                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit                    March 15, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                           No. 06-60822




                    UNITED STATES OF AMERICA,


                                                  Plaintiff-Appellee


                              VERSUS


                           BYRON DANIEL,


                                                 Defendant-Appellant



          Appeal from the United States District Court
             For the Southern District of Mississippi
                            5:05-CR-19



Before DAVIS, DENNIS and PRADO, Circuit Judges.

PER CURIAM:*

     Defendant-appellant   Bryon   Daniel   (“Daniel”)    appeals      his

conviction for the crime of escape in violation of 18 U.S.C. §

751(a). Daniel argues that the district court erred in (1) denying

his motion for new trial based on improper comments made by the


     *
      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this opinion should not be published and is not precedent except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.
prosecutor during closing argument; (2) denying his motion to

dismiss for double jeopardy; and (3) denying his second motion for

new trial or in the alternative request for interviews of jurors.

For the following reasons, we AFFIRM.

                                      I.

     In April 2005, Daniel was serving a federal sentence in a

minimum security facility at the Federal Correctional Complex in

Yazoo City, Mississippi (“FCC-Yazoo”). The Government alleged that

Daniel escaped from this facility on April 16, 2005 by crossing the

property line.    Although Daniel admitted that leaving the prison

camp building was a violation of prison policy, he denied he

crossed the FCC-Yazoo property line.         As a result of his violation

of prison policy, Daniel was placed in solitary confinement for a

period of about seven months, lost visiting and work privileges,

and was ultimately transferred to a higher security facility.

     In December 2005, an indictment was filed against Daniel for

escape.   Prior to trial, the Government filed a motion in limine,

which sought to prohibit Daniel “from introducing into evidence,

mentioning   in   voir    dire   or   opening   statement,   or   otherwise

presenting   before      the   jury   any   evidence   pertaining   to   any

administrative disciplinary action or punishment received by the

defendant, or that he was subject to, as a result of his actions

resulting in the instant charges.”          The motion was granted by the

district court. Daniel was subsequently found guilty of escape and



                                       2
was sentenced    to    ten    months   of    imprisonment,   three   years    of

supervised release, and ordered to pay a $100 special assessment.

Daniel timely appealed.

                                       II.

     As his first assignment of error, Daniel argues that the

following   portion     of    the   prosecutor’s       closing   argument    was

improper:

     [The Prosecutor]:         The only thing that keeps inmates in
                               a camp facility that has no fence,
                               the only thing that keeps those
                               inmates up there at Yazoo City FCI
                               at the camp, is the knowledge that
                               if they cross that line and leave
                               the prison grounds, they’re going to
                               be caught and punished. And if you
                               take away that punishment -
     [Defense Counsel]:        Objection. Your Honor, he’s talking
                               about punishment here.
     [The Court]:              Well, that deterrent.
     [The Prosecutor]:         I used the wrong word.      I should
                               have used the word “deterrent.”
     [The Court]:              Substitute the word - objection
                               sustained.     Substitute the word
                               “deterrent” on that.
     [The Prosecutor]:         I apologize.      I didn’t mean to
                               mislead anybody.
                               The point I’m trying to make is it’s
                               important. When inmates at a camp
                               can freely go across and leave that
                               campground and nothing happens,
                               there is no deterrent to keep the
                               next guy from going and maybe even
                               going further.

     Daniel claims that this argument was improper for two reasons:

(1) it urged the jury to consider “deterrence” as a factor in its

deliberations;   and    (2)    it   permitted    the    government   to   argue

deterrence when the defense was prohibited by the ruling on the


                                        3
motion in limine from presenting any testimony that Daniel suffered

administrative punishment for his act.             Since defense counsel did

not contemporaneously object to the prosecutor’s use of the word

“deterrent” in his argument, we must review Appellant’s claim based

upon plain error.2

      This court has set forth a two-part test for reversible

prosecutorial misconduct: (1) the prosecutor’s remarks must in fact

have been improper; and (2) the remarks must have prejudicially

affected the substantive rights of the defendant.3               In determining

whether      the   prosecutor’s    comments      prejudiced     the    defendant’s

substantive rights, consideration is given to “(1) the magnitude of

the   statement’s     prejudice;    (2)    the    effect   of    any   cautionary

