* District Judge of the Western District of Texas, sitting by designation.

** Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40208

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

FERNANDO F. MARSHALL, 

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

No. 1:06-CR-0212-ALL

Before SMITH and PRADO, Circuit Judges, and LUDLUM, District Judge.*

LUDLUM, District Judge:**

A jury convicted Appellant Fernando Marshall (“Marshall”) of eight counts

of various narcotics trafficking offenses, including conspiracy to possess with

intent to distribute, conspiracy to import, possession with intent to distribute,

and importation of cocaine, heroin and methamphetamine. He appeals his

convictions, challenging: (1) the sufficiency of the evidence to support his

convictions; (2) the court’s instructions given during voir dire and at the

United States Court of Appeals

Fifth Circuit

F I L E D

June 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-40208

2

conclusion of the case; (3) the answers to two jury questions; and (4) the

admission of extrinsic evidence. Finding no error, we affirm Marshall’s

convictions.

I. FACTS AND PROCEEDINGS 

On March 4, 2006 at 11:15 a.m., Marshall drove an extended cab Chevrolet

Silverado pickup truck from the Republic of Mexico into the primary inspection

station atthe Gateway International Bridge Port of Entry in Brownsville, Texas.

At the primary inspection station, Marshall declared he was a resident alien of

the United States and had been in Mexico. Marshall also told the primary

inspection agent that he, a professed mechanic, was in the process of purchasing

the truck from its owner, who lived in Houston, Texas. The agent noticed

Marshall was tightly clutching the steering wheel and acting extremely friendly

with the agent. The agent inspected the truck’s undercarriage and saw it

recently had been sprayed with a thick layer of oil. He also noticed evidence of

tampering on the gas tank bolts. Marshall was then referred to the secondary

inspection area. 

At the secondary inspection area, Marshall made a negative declaration.

He told agents he had been in Mexico visiting his sick mother and was returning

to Brownsville. According to Marshall, a friend of his named Arellano owned the

truck. Marshall told the agents he picked up the truck earlier that morning

from Arellano, who stayed in Mexico. 

An agent noticed that the interior of the truck was recently cleaned, the

carpet vacuumed, the glove box emptied of all items, and the key ring held a

single ignition key and a religious artifact. The key ring appeared suspicious to

the agents because of the lack of any house and mailbox keys. The agents also

noticed the excessive amount of oil sprayed on the undercarriage, which emitted

a strong smell and was dripping and pooling on the ground. 
No. 07-40208

3

A narcotics detection canine was brought in to inspect the truck, but did

not alert to the presence of any contraband. The agents then used a density

detector, which registered a high density reading on one of the rear quarter

panels of the truck. Upon further inspection, the agents discovered the taillight

screws appeared tampered with and were recently painted. After removing the

taillights, agents discovered a compartment within the wall of the truck. By

probing the cavity with a drill, the agents extracted white powder, which fieldtested positive for cocaine. 

Agents retrieved a total of thirty-five packages of narcotics from the left

and right rear quarter panels of the truck. Each bundle was in an air-sealed

package, covered with a layer of mustard seed, a layer of soap, a layer of plastic

wrap, a layer of duct tape, a layer of oil, and a final layer of plastic wrap, all

designed to mask the odor of the narcotics. The thirty-five bundles consisted of

eighteen bundles of cocaine, weighing 19.55 kilograms; eight bundles of

methamphetamine, weighing 5.05 kilograms; and nine bundles of heroin,

weighing 6.2 kilograms. The wholesale value of the drugs in Houston, Texas was

$731,000, while the street value was $5,865,000. 

At some point in time during the search of the truck and prior to

Marshall’s arrest, the agents discovered the existence of an outstanding arrest

warrant for Marshall for the offense of unauthorized use of a motor vehicle.

Marshall was arrested at 11:49 a.m. The agents found the narcotics at

approximately 12:30 p.m. They contacted a duty agent, who arrived at the port

of entry by 1:00 p.m. 

Marshall was advised of his constitutional rights, waived those rights, and

was subjected to custodial interrogation for approximately an hour-and-a-half.

He gave several versions of his confession. The inconsistencies pertained to the

name of the truck’s owner, the purpose of his visit to Mexico, the place and time

he retrieved the truck, and his instructions for the disposition of the truck.
No. 07-40208

1 The indictment also charges Marshall with aiding and abetting as to the substantive

offenses listed in Counts Two, Three, Four, Six, Seven, and Eight. The parties do not challenge

the sufficiency of the evidence concerning the alternative aiding and abetting theory. 

