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United States of America v. MICHAEL BRIAN ANDERSON
Case Number: 18-13947
Judge: JULIE CARNES
Court: IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Atlanta, Georgia - Criminal defense lawyer represented defendant with four counts of mail fraud, three counts of making false statements, and two counts of money laundering charges.
A federal grand jury indicted Defendant on four counts of mail fraud, 18
U.S.C. § 1341 (Counts 1–4), three counts of making false statements to the
Allen v. United States, 164 U.S. 492 (1896).
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Government, 18 U.S.C. § 1001(a)(3) (Counts 5–7), and two counts of money
laundering, 18 U.S.C. § 1957(a) (Counts 8–9). The indictment explained that,
during the relevant time period, domestic shrimpers harmed by certain foreign
anticompetitive conduct could apply for federal government subsidies by
identifying their relevant business expenditures on “CBP Form 7401” and mailing
the form to Customs. The mail-fraud and false-statement counts alleged that, in
attempting to gain these subsidies, Defendant had falsely claimed business
expenses in the amount of $24,184,352. The money-laundering counts alleged that
Defendant had used the subsidy money fraudulently obtained to purchase stocks
through Edward Jones Investment Company and to purchase real property through
Lanier Realty. The case proceeded to trial.
1. The Government’s case-in-chief
In its case-in-chief, the Government showed the following. Foreign
producers sometimes engage in a form of anticompetitive conduct known as
“dumping,” which involves undercutting domestic producers by importing
underpriced goods. To level the playing field, Congress enacted the CDSOA,
which allowed the United States government to levy duties on specific foreign
goods and distribute the funds to affected domestic producers. Under the CDSOA
program, which Customs administered in conjunction with other agencies, affected
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domestic producers could claim subsidies by identifying their business expenses on
CBP Form 7401 and mailing the form to the Customs office in Indiana. Customs
would then use the claimed expenses to calculate each qualifying domestic
producer’s pro rata share of the funds and distribute the funds accordingly.
In 2005, the Department of Commerce issued an anti-dumping order that
required several countries to pay tariffs for dumping shrimp into the U.S. market.
The order allowed domestic shrimping businesses to apply for CDSOA subsidies
based on expenses incurred after February 2005, up until September 2007, when
the CDSOA was repealed. CDSOA claims were cumulative, meaning that each
year shrimpers could make a claim for all of their expenses incurred from the date
of the anti-dumping order to the date of their claim. Thus, claims would increase
over the years, with a 2005 claim including only 2005 expenses, a 2006 claim
including expenses from both 2005 and 2006, and a claim made in or after 2007
including all expenses incurred from 2005 to 2007.
Defendant owned and operated Shrimpy’s, Inc., a shrimping business. Each
year from 2005 to 2014, Defendant mailed a copy of CBP Form 7401 to Customs,
seeking subsidies for purported business expenses incurred during years 2005 to
2007. In 2005, Defendant made a claim for $218,881 in expenses incurred that
year. In 2006, he made a claim for $374,138 in cumulative expenses incurred from
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2005 to 2006. His 2007, 2008, and 2009 forms listed $8,256,222 in expenses
incurred from 2005 to 2007.
In 2009, Defendant called the Customs help line to ask whether he could
claim additional expenses that he had identified after filing his last CDSOA claim.
Customs responded that he was permitted to claim additional expenses but that it
might request an explanation for the increase. Thereafter, on his 2010–2014
CDSOA forms, Defendant claimed that his expenses from 2005 to 2007 exceeded
$24 million. By contrast, Defendant’s tax returns from 2005, 2006, and 2007 had
listed his costs of goods sold as being $221,719, $307,683, and $0, respectively.
Based on his CDSOA claims, Defendant received a total of $864,292.40 in federal
In 2013, Customs received a tip from another shrimper that Defendant’s
claims were illegitimate. In response, Customs sent Defendant three letters asking
for information supporting his claims. To substantiate his total claim for over $24
million in raw-materials expenses, Defendant included 47 invoices from R&R
Seafood, which were identical except that they bore different dates ranging from
February 2005 to September 2006 and listed different rates for shrimp. They
stated that, on a biweekly basis, Defendant had purchased from R&R Seafood
100,000 pounds of “16 to 20 per pound head off/on shrimp” at a rate of either
$610,000 or $630,000. According to Sean Wuethrich, Customs’ programs
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execution branch chief who oversaw the CDSOA program, the cost of purchasing
shrimp could be claimed as a qualifying raw-materials expense. All in all, the 47
invoices purported to show that Defendant bought 4.7 million pounds of shrimp for
more than $29 million over less than two years.
R&R Seafood, however, was incapable of supplying the quantities of shrimp
specified in the invoices. Until his death in December 2006, Robbie Robertson
owned R&R Seafood. Robertson operated the business with his common-law wife
(Aletha Dean Carter), one employee, a short shrimping boat, an old pickup truck, a
1,200-foot facility, and an 8x10-foot freezer. As a small business, R&R Seafood
did not have any of the equipment necessary for handling large quantities of
shrimp, such as a forklift, a tractor-trailer, or a large freezer. On a good day during
the shrimping season, Robertson would catch and sell only 100 to 200 pounds of
shrimp out of R&R Seafood. He also briefly sold shrimp to Publix, but the
relationship ended because he was able to supply only 50 to 200 pounds of shrimp
per day, which was insufficient to meet the grocery store’s demand.
When asked if R&R Seafood ever sold 100,000 pounds of shrimp, Carter
responded, “Whoa. No. No way.” Robertson’s daughter and several members of
the local shrimping community also thought it impossible that he ever possessed
100,000 pounds of shrimp at one time. Indeed, large shrimp-processing businesses
in the community handled at most 400,000 pounds of shrimp in an entire year.
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And the total amount of shrimp listed on the invoices exceeded the amount of
shrimp caught in Chatham County and may have exceeded the total amount of
shrimp caught in all of Georgia.
Setting aside the sheer quantity of shrimp listed on the invoices, there were
other reasons to doubt their authenticity. Although the invoices were computergenerated, Robertson did not own a computer and R&R Seafood issued only
handwritten, carbon-copy receipts. The address for R&R Seafood listed on the
invoices was also incorrect. And many of the invoices were dated during the
shrimping off-season, when it was illegal to catch domestic shrimp, as well as
during the months preceding Robertson’s death, when he was severely ill. While
frozen shrimp was available year-round, R&R Seafood was closed in the off
months and Robertson was not known to deal in block-frozen shrimp.
2. Defendant’s case-in-chief
At the close of the Government’s case, Defendant moved for a judgment of
acquittal, arguing that insufficient evidence showed that he had made false
statements or intended to deceive the Government.
The court denied the motion
and Defendant presented his case. In particular, defense counsel sought to elicit
from a special agent a purportedly exculpatory statement from Defendant that he
found it more efficient to purchase shrimp than catch it himself. The Government,
Sufficiency of the evidence is not at issue on appeal.
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however, successfully excluded the statement. After the court sustained the
Government’s objection, the court commented that defense counsel had “done
everything [she could] do to get in what he says without him having to take the
stand and say it.”
When the defense rested, the court excused the jury and asked Defendant
(1) whether he understood that he had a right to testify if he wished and (2)
whether it was his independent decision not to testify. Defendant confirmed that
he understood his right to testify, but asked to speak to his lawyer before
responding to the court’s second question. The court permitted defense counsel to
consult with Defendant outside the courtroom. When they returned, defense
counsel reported that Defendant was unsure whether he wanted to testify. The
court responded that Defendant would have to make a decision because the trial
needed to continue, at which point Defendant said he would testify. Defense
counsel did not object to the court addressing Defendant, who then took the stand.
