### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50774

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. GILBERT SANCHEZ, Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:09-CR-1567-1

Before KING, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM: * This action concerns the attempt by an El Paso, Texas, attorney, Luther Jones, and the El Paso County district clerk, Gilbert Sanchez, among others, to have a county contract awarded to Jones’ client, for which Jones and Sanchez were convicted of conspiring to commit wire and mail fraud to deprive citizens of honest services and to obtain money by material false or fraudulent pretenses, U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 20, 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50774 Document: 00512059867 Page: 1 Date Filed: 11/20/2012No. 11-50774

representations, or promises, in violation of 18 U.S.C. §§ 1341, 1343, 1346, and 1349. Jones was permitted to dismiss his appeal shortly before oral argument. Sanchez cha l lenges: the sufficiency of the evidence on the jurisdictional elements f

o r w i r e and mail fraud; the jury’s being instructed on a federal, not state, law basis for honest-services fraud; the indictment’s failing to charge, and the jury instructions’ failing to require finding, the conspiracy was intended to deprive the county of money or property; and his post-verdict absence when the jury was polled by the court sua sponte . AFFIRMED. I. Jon e s , an attorney in El Paso, had served as assistant district attorney, state legislator, county attorney, and county judge. He was active in supporting and advising candidates for public office in El Paso, with his assistance usually being free. In 2 0 0 2 , Jones helped Sanchez win the election for district clerk. Sanchez took office in January 2003. After the electi o n , J ones recommended Sanchez’ hiring Parra for the clerk’s office. P a rra, an information technology specialist, occasionally helped Jones with computer issues and campaign activities, including Sanchez’. (Parra

was indicted as a c o - c o n spirator, pled guilty, and testified against Jones and Sanchez.) Sanchez recognized a need for modernization of the clerk’s office and, with Parra’s assistance, sought to develop a digitization plan to convert files into electronic databases (the project). They began communicating with companies capable of performing the project, including Altep, an El Paso company owned by Miller. Altep’s never having competed for a government contract, it sought legal assistance; Miller met with Jones’ former law partner (Jones’ partner), who encouraged Altep to hire both her and Jones, in part becau s e J o n e s had experience competing for government contra c t s , but also because of his

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assistance with Sanchez’ election and influence in local politics. It was agreed that, if Altep were awarded the contract, Jones and his p artner would receive one-third of the net profit. Jones encouraged Miller to meet with, and make campaign contributions to, county commissioners to b e t t e r position Altep for the contract, as the commissioners court would select the vendor

. Prior to Commissioner Flores’ receiving Miller’s contribution, Jones told Flores to support Sanchez’ project and make sure Altep got the contract, in exchange for a contribution. Miller contributed $1000 to Flores’ campaign; at Jones’ request, Miller also contributed to three other commissioners. (Like Parra, F l o r e s w as indicted as a coconspirator, pled guilty, and testified against Jones and Sanchez.) During February 2004, Altep co-sponso r ed an El Paso bar-association seminar in Las Vegas, Nevada, wh e r e Alt e p p rovided attorneys with information regarding “e-discovery” services. No new materials were presented relevant to Sanchez or Parra. Nevertheless, Sanchez requested Altep pay for his Las Vegas flight; Altep refused. Jones paid for Sanchez’ trip, providing him a $750 check, which Sanchez cashed. When Parra learned J o n e s a n d his partner wanted to pay for him to attend as well, he declined. In addition to the Las Vegas trip, Jones paid for dinner, drinks, and other entertainment for Sanchez and Parra while working on the project. Jones also paid for Sanchez’ travel to Dallas, San Antonio, and New York. In March 2004, the commissioners court authorized the county to issue a “request for proposal” (RFP) for t h e p r oj e ct. Jones encouraged Parra and Sanchez to meet with Alte p representatives to assist in writing the RFP specifications, as they were to be drafted to favo r Al t e p. This access to information and continuous communication al l o w e d Altep to review the RFP months prior to its release to the public, and gave Parra t i me to make adjustments to the RFP to ensure Altep’s ability to comply.