4

Marshall, at some point, admitted he was paid to drive the truck into the United

States. He also admitted he lied to the agents during the interrogation. He

denied actual knowledge of the narcotics in the truck, but stated, “[B]ut I

thought it was suspicious. Because [the owner] did not want to drive the truck,

because he had problems before with Immigration relating to alien smuggling.

In my, what do you call it, 6th sense, I knew something was suspicious.” 

II. DISCUSSION

A. Sufficiency of the Evidence

Marshall contends the evidence was insufficientto establish he knowingly

committed the eight offenses of conviction. He claims the Government, at best,

only proved he merely possessed the truck, not that he knew the drugs were

hidden in a secret compartment in the truck. He further contends evidence of

guilt was equipoised with evidence of innocence, and therefore, the convictions

should be reversed.1 The Government counters that the evidence was sufficient

to prove Marshall had the requisite knowledge of the narcotics, which was

established by evidence of his nervous demeanor and the numerous versions of

his confession.

Because Marshall moved for a judgment of acquittal at the close of the

Government’s case, we review de novo the sufficiency ofthe evidence claims. See

United States v. Leed, 981 F.2d 202, 205 (5th Cir. 1993). The standard of review

for determining the sufficiency of the evidence is whether any reasonable trier

of fact could have found that the evidence established guilt beyond a reasonable

doubt. United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). The
No. 07-40208

5

evidence is viewed in the light most favorable to the verdicts. Id. “The

government may prove its case through the use of circumstantial evidence so

long as the total evidence, including reasonable inferences, is sufficient to

warrant a jury's conclusion that the defendant is guilty beyond a reasonable

doubt.” United States v. Del Aguila-Reyes, 722 F.2d 155, 157 (5th Cir. 1983).

The evidence need not “‘exclude every reasonable hypothesis of innocence or be

wholly inconsistent with every conclusion except that of guilt . . . . A jury is free

to choose among reasonable constructions of the evidence.’” United States v.

Williams-Hendricks, 805 F.2d 496, 500 (5th Cir. 1986) (quoting United States v.

Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc) (footnote omitted)). However,

should the evidence show equal or nearly equal circumstantial support of guilt

and innocence, reversal is required. United States v. Lopez, 74 F.3d 575, 577

(5th Cir. 1996).

To be found guilty of conspiracy to possess with intent to distribute and

conspiracy to import controlled substances, pursuant to 21 U.S.C. §§ 846 and

963, respectively, the Government must prove there was: (1) an agreement

between two or more persons to violate the controlled substances laws; (2) the

defendant had knowledge of the agreement; and (3) the defendant voluntarily

participated in the conspiracy. United States v. Thomas, 348 F.3d 78, 82 (5th

Cir. 2003). “The agreement may be tacit, and the jury may infer its existence

from circumstantial evidence.” United States v. Crooks, 83 F.3d 103, 106 (5th

Cir. 1996). “Knowledge of the conspiracy may be inferred from a collection of

circumstances.” United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993)

(quotation omitted). Mere presence at the scene of the offense without more is

insufficient to support an inference of participation in a conspiracy. United

States v. Chavez, 947 F.2d 742, 745 (5th Cir. 1991). A defendant’s presence or
No. 07-40208

6

association, in conjunction with other evidence, may be sufficient to support a

finding that a defendant participated in a conspiracy. Id.

To sustain a conviction for possession with intentto distribute a controlled

substance, pursuant to 21 U.S.C. § 841, the evidence must prove that a

defendant: (1) knowingly; (2) possessed a controlled substance; (3) with the

intent to distribute it. Id. A defendant’s intent to distribute a controlled

substance may be inferred from the possession of a large amount of the

controlled substance. United States v. Hernandez-Palacios, 838 F.2d 1346, 1349

(5th Cir. 1988) (citing Williams-Hendricks, 805 F.2d at 500). Importation of a

controlled substance, pursuant to 21 U.S.C. §§ 952 and 960, requires proof that

a “defendant participated in bringing a quantity of a controlled substance into

the United States knowing that the substance was controlled and that it would

enter the United States.” Crooks, 83 F.3d at 106.

