                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-10325                ELEVENTH CIRCUIT
                                   Non-Argument Calendar            DECEMBER 30, 2010
                                 ________________________               JOHN LEY
                                                                         CLERK
                          D.C. Docket No. 1:08-cr-00041-JEC-CCH-2

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

BOYD SMITH,

lllllllllllllllllllll                                          Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                             for the Northern District of Georgia
                                ________________________

                                     (December 30, 2010)

Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

         Boyd Smith was convicted of conspiring, in violation of 18 U.S.C. § 844(n),

to commit arson, in violation of 18 U.S.C. § 844(i), and the district court
sentenced him to prison for 60 months. He now appeals his conviction, raising

one issue: whether district court abused its discretion by misstating the law in its

written response to two questions the jury asked during deliberations at the end of

the trial. The first question asked, “[i]s knowledge of others planning a crime the

same as being part of the conspiracy to commit the crimes?” The second asked,

“sitting in on discussion of a crime being planned, not actively involved with the

plan, is this the same as being involved with the plan?” The court responded as

follows:

      As the instructions indicate, a defendant must have a mutual
      understanding, with another person or persons, to accomplish an
      unlawful plan. So, knowing that other people had agreed to act
      together for the purpose of accomplishing an unlawful act would not
      render the defendant a conspirator unless the defendant, himself, had
      an understanding of the unlawful plan and had also willfully joined in
      on that plan, either verbally or through conduct that evidenced the
      defendant’s knowledge and agreement, on at least one occasion. . . .
      [The second question] is a somewhat similar question. As the
      instructions indicate, at least one conspirator must commit an overt
      act in furtherance of the conspiracy, but it is not required that the
      defendant commit the overt act. Again, the question is whether the
      defendant had a mutual understanding or agreement with another
      conspirator to accomplish the unlawful plan — here, an arson — and
      whether the defendant ever willfully joined in on that plan, either
      verbally or through conduct that evidenced the defendant’s
      knowledge of the plan and his agreement to that plan.

      Smith argues that: (1) the jury’s questions could have been answered with

the single word “no”; (2) the court erred in refusing to answer the questions in a

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straightforward manner, based on its belief that the questions did not relate to the

Government’s theory of the case; and (3) the court abused its discretion by

imposing its own view of the facts upon the jury.

      We review a trial court’s answers to questions from the jury during

deliberations for abuse of discretion. United States v. Wright, 392 F.3d 1269,

1279 (11th Cir. 2004). A trial court abuses its discretion “if it based its ruling on

an erroneous view of the law or on a clearly erroneous assessment of the

evidence.” McGregor v. Bd. of Comm'rs of Palm Beach County, 956 F.2d 1017,

1022 (11th Cir.1992) (quoting Cooter & Gell, 496 U.S. at 405, 110 S.Ct. at 2461).

The argument here is that the court abused its discretion by basing its answers on

an erroneous view of the law. In determining whether the court’s answers were

erroneous, we consider together the court’s original charge to the jury and its

answers to the jury’s questions. United States v. Sanfilippo, 581 F.3d 1152 (5th

Cir. 1978). We find that, considered as a whole, the instructions accurately

presented the substantive law of conspiracy. The answers to the jury’s questions

were limited to that substantive law. Contrary to Smith’s third point, the court did

not impose on the jury its own view of the operative faces. An abuse of discretion

did not occur here; consequently, Smith’s conviction is

      AFFIRMED.




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