IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50780

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOSE BARRAZA,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CR-3177-1

Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Jose Barraza appeals his conviction on 14 counts of making false

statements to the United States Postal Service and the United States

Department of Labor’s Office of Workers’ Compensation Program (OWCP)

concerning his ability to work, in order to induce the payment of worker’s

compensation and other benefits. See 18 U.S.C. §§ 1001, 1920. We affirm.

Barraza argues that the evidence was insufficient to show that he

knowingly made false statements because he was entitled to rely on the opinions

United States Court of Appeals

Fifth Circuit

F I L E D

June 30, 2010

Lyle W. Cayce

Clerk

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.

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of a physician and a physical therapist who testified that, at one time, they

thought Barraza was actually injured. Ordinarily, in assessing the sufficiency

of the evidence, we determine whether “after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis in original). However, because Barraza did

not renew his motion for acquittal at the close of the evidence, “we review his

claim to determine whether there was a manifest miscarriage of justice.” United

States v. Burton, 324 F.3d 768, 770 (5th Cir. 2003) (citation and marks omitted).

There is a manifest miscarriage of justice when “the record is devoid of evidence

pointing to guilt or contains evidence on a key element of the offense that is so

tenuous that a conviction would be shocking.” United States v. McIntosh, 280

F.3d 47, 483 (5th Cir. 2002) (citation and marks omitted).

To establish a violation of § 1001, the Government was required to prove

that Barraza made an intentional false statement that was material to some

inquiry or decision within a government agency’s jurisdiction. See United States

v. Najera Jimenez, 593 F.3d 391, 399-400 (5th Cir. 2010). To prove the offense

of making false statements for purposes of fraudulently obtaining OWCP

benefits in violation of § 1920, the Government was required to show that

Barraza knowingly and willfully made a material false or fraudulent statement

in connection with his application for OWCP compensation or other benefits. See

United States v. Harms, 442 F.3d 367, 372-73 (5th Cir. 2006).

The Government presented visual documentation of Barraza performing

activities that were contrary to his statements that he was unable to work. The

physician testified that Barazza’s assertions during treatment concerning his

inability to work were not consistent with the evidence of his activities presented

at trial. Barraza was not entitled, as a matter of law, to rely on the opinions of

experts whom he was misleading. See United States v. Smith, 523 F.2d 771, 778

(5th Cir. 1975). The Government also presented evidence that Barraza

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persistently and falsely denied any ability to work. His assertions of his

inability to work were inconsistent with the surveillance evidence and the

opinion of his physical therapist. Viewing the evidence in the light most

favorable to the jury’s verdict, the record is not devoid of evidence pointing to

guilt and does not contain evidence on a key element of the offense that is so

tenuous that a conviction would be shocking. See McIntosh, 280 F.3d at 483.

Consequently, there was no miscarriage of justice. See Burton, 324 F.3d at 770.

Barraza also challenges the district court’s supplemental instruction to the

jury regarding the requirement of unanimity of the verdict on all counts. The

jury originally found Barraza guilty on two counts and not guilty on the

remaining counts. When the district court began to poll the jury, the jury

foreman revealed that the jury had misunderstood the requirement of a

unanimous verdict with respect to acquittals and that the not guilty verdicts

were not unanimous. The court therefore clarified its instruction and instructed

the jury to resume deliberations and return unanimous verdicts of guilty or not

guilty as to each count. After further deliberation, the jury returned unanimous

verdicts of guilty on all counts.

Although Barraza moved for a mistrial after the jury resumed

deliberations on the ground that the jury had returned an illegal verdict, he did

not object to the court’s clarifying instruction. Review is thus for plain error. To

show plain error, Barraza must show a forfeited error that is clear or obvious

and that affects his substantial rights. See Puckett v. United States, 129 S. Ct.

1423, 1429 (2009). If he makes such a showing, we have the discretion to correct

the error but only if it “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (citation and marks omitted). “Plain

error occurs only when [a jury] instruction, considered as a whole, was so clearly

erroneous as to result in the likelihood of a grave miscarriage of justice.” United

States v. Davis, 19 F.3d 166, 169 (5th Cir. 1994) (citation omitted).

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The court’s instruction was a correct statement of the law. See FED.

R. CRIM. P. 31(a) & (d); cf. also United States v. Miles, 360 F.3d 472, 482-83 (5th

Cir. 2004) (approving similar instruction); United States v. Jones, 132 F.3d 232,

245 (5th Cir. 1998) (finding no constitutional requirement that a court “inform

the jury of the consequences of failing to reach a unanimous verdict”). Moreover,

Barraza fails to show “that the circumstances surrounding the charge caused the

jury to be unduly coerced into reaching a verdict.” See United States v.

McClatchy, 249 F.3d 348, 359 (5th Cir. 2001). The district court committed no

error, plain or otherwise. Further, there is no likelihood that the instruction

resulted in a miscarriage of justice. See Davis, 19 F.3d at 169.

The judgment of the district court is AFFIRMED.

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