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

                                                                   FILED
                                                                   June 3, 2008
                                  No. 07-10530
                                                             Charles R. Fulbruge III
                                                                     Clerk
UNITED STATES OF AMERICA

                                            Plaintiff - Appellee

v.

MANUEL ROMERO-CHAVEZ

                                            Defendant - Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 1:06-CR-59-ALL


Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
      Manuel Romero-Chavez appeals his conviction for being an inmate in
possession of a prohibited object.     He contends that insufficient evidence
supported his conviction; alternatively, he contends that the district court erred
by making an improper comment in front of the jury and by providing a
misleading answer to a request the jury made during deliberations. For the
reasons that follow, we AFFIRM.




      *
      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should not be published and is not precedent except under the limited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.
                          No. 07-10530

1.   Romero first contends that there was insufficient evidence to
     support his conviction because the object he possessed (a vegetable
     knife) is not a “prohibited object,” as that phrase is defined in 18
     U.S.C. § 1791. A “prohibited object” is defined as, among other
     things, a “weapon” or an object “designed or intended to be used as
     a weapon.” 18 U.S.C. § 1791(d)(1). Thus, the Government needed
     to prove that the vegetable knife was a weapon, an object designed
     to be a weapon, or an object intended to be used a weapon. See
     United States v. Johnson, 87 F.3d 133, 136 n.2 (5th Cir. 1996) (“[A]
     disjunctive statute may be pleaded conjunctively and proved
     disjunctively.” (internal citation and quotation marks omitted)).
     Viewing the evidence in the light most favorable to the verdict, a
     rational juror could have found that Romero possessed the knife to
     defend himself (i.e., as an object intended to be used as a weapon)
     and not simply as a ticket to solitary confinement, as he claimed at
     trial. While some evidence indicated that Romero never intended
     to use the knife as a weapon, other evidence (including Romero’s
     own statements) indicated that he did.       Given the conflicting
     evidence, a rational juror could have found that Romero intended to
     use the knife as a weapon.
2.   Romero next contends that the evidence establishes that he met his
     defense of duress as a matter of law. To prove his defense, Romero
     needed to show, among other things, that he “had no reasonable
     legal alternative to violating the law.” United States v. Willis, 38
     F.3d 170, 175 (5th Cir. 1994) (internal citation omitted). Viewing
     the evidence in the light most favorable to the verdict, a rational
     juror could have concluded that Romero failed to establish that
     element. A rational juror could have concluded that providing
     prison officials with more detailed information about the threats he

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     had received was a reasonable legal alternative to taking the knife.
     While Romero testified why providing prison officials with more
     information might not be a reasonable alternative, the jury was
     entitled to conclude to the contrary.
3.   Romero also contends that he was prejudiced when the district court
     sustained a Government objection during his cross-examination and
     purportedly made a comment that undermined his defense. Romero
     argues that the comment signaled to the jury that the district court
     agreed with the Government that he was providing elusive answers
     and that his testimony was not credible. Because Romero did not
     object below, we review for plain error.
           The district court’s comment was within its wide discretion to
     control the tone and tempo of the trial and did not constitute plain
     error. See United States v. Saenz, 134 F.3d 697, 701, 704 (5th Cir.
     1998).   The court’s single comment was not quantitatively or
     qualitatively substantial, and the district court instructed the jury
     that it was not to consider such comments in its deliberations. See
     id.; United States v. Bermea, 30 F.3d 1539, 1571–72 (5th Cir. 1994).
4.   Finally, Romero contends that the district court prejudiced the
     outcome of his trial by responding incompletely to the jury’s request
     to review trial testimony. Romero argues that the district court did
     not provide all of the transcript sections that were encompassed by
     the jury’s request and omitted relevant evidence that may have
     influenced the jury’s verdict. As Romero made no objection below,
     our review is again for plain error.
           “[A] trial judge has broad discretion in responding to the jury’s
     request for the transcript of a particular witness’[s] testimony[.]”
     United States v. Schmitt, 748 F.2d 249, 256 (5th Cir. 1984). The
     testimony that Romero argues was improperly omitted was not

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        responsive to the jury’s request; although the additional testimony
        may have provided context to the excerpt provided to the jury, the
        district court did not plainly err in limiting its response to the
        portion of the transcript that was directly responsive.
AFFIRMED.




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