Defendant testified that he had established a business relationship with
Robertson, who used his contacts to obtain shrimp which Defendant could then
ship to his customer in the Gulf Coast. According to Defendant, he would call
Robertson and arrange to pick up a truckload of 20,000 to 50,000 pounds of frozen
shrimp each week. Explaining the increase in his CDSOA claims, Defendant
testified that he first learned that he could claim frozen shrimp as an expense
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during a Southern Shrimp Alliance meeting around 2010. He said that the increase
from $300,000 to $8 million in expenses resulted from his deals with Robertson,
and that, when he found additional receipts showing expenses over $24 million, he
called Customs to confirm that he could increase his claims. Defendant denied
creating the R&R Seafood invoices, saying that he was not proficient on a
computer and that Robertson had given them to him. On cross-examination,
Defendant admitted that he had mailed Customs the CDSOA claims, received
checks in the mail from the U.S. Treasury, and used these monies to invest through
Edward Jones and to pay Lanier Realty. Defendant insisted that he had actually
incurred the expenses claimed on his CDSOA forms, based on deals with
Robertson. After Defendant testified, the defense rested.
3. Jury instructions and closing arguments
Before trial, Defendant requested that the court give a lengthy jury charge on
the CDSOA, which explained, in relevant part, that shrimp constituted a “raw
material” for which reimbursement was available under the CDSOA. The court
denied the request, however, concluding that failure to give the charge would not
seriously impair the defense because Defendant was not charged with violating the
CDSOA and he could explain how the CDSOA operated through witnesses.
The parties also submitted proposed mail-fraud jury instructions based on
this Court’s pattern charge. The court agreed to give Defendant’s requested
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charge, which listed only one of the two alternative means the statute indicates can
satisfy the jurisdictional basis for conviction. As it turned out, however, the
evidence introduced at trial as to three of the mail-fraud counts revealed that the
alternative means deleted by defense counsel in her request to charge was the
means used by Defendant as to those counts. Alerted to that fact through defense
counsel’s closing argument, the district court supplemented the instruction that he
had earlier agreed to give.
Defendant argues that the district court erred in its ruling as to both of these
4. Jury deliberations
The jury deliberated for just over two hours before sending the court a note
asking how long they had to deliberate. Without objection, the court responded
that they should continue deliberating until they reached a verdict and should
inform the court if they could not agree on a verdict. Fifteen minutes later, the
court received another jury note saying they could not reach an agreement and
asking how they should proceed. The court called in the jury foreperson, who
informed the court that several jurors had said additional deliberation would not
make a difference.
After the foreperson left the courtroom, the court told the parties that it was
going to give the jury an Allen charge because the jury had “not been deliberating
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very long.” The court immediately called in the jury and gave a modified Allen
charge. No objections were lodged before or after the charge was given.
Deliberations continued for nearly an hour and a half before the jury returned a
verdict finding Defendant guilty on all counts.3
C. Post-Conviction Motions and Sentencing
After trial, Defendant moved for a judgment of acquittal on mail-fraud
Counts 1, 3, and 4, arguing that the trial evidence (which showed that he had used
a commercial mail carrier) and the jury instructions (which permitted a conviction
based on use of a commercial mail carrier) materially varied from or constructively
amended the indictment’s charge that he had used the “United States mail.” He
also moved for a judgment of acquittal or a new trial on the ground that the court
had violated Federal Rule of Criminal Procedure 30(b) by sua sponte changing the
mail-fraud jury instruction after Defendant’s closing argument. The court denied
At sentencing, the district court imposed a total sentence of 77 months’
imprisonment, comprising concurrent terms of 77 months for each of Counts 1–4
and 8–9, and 60 months for each of Counts 5–7. Defendant timely appealed.
Deliberations were briefly interrupted for five minutes, when the court was informed that the
foreperson felt ill and another juror would take over her role as foreperson.
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On appeal, Defendant argues that the district court (1) violated his right to
testify, (2) abused its discretion in refusing to give his requested jury charge on the
CDSOA, (3) violated Federal Rule of Criminal Procedure 30 by changing the jury
instructions after Defendant’s closing argument and declining to give a curative
instruction after the Government’s rebuttal closing, and (4) plainly erred in giving
a modified Allen charge. We address each issue in turn.
A. Whether the District Court Erred in Asking Defendant if He
Wanted to Waive His Right to Testify
1. Defendant’s contention
After the defense rested and outside the presence of the jury, the district
court asked Defendant to confirm that he understood his right to testify and to
indicate whether or not he wished to do so. After consulting with counsel,
Defendant opted to take the stand.4
We set out the brief colloquy:
THE COURT: All right. Have a seat, please. Mr. Anderson, you’ve
heard your counsel announce that you have no more
evidence to present in this case. Do you understand
that you have an absolute right to testify if you wish
THE DEFENDANT: Yes, sir.
THE COURT: Is it your independent decision not to testify in this
THE DEFENDANT: May I talk to my lawyer?
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A criminal defendant has a constitutional right to choose whether or not to
testify, and that choice must be respected even if the defendant’s attorney disagrees
with his client’s choice. If nothing more—and as a simple linguistic matter—it is
clear that a trial court’s inquiry as to whether a defendant wishes to testify or to
remain silent is hardly an act that deprives the defendant of his right to choose. If
anything, such a question serves to vindicate that right to choose. Nevertheless,
Defendant argues on appeal that the district court’s brief and neutral inquiry as to
what Defendant wanted to do somehow violated his constitutional rights. Based on
Defendant’s contention that the district court’s questions impermissibly interfered
THE COURT: Yes, sir.
MS. COPELAND: Your Honor, may we step outside, please?
THE COURT: Yes, ma’am.
(Brief pause in proceedings)
MS. COPELAND: Your Honor, thank you. And I am sorry. I think it is
fair to say that at this point Mr. Anderson is not
certain whether he wishes to testify.
THE COURT: Well, he’s going to have to be certain, because it’s
4:00 in the afternoon and we’re going to keep going.
THE DEFENDANT: Let’s do this. Let’s testify.
THE COURT: Is it his decision to testify?
MS. COPELAND: It is, Your Honor.
THE COURT: Okay. All right. Bring the jury back.
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with the attorney-client relationship, we assume that Defendant advances a Sixth
Amendment claim that the court deprived him of the right to effective counsel.
We find nothing objectionable about the district court’s straightforward and
neutral inquiry, and certainly nothing in that inquiry that violated either
Defendant’s right to testify or his right to effective counsel. In explaining why, we
first offer some legal background.
2. Legal framework
A criminal defendant has a fundamental constitutional right to choose
whether to testify in his own defense. Rock v. Arkansas, 483 U.S. 44, 51–53
(1987); United States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992) (en banc).
While the Constitution does not explicitly reference the right to testify, the
Supreme Court has identified its sources in several constitutional provisions. Rock,
483 U.S. at 51. First, the “right to be heard and to offer testimony” is essential to
the Due Process Clause’s “guarantee that no one shall be deprived of liberty
without due process of law.” Id. Second, the right to testify is logically included
in a defendant’s Sixth Amendment rights “to call witnesses whose testimony is
material and favorable” and “to conduct his own defense.” Id. at 52 (quotation
marks omitted). Finally, the right to testify is “a necessary corollary of the Fifth
Amendment’s guarantee against compelled testimony.” Id. at 52–53.