instructions given; and (3) the strength of the evidence of the

defendant’s guilt.”4       “The magnitude of the prejudicial effect is

tested by looking at the prosecutor’s remarks in the context of the

trial in which they were made and attempting to elucidate their

intended effect.”5 The district court’s on-the-scene assessment of

the prejudicial effect, if any, carries considerable weight.6

      2
      United States v. Gallardo-Trapero, 185 F.3d 307, 321 (5th
Cir. 1999).
      3
      United States v. Fields, 72 F.3d 1200, 1207 (5th Cir.
1996).
      4
      Gallardo-Trapero, 185 F.3d at 320 (internal citation and
quotations omitted).
      5
       Fields, 72 F.3d at 1207.
      6
       Id.

                                       4
     Daniel concedes that there is no Fifth Circuit case directly

addressing the issue of whether “deterrence” is a proper element

for the jury to consider in a criminal trial, and the cases relied

upon by Daniel as persuasive authority are distinguishable from the

instant circumstances.7 Contrary to Daniel’s argument, our case law

indicates that “appeals to the jury to act as the conscience of the

community are permissible, so long as they are not intended to

inflame.”8

     In this case, we conclude that it was not improper for the

prosecutor to urge the jury to consider deterrence in his closing

argument.9 During trial, Daniel testified, inter alia, that “being

out of bounds or going to pick up some food is not like a real bad

thing.”   We agree with the district court that the prosecutor’s

     7
      Unlike the cases cited by the defendant, the prosecutor’s
closing argument using the word “deterrent” did not appeal to an
emotionally-charged, wide-scale, social problem such as the war
on drugs. See United States v. Johnson, 968 F.2d 768, 772 (8th
Cir. 1992); United States v. Solivan, 937 F.2d 1146, 1153 (6th
Cir. 1991); United States v. Lee, 743 F.2d 1240, 1253 (8th Cir.
1984). There is no evidence in the record indicating that inmate
escapes are a frequent and recurring problem, and the
prosecutor’s closing arguments did not imply that such was the
case.
     8
      Fields, 72 F.3d at 1208 (emphasis added).
     9
      We have upheld as proper the following prosecutor’s
argument: “You are the arbiters of truth. You are the ones who
stand between citizens of this country and an injustice, crimes
that were committed against the nation in which we live.” United
States v. Ruiz, 987 F.2d 243, 248 (5th Cir. 1993). Similarly, we
upheld the following argument as proper: “It’s a neighborhood
problem. If we take neighborhoods back by putting these people
in jail, we can eventually work our way to solving this problem.
But it’s got to start right here.” Fields, 72 F.3d at 1207.

                                 5
closing remarks sought to encourage the jury to perform its duty to

convict   on   the   evidence   in   spite    of   the   fact   that   Daniel’s

infraction seemed minor.        On the whole, the prosecutor’s comments

regarding the need to deter similar conduct in the future by the

defendant and the general inmate population were not inflammatory,

and therefore, were not improper.10

     It is a closer call whether in the context of this case it was

plain error for the court to allow the prosecutor to argue there

was nothing to deter Daniel or other inmates from escaping from a

camp other than a fear of criminal punishment, and at the same time

prevent the defense from informing the jury of the administrative

punishment that Daniel suffered.            However, even if the district

court did err in allowing the prosecutor to argue deterrence after

granting the government’s motion in limine, we conclude that the

remarks did not operate to the substantial prejudice of Daniel, and

thus, do not warrant reversal.

                                     III.

     As a result of Daniel’s escape, the Bureau of Prisons (the

“Bureau”) placed him in solitary confinement for a period of about

seven months, and ultimately transferred him to a higher security

facility, which resulted in a loss of visiting, recreational and

work privileges he enjoyed in the minimum security facility.


     10
      See Ruiz, 987 F.2d at 249 (“The prosecutor’s statements
were merely a plea to the jury to do its duty - the record
reveals no evidence of an intent to inflame.”).