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In response to the RFP, numerous vendors, in addition to Altep, submitted proposals, many of which were submitted vi a F e deral Express, an interstate commercial carrier. Altep was able to ask questions directly t o Parra, who responded immediately; other vendors, however, had to offici a l l y submit questions to the county’s purchasing department and wait for answers in the form of addenda. Altep continued communicating with Jones and Sanchez to determine the company’s prospects for obtaining the contract. During May 2004, then-Commissioner Flores was the subject of an investigation for not fully reporting received political contributions. B e c ause Jones was concerned Flores might be removed from the commissioners court, he wanted the project rushed through. On 23 M a y 2004, Jones e-mailed his part n e r , M i l l er, and Sanchez to suggest placing the vendor selection on the

a g enda for the 7 June 2004 commissioners-court meeting; he also request e d input on the language to use for the agenda-item, and a meeting on 26 May in Miller’ s o r h is partner’s office to discuss the project. Upon meeting, they discussed Flores ’ s tatus and moving quickly on the project. Sanchez initially objected to the fast-track, but agreed eventually. After proposals were submitted and reviewed by the county p u r c h a s i ng department, Parra acquired the clerk’s office’s copies and created a spreadsheet identifying whether a vendor complied with the requests in the RFP. Altep was the only vendor that complied fully. On 7 June 2004, the day the project was to be discussed a t the commissioners-court meeting, Parr a p r o vided Miller, Jones, his partner, and Sanchez each with a copy of the spreadsheet; and Miller was told Altep had won the contract (even though the decision ha d n o t y e t been made). All but Jones attended the commissioners-court meeting; J o n e s wanted to ensure his participation in the project remained unknown.

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During the meeting, an assistant county attorney, the legal advisor to the commissioners court , no tic e d J o n e s ’ p artn er h a d th e s preadsheet with the vendor information, which w a s not to have been disclosed to anyone except the court. The assistant county attorney immediately requested a recess. Because Jones’ partner’s access to the spreadsheet defeated the impartiality of the procurement process, the assistant county a t t orney encouraged the court to reject the proposals. It agreed, and instructed the purchasing agent to rebid the project. The project was n e v e r revived. It was later discovered the county never had the money to fund the contract. While some attempts were made to resume the project, these efforts, accor d i n g to Parra, ceased after Flores pled guilty in July 2007 to her participation in the conspiracy. A 2009 indictment charged Jones and Sanchez with conspiracy to commit wire fraud (count 1), conspiracy to commit mail f r a u d (count 2), mail fraud (count 3), and one count of bribery each (counts 4 and 5). Upon defendants’ joint motion, the district court dismissed counts 3-5, leaving only the two conspiracy counts. At the jury trial in 2 0 1 1 , upon completion of the Government’s case-inchief, Jones and Sanchez moved unsuccessfully for judgments of acquittal; they then presented evidence, including their testifying; and, after the Government’s rebuttal evidence, Jones and Sanchez renewed their m o tions for judgments of acquittal, which were again denied. A s p e c ial-verdict form inquired whether defenda n t s c o n spired on each count in two ways: to defraud the citizens of El Paso County of the right to honest services; and to obtain money through false and fraudulent pretenses. Jones and Sanchez were found guilty on both prongs for both counts. Immediately after the ju r y returned its verdict, Jones and Sanchez were t a k en into custody; the district court, sua sponte and without objection, then polled the jury out of Jones’ and Sanchez’ presence.

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Post-judgment , J o n e s an d S anchez moved for acquittal and a new trial; the motions were denied. In August 2011, they were each sentenced, inter alia , to 72-months’ imprisonment on each count, to be served concurrently. For his opening and reply briefs on appeal, pursuant to Federa l R ule of Appellate Procedure 28(i), Sanchez adopted Jones’ briefs, except for Jones’ challenge to the search of his law office. As noted, Jones’ unopposed motion to dismiss his appeal was granted. II. Regarding his convictions of conspiracy to commit wire and mail fraud, Sanchez challenges: the sufficiency of the evidence for the jurisdic t i o nal elements of wire and mail fraud; the jury’s being instructed based on a federal, not state, law basis for honest-services fraud; the indictment’s failing to charge, and the jury instructions’ failing to require finding, the conspiracy was intended to deprive the county of money or property; and his being absent when the jury was polled. A. Sanchez claim s insufficient evidence for a jury to find the wire-fraud conspiracy involved interstate wiring and the mail-fraud conspiracy involved a mailing or an intended mailing. As noted, Sanchez adopted this challenge from Jones’ appel l a t e briefs. This practice is permitted “when the arguments to be adopted are equally applicable to the adopting co-appellants”. United States v. Harris , 932 F.2d 1529, 1533 (5th Cir. 1991) (emphasis in original). Accordingly,