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Expanding on the meaning of this right, our Court in 1992 ruled that the
decision to testify was not just another one of the many tactical decisions left
solely up to defense counsel. Rather, our Court en banc held in Teague that a
defendant’s right to choose whether to testify or instead to remain silent was a
personal right of his that could not “be waived either by the trial court or by
defense counsel.” Teague, 953 F.2d at 1532. We reasoned that because “the right
to testify essentially guarantees the right to ultimately choose whether or not to
testify,” a “defendant cannot be compelled to remain silent by defense counsel”
any more than he can be “compelled to testify by defense counsel.” Id. (emphasis
Although defense counsel is generally responsible for “matters which
primarily involve trial strategy and tactics”—and deciding “whether a criminal
defendant should take the witness stand in his own trial unquestionably has
tremendous strategic importance”—we stressed that allowing a defendant to
choose whether to testify did not conflict with his right to counsel. Id. at 1531–33.
This was so, we explained, because an attorney and her client play different roles
in the decision whether to testify. “Defense counsel bears the primary
responsibility for advising the defendant of his right to testify or not to testify, the
strategic implications of each choice, and that it is ultimately for the defendant
himself to decide.” Id. at 1533. “The defendant can then make the choice of
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whether to take the stand with the advice of competent counsel.” Id. In other
words, the right to counsel guarantees a defendant the right to receive advice
concerning his decision to testify, while the right to testify guarantees a defendant
the personal right to choose whether to testify.
For the above reasons, Teague held that an ineffective-assistance-of-counsel
claim is the appropriate vehicle for challenging defense counsel’s alleged denial of
her client’s right to testify.
Id. at 1534. Since 1992 we have issued two other
noteworthy decisions in cases where the criminal defendant relied on Teague in
advancing his argument that his conviction should be reversed. Interestingly,
whereas Defendant argues in the present case that the district court erred by even
mentioning the right to testify, in both those earlier cases the defendants argued
that the district court should have provided them more information about their right
to testify. In United States v. Van De Walker we addressed a claim that a district
court violated a counseled defendant’s right to testify by failing to conduct a sua
sponte, on-the-record inquiry into whether the defendant had knowingly,
Ultimately, Teague did not get the relief he sought, which was a reversal of his conviction.
The district court had earlier conducted an evidentiary hearing and concluded that Teague’s will
was not overborne by counsel, as he did not “protest” counsel’s statement that she did not
believe he should testify, albeit he did not affirmatively agree. Further, even though by the time
of the evidentiary hearing defense counsel indicated that she had developed some “misgivings”
as to whether Teague actually understood that he was choosing not to testify, the en banc court
focused on what counsel reasonably understood to be her client’s view during trial. And counsel
testified that during trial she believed her client had acceded to her decision, albeit only tacitly.
Teague, 953 F.2d at 1535.
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voluntarily, and intelligently waived his right to testify at a trial. United States v.
Van De Walker, 141 F.3d 1451, 1451 (11th Cir. 1998). Van De Walker never
contended on appeal that his attorney failed to advise him of his right to testify or
prevented him from testifying. Id. at 1452. That is, unlike Teague, he was not
arguing that he was unaware that he had the right to insist on testifying,
notwithstanding counsel’s discouragement. Thus, Van De Walker was not
asserting an ineffective-assistance-of-counsel claim. Id. Instead, Van De Walker
argued that the Constitution required the reversal of any conviction in which the
trial court had failed to ask a non-testifying defendant whether it was his choice not
to testify. Id. And more than that—Van De Walker argued that, as a constitutional
matter, the trial court is required to engage the defendant in a full dialogue to
ensure that the defendant’s waiver of his right to testify is knowing, voluntary, and
Our Court disagreed. Teague had acknowledged that it remained the duty of
counsel to discuss “the strategic implications” and even to “advise the client in the
strongest possible terms not to testify,” if that was counsel’s view. Teague, 953
F.2d at 1533. Further, in dictum, Teague had opined that “it would be
inappropriate to require the trial court to discuss this choice with the defendant,” as
“[s]uch a requirement would unnecessarily intrude into the attorney-client
relationship and could unintentionally influence the defendant in his or her
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choice.” Id. at 1533 n.8 (emphasis added). Drawing on those observations by the
Teague court, our Court in Van De Walker rejected the defendant’s argument that
“there is a per se requirement that the district court advise the defendant of his
right to testify and conduct an on-the-record inquiry into whether a non-testifying
defendant knowingly, voluntarily, and intelligently waived the right to testify.”
Van De Walker, 141 F.3d at 1452.
Finally, in United States v. Ly, we examined whether a district court is
required to correct the obvious misunderstanding of a pro se defendant who has
expressed a belief that he has no right to testify. United States v. Ly, 646 F.3d
1307, 1309 (11th Cir. 2011). There, after the district court initiated a colloquy
with pro se defendant Ly about whether he intended to testify, Ly indicated that,
even though he would like to testify, he believed he would not be permitted to do
so because he had no attorney to ask the questions for which he would provide the
answers. Id. at 1309, 1311–12. Ly was of course wrong, as he would have been
permitted to testify in narrative form. Id. at 1312. The district court, however, did
nothing to correct his misunderstanding. Id. at 1313. Accordingly, Ly declined to
testify, and the jury subsequently convicted him. Id. at 1312.
On appeal following Ly’s conviction, we reiterated that a court generally
should not probe a defendant’s reasoning as to whether or not to testify in order “to
ensure that [his] decision [not to testify] was made knowingly and intelligently.”
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Id. at 1313. First, because an “informed decision to testify requires [so] many
considerations, including the defendant’s credibility; how well the defendant
would withstand cross-examination; and what types of damaging evidence would
be admissible as impeachment,” it would be difficult for a court to ever definitively
determine whether the defendant’s decision for or against testifying was an
intelligent choice. Id. at 1315. Moreover, by injecting himself into the defendant’s
decision whether or not to testify, the judge might well suggest his own “implied
preference,” which would “intrude” into the defendant’s personal decision. Id.
And where the defendant is represented by counsel, the judge’s mimicking of the
type of back-and-forth that a defendant should have had with his lawyer is an
exercise that might “suggest that the district court believed the defendant’s choice
improvident,” which suggestion “would improperly disturb the attorney-client
relationship.” Id. at 1313. In short, “[a] district court runs the risk of denying a
defendant’s right to testify by engaging in too searching of an inquiry.” Id. at
In the case before the Ly court, the district court had not engaged in any sort
of colloquy with the pro se defendant other than to ask if he was going to testify.
Id. at 1311–12. Yet, the defendant’s response to that question made clear that the
defendant believed his pro se status prevented him from taking the stand. Id. This
response having revealed a “basic misunderstanding regarding his fundamental
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right to testify,” we held that the district court should have corrected the
defendant’s misperception. Id. at 1318. The district court had not done so, and
because we did not find the error harmless, we vacated the conviction. Id. at
Relying on our decisions in Teague, Van De Walker, and Ly, Defendant
contends that by asking him whether he wanted to testify, the district court violated
his constitutional rights. Necessarily, he is arguing either that the district court
(1) usurped his right to choose whether to testify by asking him what that choice
was or (2) rendered his counsel ineffective by the mere introduction of the topic, or
both. As we have noted above, the first argument does not even track
linguistically. And the second argument—that Defendant’s counsel was rendered
ineffective merely because the court asked Defendant what choice he had made—
is similarly unpersuasive.6
First, none of the three cases referenced by Defendant ever held that a
district court is prohibited from obtaining an on-the-record waiver of a criminal
defendant’s right to testify. And for good reason, as none of them dealt with a
6 The Government contends that plain-error review applies because defense counsel did not
object to the district court’s colloquy at trial. Defendant disagrees. We need not resolve this
dispute because even assuming de novo review applies, Defendant cannot prevail on his claim.
