     Case: 11-40537     Document: 00512013649         Page: 1     Date Filed: 10/09/2012




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

                                                                            FILED
                                                                          October 9, 2012

                                       No. 11-40537                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

DAMIAN MONTALVO,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:09-CR-1543-2


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Damian Montalvo appeals his conviction for
possessing with intent to distribute more than 1,000 kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii) and 18 U.S.C. § 2. We
AFFIRM.
                               I. Facts & Proceedings
        Montalvo was charged in a superseding indictment with the following six
counts: conspiring to import more than five kilograms of cocaine and more than

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 952(a), 963, and
960(b)(1)(B) and 960(b)(1)(G) (“Count One”); conspiring to possess with intent to
distribute more than five kilograms of cocaine and more than 1,000 kilograms
of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(ii) and
841(b)(1)(A)(vii) (“Count Two”); importing more than five kilograms of cocaine
in violation of 21 U.S.C. §§ 952(a), 960(b)(1)(B) and 18 U.S.C. § 2 (“Count
Three”); importing more than 1,000 kilograms of marijuana in violation of 21
U.S.C. §§ 952(a), 960 (b)(1)(G) and 18 U.S.C. § 2 (“Count Four”); possessing with
intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(ii) and 18 U.S.C. § 2 (“Count Five”), and possessing
with intent to distribute more than 1,000 kilograms of marijuana in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii) and 18 U.S.C. § 2 (“Count Six”).
      Montalvo was tried by a jury on the above charges. The trial lasted
approximately three days, at the conclusion of which the jury deliberated for
another three days. During the course of its deliberation, the jury sent three
notes to the district judge indicating that it could not reach a unanimous verdict.
After receiving the third note, the district judge issued an Allen1 charge. That
was on Monday, December 20, 2010. The jury continued to deliberate for a few
more hours on that day and resumed deliberations the next morning, December
21, less than four full days before Christmas. It then returned a verdict finding
Montalvo not guilty on the first five counts, but guilty on Count Six, possessing
with intent to distribute more than 1,000 kilograms of marijuana. Montalvo
filed a motion for a new trial, which the district court denied.
      Montalvo appeals his conviction, contending that the district court abused
its discretion in issuing the Allen charge and in denying him a new trial. In
support of his appeal, Montalvo offers two jurors’ affidavits which had been


      1
          Allen v. United States, 164 U.S. 492, 501-02 (1896).

                                               2
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                                         No. 11-40537

submitted to the district court in connection with the motion for a new trial, and
which state that, although a majority of the jurors initially voted to find
Montalvo not guilty on all counts, they compromised to find him guilty as to
Count Six after the Allen charge was issued, due in part to concerns about the
approaching Christmas holiday.
                                        II. Analysis
A. The Allen Charge
       We review the trial court’s decision to give an Allen charge for abuse of
discretion.2 Specifically, we must ask whether “(1) [any] semantic deviation from
approved Allen charges [was] so prejudicial as to require reversal and (2) the
circumstances surrounding the giving of an approved Allen charge [were]
coercive.”3 In assessing whether a charge was coercive, we are “required to
consider all circumstances of the case.”4
       Montalvo does not raise any issue with respect to the verbiage of the Allen
charge that the district court gave in this case. Indeed, the charge given in this
case does not deviate from the pattern Allen charge approved by this court.5 The
question that we must answer, then, is whether the circumstances under which
the charge was given were coercive.
       Montalvo insists that the Allen charge was coercive because of the
approaching Christmas holiday and the length of the jury’s deliberations,


       2
         United States v. Winters, 105 F.3d 200, 203 (5th Cir. 1997). The government asserts
that Montalvo did not object to the Allen charge and that plain error is the proper standard
of review. Contrary to the government’s position, the record on appeal shows that Montalvo
did object to the Allen charge in the district court, and the government has not cited to any
case law that supports its position on this matter.
       3
           Id.
       4
           United States v. Kimmel, 777 F.2d 290, 295 (5th Cir. 1985) (citation omitted).
       5
         FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL), § 1.45 (West 2001); see also
Winters, 105 F.3d at 203.