The only element at issue in the instant case is the sufficiency of the

evidence to prove Marshall’s knowledge. Generally, a jury may infer a defendant

knows about the presence of drugs if he exercises control over a vehicle

containing controlled substances. United States v. Resio-Trejo, 45 F.3d 907, 911

(5th Cir. 1995). However, when drugs are hidden in a vehicle, control of the

vehicle alone is insufficient to prove knowledge. United States v. Pennington, 20

F.3d 593, 598 (5th Cir. 1994). In hidden compartment cases, a fair assumption

can be made that a third party may have hidden the controlled substances in the

vehicle, using a defendant as an unwitting carrier of controlled substances.

Ortega Reyna, 148 F.3d at 544. In addition, there is a heightened assumption

of innocence when the “vehicle is a ‘loaner’ or has otherwise been in the

possession of the suspect for only a short time.” Id.

Because of the possibility that a defendant may be an unwitting carrier,
No. 07-40208

7

“this Court has normally required additional ‘circumstantial evidence that is

suspicious in nature or demonstrates guilty knowledge.’” Resio-Trejo, 45 F.3d

at 911 (quoting United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th

Cir. 1990)). Circumstantial evidence of guilty knowledge may include

inconsistent statements; implausible explanations; nervousness, or lack thereof;

failure to make eye contact; reluctance to answer questions; lack of surprise

when contraband is discovered; possession of a large sum of money; and obvious

alterations to a vehicle, especially when the person has been in possession of the

vehicle for a significant period of time. Ortega Reyna, 148 F.3d at 544; see also

United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990) (nervous

behavior at a checkpoint may be “persuasive evidence of guilty knowledge”);

United States v. Martinez-Mercado, 888 F.2d 1484, 1491 (5th Cir. 1989) (“the

unusual nature ofthe fueltanks and their special fittings [that] were observable

[upon an] exterior inspection” ofthe vehicle supported a finding of knowledge on

the part of the defendant).

In the present case, Marshall’s demeanor became the focus of the

inspector’s attention from the moment he entered the primary inspection lane.

Marshall was unusually friendly and was gripping the steering wheel tightly.

Additionally, the suspicious condition of the exterior of the truck was obvious to

the inspectors because of the copious amount of oil on the bottom of the truck,

which quickly pooled onto the ground. Agents also found noticeable tampering

evident on some of the bolts holding the gas tank and taillights. All of these

unusual aspects of the truck should have been very evident to a self-admitted

mechanic such as Marshall. The uncommonly clean interior of the truck and the

single key on the key ring only added to the suspicious condition of the truck.

Moveover, Marshall gave contradictory explanations concerning how he
No. 07-40208

2 Marshall attempts to justify his contradictory statements by referring to his diabetic

medical condition as the cause of his confusion. However, agents testified that it was their

custom to check on individuals every fifteen minutes once they are arrested. Marshall never

told agents he was sick or that he needed food or medicine.

8

came to be in Mexico and in possession of the truck.2“Perhaps the strongest

evidence of a criminal defendant’s guilty knowledge is inconsistent statements

to federal officials.” Diaz-Carreon, 915 F.2d at 954-55 (citing WilliamsHendricks, 805 F.2d at 501). “[A] ‘less-than-credible explanation’ for a

defendant’s actions is ‘part of the overall circumstantial evidence from which

possession and knowledge may be inferred.’” Id. at 955 (quoting United States

v. Phillips, 496 F.2d 1395, 1398 n.6 (5th Cir. 1974)). Initially, Marshall told the

agents at the primary inspection station that he was returning to Brownsville

and was in the process of buying the truck from the owner, a long-time friend

named Arellano, whose name was on the title of the truck later found by agents.

After his arrest, the name of Marshall’s “long-time friend” and owner of the

truck changed to Cristobal Carrillo. In subsequent statements, Marshall told

agents he borrowed the truck from the owner at 8:00 a.m. to go to Matamoros.

He said he took the truck to a car wash and stated that the owner of the truck

was supposed to return to Houston with Marshall. Later in the confession,

Marshall again contradicted himself when he told agents he took possession of

the truck in Mexico at the car wash.