United States v. Waters, 937 F.3d 1344, 1358 n.6 (11th Cir. 2019).
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situation in which the trial judge sought such a waiver. In Teague and Van De
Walker, the district courts never mentioned the right to testify. In Ly, for purposes
of figuring out the next step in the proceedings, the district court simply asked the
pro se defendant whether or not he was going to testify. Moreover, in Ly, we never
suggested that the judge said too much; we reversed because he said too little to the
defendant concerning his right to testify.
True, in dictum in a footnote, Teague stated “it would be inappropriate to
require the trial court to discuss this choice with the defendant,” as “[s]uch a
requirement would unnecessarily intrude into the attorney-client relationship and
could unintentionally influence the defendant in his or her choice.” Teague, 953
F.2d at 1533 n.8 (emphasis added). But besides the fact that dictum does not bind
future courts, the operative word in the Teague footnote is the word “discuss.”
Expounding on the perils of a trial court fully discussing the pros and cons of
testifying—which would require a preview of the defendant’s intended testimony,
a thrashing out of his credibility, a discussion of his ability to respond effectively
to potential cross-examination, as well the impact of any subsequent
impeachment—Ly expressed concern that such an interaction between the court
and the defendant would suggest the court’s own preference. Ly, 646 F.3d at 1315.
And, according to Ly, that type of in-depth colloquy “would improperly disturb the
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attorney-client relationship.” Id. at 1313.7 But Ly’s dictum expressing disapproval
of excessive court involvement in the decision whether to testify says nothing
about the propriety of a court engaging in a limited, neutral colloquy intended to
make a record of the defendant’s personal choice. And, of course, Ly’s bottom line
faulted the district court for not advising the defendant of his right to testify.
As to Ly’s and Teague’s general concern that a district court not improperly
influence the defendant’s choice by supplanting defense counsel and inserting
itself into the defendant’s decision-making process, the district court’s two, short
questions to Defendant here in no way delved into areas that were the sole
province of counsel in advising her client. The district court did no more than ask
if Defendant knew he had a right to testify. And when the Defendant said yes, the
court merely posed the obvious follow-up: was it Defendant’s decision not to
testify? Obtaining an on-the-record confirmation that a defendant knows about his
right to testify and has chosen not to exercise it does not require a court to
As examples of “inappropriate” commentary by the trial court, Ly cited cases where courts had
“insert[ed]” their “implied preference” about whether the defendant should take the stand,
encouraging defendants to waive or exercise their right to testify. Id. at 1313, 1315 (citing
United States v. Leggett, 162 F.3d 237, 248 (3d Cir. 1998) (noting that the district court had
advised the defendant to follow his attorney’s advice and not testify); United States v. Joelson, 7
F.3d 174, 178 (9th Cir. 1993) (noting that the district court had advised the defendant to follow
his attorney’s advice about whether to testify); United States v. Goodwin, 770 F.2d 631, 635–37
(7th Cir. 1985) (noting that the court “strongly implied that [the defendant’s] only chance for
acquittal was to testify”)).
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“discuss” sensitive issues of trial strategy or tip the scales in favor of testifying or
Some of our sister circuits have noted their approval of on-the-record
questioning as a means of protecting a defendant’s right to testify. For example, in
United States v. Tull-Abreu, the defendant complained that by apprising him of his
right to testify, as well as related rights associated with that decision, the district
court had coerced him into not testifying. United States v. Tull-Abreu, 921 F.3d
294, 302 (1st Cir.), cert. denied, 140 S. Ct. 424 (2019). The First Circuit
disagreed, noting that “it is not uncommon for district judges to make sure
defendants . . . are fully apprised of their testimonial rights,” id. at 302–03, and
further stating that “accurately making sure a defendant is fully apprised of his
rights is not coercion or any such violation,” id. at 303. See also United States v.
Stark, 507 F.3d 512, 516 (7th Cir. 2007) (noting that “the court usually retains
discretion” to “ask the defendant whether he generally understands that he is
entitled to take the stand” and to “ask follow-up questions to determine whether the
defendant had discussed his decision not to testify with his lawyer and to ensure
that the final decision represented the defendant’s personal choice”); Hollenbeck v.
Estelle, 672 F.2d 451, 452–53 (5th Cir. 1982) (a district court’s colloquy providing
a neutral explanation of the right to testify was “a model of appropriate judicial
concern for the constitutional rights of a criminal defendant.”).
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Indeed, some of these courts have specifically acknowledged the prudence
of such a district court practice. See Hartsfield v. Dorethy, 949 F.3d 307, 315 (7th
Cir. 2020) (suggesting that “prudent counsel may choose to put such waivers on
the record outside the presence of the jury, as is standard practice in some courts,”
and that, “[e]ven though ‘we do not require judges to question defendants
regarding their desire to testify,’ we certainly prefer it.” (quoting Thompson v.
Battaglia, 458 F.3d 614, 619 (7th Cir. 2006)); United States v. Mullins, 315 F.3d
449, 455 (5th Cir. 2002) (“Careful defense counsel routinely advise the trial judge
out of the jury’s presence that the defendant will or will not testify, contrary to
their advice. Even without its initiation by counsel, careful trial judges will
similarly inquire if the defendant understands his right to testify.”).
And, while a district court is not required to engage in this type of colloquy,
it is hard to dispute the prudence of such a practice in terms of judicial economy.
Specifically, Teague armed every non-testifying defendant with a potential
ineffective-assistance-of-counsel claim to challenge his conviction: that is, even if
untrue, a non-testifying defendant can simply assert that his attorney never told
him he had a right to testify or that, although he told his attorney that he wanted to
testify, the latter declined to put the defendant on the stand. For sure, a defendant
inventing such a claim might not prevail. But absent some evidence in the trial
record, that decision can usually be made only after an evidentiary hearing—and
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post-conviction right-to-testify claims often require time-consuming proceedings.
See, e.g., McGriff v. Dep’t of Corr., 338 F.3d 1231, 1237–38 (11th Cir. 2003)
(rejecting a claim that trial counsel prevented the defendant from testifying after
the district court had conducted two evidentiary hearings on the issue); Gallego v.
United States, 174 F.3d 1196, 1197–99 (11th Cir. 1999) (remanding for a new
evidentiary hearing on an ineffective-assistance-of-counsel claim that “boiled
down to ‘the defendant’s word against that of counsel’” about whether counsel
informed the defendant about his right to testify); Nichols v. Butler, 953 F.2d 1550,
1552 (11th Cir. 1992) (en banc) (affirming the district court’s finding, based on
testimony at an evidentiary hearing, that the defendant’s right to counsel was
denied when his attorney coerced him into not testifying by threatening to
withdraw mid-trial); Neuman v. Rivers, 125 F.3d 315, 319 (6th Cir. 1997)
(affirming a finding that the defendant had knowingly and voluntarily waived his
right to testify, after a state appellate court had remanded for an evidentiary
hearing because the criminal record did not establish a waiver).