                                      6
Daniel moved to dismiss the indictment against him on the ground

that his administrative punishment constituted “punishment”, and

that the instant prosecution therefore violated the Double Jeopardy

Clause.     We review the double jeopardy claim de novo, although the

district court’s factual findings are accepted unless clearly

erroneous.11

     We conclude that Daniel’s argument lacks merit.     We, as well

as other courts, have held, pre- and post-Hudson v. United States,12

that disciplinary sanctions imposed by prison authorities for

infractions of prison regulations do not bar a subsequent criminal

prosecution.13     We see no reason to depart from this general rule

in this case.     We therefore affirm the district court’s denial of

Daniel’s motion to dismiss the indictment.

                                     IV.

     11
          Fields, 72 F.3d at 1209.
     12
      522 U.S. 93 (1997). In Hudson, the Supreme Court held
that the Double Jeopardy Clause “protects only against the
imposition of multiple criminal punishments for the same
offense.” Id. at 99 (emphasis in original).
     13
      See, e.g., Porter v. Coughlin, 421 F.3d 141 (2d Cir.
2005); Welch v. Epps, 103 F. App’x 828 (5th Cir. 2004); United
States v. Shepard, 78 F. App’x 387 (5th Cir. 2003); Singleton v.
Page, 202 F.3d 274 (7th Cir. 1999); United States v. Mayes, 158
F.3d 1215 (11th Cir. 1998); United States v. Galan, 82 F.3d 639
(5th Cir. 1996); United States v. Hernandez-Fundora, 58 F.3d 802
(2d Cir. 1995); United States v. Brown, 59 F.3d 102 (9th Cir.
1995); Garrity v. Fiedler, 41 F.3d 1150 (7th Cir. 1994); United
States v. Newby, 11 F.3d 1143 (3d Cir. 1993); United States v.
Rising, 867 F.2d 1255 (10th Cir. 1989); United States v.
Williamson, 469 F.2d 88 (5th Cir. 1972); Gilchrist v. United
States, 427 F.2d 1132 (5th Cir. 1970); Keaveny v. United States,
405 F.2d 821 (5th Cir. 1969).

                                      7
     After Daniel was convicted, but before his sentencing, the

district court received a letter from a juror claiming, inter alia,

that a juror had commented during deliberations that he made

deliveries to FCC-Yazoo and stated that “people come and go” all

the time.     As a result, Daniel filed a second motion for new trial

or, in the alternative, for interview of jurors, arguing that the

jury improperly      considered   extraneous   prejudicial   evidence   in

reaching its verdict.       Without holding a hearing, the district

court denied the motion.     The district court found that, although

the jury was exposed to extraneous evidence, it was highly unlikely

that Daniel was prejudiced by this statement.            We review the

district court’s denial for an abuse of discretion.14

     Assuming that the alleged statement made by the juror is

properly characterized as “extraneous prejudicial information”

under Federal Rule of Evidence 606(b),15 we agree with the district

     14
          United States v. Straach, 987 F.2d 232, 242 (5th Cir.
1993).
     15
          Federal Rule of Evidence 606(b) provides in pertinent
part:

     Upon an inquiry into the validity of a verdict or
     indictment, a juror may not testify as to any matter or
     statement occurring during the course of the jury’s
     deliberations or to the effect of anything upon that or
     any other juror’s mind or emotions as influencing the
     juror to assent to or dissent from the verdict or
     indictment or concerning the juror’s mental processes
     in connection therewith. But, a juror may testify
     about (1) whether extraneous prejudicial information
     was improperly brought to the jury’s attention . . . .

Fed. R. Evid. 606(b) (emphasis added).

                                     8
court that Daniel was not prejudiced by this statement.     During

trial, Daniel stated that the rules restricting movement around the

camp were very lax and often went unenforced, even testifying that

persons would enter from outside the camp to play basketball with

the prisoners.   As a result, the statement allegedly made by the

juror concerning the freedom with which people came and went at the

camp served only to confirm Daniel’s own testimony.    In fact, in

his motion, Daniel admitted that the juror’s statement “could be

taken as favorable to the defense theory.”    Accordingly, we find

that the district court did not abuse its discretion in denying

Daniel’s motion for new trial.16

                                   V.

     For the foregoing reasons, we AFFIRM.




     16
      We also conclude that the district court did not abuse its
discretion in failing to hold a hearing to assess whether the
jury was adversely influenced by the subject statement. See
United States v. Weber, 750 F.2d 307, 338 (5th Cir. 1984). In
general, the manner of handling jury misconduct is left to the
sound discretion of the trial judge. See id.

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