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pointing to the two jurors’ affidavits as support for this assertion.                     As a
preliminary matter, we are prohibited from considering the jurors’ affidavits
under these circumstances.            Subject to a few exceptions, a court may not
consider the testimony of jurors.6 Federal Rule of Evidence 606(b)(1) specifies
that a juror may not testify about “any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes concerning the verdict or
indictment.” A juror may testify only as to whether “(A) extraneous prejudicial
information was improperly brought to the jury’s attention; (B) an outside
influence was improperly brought to bear on any juror; or (C) a mistake was
made in entering the verdict on the verdict form.”7
       Montalvo does not contend that the exceptions relating to “extraneous
prejudicial information” or “mistake in entering the verdict” apply in this case.
He does, however, contend that the jury was subject to “outside influences”
including “the length of the deliberations, the holiday season, the need to do
Christmas shopping and the ongoing inability to reach a verdict.” “Outside
influences,” however, relate to efforts by persons other than jurors to influence
the jury, such as by bribery, threats of violence, or other forms of unauthorized
contact between the jury and other persons.8 This exception, therefore, does not
apply to the circumstances of the instant case.




       6
           Tanner v. United States, 483 U.S. 107, 118-19 (1987).
       7
           FED. R. EVID. 606(b)(2).
       8
         27 WRIGHT & GOLD, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE 2d § 6075 (2007);
see also United States v. Webster, 750 F.2d 307, 338 (5th Cir. 1984) (“[W]e have distinguished
between jury panels tainted by outside influence, such as publicity or direct appeals from third
parties, and panels on which one or more of the jurors themselves have violated an instruction
of the court.”)

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      Furthermore, the fact that a holiday was approaching is not dispositive.
In United States v. Betancourt,9 we rejected a challenge to an Allen charge under
circumstances in which the jury rendered a verdict at 10:30 PM on a stormy
night and a mere two hours after the Allen charge was issued. We also noted
that the Betancourt jury had not requested a recess.10 Subsequent to Betancourt,
we denied another Allen charge challenge, observing that “[t]he time of the day
was not late. The day was not Friday or the day before a holiday. The weather
was not alleged to be inclement.”11
      Here, although the Christmas holiday season was in progress, the Allen
charge was not issued on “the day before a holiday,” and the circumstances
that might have pressured the jurors to reach a verdict were less extreme
than those in Betancourt. Moreover, there appears to be no indication that the
jury expressed any concern about the approaching holiday by requesting a
recess, and the court transcript indicates that the judge neither mentioned the
holiday nor set a time-frame for the jurors to complete their deliberations.
      With respect to the length of the jury’s deliberations, the amount of time
that a jury is to be kept in deliberation is generally left to the sound discretion
of the trial judge.12 We noted in United States v. Kimmel, for example, that
“[t]he real question is whether the jury was required to deliberate an
unreasonable length of time or for unreasonable intervals or was threatened
with the prospect of such unreasonably lengthy deliberations.”13 We are satisfied
that the length of the deliberations in this case was not coercive. We have


      9
          427 F.2d 851, 854 (5th Cir. 1970).
      10
           Id.
      11
           United States v. Bottom, 638 F.2d 781, 788 (5th Cir. 1981).
      12
           United States v. DeLaughter, 453 F.2d 908, 910 (5th Cir. 1972).
      13
           777 F.2d at 295 n.5 (citation omitted).

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previously held periods of similar length not to be coercive.14 Neither did the
judge in this case appear to threaten the jury with an unreasonable length of
deliberations, as, for example, by issuing multiple Allen charges.15 We conclude
that the district court did not abuse its discretion in issuing an Allen charge in
this case.
B. Motion for a New Trial
       A trial court may grant a new trial in the interest of justice under Federal
Rule of Criminal Procedure 33.16 We review the denial of a Rule 33 motion for
abuse of discretion.17
       Montalvo moved for a new trial, not under Rule 33, but under Rule 29, the
rule that permits a post-verdict motion for judgment of acquittal based on
insufficiency of the evidence. He did not, however, claim that the evidence
against him was insufficient, either in his motion in the district court or on
appeal. We have not directly ruled on whether a trial court may treat a Rule 29
motion as a Rule 33 motion.18 And, we refrain from reaching that issue in this
case because we conclude that Montalvo has not made a case for reversing the
district court’s denial of a new trial, even if we were to treat his motion as having
been made under Rule 33.