Moreover, resolving exactly what conversations occurred between an
attorney and his defendant-client can be a difficult task in a post-conviction
hearing if the two individuals contradict each other or if counsel professes a blurry
recollection about an exchange that occurred years before. Indeed, given the
uncertainty of accurately recreating a conversation between a defendant and his
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counsel, it is the defendant who is actually telling the truth about his attorney’s
lapse who is possibly most harmed by a delay in confirming whether the defendant
was made aware of his right to testify. In addition, while we believe that the
overwhelming majority of attorneys would never purposely elect not to inform a
client of his right to testify, an attorney’s awareness that her silence on this point
might undo a subsequent conviction gives rise to a perverse incentive for counsel
to stay quiet.
An on-the-record waiver has the potential to nip these post-conviction issues
in the bud, eliminating the basis for a claim that the defendant was denied the right
to testify or teeing up the issue for the trial court to address on the spot. See United
States v. Camacho, 40 F.3d 349, 355 (11th Cir. 1994) (affirming on direct appeal
the district court’s finding that counsel was not deficient, after counsel credibly
testified at an evidentiary hearing that he had informed the defendant of his
personal right to testify and that the defendant had made the ultimate choice),
overruled on other grounds by United States v. Sanchez, 269 F.3d 1250 (11th Cir.
2001) (en banc); United States v. Jones, 844 F.3d 636, 645 (7th Cir. 2016)
(addressing a right-to-testify claim on direct appeal and holding that the district
court did not violate the right because, after three colloquies, the defendant
provided a response that was an unequivocal waiver); United States v. Hubbard,
638 F.3d 866, 870 (8th Cir. 2011) (rejecting an ineffective-assistance-of-counsel
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claim on direct appeal, after the district court held an evidentiary hearing where the
defendant admitted that the district court had “fully informed [the defendant] of his
right to testify” at trial); Taylor v. United States, 287 F.3d 658, 662 (7th Cir. 2002)
(noting that “[p]utting this information on the record [that counsel has discussed
the possibility of testifying with the defendant and that the defendant personally
decides not to take the stand] may avoid later collateral attacks”); United States v.
Barrows, 996 F.2d 12, 13–14 (1st Cir. 1993) (rejecting a claim that the defendant
did not knowingly and intelligently waive his right to testify because the district
court “fully advised [him] regarding his right to testify,” informing him that “his
prior convictions would be brought out if [he] testified,” it was his “own decision”
whether to testify, and he could ask the court questions about his rights).
Besides judicial economy, there is an even more obvious reason to reject
Defendant’s argument that a court should be disallowed from asking a defendant
whether he wants to testify. Specifically, a defendant has a constitutional right to
testify. It is an odd constitutional right that cannot even be mentioned to a
defendant. Disallowing a procedure that permits immediate vindication of a right
in favor of a protocol that might someday, years down the road, ensure that the
right was honored seems a peculiar way to go about securing the right. Making a
record of a defendant’s choice, by contrast, ensures that the defendant’s rights are
protected. If anything, a court’s practice in routinely asking a defendant these
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questions enhances the effectiveness of counsel. Aware that that the court will ask
the defendant whether he wants to testify, it is more likely that counsel will be sure
to discuss this matter with her client ahead of time, meaning that the topic will be
less likely to slip through the cracks during a fast-moving, hectic trial. And, as in
this case, a brief colloquy can prompt a defendant to further consult with defense
counsel, giving the attorney additional time to fully advise her client about the
strategic implications of his decision, thereby protecting both the defendant’s right
to testify and the defendant’s right to counsel. See also Tull-Abreu, 921 F.3d at
302 (colloquy provided multiple opportunities for counsel to further consult with
We reiterate that a trial court is not required to inquire on this subject. And
if it does so, it should avoid questions that probe trial-strategy issues or suggest the
court’s own opinion as to what choice the defendant should make—questions that
might disturb the attorney-client relationship, undermine the defendant’s ability to
make a knowing and intelligent decision, or overpower the defendant’s will. Here,
in asking Defendant only whether he was aware of his right to testify and what he
wanted to do, the district court fell well within the above guardrails. Nothing in
the framing of the two neutral, straight-forward questions by the district court
undermined Defendant’s right to testify or improperly intruded into the attorneyclient relationship by suggesting the court’s contrary leaning as to what the
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defendant should decide. Accordingly, we reject Defendant’s contention that his
conviction should be reversed due to the district court posing these questions.
B. Whether the District Court Abused Its Discretion in Declining to
Give Defendant’s Requested Jury Instruction on the CDSOA
Before trial, Defendant asked the district court to give a lengthy jury charge
on the CDSOA. As relevant on appeal, the instruction explained that, because
“shrimp is a raw material” in the shrimping industry, “a shrimp processor can
make a claim under the CDSOA for the cost of shrimp bought from a shrimper.”
The court declined to give the instruction, concluding that the instruction was
unnecessary because Defendant was not charged with violating the CDSOA and
was free to present evidence on the issue. Defendant challenges that decision on
“We review a district court’s refusal to give a particular jury instruction for
abuse of discretion.” United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir.
2006). “The failure of a district court to give an instruction is reversible error
where the requested instruction (1) was correct, (2) was not substantially covered
by the charge actually given, 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.” Id. at 947–48. “The Court applies a deferential
standard of review to the jury instructions a trial court actually gives.” Id. at 948.
“Under this standard, we will only reverse if we are left with a substantial and
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eradicable doubt as to whether the jury was properly guided in its deliberations.”
Id. (quotation marks omitted).
Here, the district court did not abuse its discretion because the absence of the
CDSOA instruction in no way impaired the defense. At trial, Defendant’s theory
of defense was that he had operated in good faith, submitting CDSOA claims for
real expenses incurred in purchasing shrimp from R&R Seafood. Defendant
contends that he needed the CDSOA instruction to make this argument because he
could not otherwise explain to the jury that he was legally entitled to claim the
purchase of shrimp. But there was never any dispute that Defendant could
lawfully claim the cost of buying shrimp as a raw-material expense on his CDSOA
forms. Indeed, the Government elicited testimony to that effect through Sean
Wuethrich, who oversaw administration of the CDSOA for Customs, and the
Government never argued that the law prohibited Defendant from claiming
expenses incurred in purchasing shrimp. The Government instead argued that
Defendant lied about incurring expenses and then sought to substantiate the
claimed expenses with fake invoices, which purported to show transactions that in
fact never occurred. The proposed CDSOA instruction had no bearing on these
issues—which were the central disputed issues of fact at trial—and Defendant was
free to pursue his good-faith defense without any legal or evidentiary impediment.
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Accordingly, the district court did not abuse its discretion in refusing to give
Defendant’s proposed CDSOA instruction.
C. Whether Federal Rule of Criminal Procedure 30(b) Requires
Reversal Because the District Court Amended an Erroneous MailFraud Instruction After Defense Counsel’s Closing Argument
1. Lead-up to the alleged error
In arguing for reversal at oral argument, Defendant focused on the two
issues discussed above. In his brief he also argues that his conviction should be
reversed because the district court violated Federal Rule of Criminal Procedure
30(b) by changing the mail-fraud jury charge after Defendant’s closing argument
and then by failing to issue a curative instruction to the jury explaining the reason
for the divergence between what counsel had said would be the instruction and the
instruction the court ultimately gave. We conclude that reversal is unwarranted on
Defendant’s Rule 30 challenge.
Before trial, the parties each submitted proposed jury instructions. As to the
substantive charge of mail fraud, this Court’s pattern instruction provides that use
of either the United States Postal Service or a private interstate carrier meets the
jurisdictional “mailing” requirement of the statute:
It’s a Federal crime to [use the United States mail] [transmit something
by private or commercial interstate carrier] in carrying out a scheme
to defraud someone. The Defendant can be found guilty of this crime
only if all the following facts are proved beyond a reasonable doubt: .