s u f f iciency-of-the-evidence, and other fact-specific, challenges, to the adopti n g appellant’s co nviction, without more, are generally “insufficient to raise that point of error”. Id. ; e.g. , United States v. Morgan , 117 F.3d 8 4 9 , 8 5 3 (5th Cir. 1997). Here, however, because Sanchez’ contention is “readily transferable from the proponent’s case to the adopter’s case”, it will be considered. United States

v. Gibbs , 182 F.3d 408, 421 (6th Cir. 1999) (quotation marks a n d c i t a tion

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omitted) (al l o w ing adoption by reference where contention, although factspecific, was readily transferrable to all defendants). See also United States v. David , 940 F.2d 722, 737 (1st Cir. 1991) (“ a rguments adopted must be readily transferrable”); United States ex rel

. LaCorte v. SmithKline Beecham Clinical Lab., Inc. , 149 F.3d 227, 237-38 (3d Cir. 19 98) (same). Through his motions for judgment of acquittal, Sanchez p r eserved his sufficiency challenge in district c o u r t ; t h erefore, it is reviewed de novo . E.g. , United States v. Delgado , 256 F.3d 264, 273 (5th Cir. 2001). The “verdict will be aff i r m e d if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt”. Id. The evidence is not evaluated for weight or credib i l i t y , b u t “in the light most favorable to the verdict, drawing all reasonable inferences to support the verdict”. Id. at 274. 1. For conspiracy to commit wire fraud, the Government must prove beyond

a reasonable doubt, inter ali a , that it was intended or reasonably foreseeable that defendant “used interstate wire communications facilities [or] caused another person to use interstate wire communications facilities”. F I F T H C I R C U I T PAT T E R N J U RY I N S T R U C T I O N § 2.60. See 18 U.S.C. § 1343. E.g. , United States v. Odiodio , 244 F.3d 398, 402 (5th Cir. 2001). An FBI Special Agent testified as an expert witness for the Government concerning the int e r s t a t e n ature of the emails at issue. T h e j ury heard testimony of how e-mails are traced, and how the above

described 23 May 2 0 04 e-mail from Jones to his partner, Miller, and Sanchez ( a n d o t her e-mails between them) traveled through an interstate server in California. The Agent testified that the tracing software he used never provided

an incorrect result. Viewing the evidence in the requisite light most favorable to the ver d i ct, a reasonable juror could find beyond a reasonable doubt that it

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was reasonab l y f

o reseeable to Sanchez that interstate wire communications would be used. 2. For conspiracy to commit mail fraud, the Government must prove beyond

a reasonable doubt, inter ali a , that the mails were intended or reasonably foreseen to be used to execute, or attempt to execute, a scheme to defraud, or to obtain “money or property by means of false or fraudulent pretenses”. United States v. McMillan , 600 F.3d 434, 447 (5th Cir. 2010) (citation omitted). See also 18 U.S.C. § 1341; F I F T H C I R C U I T PAT T E R N J U RY I N S T R U C T I O N § 2.59. It is not necessary that Sanchez used the mails or intended them to be u s ed; the Governmen t m u s t s h ow the mailing was “incident to an essential part of the scheme”. United States v. I n g le s , 4 45 F.3d 830, 835 (5th Cir. 2006) (citation omitted). This requires proof that “completion of the a l l e g e d scheme

. . . depend[ed] in some way on the information or d ocuments that passed through the mail”. Id. (internal quotation marks and citation omitted). The scheme at issue concerns the attempted award of a county contract to

a company represented by Jones. The county’s RFP was an essential part of that scheme. The process required vendors to submit proposals in re s p o nse to the RFP, many of which were submitted through Federal Express, an in t erstate carrier. Cf. id. , 445 F.3d at 837-38 (mailings not part of execution of fraud or incident to essential part of completion of scheme). In the light of the evidence, discussed s u

p ra , a reasonable juror could find beyond a reasonable doubt that the mailings were essential to executing the scheme. B. Sanc h e z n ext maintains, through Jones’ briefing, that the district court committed reversible erro r by instructing the jury on the federal, rather than the Texas, law basis for deprivation of honest services. Jury instruct i o n s a re ordinarily reviewed for abuse of discretion; but, when the instruction is claimed