When confronted by agents about the contradictions, Marshall freely

admitted he was lying. Upon further questioning, Marshall stated he had a

friend take him into Mexico to meet the owner of the truck where Marshall

received $160 and the key to the truck with instructions to leave the truck with

“Meme” at a taxi stand, or a grocery store if the taxi stand was closed. He was

then to return to Mexico with the truck’s key. In Marshall’s final depiction of
No. 07-40208

3 Marshall attempts to use his medical condition and leg amputation to suggest he was

targeted and used to drive the drug laden vehicle without his knowledge due to his

sympathetic appearance. However, it is equally plausible for the jury to have concluded that

Marshall knew of the drugs and used his physical disabilities as a way to distract the

inspectors from suspecting him of transporting the drugs. 

9

events, he claimed he met Cristobal in Mexico for lunch and received the key to

the truck. Marshall confessed he was suspicious of the situation because his

friend, the owner of the vehicle, did not want to drive his own truck across the

international bridge.3

Marshall’s nervous demeanor, the conditions of the truck, his suspicions

about the truck and his friend’s motives, and his contradictory statements

provide a sufficient basis to find that Marshall knew the controlled substances

were hidden in the truck and knowingly participated in the commission of the

offenses charged in the amended indictment. Additionally, the truck contained

controlled substances with a street value of $5,865,000. The possession of such

a large amount of controlled substances, even if hidden, can be a basis for an

inference of guilty knowledge on the part of a defendant. See Del Aguila-Reyes,

722 F.2d at 157 (finding that even though cocaine was hidden in a compartment

not visible to the defendant, it was a reasonable inference that the defendant

would not have been entrusted with the narcotics, worth $5,000,000, if “he were

ignorant of all details surrounding his responsibility and the importance of the

cargo in his care”).

A court should not be inclined to alter a jury’s verdicts. In the present

case, the totality of the evidence and reasonable inferences drawn therefrom

compel a finding that the evidence is sufficient to support the jury’s findings,

beyond a reasonable doubt, that Marshall knowingly committed the offenses of

conviction.
No. 07-40208

10

B. Jury Voir Dire

Marshall contends that the district court erred when it, sua sponte, read

to the venire panel the deliberate ignorance instruction during voir dire. A trial

court has broad discretion under Federal Rule of Criminal Procedure 24 to

conduct voir dire and determine its scope. United States v. Garcia, 86 F.3d 394,

401 (5th Cir. 1996); United States v. Black, 685 F.2d 132, 134 (5th Cir. 1982).

Generally, a challenge to the scope of the voir dire proceedings is reviewed for

abuse of discretion. United States v. Munoz, 150 F.3d 401, 412 (5th Cir. 1998).

If the Court finds an abuse of discretion, we then must decide if any resulting

error was harmless. Id. “Harmless error is ‘[a]ny error, defect, irregularity, or

variance which does not affect substantial rights’” and does not prejudice a

defendant. Id. at 412-13 (quoting Fed. R. Crim. P. 52(a)). Prejudice only occurs

“when the error ‘ha[s] affected the outcome of the district court proceedings.’” Id.

(quoting United States v. Olano, 507 U.S. 725, 734 (1993)).

The Government, however, argues that a plain error standard is

appropriate because Marshall failed to raise the argument in the district court.

“We may reverse for plain error only if (1) there was error (2) that was clear and

obvious and (3) that affected the defendant's substantial rights.” Munoz, 150

F.3d at 413. To meet the third prong of the plain error test, a defendant must

specifically show prejudice. Id. In addition, even in the presence of plain error,

“we should exercise our discretion to reverse only if the error seriously affects

the fairness, integrity or public reputation of judicial proceedings.” Id.

(quotation omitted).

We find that under either standard of review, the district judge’s reading

of the deliberate ignorance instruction to the venire panel fails to constitute

reversible error. While it is unusual for a venire panel to hear a rendition of
No. 07-40208

4 The district court included a deliberate ignorance instruction in the final jury charge,

which recited the pattern jury instruction: “The word ‘knowingly’ as that term has been used

from time to time in these instructions, means that the act was done voluntarily and

intentionally, not because of mistake or accident. You may find that a defendant had

knowledge of a fact if you find that the defendant deliberately closed his eyes to what would

otherwise have been obvious to him. While knowledge on the part of the defendant cannot be

established merely by demonstrating that the defendant was negligent, careless or foolish,

knowledge can be inferred if the defendant deliberately blinded himself to the existence of a

fact.” Fifth Circuit Pattern Jury Instructions (Criminal) § 1.37 (2001).