. . the Defendant used [the United States Postal Service by mailing or
by causing to be mailed] [a private or commercial interstate carrier by
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depositing or causing to be deposited with the carrier] something meant
to help carry out the scheme to defraud.
Eleventh Circuit Pattern Jury Instructions, Criminal Cases, O50.1 Mail Fraud
(2017) (brackets in original) (emphasis added). In short, the pattern instruction
mimics the mail-fraud statute in indicating the existence of these two alternative
means for satisfying the jurisdictional element. The pattern instruction further
defines a “private or commercial interstate carrier” as “includ[ing] any business
that transmits, carries, or delivers items from one state to another,” and clarifying
that “[i]t doesn’t matter whether the message or item actually moves from one state
to another as long as the message or item is delivered to the carrier.” Id. In other
words, a person can be found guilty of mail fraud if he uses the U.S. Postal
Service, a private or commercial carrier like UPS, or both to commit fraud.
As noted in the background section above, the nine-count indictment here
charged Defendant with four counts of mail fraud. In his proposed instruction
defining mail fraud, Defendant deleted from the pattern instruction any reference
to a “private or commercial interstate carrier,” as well as the definition of that term.
As a result, Defendant’s proposed charge stated that mail fraud involved using “the
United States mail” in a scheme to defraud and that a guilty verdict required a
finding that Defendant “used the United States Postal Service” in his scheme. By
contrast, the Government’s proposed mail-fraud instruction deleted only the first
reference to a “private or commercial interstate carrier.” In describing the
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elements of the offense, the Government retained the pattern instruction’s
references to both “the United States Postal Service” and “a private or commercial
interstate carrier,” placing the word “and” between the two alternative means of
satisfying the jurisdictional element. The Government also included the pattern
instruction’s explanation of the term “private or commercial interstate carrier.”
A week before trial, the court sent the parties a draft of the jury charges it
intended to give. The court’s draft adopted Defendant’s version of the charge,
which omitted any reference to a private or commercial carrier. When asked
during the first day of trial whether the parties had any objections to its draft
charges, the Government stated that it had no objections. At the close of evidence,
the court again asked whether there were any issues with its draft charges, and
neither party mentioned the mail-fraud instruction.
In its summation, the Government focused almost exclusively on the pivotal
question at trial: had Defendant lied by claiming entitlement to subsidies based on
inflated business expenses? The prosecutor also briefly summarized the court’s
anticipated mail-fraud jury charge, including the part indicating that mail fraud
required use of the U.S. Postal Service. In doing so, the prosecutor pointed out the
relevant exhibits and noted that there was no dispute that Defendant had mailed the
three claims for subsidy payments that corresponded with three of the mail-fraud
counts and that the Government had mailed the check sent to Defendant, which
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represented the fourth mail-fraud count. The three exhibits that the prosecutor
referred to, however, included shipping labels showing that Defendant had sent the
forms via a commercial carrier, UPS, not the U.S. Postal Service (USPS). The
prosecutor’s mistake would normally have been of no moment, given that evidence
showing that a defendant had used a commercial interstate carrier satisfies the
jurisdictional element of the statute. The oversight by the prosecutor gave rise to
the present problem, however, because the Government had not objected to
defense counsel’s request for an instruction that entirely omitted the use of a
private or commercial interstate carrier as a ground for finding Defendant guilty.
In her own closing argument, defense counsel spent almost all of her time
focusing on what had been Defendant’s defense throughout the trial: that
Defendant had acted in good faith in making his claims for federal subsidies,
meaning that the Government had failed to prove that Defendant had acted with an
intent to defraud. Toward the end of her closing, defense counsel—who had
obviously examined the above-described exhibits more closely than had her
Government counterpart—briefly touched on the shipping labels for the claims that
corresponded to three of the four mail-fraud counts. Counsel noted that the court
would be charging the jury that the Government was required to prove that the
defendant had “used the United States Postal Service.” Stating that the shipping
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labels for three of the claims showed the use of UPS, not the U.S. Postal Service,
she offered this fact as an additional basis for reasonable doubt.
Defense counsel’s statement obviously caught the district court’s attention,
as immediately after defense counsel had concluded her argument, the court called
a recess. Then, outside the presence of the jury, the court informed the attorneys
that it was going to amend the mail-fraud jury instruction to make clear that use of
either the U.S. Postal Service or a private or commercial interstate carrier satisfied
the mail-fraud statute’s jurisdictional element. The court indicated it did not know
why the parties had deleted the appropriate language from the requested charge.
Nevertheless, noting that it had just heard defense counsel argue that “there can’t
be any mail fraud here because you see right here, this was sent by UPS,” the court
responded, “And that’s just not the law. And I’m not going to charge this jury on
something . . . that’s not the law.” Defense counsel neither explained to the court
her reason for deleting the private-or-commercial-carrier aspect of the instruction
in her requests to charge nor voiced any objection to the instruction the judge said
he would be giving.
The jury was called back in and the prosecutor gave her rebuttal argument.
Like its earlier summation, the Government’s rebuttal focused on evidence
suggesting that Defendant had not bought the enormous quantity of shrimp he had
claimed, which, if so, would mean that his subsidy claims were highly inflated.
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Halfway through rebuttal, and based on the court’s statement that it would be
revising the instruction, the prosecutor made an isolated comment about the “UPS”
issue, stating: “And don’t let Ms. Copeland’s definition of mail fraud confuse you.
The judge will instruct you that UPS counts. So he’s guilty of everything else.”
The prosecutor then returned to her argument concerning the absence of any
reasonable doubt about Defendant’s intent to defraud.
At the conclusion of the Government’s rebuttal argument, defense counsel
asked for a curative instruction, arguing that the Government had suggested that
she purposely misled the jury about the court’s instructions. Counsel explained
that the indictment had said “U.S. Mail” and that the Government had not objected
to the instruction she had recited during her closing argument.
disagreed that the jury would have gotten the impression that counsel was being
dishonest, opining that the whole thing had likely “passed over their head” and that
the court saw no need for a curative instruction. In summary, the court explained
its thinking: “The charge needs to conform to the evidence and the law, and all
this charge does is conform to the evidence and the law . . . . I’m not going to give
any type of curative instruction that calls any special attention to it.”
Accordingly, she asked, “May I have a curative instruction saying to the jury something along
the lines that the pattern charge or the—I don’t want the jury to think that I was lying to them,
Judge, because I wasn’t. I was arguing from the charge that we had.”
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After the jury convicted Defendant on all counts, Defendant filed a motion
for judgment of acquittal and a motion for a new trial based on the district court’s
modification of the proposed mail-fraud charge. In arguing for a judgment of
acquittal, Defendant argued that, by instructing the jury that the jurisdictional
element could be satisfied either by the use of the U. S. Postal Service or a
commercial carrier, the district court had constructively amended the indictment.
Alternatively, Defendant argued that even if the instruction did not constructively
amend the indictment, acquittal was warranted because the evidence presented at
trial materially varied from the indictment.
The district court denied the motion for judgment of acquittal. In rejecting
Defendant’s contention that the revised instruction broadened the basis for
conviction beyond what was contained in the indictment and therefore
constructively amended the indictment, the court noted that the indictment had
“never specified that Defendant used the U.S. Postal Service to devise his scheme
to defraud the Government.” Rather, the court noted, “the indictment referenced
‘mailings’ throughout a detailed account of the Defendant’s purported scheme and
referred more generally to the ‘United States mail.’” The court interpreted the
In arguing for a new trial, Defendant argued that the revised jury instruction violated Federal
Rule of Criminal Procedure 30(b). The district court denied the motion. Defendant now pursues
that same argument on appeal. As noted infra, Defendant has abandoned any argument that the
instruction constituted a constructive amendment of the indictment or that there was a material
variance between the indictment and the evidence the Government presented at trial.