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t o m i sstate an element of the offense, review is de novo , subject to harmlesserror review. United States v. Guevara , 408 F.3d 252, 257 (5th Cir. 2005) (such misstatement is an issue of statutory construction, warranting de novo review). The relevant statute for deprivation of honest services, 18 U.S.C. § 1346, provides: “For the purposes of this chapter [which includes §§ 1341, mail fraud, and 1343, wire fraud], the term ‘scheme or artifice to defraud’ includes a scheme

or artifice to deprive another of the intangible right of honest services”. The 2009 indictment referenced state law, consistent with United States v. Brumley , 116 F.3d 728, 734 (5th Cir. 199 7 ) ( e n banc) (conviction of state official for d e p r iv a t ion of honest services under § 1346 must be predicated on breach o f state-law duty). Subsequently, t h e S u p r eme Court considered the scope of § 1346 in Skilling v. United States , 130 S. Ct. 2896 (2010). Skilling held § 1346 honestservices fraud should be confined to bribery and kickback schemes, id. at 2932, stating that this construction of § 1346 established a “uniform national standard”, id. at 2933. At trial in 2011, t h e Government maintained, contrary to the position take n by defendants, that Skilling had established federal law as the appropriate standard for § 1346, e x p ressly foreclosing application of Texas’ version of honest-services fraud; the district court agreed. Sanchez maintains Skilling’ s “uniform national standard” confines such fraud to bribery and kic kb a c k schemes as a general category, to include such schemes under state law. After briefs were filed, but before oral argument, United States v. Teel , 691 F

. 3 d 578 (5th Cir. 2012), was decided. The Government and Jones, but no t Sanchez, filed letters under Federal Rule of Appellate Procedure 28(j), regarding Teel’s application here.

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In Teel , appellants maintained that, in the light o f Skilling , the jury instructions were erroneous for defining bribery under Mississippi, rather than federal, law. Id. at 582. Teelheld otherwise: A fai r reading of Skilling , however, reveals that the Court was establishing a uniform national sta n dard by construing § 1346 to c l e arly exclude conduct outside of bribery and kickbacks, such a s conflict-of-interest schemes, not to establish federal law as the uniform national standard for the elements of b rib ery an d kickbacks in § 1 3 4 6 p r osecutions.

. . . Accordingly, we read Skilling as recognizing that § 1346 pr osecutions may involve misconduct that is also a violation of state law. Id. at 583-84 (emphasis in original). As stated in Teel , Skilling’ s “uniform national standard” does not obviate the requirement that a s t a t e official, when prosecuted under § 1346, owe a state-law duty. Therefore, the federal-law based instructions in this case constituted error. Accordingly, at issue is whether the error was harmless. “A nonconstitutional trial error is harmless unless it had substantial and injurious effect or influence in determining the jury’s verdict.” United States v. Wright , 634 F.3d 770, 775 (5th Cir.), cert. denied , 132 S. Ct. 171 (2011) (citation omitted). An erroneous jury instruction will not be reverse d if, “based on the entire record, [] the challenged instruction could not have affected the outcome of the case”. United States v. Nguyen , 493 F.3d 613, 623 (5th Cir. 2007) (citation omitted). Sanchez maintains the jury instructions harmed him by failing to include t h r e e of the requirements of Texas Penal Code § 36.02(a)(4): (1) a conn e c t i o n between the benefit conferred and a “specific” act by the official; (2) a “but for” causal connection between the benefit a n d t h e act; and (3) an “express agreement” shown by “direct evidence”. Section 36.02(a)(4), however, concerns only political contributions.