11

deliberate ignorance law during voir dire, it did not constitute error in the

present case. Upon review of the record, we find the district court was only

attempting to ascertain potential jurors’ bias for or against that particular area

of the law and did not abuse its discretion in doing so. The district judge stated

that the jurors “may” be given the instruction, and after reading it, asked if

anyone could not follow the instruction if it were given to them at the conclusion

of the trial. The panel was not instructed to absolutely apply the principles of

deliberate ignorance. Nor is there evidence the jury felt compelled to apply the

law of deliberate ignorance to the facts of the case based upon the initial

presentation to the complete venire panel.

However, if merely broaching the subject of deliberate ignorance with the

venire panel could constitute error, Marshall’s substantial rights were not

affected by the district court’s actions during voir dire, and his rights to a fair

trial were not prejudiced. Prejudice, if any, to Marshall was cured by the final

charge to the jury, which included a proper deliberate ignorance instruction, as

discussed below. Id.

C. Jury Instructions

Marshall additionally argues that it was error to include the deliberate

ignorance charge in the final jury instructions.4 Challenges to jury charges

require a determination whether
No. 07-40208

12

the court's charge, as a whole, is a correct statement of the

law and whether it clearly instructs jurors as to the principles

of law applicable to the factual issues confronting them. A

district court has broad discretion in framing the instructions

to the jury and this Court will not reverse unless the

instructions taken as a whole do not correctly reflect the

issues and law.

United States v. Threadgill, 172 F.3d 357, 367-68 (5th Cir. 1999) (quotation and

citation omitted). The trial court’s charge must be supported by the evidence

adduced at trial. United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir.

2003). In reaching a decision whether the instruction was properly given, “we

‘view the evidence and all reasonable inferences that may be drawn from the

evidence in the light most favorable to the Government.’” Id. (quoting United

States v. Lara-Velasquez, 919 F.2d 946, 950 (5th Cir. 1990)). If error is found,

the harmless error analysis applies. United States v. Cartwright, 6 F.3d 294,

301 (5th Cir. 1993).

“The purpose of the deliberate ignorance instruction is to inform the jury

that it may consider evidence of the defendant’s charade of ignorance as

circumstantial proof of guilty knowledge.” Lara-Velasquez, 919 F.2d at 951. “It

is only to be given when a defendant claims a lack of guilty knowledge and the

proof at trial supports an inference of deliberate indifference.” Threadgill, 172

F.3d at 368 (citing United States v. Wisenbaker, 14 F.3d 1022, 1027 (5th Cir.

1994)). We have cautioned that a deliberate ignorance instruction should be

used sparingly. Id.

The deliberate ignorance instruction is properly given if the evidence

shows: (1) the defendant’s subjective awareness of a high probability of the

existence of illegal conduct; and (2) a purposeful contrivance by the defendant

to avoid learning of the illegal conduct. Id. As long as the evidence in the record
No. 07-40208

13

satisfies both prongs, giving the instruction does not constitute error. See United

States v. Chen, 913 F.2d 183, 191 (5th Cir.1990).

1. Subjective Knowledge by a Defendant

To satisfy the first prong of the deliberate ignorance instruction test, the

Government must present evidence which supports an inference that a

defendant subjectively knew his conduct to be illegal. United States v. Nguyen,

493 F.3d 613, 619 (5th Cir. 2007). It is not enough for the Government to

present evidence which only supports an inference that a reasonable person

would have known his conduct to be illegal. Id. “The evidence should allow a

‘glimpse’ into the defendants’ minds when there is no evidence pointing to actual

knowledge.” Id. at 619-620 (citing Lara-Velasquez, 919 F.2d at 953 n.8).

“Suspicious and erratic behavior may be sufficientto infer subjective awareness

of illegal conduct.” Id. at 620; see also United States v. Saucedo-Munoz, 307 F.3d

344, 348 (5th Cir. 2002); United States v. Casilla, 20 F.3d 600, 603 (5th Cir.

1994).

