United States Court of Appeals

For the Eighth Circuit

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No. 13-2062

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Raul Tovar

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the District of North Dakota - Fargo

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 Submitted: February 14, 2014

 Filed: July 11, 2014

[Unpublished]

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Before SMITH, BEAM, and BENTON, Circuit Judges.

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PER CURIAM.

A jury convicted Raul Tovar for participating in a drug conspiracy. At the close

of evidence during Tovar's trial, the district court inadvertently omitted a jury 1

The Honorable Ralph R. Erickson, Chief Judge, United States District Court

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for the District of North Dakota.
instruction during its final instructions to the parties and the jury. Following closing

arguments but before jury deliberations, the court discovered the omission and read

the missing instruction to the jury. Tovar moved for a new trial, alleging that the

additional jury instruction was impermissibly and improvidently given. The district

court denied the motion concluding that even if the instruction was given in error,

Tovar suffered no actual prejudice. Tovar appeals, alleging that the district court

violated Federal Rule of Criminal Procedure 30(b). We find no error and affirm.

I. Background

In March 2012, Tovar was indicted with one count of conspiracy to possess

with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1).

He was also charged as an aider and abetter under 18 U.S.C. § 2. 

On January 15, 2013, the district court conducted a final pretrial conference.

At that conference, the court and the parties reviewed the preliminary jury

instructions, including instruction P-13, which stated in part, "The Government must

prove beyond a reasonable doubt, however, that a measurable amount of the

controlled substance was, in fact, knowingly and intentionally possessed with intent

to distribute or distributed by the Defendant." The preliminary instructions did not

include any instruction concerning aiding and abetting. Neither party objected to the

preliminary instructions. 

The trial began the same day. The indictment was read to the jury pool. After

voir dire and impaneling of the jury, the court read the preliminary instructions,

including Instruction P-13, to the jury. On January 18, 2013, the parties received the

proposed final jury instructions. The final instructions did not include an aiding and

abetting instruction. On January 22, 2013, the jury was reconvened after a holiday

weekend. The court advised the jury that the preliminary instructions remained in

effect and read the final instructions. Neither party objected to the closing

instructions, nor did they propose any additional instructions. 

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After closing arguments, the court called for a sidebar and explained to the

parties that it had not instructed the jury on aiding and abetting. Over defense

counsel's objection, the court read the aiding and abetting instruction ("Instruction F9") to the jury. The court offered both parties the opportunity to make additional

arguments in light of the additional instruction—both parties declined. After

deliberation, the jury found Tovar guilty of both conspiracy and aiding and abetting.

Tovar moved for a new trial under Federal Rule of Criminal Procedure 33,

alleging that Instruction F-9 was impermissibly or improvidently given. Counsel

averred that he devoted his preparation for closing argument to Instruction P-13 and

its actual possession element and was therefore prejudiced by the late addition of the

aiding and abetting instruction, which contains no such possession element. 

The district court denied Tovar's motion. The court found that by the terms of

Federal Rule of Criminal Procedure 30, the court may instruct the jury before or after

closing arguments, or at both times. The court noted that both parties were given the

opportunity to present additional arguments after the additional instruction and that

both parties declined. Tovar'sindictment put himon notice that he could be convicted

as an aider and abetter. The court further concluded that even if the instruction had

been given in error, Tovar could not demonstrate that he suffered actual

prejudice—the jury returned a guilty verdict on the conspiracy charge itself, meaning

that even if the distinct, alternative aiding and abetting conviction were vacated,

Tovar's conviction would still stand.

II. Discussion

Tovar argues on appeal that the district court violated Federal Rule of Criminal

Procedure 30(b) by erroneously adding a jury instruction after closing arguments. He

contends that this error prejudiced counsel in preparation of closing arguments, and

that the error "could not have been cured by further argument." Tovar contends that

counsel prepared for closing arguments on the basis of the instructions as provided

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on January 18, 2013, and "premised half of his argument" on the government's burden

to prove Tovar actually possessed some of the drugs as part of the conspiracy. He

avers that the introduction Instruction F-9 undermined his credibility with the jury

such that no additional argument would have cured the error. Tovar also contendsthat

the government waived the omission of Instruction F-9 by failing to object to the

omission before closing arguments.

"Compliance with rules of criminal procedure is reviewed de novo." United

States v. Theimer, 557 F.3d 576, 577 (8th Cir. 2009) (citing United States v. Davies,

380 F.3d 329, 332 (8th Cir. 2004). "[A] violation of [Federal] Rule [of Criminal

Procedure] 30 is not reversible error unless the complaining defendant is prejudiced

by the error." United States v. Pemberton, 121 F.3d 1157, 1167 (8th Cir. 1997). "For

this purpose, a defendant is prejudiced if he is unfairly prevented from arguing his

defense to the jury or is substantially misled in formulating his arguments." Id. at

1168 (quotation, alteration, and citation omitted). 

Rule 30 governs the delivery of jury instructions. Rule 30 provides:

(a) In General. Any party may request in writing that the court instruct

the jury on the law as specified in the request. The request must be made

at the close of the evidence or at any earlier time that the court

reasonably sets. When the request is made, the requesting party must

furnish a copy to every other party.

(b) Ruling on a Request. The court must inform the parties before

closing arguments how it intends to rule on the requested instructions.

(c) Time for Giving Instructions. The court may instruct the jury before

or after the arguments are completed, or at both times.

(d) Objections to Instructions. A party who objects to any portion of the

instructions or to a failure to give a requested instruction must inform

the court of the specific objection and the grounds for the objection

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before the jury retires to deliberate. An opportunity must be given to

object out of the jury's hearing and, on request, out of the jury's

presence. Failure to object in accordance with this rule precludes

appellate review, except as permitted under Rule 52(b).

Tovar's argument that giving the belated instruction violated paragraph (b)

fails. Paragraph (b) is inapplicable here. By its own terms, paragraph (b) applies to

"requested instructions"—that is, instructions requested pursuant to paragraph (a).

Neither party requested Instruction F-9; as a result, the court did not fail to informthe

parties of how it intended to rule on the "requested instructions" with respect to

Instruction F-9, and therefore did not violate Rule 30(b).

Rule 30(c), added after the 1987 amendments to the Rules, permits the court

to instruct the jury before or after closing arguments, or at both times. The Advisory

Committee notes to that amendment state "the amendment plainly indicates that the

court may instruct both before and after arguments, which assures that the court

retains power to remedy omissions in pre-argument instructions orto add instructions

necessitated by the arguments." The Advisory Committee Note reveals that Rule

30(c) exists to remedy the precise problem that faced the district court here: the

inadvertent omission of a jury instruction that the court had intended give. Rather

than violate Rule 30, the district court used the Rule for its intended purpose. This is

not error, much less reversible error.

Because we hold that the district court did not err in giving an additional

instruction to the jury after closing arguments, we need not address Tovar'sremaining

arguments.

III. Conclusion

Accordingly, we affirm the judgment of the district court. 

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