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The unchallenge d instruction on conspiracy required the jury to agree unanimously that at least one of 21 overt acts listed in the instructions occurred; only one of them concerned political contributions. For example, one of the nonpolitical-contribution acts was: “On or about June 7, 2004, d efendant Gilbert Sanchez and F e rnando Parra provided Altep’s president with a copy of the evaluation sheet reflecting Altep as the lowest bidder.” Another overt act stated: “Jones paid e n t e r t ainment expenses, including meals and drinks” for Sanchez and Parra, and the e x p e n d i t ures were reflected in Jones’ bank journal as “an expense related to his representation of Altep”. T e x a s P e n a l C o d e § 3 6

. 0 2 ( a) a d d r e s s e s o t h e r t y p e s o f a c t s t h a t c o n s t i t u t e b r ib e r y b e y o n d s ub p a r t ( a) ( 4) ’s p o l i t i c a l c o n t r ib u t i o n s . T h e i n d i c t m e n t c i t e s

s ub p a r t ( a) ( 1 ) , w h i c h p r o vi d e s t h a t a p e r s o n c o m m i t s b r ib e ry “i f h e i n t e n t i o n a l l y o r k n o w i n gl y o f f e r s , c o n f e r s , o r a gr e e s t o c o n f

e r o n a n o t h e r , o r

s o l i c i t s , a c c e p t s , o r a gr e e s t o a c c e p t f r o m a n o t h e r : ( 1 ) a n y b e n e f i t a s

c o n s i d e r a t i o n f

o r t h e r e c i p i e n t ’s d e c i s i o n , o p i n i o n , r e c o m m e n d a t i o n , v o t e , o r

o t h e r e x e r c i s e o f d i s c r e t i o n a s a p ub l i c s e rv a n t , p a r t y o f f i c i a l o r v o t e r”

. T EX

. P E N AL C O D E ANN

. § 3 6

. 0 2 ( a) ( 1 )

. N e e d l e s s t os a y , t h i s s e c t i o nh a s f a rgr e a t e r

r e a c h t h a n § 3 6

. 0 2 ( a) ( 4) a s i t r e l a t e s t o t h e c h a r g e d o v e r t a c t s . Nevertheless, Sanchez asserts § 36.02(a)(4) was the proper instruction for all 21 of them. As § 36.02(a)(4) only applies to one of the overt acts upon which the jury could base its conspiracy convictions, the failure to instruct on Texasbased honest-services fraud was harmless error. There was s ub s t anti al evi d e nce up o n w h i c h a reasonable juror could have found any of the other 20 overt acts formed the basis for the conspiracies. Re-stated, the instruction did not exert a substantial influence on the outcome of the case. C. Through Jones’ briefing, Sanchez objects to the indictment’s failing to charge, and to the instructions’ f a i l i n g t o require finding, the conspiracy was
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intended to depriv e t h e c o u n t y of money or property. For the offense of mail fraud under 18 U.S.C. § 1341, the indictment must charge: “(1) the defendant d e vi s ed or intended to devise a scheme to defraud; (2) the mails were used f o r the purpose of executing, or attempting to execute, the scheme; and (3) the falsehoods employed in the scheme were material”. McMillan , 600 F.3d at 447 ( q u o tation marks and citation omitted). A “scheme to defraud” means “any scheme to dep r iv e a n o t her of money, property, or of the intangible right to honest services by means of fa l se or fraudulent pretenses, representations, or promises”. F I F T H C I R C U I T PAT T E R N J U RY I N S T R U C T I O N § 2.59. E.g. , Teel , 691 F.3d at 581 n.2. The elements for wire fraud under 18 U.S.C. § 1343 are the

same as for mail fraud, e xcept, of course, wire is substituted for mail use: the Government must establish the scheme was “perpetr a t e d by means of wire, radio, or t e l e vision communication in interstate or foreign commerce”. McMillan , 600 F.3d at 447 n.24. Conspiracy to commit these crimes requires: (1) defendant and at least one other person made an agreement to commit mail/wire fraud; (2) defendant knew the agreement’s unlawful purpose and joined willfully, with the intent to further that unlawful purpose; and (3) d u r i n g t he existence of the conspiracy, one conspirator knowingly committed at least one overt act d e scribed in the indictment to accomplish some object or pur p ose of the conspiracy. F I F T H C I R C U I T PAT T E R N J U RY I N S T R U C T I O N § 2.20; 18 U.S.C. § 1349. E.g. , United States v. Peterson , 244 F.3d 385, 389 (5th Cir. 200 1). 1. Pre-trial, Sanche z d id not raise his current challenge to the indictment. Nevertheless, he is permitted to do so on appeal. F E D