In the instant case, the Government presented sufficient evidence

demonstrating Marshall subjectively believed he was taking part in illegal

activity. Marshall admitted he thought it was suspicious that the owner would

not drive his own truck into the United States, and instead would pay Marshall

to do so. Marshall further reinforces the inference of subjective knowledge by

admitting he knowingly lied to agents during the interrogation, after providing

numerous conflicting stories to agents about how he came into possession of the

truck, how he arrived in Mexico, what he was doing there, and where he was

traveling to upon his re-entry into the United States. Given the totality of

Marshall’s suspicious behavior, the evidence supports a finding Marshall was

subjectively aware of the probability of the existence of illegal conduct.
No. 07-40208

14

2. Purposeful Contrivance to Avoid Learning of the Illegal Conduct

“If ‘the circumstances in this case were so overwhelmingly suspicious that

the defendants’ failure to conduct further inspection or inquiry suggests a

conscious effort to avoid incriminating knowledge,’ then [the] second prong can

be satisfied.” Nguyen, 493 F.3d at 621 (quoting United States v. Daniel, 957 F.2d

162, 169-70 (5th Cir. 1992)); see also United States v. Ricardo, 472 F.3d 277, 286

(5th Cir. 2006), cert. denied, U.S. , 127 S.Ct. 2076 (2007) (“[F]ailure to

conduct further inspection or inquiry suggests a conscious effort to avoid

incriminating knowledge.”). Circumstantial evidence can be used to support a

finding of purposeful contrivance. Nguyen, 493 F.3d at 621.

Marshall claims he picked the truck up at a car wash in Mexico, and it was

cleaned prior to coming back to the United States. Marshall, who is a mechanic

by trade and former owner of a mechanic shop, purportedly failed to notice the

excessive oil dripping from the vehicle and pooling on the ground. He also did

not notice that the bolts on the gas tank and taillights were tampered with prior

to his travels. With his extensive knowledge of vehicles, and his statement that

he intended to purchase the truck, Marshall presumably would have wanted to

inspect it prior to any purchase.

Even if this Court were to ignore Marshall’s failure to observe the obvious

tampering with the truck, any version of Marshall’s portrayal of events

demonstrates a purposeful lack of inquiry. See id. at 622 (“Not asking questions

can be considered a purposeful contrivance to avoid guilty knowledge.”). Despite

the illogical and suspicious nature of the requests made of Marshall, he

nonetheless attempted to bring the truck into the United States, while purposely

refusing to learn about the controlled substances hidden in the truck. Based on

the totality ofthe evidence, Marshall’s behavior is sufficient to show an inference
No. 07-40208

5 The Allen charge is utilized when jurors are deadlocked to prompt them to reassess

their methods of deliberation in attempt to reach a consensus. Allen v. United States, 164 U.S.

492 (1896).

6 The district court provided a written copy of the final jury charge to the jury for their

use during deliberations.

7

It is unclear whether defense counsel timely objected to the district court’s first

response. The record supports a finding that an objection was not lodged until after the

response was sent to the jury. Therefore, a plain error standard might apply. However, an

abuse of discretion standard is used in the analysis. Concerning the second note, counsel did

not object; therefore, the plain error standard is applied.

15

of purposeful contrivance that satisfies the final part of the test.

In conclusion, we find the district court did not err in giving the deliberate

ignorance instruction during voir dire or in the final charge.

D. Responses to Jury Questions

Marshall contends the district court erred in its responses to two jury

questions. First, Marshall contends the jury disagreed over the interpretation

of a jury instruction and rather than responding to it, the court erroneously

issued an Allen charge.5 Second, Marshall claims the district court erred when

it failed to clarify the deliberate ignorance instruction in response to a second

jury question.

1. The Allen Charge

The district court received Jury Note Number 7, after more than nine

hours of deliberations, which stated, “We cannot reach an agreement because

one juror interprets the instructions differently than the others. We feel she is

not following the directions.”6 The jury did not specifically identify the jury

instruction in dispute. The district court interpreted the note as notice by the

jury that they were deadlocked. In response to the note, the district court issued

the Allen charge to the jury,7 using the instruction found in Fifth Circuit Pattern
No. 07-40208

16

Jury Instructions. 

An Allen charge is a permissible exercise of the district court’s discretion

if“the circumstances under which the district court gives the instruction are not

coercive, and the content of the charge is not prejudicial.” United States v.

McClatchy, 249 F.3d 348, 359 (5th Cir. 2001). “[T]he trial court ‘is vested with

broad discretion to evaluate whether an Allen charge is likely to coerce a jury

into returning a verdict it would not otherwise return.’” United States v.