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indictment’s overarching reference to “mail” and “mailings” as “broadly
encompass[ing] both the U.S. Postal Service and other private carriers—including
UPS.” In short, the court concluded that its instruction permitting conviction so
long as either type of entity was used did not constitute a constructive amendment
of the indictment.
For the same reasons, the court rejected Defendant’s related contention that
there had been a material variance between the indictment and the evidence
presented at trial. In any event, the court noted, a defendant must demonstrate that
he suffered prejudice to succeed on an allegation of a material variance; that is, he
must show that he had not been placed on notice of the charges against him and
therefore was unable to prepare a defense. The district court observed that this was
clearly not the case as to the variance alleged by Defendant. Defendant knew full
well what the evidence was and there was no indication defense counsel had
experienced any difficulty preparing her case based on the wording of the
On appeal, Defendant has not challenged the district court’s ruling that there
was neither a constructive amendment of the indictment nor a material variance.
The only claim Defendant advances regarding this issue is his contention that the
district court violated Rule 30(b) when it supplemented the instruction after
defense counsel’s closing argument, which is the argument to which we next turn.
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On appeal, Defendant argues that the district court violated Federal Rule of
Criminal Procedure 30 by amending the draft mail-fraud jury instruction after
defense counsel’s closing argument. Rule 30 requires the court to “inform the
parties before closing arguments how it intends to rule on the requested
instructions.” Fed. R. Crim. P. 30(b). We require “substantial compliance with
Rule 30, and a conviction will be reversed due to a violation of the Rule only
where a defendant establishes prejudice.” States v. Pena, 897 F.2d 1075, 1084
(11th Cir. 1990), abrogated on other grounds, Coleman v. Singletary, 30 F.3d
1420 (11th Cir. 1994). Reversal may be warranted “when the change in the
instructions is substantial, when the judge’s instructions repudiate counsel’s
argument, or when the judge’s instructions impair the effectiveness of the
attorney’s argument.” Id. (quotation marks omitted). At the same time, “the court
retains power to remedy omissions in pre-argument instructions or to add
instructions necessitated by the arguments.” Id. (quoting from Fed. R. Crim. P. 30
advisory committee’s notes to 1987 amendments). Ultimately, in gauging
prejudice, we look to whether the revision of the instruction “so undermined
defense counsel’s effectiveness” or “the defense as to require reversal.” United
States v. White, 27 F.3d 1531, 1538, 1539 (11th Cir. 1994).
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First things first. To the extent that defense counsel believed that no
conviction was sustainable on the three mail-fraud counts involving use of UPS
because the indictment did not specify UPS, the route to litigate that claim was
through a motion for judgment of acquittal at the close of the Government’s case.
But counsel did not move for acquittal on that ground.
10 That being the case, the
judge’s duty in instructing the jury was, as the district court put it, to give a charge
that conformed to the evidence and the law. As defense counsel indicated in her
own closing argument, the evidence showed that UPS was used to perpetrate the
fraud in three mail-fraud counts. Accordingly, a correct statement of the law
required the court to instruct the jury whether use of a private or commercial
interstate carrier such as UPS satisfies the jurisdictional element of the offense, and
of course it does. Stated another way, had the district court told the jury that it
could not find Defendant guilty unless it found that the U.S. Postal Service had
been used, the court would have knowingly instructed the jury contrary to what the
law provides. Giving the jury the wrong explanation of the applicable law
contradicts the entire purpose of a jury instruction. Understandably, that was
anathema to the district court.
10 And, as noted, while counsel ultimately filed a post-conviction motion for acquittal on that
ground, she has not pursued an appeal of the district court’s rejection of that argument.
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The problem though was that the court had earlier approved an instruction
offered by defense counsel that, as a legal matter, wrongly stated that use of the
U.S. Postal Service was the only means by which the jurisdictional element could
be proved. And having approved that instruction, Rule 30(b) came into play when
the court later changed that instruction after defense counsel’s closing argument.
To repeat, Rule 30(b) requires that the district court inform counsel whether it will
give a requested instruction prior to counsel’s closing argument.
Of the relatively few cases addressing alleged Rule 30(b) violations, none
deal with these unusual facts here, which are: (1) an offense provides for two
means (A and B) of proving an element; (2) defense counsel requests and receives
an instruction stating that the jury can convict only if the Government proves that
Means A was used, but prior to closing argument, defense counsel knows full well
that the evidence has established that the defendant used only Means B; (3) having
heard no objection from the Government as to the instruction, the district court is
unaware prior to closing arguments that the evidence shows that the defendant
used only Means B—meaning that the district court’s earlier-approved instruction
totally misstates the law; (4) the district court becomes aware of the mistake only
when defense counsel announces during her closing argument that Means B, which
is not addressed by the instruction, was in fact used; and (5) armed with this new
information—which was unknown to it when it agreed to give the defendant’s
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requested instruction—the court announces immediately after defense counsel’s
closing argument that it will supplement its earlier-approved instruction by
informing the jury that the defendant’s use of either Means A or Means B may
establish the particular element.
No question, these odd facts do not neatly fit into any analytic pigeon-hole
for purposes of Rule 30(b). Nonetheless, we must decide whether the
supplementation of the instruction warrants reversal of the conviction on these
three mail-fraud counts. And to do so we look to the overriding purpose behind
Rule 30(b), which is to alert counsel to the legal instruction that the court will give
the jury so that counsel can best tailor her argument to the evidence and that
instruction. Yet, to repeat, even though Rule 30 seeks to ensure that counsel can
intelligently argue the case to the jury, it does not “empower counsel, through the
mechanics of the closing argument, either to dictate the law by which a verdict is
reached or to create a mistrial by erroneously stating the legal principles applicable
to a given situation.” Pena, 897 F.2d at 1085. Rather, under Rule 30, the court
still maintains some power “to add instructions necessitated by the arguments.” Id.
at 1084 (quotation marks omitted).
Accordingly, in Pena, we held that a district court substantially complied
with Rule 30 when defense counsel’s misstatement of the law in closing arguments
necessitated a change to the jury instructions, even though the defendants suffered
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some prejudice as a result. Id. at 1084–85. There, two defendants were charged
with importing marijuana into the United States, after authorities detected their
airplane flying beyond the United States customs boundary over the Gulf of
Mexico toward Florida. Id. at 1076–77. At the charge conference, the district
court said it would instruct the jury that “to import a substance” meant “to bring or
transport that substance into the United States from some place outside the United
States.” Id. at 1080. Defense counsel did not request a jury charge on the legal
meaning of “some place outside the United States” but incorrectly argued in
closing arguments that it meant “from a land place or flying to a boat outside the
United States.” Id. To fix the misconception created by defense counsel, the court
supplemented the jury instruction, charging the jury that “a place outside the
United States” included “air space in excess of 12 geographical miles seaward
from the coast of Florida.” Id. On appeal, we affirmed the defendants’
convictions. Id. at 1084–85. Although the supplementary charge “repudiated one
of counsel’s arguments” and may have diminished counsel’s effectiveness, we held
that the district court did not violate Rule 30 because “defense counsel’s blatant
misstatement of the law” necessitated the supplementary instruction, and ignoring
the misstatement “would have resulted in a verdict reached in contravention to the
law.” Id. Further, “[t]he change in the instructions was not substantial.” Id.