       14
         Bottom, 638 F.2d at 788 (no coercion where jury deliberated for only three and a half
hours after the Allen charge); United States v. Miles, 360 F.3d 472, 482-83 (5th Cir. 2004)
(noting that issuing Allen charge four days into jury’s deliberations was not unreasonable).
       15
          See United States v. Fossler, 597 F.2d 478, 485 (5th Cir. 1979) (finding coercion where
the district judge issued a second Allen charge after jury sent a note stating it was unable to
reach a verdict after the first Allen charge).
       16
            FED. R. CRIM. P. 33(a).
       17
            United States v. Franklin, 561 F.3d 398, 405 (5th Cir. 2009).
       18
         United States v. Nguyen, 507 F.3d 836, 839-40 (5th Cir. 2007) (refraining from ruling
on issue of whether Rule 29 motion may be treated as a motion for a new trial under Rule 33
where appellant did not raise sufficient grounds for new trial in Rule 29 motion).

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       Montalvo contends that the district court abused its discretion in denying
his motion for a new trial. He asserts that the jury’s verdicts on Counts Five and
Six are “clearly inconsistent” because the 468 kilograms of cocaine charged in
Count Five and the 1,973 kilograms of marijuana charged in Count Six “were
found at the same location and were intermixed.”19
       Verdicts may be inconsistent, however, as long as there is sufficient
evidence to support conviction on any count on which the jury reaches a verdict
of guilty.20 Stated differently, a court must treat each count separately, and if
there is sufficient evidence to convict on the count in question, the verdict must
stand and a new trial is not appropriate.21 Moreover, an acquittal on one count
does not prevent conviction on another count, even if the evidence is the same
and the defendant could not have committed one crime without committing
both.22
       Even if we were to assume arguendo that the verdicts on Counts Five and
Six are inconsistent, Montalvo’s guilty verdict on Count Six must stand as long



       19
          Montalvo also claims that the district court denied his motion for a new trial “in
fairness to the Government”; however, he has cited to nothing in the record that supports this
contention. The appellant has the “responsibility to order parts of the record which he
contends contain error and his failure to do so prevents [this court] from reviewing this
assignment of error.” United States v. O’Brien, 898 F.2d 983, 985 (5th Cir. 1990) (citations
omitted).
       20
          United States v. Powell, 469 U.S. 57, 69 (1984) (holding that acquittal on charges of
conspiracy to possess cocaine and possession of cocaine did not require setting aside conviction
for using a telephone in committing and in causing and facilitating the alleged conspiracy and
possession); United States v. Gieger, 190 F.3d 661, 664 (5th Cir. 1999) (“[I]nconsistent verdicts
are not a bar to conviction, so long as there is sufficient evidence to support the jury’s
determination of guilt.”).
       21
         Powell, 469 U.S. at 62-63; United States v. De La Torre, 634 F.2d 792, 796 (5th Cir.
1981) (noting that, in a multicount indictment, each count is considered separately and a
guilty verdict on any count may stand if supported by the evidence, without regard to verdict
on other counts).
       22
            Powell, 469 U.S. at 68-69; Gieger, 190 F.3d at 664.

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as there was sufficient evidence to support that count’s charge of possession with
intent to distribute marijuana. As we have already noted, Montalvo makes no
argument that the evidence was insufficient for the jury to render a guilty
verdict on such possession. We are satisfied that the district court was within
its discretion in denying Montalvo’s motion for a new trial.
                               III. Conclusion
      Under the instant circumstances, the district court did not abuse its
discretion in giving the jury the Allen charge or in denying Montalvo’s motion
for a new trial. Accordingly, the jury’s verdict is AFFIRMED.




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