Nguyen, 28 F.3d 477, 484 (5th Cir. 1994) (quoting United States v. Gordon, 780

F.2d 1165, 1177 (5th Cir. 1986)).

Marshall believes that giving the charge was generally inappropriate. He

fails, however, to identify any evidence proving the charge had a coercive effect

on the jury or prejudiced his case. In fact, the note in question was received by

the district court at 11:45 a.m. The jury reached its verdicts five hours later.

Given the time lapse, there is no evidence the jury was coerced into reaching

verdicts it might not otherwise have reached. United States v. Clayton, 172 F.3d

347, 352 (5th Cir. 1999) (time lapses of twenty-five and forty-five minutes

between an Allen instruction and the rendering of verdicts is not indicative of

coercion). The trial court did not err when it provided the Allen charge to the

jury. Marshall’s complaint to the Allen charge is without merit.

2. The Deliberate Ignorance Jury Question

The district court received Jury Note Number 8, stating, “Can you give us

a definition of the word deliberately as used in the definition knowingly.” The

district court sent a response back to the jury stating, “In response to Jury Note

Number 8, you are instructed that the Final Jury Instructions contain all of the

definitions and instructions that you will receive during your deliberations.”

Marshall objects to the district court’s response for the first time on appeal. He
No. 07-40208

17

argues that this response merely referred the jury back to the same deliberate

ignorance instruction that caused the jury’s confusion in the first instance and

did not assist the jury.

“When a deliberating jury expresses confusion and difficulty over an issue

submitted to it, the trial court’s task is to clear that confusion away with

concrete accuracy.” United States v. Stevens, 38 F.3d 167, 169-70 (5th Cir. 1994)

(quotation omitted). “When evaluating the adequacy of supplemental jury

instructions, we ask whether the court’s answer was reasonably responsive to

the jury’s question and whether the original and supplemental instructions as

a whole allowed the jury to understand the issue presented to it.” Id. at 170. A

trial judge is afforded great discretion in formulating a response to jury

questions. Id.; see also United States v. Duvall, 846 F.2d 966, 977 (5th Cir.

1988).

In the present case, the district court did not send a supplemental

instruction to the jury in response to the question. The district court instead

referred the jury to the final jury instructions already before it. If, in response

to a jury question, the trial court directs the jury’s attention to the original

instructions, the response will be deemed sufficient if the original charge is an

accurate statement of the law. United States v. Arnold, 416 F.3d 349, 359 n.13

(5th Cir. 2005) (citing United States v. Valdiosera-Godinez, 932 F.2d 1093, 1098

(5th Cir. 1991) (if a judge refers the jury to a presumptively accurate charge, the

ensuing conviction is not invalid due to alleged confusion)).

The jury charge as a whole, and the deliberate ignorance instruction in

particular, are correct statements of the law and referring the jury to the

instructions was not error. As previously stated, the district court charged the

jury with the pattern jury deliberate ignorance charge. The jury requested a
No. 07-40208

8 The nature of the criminal charge giving rise to the arrest warrant was not disclosed

to the jury.

18

definition of “deliberately,” not specifically defined in the charge. The word

“deliberately” is a term within a juror’s common understanding. See United

States v. Varkonyi, 645 F.2d 453, 460 (5th Cir. Unit A May 1981); see also Ellis

v. Lynaugh, 873 F.2d 830, 839 (5th Cir. 1989). It is not so technical or specific

as to require a specific legal definition. Therefore, Marshall fails to establish

that plain error was committed by the trial court’s response and its reference to

the original jury instructions. 

E. Extrinsic Evidence

Marshall claims the district court erred when it admitted testimony of

Marshall’s arrest warrant for unauthorized use of a motor vehicle.8 Marshall

contends this extrinsic evidence was irrelevant and prejudicial under Federal

Rule of Evidence 404(b). The Government argues Marshall invited the

introduction of the extrinsic evidence, or in the alternative, that error, if any,

was harmless.

“We review a district court’s decision to admit or exclude evidence for

abuse of discretion.” United States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th

Cir. 2002). “Review of evidentiary rulings is heightened in a criminal case.” Id.

