     Case: 09-50780     Document: 00511159397          Page: 1    Date Filed: 06/30/2010




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

                                                 FILED
                                                                            June 30, 2010
                                     No. 09-50780
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOSE BARRAZA,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:08-CR-3177-1


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jose Barraza appeals his conviction on 14 counts of making false
statements to the United States Postal Service and the United States
Department of Labor’s Office of Workers’ Compensation Program (OWCP)
concerning his ability to work, in order to induce the payment of worker’s
compensation and other benefits. See 18 U.S.C. §§ 1001, 1920. We affirm.
        Barraza argues that the evidence was insufficient to show that he
knowingly made false statements because he was entitled to rely on the opinions

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-50780

of a physician and a physical therapist who testified that, at one time, they
thought Barraza was actually injured. Ordinarily, in assessing the sufficiency
of the evidence, we determine whether “after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original). However, because Barraza did
not renew his motion for acquittal at the close of the evidence, “we review his
claim to determine whether there was a manifest miscarriage of justice.” United
States v. Burton, 324 F.3d 768, 770 (5th Cir. 2003) (citation and marks omitted).
There is a manifest miscarriage of justice when “the record is devoid of evidence
pointing to guilt or contains evidence on a key element of the offense that is so
tenuous that a conviction would be shocking.” United States v. McIntosh, 280
F.3d 47, 483 (5th Cir. 2002) (citation and marks omitted).
      To establish a violation of § 1001, the Government was required to prove
that Barraza made an intentional false statement that was material to some
inquiry or decision within a government agency’s jurisdiction. See United States
v. Najera Jimenez, 593 F.3d 391, 399-400 (5th Cir. 2010). To prove the offense
of making false statements for purposes of fraudulently obtaining OWCP
benefits in violation of § 1920, the Government was required to show that
Barraza knowingly and willfully made a material false or fraudulent statement
in connection with his application for OWCP compensation or other benefits. See
United States v. Harms, 442 F.3d 367, 372-73 (5th Cir. 2006).
      The Government presented visual documentation of Barraza performing
activities that were contrary to his statements that he was unable to work. The
physician testified that Barazza’s assertions during treatment concerning his
inability to work were not consistent with the evidence of his activities presented
at trial. Barraza was not entitled, as a matter of law, to rely on the opinions of
experts whom he was misleading. See United States v. Smith, 523 F.2d 771, 778
(5th Cir. 1975).    The Government also presented evidence that Barraza

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persistently and falsely denied any ability to work.        His assertions of his
inability to work were inconsistent with the surveillance evidence and the
opinion of his physical therapist.     Viewing the evidence in the light most
favorable to the jury’s verdict, the record is not devoid of evidence pointing to
guilt and does not contain evidence on a key element of the offense that is so
tenuous that a conviction would be shocking. See McIntosh, 280 F.3d at 483.
Consequently, there was no miscarriage of justice. See Burton, 324 F.3d at 770.
      Barraza also challenges the district court’s supplemental instruction to the
jury regarding the requirement of unanimity of the verdict on all counts. The
jury originally found Barraza guilty on two counts and not guilty on the
remaining counts. When the district court began to poll the jury, the jury
foreman revealed that the jury had misunderstood the requirement of a
unanimous verdict with respect to acquittals and that the not guilty verdicts
were not unanimous. The court therefore clarified its instruction and instructed
the jury to resume deliberations and return unanimous verdicts of guilty or not
guilty as to each count. After further deliberation, the jury returned unanimous
verdicts of guilty on all counts.
      Although Barraza moved for a mistrial after the jury resumed
deliberations on the ground that the jury had returned an illegal verdict, he did
not object to the court’s clarifying instruction. Review is thus for plain error. To
show plain error, Barraza must show a forfeited error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 129 S. Ct.
1423, 1429 (2009). If he makes such a showing, we have the discretion to correct
the error but only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (citation and marks omitted). “Plain
error occurs only when [a jury] instruction, considered as a whole, was so clearly
erroneous as to result in the likelihood of a grave miscarriage of justice.” United
States v. Davis, 19 F.3d 166, 169 (5th Cir. 1994) (citation omitted).



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      The court’s instruction was a correct statement of the law. See F ED.
R. C RIM. P. 31(a) & (d); cf. also United States v. Miles, 360 F.3d 472, 482-83 (5th
Cir. 2004) (approving similar instruction); United States v. Jones, 132 F.3d 232,
245 (5th Cir. 1998) (finding no constitutional requirement that a court “inform
the jury of the consequences of failing to reach a unanimous verdict”). Moreover,
Barraza fails to show “that the circumstances surrounding the charge caused the
jury to be unduly coerced into reaching a verdict.”         See United States v.
McClatchy, 249 F.3d 348, 359 (5th Cir. 2001). The district court committed no
error, plain or otherwise. Further, there is no likelihood that the instruction
resulted in a miscarriage of justice. See Davis, 19 F.3d at 169.
      The judgment of the district court is AFFIRMED.




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