. R. C R I M

. P. 12(b)(3)(B) (appellant must raise pre-trial motion alleging defect in indictment, but at any time may raise issue that indictment fails to invo k e jurisdiction or state an of f e n s e ). See, e.g. , United States v. Devoll , 39 F.3d 575, 578 (5th Cir. 1994)

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(indictment’s failure to state element of offense proper for c o n s ideration when raised for first time on appeal). The sufficiency of an indictment is reviewed de novo ; it must allege each element of the charged offense “as to enable the accused to prepare his defense and to allow the accused to invoke the double jeopardy clause in any subsequent proceeding”. United States v. Bieganowski , 313 F.3d 264, 285 ( 5 t h C i r . 2002) (quotation mark s a nd citation omitted). Along that line, “the law does not compel a ritual of words”, and “an indictment’s validity depends on practical, not technical, considerations”. United States v. Ratcliff , 488 F.3d 639, 643 (5th Cir. 2007) (quotation marks and citations omitted). Although the indictmen t d o e s not state explicitly that the scheme was intended to deprive the county of money or property, it states s u fficiently the elements of the charged offenses as described above. And, a review of the i ndictment’s allegations more than supports the scheme’s being intended t o deprive the county of money or property. 2. As discussed above, when a jury instruction possibly misstates an element of the charged offense, it becom e s an issue of statutory construction that warrants de no v o r e vi e w. Guevara , 408 F.3d at 257. Sanchez challenges the instructions for not requiring the jury to find the county was defrauded of money or property. This challenge, too, is without merit, because, as the jury was instructed, completion of the contemplated scheme is not required to establish conspiracy. Se e F I F T H C I R C U I T PAT T E R N J U RY I N S T R U C T I O N § 2.20 (“Nor must [t h e Government] prove . . . that the alleged conspirator s a ctually succeeded in accomplishing their unlawful objectives”.). E.g. , United States v. Delgado , 668 F.3d 219, 226 (5th Cir. 2012) (conspiracy conviction requires only p r o o f of agreement to commit underlying act). Nevertheless, the jury did have a special13 Case: 11-50774 Document: 00512059867 Page: 13 Date Filed: 11/20/2012No. 11-50774

verdict form, for it to find for each count, inter alia , whether: “Sanchez conspired to create a scheme or artifice to obtai n money by material false or fraudulent pretenses, representations, or promises”. D. Finally, Sanchez contends, again through Jones’ briefing, that his absence during the court’s sua sponte post-verdict jury-poll wa s reve r s ib le error. Because he failed to make a contemporaneous challenge to not being present, review is only for plain error. Unite d States v. Curtis , 635 F.3d 704, 714 (5th Cir.), cert. denied , 132 S. Ct. 191 (2011). For reversible plain error, Sanchez must show a clear or obvious error that affected his substantial rights. E.g. , Puckett v. United States , 556 U.S. 129, 135 (2009). He fails to do so. Federal Rule o f C ri m inal Procedure 43 requires a criminal defendant’s
prese n c e a t a l l s tages of his trial, to include the return of the verdict. F E D

. R. C R I M

. P. 43(a)(2). The right to be present stems primarily from the Sixth Amendment’s Confrontation Clause, but is also protected under the Due Process Clause when “[defendant’s] presence has a relation, r easonably substantial, to the fuln e s s o f h i s opportunity to defend against the charge”. United States v. Gagnon , 470 U.S. 522, 526 (1985) (quotation marks and citations omitted). The reach of this protect i on is “to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only”. Id. Sanchez fails to cite any decision holding Rule 43 violated when the court, sua sponte and after return of the verdict in d e fendant’s presence, requires a jury-poll outside defendant’s presence, nor any case with substantial similarity. After the verdict was read and before Sanchez was r e m o v e d from the courtroom, his counsel did not request the jury’s being polled; nor did he request Sanchez’ being returned to the courtroom after the court sua sponte ordered the poll to be conducted. A jury poll serves “to ascertain wit h certainty that a unanimous verdict has i n f a c t b e en reached”. United States v. Jefferson , 258

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F.3d 405, 411 (5th Cir. 2001) (quotation marks and c i t a t i o n omitted). Each juror’s affirmative response in the poll indicated no hint of a lack of unanimity. III. For the foregoing reasons, the judgment is AFFIRMED.

Judge King concurs in the judgment.

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