UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4506

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROGER HEDILBERTO MERAZ-FUGON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Liam O’Grady, District 

Judge. (1:16-cr-00018-LO-1)

Submitted: January 31, 2017 Decided: February 10, 2017

Before FLOYD and HARRIS, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Todd M. Richman, 

Assistant Federal Public Defender, Alexandria, Virginia, for 

Appellant. Dana J. Boente, United States Attorney, Jonathan P. 

Robell, Special Assistant United States Attorney, Alexandria, 

Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

A jury convicted Roger Hedilberto Meraz-Fugon of 

importation of cocaine, in violation of 21 U.S.C. § 952(a) 

(2012). The district court sentenced Meraz-Fugon to 16 months 

in prison and 3 years of supervised release. Meraz-Fugon 

appeals, asserting that the trial court erred in (1) declining 

to instruct the jury on his theory of defense; giving a coercive 

jury charge of the type condemned in Allen v. United States, 164 

U.S. 492 (1896); (3) responding to several questions from the 

jury; and (4) permitting the cumulative effect of these errors 

to deprive him a fair trial. Finding no error, we affirm. 

“In general, we defer to a district court’s decision to 

withhold a defense in a proposed jury instruction in light of 

that court’s superior position to evaluate evidence and 

formulate the jury instruction.” United States v. Powell, 680 

F.3d 350, 356 (4th Cir. 2012) (alterations and internal 

quotation marks omitted). Reversible error in refusing to give 

such an instruction results “only when the instruction (1) was 

correct; (2) was not substantially covered by the court’s charge 

to the jury; and (3) dealt with some point in the trial so 

important, that failure to give the requested instruction 

seriously impaired the defendant’s ability to conduct his 

defense.” United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 

2009) (internal quotation marks omitted). A “district court 
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d[oes] not abuse its discretion” by refusing to give a proposed 

instruction that was “clearly covered by the instructions 

given,” just because “a more specific instruction might have 

been desirable to” the defendant. United States v. Green, 599 

F.3d 360, 378 (4th Cir. 2010). Here, assuming arguendo that 

Meraz-Fugon’s proposed instruction was a correct statement of 

the law, we conclude that the substance of the instruction was 

substantially covered by the instructions given to the jury and 

that the district court’s failure to give the requested 

instruction did not impair Meraz-Fugon’s ability to conduct his 

defense.

Next, Meraz-Fugon contends that the district court gave a 

coercive Allen charge after the jury informed the court that it 

was deadlocked and could not reach a verdict. He argues that 

the Allen charge given was coercive to jurors in the minority 

and that the instruction improperly made reference to the costs 

of retrial. We review the content of an Allen charge for abuse 

of discretion. United States v. Cornell, 780 F.3d 616, 625 (4th 

Cir. 2015), cert. denied, 136 S. Ct. 127 (2015). In determining 

whether an Allen charge has an impermissible coercive effect on 

jury deliberations, we consider the content of the instruction 

as well as the context. Jenkins v. United States, 380 U.S. 445, 

446 (1965).
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The traditional, “pure” 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.” United States v. 

Burgos, 55 F.3d 933, 936 (4th Cir. 1995). Based on the concern 

that the instruction to the minority members may be coercive, 

this Court has “strongly recommended” the modification of any 

Allen charge to “address all jurors, both in the minority and in 

the majority, to give equal consideration to each other’s views” 

so that the charge is “less coercive with respect to jurors in 

the minority.” United States v. Hylton, 349 F.3d 781, 788 (4th 

Cir. 2003) (internal quotation marks omitted). “The principal 

concern” in reviewing Allen charges “is to ensure that they 

apply pressure to the jury in a way that preserves all jurors’ 

independent judgments and that they do so in a balanced manner.” 

Id. Thus, “an Allen charge must not coerce the jury, and it 

must be fair, neutral and balanced.” United States v. Cropp, 

127 F.3d 354, 359-60 (4th Cir. 1997).

After reviewing the record, we conclude that the district 

court’s charge was fair, neutral and balanced and was not 

coercive to the minority jurors. The district court’s brief 

reference to the costs of a retrial “did not place undue 
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emphasis on this factor when considered in the context of the 

entire instruction[;] [n]or was it unduly coercive.” United 

States v. West, 877 F.2d 281, 291 (4th Cir. 1989). Nor did the 

district court judge’s knowledge of the jury’s numerical 

division render the charge coercive in this instance, 

particularly in light of the fact that the jury’s note 

indicating they were divided did not identify whether the 

majority favored conviction or acquittal. Furthermore, 

supplemental instructions by the court and further deliberation 

by the jury occurred between receipt of that note and the note 

triggering the Allen charge. Finally, the speed with which a 

jury returns a verdict after receiving a modified Allen charge 

is not decisive. See, e.g., Lowenfield v. Phelps, 484 U.S. 231, 

235, 240-41 (1988) (fact that jury returned its verdict 30 

minutes after court gave supplemental instruction was not 

necessarily indicative of coercion); United States v. Chigbo, 38 

F.3d 543, 545-46 (11th Cir. 1994) (affirming conviction when 

verdict returned 15 minutes after the instruction). 

Next, Meraz-Fugon argues that the district court’s answers 

to the jury’s questions (1) created confusion and improperly 

steered the jury away from considering his theory of defense and 

(2) failed to give him the opportunity to address the jury 

regarding the supplemental instructions. This Court reviews the 

form and content of a district court’s response to the jury’s 
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question for an abuse of discretion. United States v. Burgess, 

684 F.3d 445, 453 (4th Cir. 2012). “[T]he necessity, extent and 

character of any supplemental instructions to the jury are 

matters within the sound discretion of the district court.” 

United States v. Horton, 921 F.2d 540, 546 (4th Cir. 1990) 

(citations omitted). “[T]he trial court must take care, in

responding to a jury question, not to encroach upon its factfinding power.” United States v. Cooper, 482 F.3d 658, 664 (4th 

Cir. 2007). “In responding to a jury’s request for 

clarification on a charge, the district court’s duty is simply 

to respond to the jury’s apparent source of confusion fairly and 

accurately without creating prejudice.” United States v. 

Foster, 507 F.3d 233, 244 (4th Cir. 2007) (brackets and internal 

quotation marks omitted). “An error requires reversal only if 

it is prejudicial in the context of the record as a whole.” Id. 

We have reviewed the record and conclude that the trial 

court’s supplemental instructions were neither incorrect nor 

misleading. Meraz-Fugon, who never sought an opportunity below 

to address the jury concerning the supplemental instructions, 

has failed to demonstrate any prejudice caused by the lack of 

such opportunity. 

Because we find no error, individually or cumulatively, we 

affirm the district court’s judgment. We dispense with oral 

argument because the facts and legal contentions are adequately 
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presented in the materials before this court and argument would 

not aid the decisional process.

AFFIRMED