold a defense in a proposed jury instruction in light of

that       court’s       superior       position       to     evaluate       evidence   and

formulate the jury instruction.”                      United States v. Powell, 680

F.3d       350,    356        (4th   Cir.     2012)    (alterations          and   internal

quotation marks omitted).                Reversible error in refusing to give

such an instruction results “only when the instruction (1) was

correct; (2) was not substantially covered by the court’s charge

to the jury; and (3) dealt with some point in the trial so

important,         that       failure    to    give     the    requested       instruction

seriously         impaired       the    defendant’s         ability     to    conduct   his

defense.”         United States v. Passaro, 577 F.3d 207, 221 (4th Cir.

2009) (internal quotation marks omitted).                             A “district court

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d[oes] not abuse its discretion” by refusing to give a proposed

instruction    that   was   “clearly    covered   by   the     instructions

given,” just because “a more specific instruction might have

been desirable to” the defendant.         United States v. Green, 599

F.3d 360, 378 (4th Cir. 2010).          Here, assuming arguendo that

Meraz-Fugon’s proposed instruction was a correct statement of

the law, we conclude that the substance of the instruction was

substantially covered by the instructions given to the jury and

that    the   district   court’s   failure   to   give   the      requested

instruction did not impair Meraz-Fugon’s ability to conduct his

defense.

       Next, Meraz-Fugon contends that the district court gave a

coercive Allen charge after the jury informed the court that it

was deadlocked and could not reach a verdict.            He argues that

the Allen charge given was coercive to jurors in the minority

and that the instruction improperly made reference to the costs

of retrial.     We review the content of an Allen charge for abuse

of discretion.    United States v. Cornell, 780 F.3d 616, 625 (4th

Cir. 2015), cert. denied, 136 S. Ct. 127 (2015).             In determining

whether an Allen charge has an impermissible coercive effect on

jury deliberations, we consider the content of the instruction

as well as the context.      Jenkins v. United States, 380 U.S. 445,

446 (1965).



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      The traditional, “pure” Allen charge, “informed the jury

(1) that a new trial would be expensive for both sides; (2) that

there is no reason to believe that another jury would do a

better job; (3) that it is important that a unanimous verdict be

reached; and (4) that jurors in the minority should consider

whether the majority’s position is correct.”                    United States v.

Burgos, 55 F.3d 933, 936 (4th Cir. 1995).                  Based on the concern

that the instruction to the minority members may be coercive,

this Court has “strongly recommended” the modification of any

Allen charge to “address all jurors, both in the minority and in

the majority, to give equal consideration to each other’s views”

so that the charge is “less coercive with respect to jurors in

the minority.”       United States v. Hylton, 349 F.3d 781, 788 (4th

Cir. 2003) (internal quotation marks omitted).                      “The principal

concern”    in    reviewing   Allen   charges      “is     to   ensure      that   they

apply pressure to the jury in a way that preserves all jurors’

independent judgments and that they do so in a balanced manner.”

Id.   Thus, “an Allen charge must not coerce the jury, and it

must be fair, neutral and balanced.”                    United States v. Cropp,

127 F.3d 354, 359-60 (4th Cir. 1997).

      After reviewing the record, we conclude that the district

court’s    charge    was   fair,   neutral        and    balanced     and    was    not

coercive to the minority jurors.                 The district court’s brief

reference    to    the   costs   of   a       retrial    “did   not   place        undue

                                          4
emphasis on this factor when considered in the context of the

entire instruction[;] [n]or was it unduly coercive.”                                       United

States v. West, 877 F.2d 281, 291 (4th Cir. 1989).                                 Nor did the

district     court       judge’s        knowledge           of    the      jury’s    numerical

division        render     the        charge        coercive        in      this     instance,

particularly       in     light       of      the        fact    that    the      jury’s    note

indicating       they    were     divided           did    not     identify       whether     the

majority     favored           conviction           or     acquittal.             Furthermore,

supplemental instructions by the court and further deliberation

by the jury occurred between receipt of that note and the note

triggering the Allen charge.                    Finally, the speed with which a

jury returns a verdict after receiving a modified Allen charge

is not decisive.          See, e.g., Lowenfield v. Phelps, 484 U.S. 231,

235,    240-41    (1988)        (fact      that     jury        returned    its     verdict   30

minutes    after        court     gave        supplemental          instruction       was     not

necessarily indicative of coercion); United States v. Chigbo, 38

F.3d 543, 545-46 (11th Cir. 1994) (affirming conviction when

verdict returned 15 minutes after the instruction).

       Next, Meraz-Fugon argues that the district court’s answers

to the jury’s questions (1) created confusion and improperly

steered the jury away from considering his theory of defense and

(2)    failed    to     give    him     the    opportunity          to   address      the    jury

regarding the supplemental instructions.                          This Court reviews the

form and content of a district court’s response to the jury’s

                                                5
question for an abuse of discretion.                     United States v. Burgess,

684 F.3d 445, 453 (4th Cir. 2012).                   “[T]he necessity, extent and

character    of    any     supplemental          instructions         to   the     jury    are

matters    within    the       sound   discretion        of     the    district      court.”

United    States    v.    Horton,      921    F.2d      540,    546    (4th      Cir.   1990)

(citations    omitted).          “[T]he      trial      court    must      take    care,     in

responding to a jury question, not to encroach upon its fact-

finding power.”      United States v. Cooper, 482 F.3d 658, 664 (4th

Cir.     2007).          “In    responding         to     a     jury’s      request         for

clarification on a charge, the district court’s duty is simply

to respond to the jury’s apparent source of confusion fairly and

accurately    without          creating      prejudice.”              United      States     v.

Foster, 507 F.3d 233, 244 (4th Cir. 2007) (brackets and internal

quotation marks omitted).              “An error requires reversal only if

it is prejudicial in the context of the record as a whole.”                                Id.

       We have reviewed the record and conclude that the trial

court’s    supplemental         instructions       were        neither     incorrect        nor

misleading.       Meraz-Fugon, who never sought an opportunity below

to address the jury concerning the supplemental instructions,

has failed to demonstrate any prejudice caused by the lack of

such opportunity.

       Because we find no error, individually or cumulatively, we

affirm the district court’s judgment.                          We dispense with oral

argument because the facts and legal contentions are adequately

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presented in the materials before this court and argument would

not aid the decisional process.

                                                       AFFIRMED




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