The invited error doctrine

provides that when injection of inadmissable evidence is

attributable to the actions of the defense, the defense cannot

later object to such “invited error.” Under this doctrine, a

defendant cannot complain on appeal of alleged errors which

he invited or induced, especially where the defendant may not

have been prejudiced by the error. We will not reverse on the

basis of invited error, absent manifest injustice.

United States v. Solis, 299 F.3d 420, 452 (5th Cir. 2002) (quotations omitted); see
No. 07-40208

9The colloquy between defense counsel and the agent was as follows:

Q: When did you – take Mr. Marshall into custody?

A: 11:49

Q: You actually took him into custody at that time?

A: Yes, sir.

Q: Before you found the drugs?

A: Yes, sir.

19

also United States v. Raymer, 876 F.2d 383, 388-89 (5th Cir. 1989).

Under Rule 404(b), evidence of other crimes, wrongs, or acts is not

admissible to prove a defendant acted in conformity with some character trait.

Such evidence, however, is admissible for other reasons such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. This Court established a two-part test to determine the

admissibility of extrinsic evidence: (1) “it must be determined that the extrinsic

offense evidence is relevant to an issue other than the defendant’s character,”

and (2) “the evidence must possess probative value that is not substantially

outweighed by its undue prejudice and must meet the other requirements of

[R]ule 403.” United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en

banc). Trial courts need not make balancing test findings on the record, unless

requested by the defendant. United States v. Nguyen, 504 F.3d 561, 574 (5th

Cir. 2007), cert. denied, Tran v. United States, U.S. , 128 S.Ct. 1324 (2008).

During cross examination of an agent, Marshall’s counsel elicited

testimony highlighting the time of arrest versus the time of the discovery of the

narcotics.9 The Government, on redirect of its witness, sought admission of

evidence that Marshall had been arrested due to the existence of an outstanding

warrant. Marshall’s counsel objected and the following argument then ensued

at the bench:

[Prosecutor]: Judge, [defense counsel] made a big issue
No. 07-40208

20

about the time line, and he’s trying to imply that they took a

long time before they- they took Mr. Marshall into custody.

The reason they took Mr. Marshall into custody right away

was because he had an outstanding warrant on that

unauthorized use of a motor vehicle. And [defense counsel]’s

portraying that they took him in early without finding any

drugs. There was a reason for taking him in early because he

came out positive on a hit, and I think I should be allowed to

bring that out.

[Defense Counsel]: Your Honor, it has nothing to do

with that. The questioning has nothing to do with why he

was taken into custody. It’s simply that he was in custody

and that nobody spoke to him. That’s the only point that was

made.

THE COURT: I’m going to allow the question. Thank

you.

[Defense Counsel]: Your Honor, if I may for the record,

I believe it’s unfairly prejudicial and it has nothing to do with

these charges and–

THE COURT: I understand you have an objection. It’s

overruled.

The line of questioning elicited on cross examination by Marshall attempted to

establish that the agents prematurely arrested Marshall. It appears from the

record that, if the district court had allowed questioning to end on that note, the

jury would have been left with a false impression; Marshall invited the

admission of the warrant testimony.

Additionally, the only two brief references made to the arrest warrant

were the Government’s question to the agent and one reference during the

closing argument. The district court also provided a “similar acts” instruction

in the final charge and repeatedly instructed the jury of the Government’s

burden of proof, thus minimizing the danger of undue prejudice. United States
No. 07-40208

21

v. Sanders, 343 F.3d 511, 518 (5th Cir. 2003); see also United States v. GonzalezLira, 936 F.2d 184, 192 (5th Cir. 1991). In light of the overwhelming evidence

of Marshall’s guilt,the minimal references to the existence of a warrant, and the

trial court’s limiting instruction, this Court cannot say that Marshall’s right to

a fair trial was prejudiced. The trial court, therefore, did not abuse its discretion

in admitting the evidence of the warrant.

F. Cumulative Effect of Errors

Marshall’s final contention is that his convictions require reversal because

of the cumulative effect of the multiple claimed errors. A cumulative error

analysis is unnecessary due to the individual findings noted above. Marshall’s

substantial rights to a fair trial were not violated.

III. CONCLUSION

For the above reasons, we find the district court did not err during the

trial of the case and the evidence is sufficient to support the appellant’s

convictions. We AFFIRM the convictions and judgment in this case.

AFFIRMED