     Case: 09-50025        Document: 00511175182       Page: 1    Date Filed: 07/15/2010




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

                                                   FILED
                                                                            July 15, 2010
                                        No. 09-50025
                                      Summary Calendar                      Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                 Plaintiff - Appellee

v.

ALBERTO CEJA,

                 Defendant - Appellant


                       Appeal from the United States District Court
                            for the Western District of Texas
                                 USDC No. 6:08-CR-55-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Alberto Ceja appeals his jury-trial conviction for conspiracy to distribute
cocaine and methamphetamine1 and for possession with intent to distribute at
least 50 grams of meth and aiding and abetting.2 Before getting to the merits,
we must address Ceja’s motions to supplement the record with juror



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        1
            21 U.S.C. §§ 841 & 846.
        2
            21 U.S.C. § 841; 18 U.S.C. § 2.
   Case: 09-50025         Document: 00511175182 Page: 2              Date Filed: 07/15/2010
                                      No. 09-50025

questionaries and with notes between the jury and judge.3
       Federal Rule of Appellate Procedure 10(e)(2)(C) grants us authority to
supplement the record with “anything material to either party” that has been
“omitted from or misstated in the record by error or accident.” Ceja urges that
the juror questionnaires were erroneously omitted from the record, and he needs
to evaluate them for his Batson4 claim of race-based peremptory challenges. We
DENY the request, because Ceja cannot show the documents to be “material.”
He has, in fact, waived his Batson claim. We have held that “a defendant waives
objection to a peremptory challenge by failing to dispute the prosecutor’s
explanations.”5       Ceja questioned the prosecution’s striking of a man and a
woman venireperson, each a minority. The prosecution explained it struck the
woman for falling asleep and the man for working a similar job as the defendant.
The prosecution, of its own initiative and by way of comparative analysis, noted
four other venirepersons (presumably not minorities) struck for the same work-
related reason.         Ceja did not challenge these race-neutral explanations,6




       3
         Although Ceja moved the district court for these documents, he did so after filing his
notice of appeal – so the district court did not have jurisdiction to grant the request. See
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (“The filing of a notice of
appeal is an event of jurisdictional significance – it confers jurisdiction on the court of appeals
and divests the district court of its control over those aspects of the case involved in the
appeal.”).
       4
           Batson v. Kentucky, 476 U.S. 79 (1986).
       5
         United States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (citing United States v.
Rudas, 905 F.2d 38, 41 (2d Cir. 1990) (“Once the Government has offered reasons for its
peremptory challenges, defense counsel must expressly indicate an intention to pursue the
Batson claim.”)); see also United States v. Brent, 300 F. App’x 267, 270, 272 (5th Cir. 2008)
(unpublished) (explaining that the defendant waived his Batson claim because he “objected to
the government’s peremptory strike but did not challenge the prosecution’s race-neutral
explanation”). Though the caselaw contains some contradiction, Arce’s waiver rule may not
apply in capital cases, see Fields v. Thaler, 588 F.3d 270, 276 & n.3 (5th Cir. 2009) (noting the
inconsistency), but this is not a capital case.
       6
           See Voir Dire Proceedings (Sealed), Supp. R. at 61–62 (“Nothing further, Judge.”).

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appearing to acquiesce in them.7
       The jury notes here are similarly immaterial. The government concedes
that a defendant has the right to be notified when the court receives
communications from the jury so that he can be afforded the opportunity to be
heard.8 The record reflects that the jury sent three notes to the judge, and the
parties agree it is unclear whether the defendant ever knew about the notes.
This court, in the interest of judicial economy, has looked at the sealed jury
notes, which: (1) ask for a smoke break; (2) request lunch; and (3) inform the
judge they have reached a verdict. None of these communications plausibly
affect Ceja’s appeal, so we DENY the request to supplement. We also DENY as
moot Ceja’s alternative motion to file supplemental briefing.
       Moving to the substance of Ceja’s appeal, he argues that – after he did not
testify at trial – the district court erred in failing to give a no adverse inference
instruction to the jury.        Ceja concedes that plain-error review applies.                 “A
criminal defendant has a Fifth Amendment right for a judge, upon the
defendant’s request, to instruct a jury not to make any adverse inferences based
on the defendant’s election not to testify.”9 Ceja did not request the instruction,


