NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-3964

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UNITED STATES OF AMERICA

v.

ROD PEREZ,

 Appellant

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Crim. No. 2-11-cr-00862-001)

District Judge: Honorable Katharine S. Hayden

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Submitted Under Third Circuit LAR 34.1(a)

July 11, 2013

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Before: GREENAWAY, JR., SLOVITER and BARRY, Circuit Judges

(Opinion Filed: July 19, 2013)

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OPINION

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BARRY, Circuit Judge

Appellant Rod Perez was found guilty at trial of eight drug-related offenses and 

was sentenced to 120 months‟ imprisonment. He appeals the decision of the District 

Court denying his request to give the jury a supplemental instruction in response to two
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of its questions. We will affirm. 

I.1

On December 16, 2011, Perez was charged in an eight-count indictment, which 

included conspiracy counts involving the importation and distribution of heroin and 

cocaine, and counts of aiding and abetting the distribution and importation of those

narcotics. During trial, among other instructions, the District Court charged the jury on 

accomplice liability in accordance with the Third Circuit‟s Model Jury Instruction § 7.02. 

See Supp. App. 155.

While the jury was deliberating, it sent a note asking two questions about the 

accomplice liability instruction. Specifically, it asked: “Is providing an instruction 

sufficient to show „some act‟ for the purposes of the 3rd and 4th elements of aiding and 

abetting? Same question . . . but a suggestion rather than an instruction.” App. 501. In 

broad summary, the third and fourth elements require the jury to find that a defendant 

knowingly did some act for the purpose of aiding or encouraging the commission of the 

specific offense charged, with the intent that that offense be committed, and that his act 

aid or encourage the commission of the offense. 

During a discussion with the District Court about the jury‟s questions, the parties 

agreed that an instruction by the defendant would be sufficient to constitute an act for 

purposes of aiding and abetting liability, but disagreed as to whether a suggestion would 

be enough. The government argued that “a suggestion may be enough depending upon 

 

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The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. This Court 

exercises jurisdiction under 28 U.S.C. § 1291.
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the circumstances surrounding that suggestion.” App. 506. On the other hand, Perez

asserted that “a suggestion could not be sufficient because it is just inconsistent with what 

the jury would have to find beyond a reasonable doubt, to find that the instruction was 

with a specific intent to commit an offense.” Id.

Although the District Court considered providing affirmative answers to the jury‟s 

questions, it ultimately declined to do so out of concern for unduly influencing the jury. 

The Court acknowledged that our caselaw had “given jurors and judges and lawyers 

every possible thing in the world to fill in for some act,” and concluded that “getting too 

particularized [in answering these questions, would risk] driving a verdict in a way that is 

not [its] job to do.” Id. at 520-21. Instead, the Court responded in the following manner:

You have asked 2 questions that focus on the 3rd and 4th requirements 

which the government must prove beyond a reasonable doubt in order to 

find Mr. Perez guilty of aiding and abetting the crimes enumerated in 

Counts 3 and 4 and 7 and 8. 

It is for you to decide if the government has proven beyond a 

reasonable doubt that the defendant did some act and if that act was done 

knowingly and for the purpose of assisting the commission of the offenses 

charged in each of Counts 3 and 4 and 7 and 8 and with the intent that the 

charged offenses committed and that the act did in some way assist in the 

commission of the offenses charged in Counts 3 and 4 and 7 and 8. The act 

need not itself be against the law.

Id. at 522-23. Perez objected to the Court‟s response and asked the Court to instruct the 

jury that “a suggestion in and of itself would not be sufficient.” Id. at 523.

Perez argues to us that the District Court abused its discretion in failing to give the 

jury appropriate guidance as to whether a suggestion could satisfy the “some act” 
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element. We review for abuse of discretion a district court‟s refusal to give a 

supplemental jury instruction and will reverse only if the decision was “„arbitrary, 

fanciful or clearly unreasonable.‟” United States v. Jackson, 443 F.3d 293, 297 (3d Cir. 

2006) (quoting Stich v. United States, 730 F.2d 115, 118 (3d Cir. 1984)). 

There is no merit to Perez‟s argument that the District Court‟s response failed to 

give the jury appropriate guidance. Given the lack of context for the word “suggestion” 

in the jury‟s note and the potential impact of a supplemental instruction excluding 

“suggestion” from qualifying as “some act,” the Court‟s measured response was neither 

arbitrary nor clearly unreasonable. See App. 521 (“[W]ho knows how [the jury is]

defining a suggestion. Who knows what particular thing they believe that Mr. Perez did 

fits in. And I think by getting too particularized on this, we‟re making a decision for them 

and it is not our job it is their job.”). Instead of risking unduly influencing the jury, the 

Court sufficiently answered the jury‟s question in referring to its previous instructions, 

and this decision was well within its discretion. 

II.

For the foregoing reasons, we will affirm the judgment of sentence.