United States District Court, E.D. Virginia, Alexandria Division
O'Grady United Suites District Judge.
matter comes before the Court on Defendant Roger Hedilberto
Meraz-Fugon's Motion for a New Trial. Dkt. No. 71. For
the reasons outlined below, the Court finds good cause to
deny the Motion.
January 28, 2016, the grand jury indicted Meraz-Fugon on one
count of importation of a controlled substance in violation
of 21 U.S.C. §§ 952(a) and 960(b)(3). Dkt. No. 10.
Meraz-Fugon decided to proceed to trial and on April 26,
2016, that trial began. At trial, the prosecution presented
evidence that on December 30, 2015, Meraz-Fugon arrived at
Dulles International Airport on a flight from Honduras with
approximately one kilogram of cocaine in his luggage,
concealed within the walls of jars containing a white cream
sauce. After deplaning, Meraz-Fugon was questioned at primary
inspection. A United States Customs and Border Protection
("CBP") officer sent Meraz-Fugon to secondary
inspection because he was suspicious of Meraz-Fugon's
behavior and his answers during questioning. At secondary
inspection, Meraz-Fugon's luggage was searched and the
cocaine was discovered. The Defendant denied knowing about
trial, defense counsel presented the testimony of an operator
of a courier company who explained how and why Meraz-Fugon
was asked, as a favor, to carry the bag containing the
cocaine. Defense counsel also presented the testimony of Dr.
[Catherine Snably, a psychologist, who attested that she had
determined that Meraz-Fugon was intellectually disabled after
administering a series of standard psychological tests on
him. Based on this evidence, defense counsel argued to the
jury that because of his disability and the circumstances
around the crime Meraz-Fugon did not form the mens
rea required to convict him. Defense counsel requested
that the Court give a "theory of the case"
instruction to the jury outlining this argument. The Court
declined this request.
deliberations, the jury asked several questions regarding the
Defendant's competence and mental capacity. Each time a
question was asked, the Court conferenced with the parties
and drafted a response to be given to the jury. Each time the
Court gave the parties an opportunity to object to the
Court's response. The jury also sent two notes to the
Court stating that they were deadlocked. In response to the
second note indicating that the jury was deadlocked, the
Court consulted with the parties and gave the jury an
Allen charge. Defense counsel objected to the
content of the charge. Forty minutes after the Court gave the
Allen charge, the jury convicted Meraz-Fugon. Dkt.
Court gave defense counsel leave to file post-trial motions
after the trial transcripts had been docketed. The trial
transcripts were docketed on May 20, 2016, and on June 9,
2016, defense counsel filed the pending Motion for a New
Trial. The Government filed an opposition to this Motion and
defense counsel filed a reply. A short hearing on this Motion
was held on August 9, 2016.
Legal Standard: Motion for a New Trial
to Rule 33 of the Federal Rules of Criminal Procedure, a
"court may vacate any judgment and grant a new trial if
the interest of justice so requires." Fed. R. Crim. P.
33. The district court has discretion to grant a new trial,
however, the Fourth Circuit has directed that this discretion
should be used sparingly. United States v.
Arrington, 757 F.2d 1484, 1486 (4th Cir. 1985). This
discretion should be used only "where it is demonstrated
that the fundamental fairness or integrity of the trial
result is substantially in doubt." United States v.
Jennings, 438 F.Supp.2d 637, 642 (E.D. Va. 2006).
addition, "[p]ursuant to the cumulative error doctrine,
'[t]he cumulative effect of two or more individually
harmless errors has the potential to prejudice a defendant to
the same extent as a single reversible error.'"
United States v. Basham, 561 F.3d 302, 330 (4th Cir.
2009) (quoting United States v. Rivera, 900 F.2d
1462, 1469 (10th Cir. 1990)). However, to satisfy this
requirement, the cumulative effect "of such errors must
'so fatally infect the trial that they violated the
trial's fundamental fairness.'" Id.
(quoting United States v. Bell, 367 F.3d 452, 471
(5th Cir. 2004)).
Defendant has requested a new trial on three different
grounds: (1) the Court should have given the jury the
Defendant's requested "theory of the case"
instruction; (2) the content of the Allen charge was
not fairly balanced; and (3) the Court's responses to the
jury's questions were confusing and introduced new legal
theories. The Court will address each argument in turn.
The Theory of the Case Instruction
Defendant first argues that the Court's failure to give
his requested theory of the case instruction to the jury was
an error that requires a new trial. The Fourth Circuit has
opined that "[a]s long as the instructions have an
evidentiary foundation and are accurate statements of the
law, the district court should include instructions 'to
instruct the jury in the defendant's theory of
defense.'" United States v. Dornhofer, 859
F.2d 1195, 1199 (4th Cir. 1988) (quoting United States v.
Mitchell, 495 F.2d 285, 287-288 (4th Cir. 1974)). A
district court's decision not to give a jury instruction
the criminal defendant requested may be grounds for granting
a new trial if the following three factors are satisfied: (1)
the instruction was legally correct, (2) the instruction
"was not substantially covered by the charge that the
district court actually gave to the jury, " and (3) the
instruction "involved some point so important that the
failure to give the instruction seriously impaired the
defendant's defense." United States v.