       7
         See Arce, 997 F.2d at 1127. We note that even if Ceja had not waived his Batson
claim, the full voir dire proceeding contained in the appellate record supports the prosecution’s
race-neutral explanations and Ceja did not before this court brief his Batson claim’s merits.
       8
        See United States v. Bieganowski, 313 F.3d 264, 293 (5th Cir. 2002) (stating the rule
and noting this court must review for harmless error).
       9
         United States v. Percel, 553 F.3d 903, 909 (5th Cir. 2008) (citing Carter v. Kentucky,
450 U.S. 288, 300 (1981)) (emphasis supplied); see also Beathard v. Johnson, 177 F.3d 340, 350
(5th Cir. 1999) (“Upon request of a defendant, a trial court shall instruct jurors that they may
not draw any adverse inference from a defendant’s failure to testify . . . .” (emphasis supplied));
United States v. Flores, 63 F.3d 1342, 1376 (5th Cir. 1995) (“As the Carter Court itself clarified,
‘a criminal trial judge must give a ‘no-adverse-inference’ jury instruction when requested by
a defendant to do so.’” (quoting Carter, 450 U.S. at 300) (emphasis in original)). The Supreme
Court has long interpreted Carter to require the no adverse inference instruction only when
the defendant requests it. See, e.g., Portuondo v. Agard, 529 U.S. 61, 67 (2000) (“The
defendant’s right to hold the prosecution to proving its case without his assistance is not to be
impaired by the jury’s counting the defendant’s silence at trial against him – and upon request
the court must instruct the jury to that effect.”); James v. Kentucky, 466 U.S. 341, 349 (1984)

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so it is hard to see how he could show any error to be “plain.” In any event, he
cannot meet plain-error review’s third prong, which “requires the defendant to
show that the error ‘affected the outcome of the district court proceedings.’” 10
       In United States v. Percel, this court refused to find plain error where the
district judge gave the wrong no adverse inference jury instruction, because
“there [wa]s not a reasonable likelihood that the jury would have applied the
judge’s erroneous oral instructions unconstitutionally.”11 Key to the court’s
analysis was that the district judge had given the proper instruction during voir
dire.12 In United States v. Flores, this court concluded that the district court’s
failure spontaneously to give the no adverse inference instruction did not affect
the defendant’s substantial rights, based in part on the overwhelming evidence
against him.13 United States v. Ramirez came out the same way.14
       The district judge here gave the proper instruction several times at voir
dire and – immediately before reading the final instructions – explained to the
jury that for hundreds of years juries have not been allowed to consider the fact
that the defendant did not testify. The evidence against Ceja was overwhelming,
including half-a-dozen witnesses consistently describing how Ceja ran a drug
distribution ring.       In short, we are not persuaded that the district court’s
omission resulted in a “substantial and injurious effect or influence in


(“Carter holds that if asked to do so the trial court must tell the jury not to draw the
impermissible inference.”). Additionally, this court has held that the district judge must
instruct the jury when the prosecution comments on the defendant’s silence. See United States
v. Griffith, 118 F.3d 318, 325 n.7 (5th Cir. 1997). Here, Ceja never requested the instruction
and the prosecution never commented on his silence.
       10
          United States v. John, 597 F.3d 263, 284 (5th Cir. 2010) (quoting Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009)).
       11
            See 553 F.3d at 909–10.
       12
            See id.
       13
            See 63 F.3d at 1375–76.
       14
            See 810 F.2d 1338, 1343–44 (5th Cir. 1987).

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determining the verdict.” 15
      The district court committed no reversible error. AFFIRMED.




      15
         United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004) (quotation marks and
alteration omitted).

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