Lewis, 53 F.3d 29, 32 (4th Cir. 1995). However, even if
these three factors are satisfied, the court's decision
not to give the defendant's requested instruction is not
an abuse of discretion "unless the defendant can show
that the record as a whole demonstrates prejudice."
United States v. Bartko, 728 F.3d 327, 343 (4th Cir.
2013). The Fourth Circuit does "not view a single
instruction in isolation; rather [the Fourth Circuit]
consider[s] whether taken as a whole and in the context of
the entire charge, the instructions accurately and fairly
state the controlling law." United States v.
Rahman, 83 F.3d 89, 92 (4th Cir. 1996).
The Defendant's requested theory of the case instruction
read as follows:
As I have instructed you, the government must prove, beyond a
reasonable doubt, that the defendant knew that the materials
he possessed contained illegal narcotics. If the defendant
lacked this knowledge you must find him not guilty, even if
the government proves that the only reason the defendant
lacked such knowledge was because he was careless, negligent
or even foolish in failing to obtain it.
In determining whether the defendant acted knowingly-that is,
whether the government has proven beyond a reasonable doubt
that he knew that the materials he possessed contained
illegal narcotics-you may consider the defendant's
limited intellectual function. While you may consider
inferences that the defendant might have drawn from the facts
known to him, you may also consider whether the defendant
would make inferences in the same way as, or to the same
degree as, a non-intellectual-disable person. If you find
that it's reasonably possible that the defendant did not
know that the materials he possessed contained illegal
narcotics, he must be acquitted.
It is entirely up to you to determine what inferences the
defendant is likely to have drawn from the facts known to
this instruction was substantially covered by the Court's
other instructions the Defendant was not entitled to have
this instruction read to the jury.
first paragraph of the Defendant's theory of the case
instruction merely restates the government's burden on
the mens rea elements-which was already set forth in
other instructions given to the jury. The second paragraph
references specific evidence that the jury should consider
when determining whether the Defendant had the requisite
mens rea for conviction. This paragraph is also
covered by the other instructions telling the jury to
consider all of the evidence before it when determining
whether the government has met its burden. Thus, from a
purely analytical approach, the Court's decision not to
give the instruction is not grounds for a new trial because
it was encompassed in the Court's other directions.
addition, this case stands apart from the cases the Defendant
cites in support of his position. The defense's
"theory of the case" was that the government could
not prove all of the elements of the crime because of the
Defendant's low intellectual functioning, as established
through the testimony of a psychologist. The Court instructed
the jury on all of the elements of the crime and the
government's burden-these instructions covered the
entirety of the defense's theory of the case. Unlike the
cases cited by the Defendant, the Defendant did not present
an affirmative defense or a defense based on a legal rule
that the jury would not have known without specific
instruction. Thus, the cases the defense cites are generally
not applicable here. See United States v. Ricks, 573
F.3d 198, 201 (4th Cir. 2009) (district court should have
given affirmative justification defense); United States
v. Lewis, 53 F.3d 29, 34 (4th Cir. 1995) (district court
gave general instruction in conspiracy but failed to instruct
the jury clearly that it may not convict Lewis for conspiring
with a government agent; this was error because jury had no
way to know this legal rule without specific instruction);
United States v. Hicks, 748 F.2d 854, 857 (4th Cir.
1984) (district court erred in refusing to give an alibi
instruction); United States v. Head, 641 F.2d 174,
180 (4th Cir. 1981) (district court erred in failing to give
reliance on accountant instruction). The defense also has not
made a clear argument that the failure to give the theory of
the case instruction resulted in prejudice-that is, that the
outcome of the case would have been different when all of the
instructions given to the jury are taken into consideration.
the Defendant's theory of the case instruction was
covered by the Court's other instructions and the
defendant suffered no clear prejudice, the Court concludes
that the decision not to give the requested instruction is
not sufficient grounds for granting a new trial.
The Allen Charge
Defendant next argues that the content of the Allen
charge given to the jury at trial is reversible per se.
An Allen charge, named after Allen v. United
States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896),
"is given by a trial court when a jury has reached an
impasse in its deliberations and is unable to reach a
consensus." United States v. Cropp, 127 F.3d
354, 359 (4th Cir. 1997). The decision to give an
Allen charge and the content of the charge is within
the sound discretion of the district court. Id.
United States v. Burgos,55 F.3d 933, 936 (4th Cir.
1995), the Fourth Circuit summarized the Fourth Circuit's
Allen charge case law. The Fourth Circuit noted that
"[t]raditionally, the standard Allen charge
informed the jury (1) that a new trial would be expensive for
both sides; (2) that there is no reason to believe that
another jury would do a better job; (3) that it is important
that a unanimous verdict be reached; and (4) that jurors in
the minority should consider whether the majority's
position is correct." Id. The Burgos
court went on to explain that the Fourth Circuit had
"move[d] toward a more balanced Allen
charge." Id. at 937. Under this more balanced
approach, the Fourth Circuit "strongly recommend[s] that
'the majority and minority on a deadlocked jury be
instructed to give equal consideration to each other's
views.'" Id. (quoting United States v.
West,877F.2d281, 291 (4th Cir. 1989)). While this
balanced approach is strongly recommended, Burgos
does not require a trial court to include specific language
in an Al ...