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Granted, the facts are somewhat different here than in Pena, as defense
counsel in that case had not earlier obtained court approval of a jury instruction
supporting the particular argument he offered in closing argument. Here, by
contrast, the court had previously approved Defendant’s proposed instruction
indicating that use of the U.S. Postal Service was the sole means of committing
mail fraud, an instruction that turned out to be blatantly incorrect as a legal matter,
given the evidence defense counsel relied on in closing. Nonetheless, as in Pena,
the court here would have failed to fulfill its duty to correctly state the law for the
jury had it not supplemented the approved jury instruction.
The question we must examine here is the extent to which Defendant was
unfairly prejudiced by the district court’s subsequent revision of the instruction that
defense counsel had paraphrased in her closing argument. The answer: there was
little prejudice at all, and certainly no unfair prejudice. First, the overriding issue
in the case for both the prosecution and the defense—during both trial and closing
arguments—was whether Defendant had falsely inflated the quantity of shrimp he
had purchased for the purpose of defrauding the relevant federal agency
administering the subsidy program. Any instruction regarding the means
Defendant had used to send his subsidy claims had nothing to do with the theory of
defense, which was that Defendant had acted in good faith in making his claims.
Indeed, defense counsel made only a passing reference to the mailing element,
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understandably using almost all her allotted summation time to spell out why there
was reasonable doubt that Defendant had acted with intent to defraud the
Government. Thus, the court’s supplementation of the instruction did not
repudiate the thrust of defense counsel’s summation. See United States v. Foppe,
993 F.2d 1444, 1451–52 (9th Cir. 1993) (concluding that “whatever loss of
credibility [defense] counsel may have suffered” from the court’s omission of a
proposed instruction that counsel told the jury the court would give “[was] not
sufficient prejudice to merit reversal,” where the court’s actual instruction did not
repudiate the core of defense counsel’s summation).
Nor does Defendant argue that the change to the instructions was substantial,
such that defense counsel’s reliance on the instruction could have caused
significant prejudice. In a case where the court has a change of heart about giving
a requested jury charge after defense counsel has made critical strategic decisions
about how to approach closing arguments, a Rule 30 violation is apt to cause
substantial prejudice. See, e.g., United States v. Gaskins, 849 F.2d 454, 460 (9th
Cir. 1988) (concluding that reversal was warranted where the court ruled before
closing arguments that it would not give an aiding-and-abetting instruction but
decided in response to a jury question to give the instruction, thereby preventing
defense counsel from presenting viable theories of defense); see also United States
v. Harvill, 501 F.2d 295, 297 (9th Cir. 1974) (holding that the court’s instruction
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that specific intent was not required caused substantial prejudice by repudiating
defense counsel’s closing argument, which in part stressed the issue of specific
intent based on the court’s prior decision to give a requested instruction on the
But this is not such a case. The district court here instructed the jury that the
Government bore the burden of disproving Defendant’s good faith, which issue
was the foundation of Defendant’s theory of his defense. The court’s decision to
add back into the pattern instruction the alternative means of satisfying the mailfraud statute’s jurisdictional element merely served to remove potential confusion
about the governing law, something that a complete pattern instruction resolved.
See United States v. Shirley, 435 F.2d 1076, 1078 (7th Cir. 1970) (finding no
prejudice from the court giving an additional instruction that “simply removed a
potential source of confusion concerning the elements of the crime,” where the
evidence at trial in conjunction with defense counsel’s closing argument created a
risk that the jury might not understand the charge). Plus, victory on these three
mail-fraud counts based on insufficient jurisdictional evidence would have gained
Defendant very little as he was convicted on a fourth mail-fraud count based on the
subsidy check issued to him, as well as on three false statement counts that charged
the same fraudulent conduct identified in the three mail-fraud counts at issue. For
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those false statement counts, it mattered not at all what mailing service Defendant
had used to send his claims.
True, Rule 30(b) exists to prevent an attorney from being surprised by an
instruction that might contradict the attorney’s theory of the case, as expressed in
closing argument. Yet, the record reveals no surprise on counsel’s part when the
district court called a recess after defense counsel’s closing argument, indicated
that counsel’s argument totally misstated the law, and stated that it would
supplement the instruction previously approved to say that the jurisdictional
element could be satisfied by use of either a commercial carrier or the U.S. Postal
Service. Defense counsel voiced no disagreement with the Court’s statement or
any objection to its stated plan to supplement the instruction. Indeed, Defendant
does not argue that changing the jury instruction after his closing argument
prevented him from presenting any point to the jury that could withstand judicial
scrutiny. United States v. Walter-Eze, 869 F.3d 891, 910–11 (9th Cir. 2017)
(holding that the defendant did not suffer prejudice from the addition of a
deliberate-ignorance instruction where defense counsel made the instruction
relevant in summation and was not prevented from making any points essential to
the defense). In fact, Defendant admitted on the stand that he had “mailed” the
CDSOA forms to Customs.
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None of which is to suggest that we are accusing defense counsel of
wrongdoing. To the contrary, it was not defense counsel’s job to coach the
Government as to the need to object to an instruction for which an objection was
clearly in order. Nor was it defense counsel’s job to alert the prosecutor that the
latter might perhaps want to read more carefully the Government’s own exhibits.
Defense counsel did her job; the Government should have been more diligent in
handling its own responsibilities. All the same, the district court had agreed to
give an instruction that it reasonably thought conformed to the relevant evidence.
Defense counsel, a very able and experienced attorney, had to foresee the
possibility that the court would take corrective action once it realized that the
instruction it had agreed to give was not just legally incomplete, but flat out wrong
under the circumstances. Accordingly, defense counsel must have anticipated any
prejudice that Defendant experienced—which was quite slight—when she received
agreement to an instruction that did not conform to the evidence. In short,
Defendant has not shown prejudice warranting reversal of the three mail-fraud
convictions based on the district court’s decision to supplement its previouslyapproved instruction after defense counsel’s summation.
Defendant argues, however, that even if his defense was not prejudiced by
the court’s supplementation of the instruction, defense counsel’s effectiveness was
undermined when the Government suggested in rebuttal that defense counsel had
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misled the jury by arguing that Defendant could not be convicted for mail fraud if
he used UPS.
11 Although defense counsel failed to object when the court informed
her at the conclusion of her own argument that the court would supplement the
instruction, once the Government concluded its rebuttal argument, counsel did ask
the court to give a curative instruction informing the jury that counsel had not
attempted to mislead the jury. The district court declined, explaining that in the
judge’s opinion, such an instruction was unnecessary and would focus undue
attention on what the court thought was an insignificant issue that had likely
“passed over [the jury’s] head.”
We disagree that reversal of Defendant’s conviction is warranted based on
the prosecutor’s remark and the district court’s refusal to give a curative
instruction. That said, we understand defense counsel’s frustration that the
prosecutor did not attempt a more balanced explanation of what had happened.
After all, in her own summation, the prosecutor had quoted from the same
instruction regarding the jurisdictional element that defense counsel had used. For
sure, once aware that the district court would supplement its instruction to include
use of UPS as a viable basis for finding the jurisdictional element, the prosecutor
had to say something in rebuttal to alert the jury to that fact. A more graceful
11 To repeat, the prosecutor stated, “And don’t let Ms. Copeland’s definition of mail fraud
confuse you. The judge will instruct you that UPS counts. So he’s guilty of everything else.”
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explanation would have informed the jury that both attorneys had made a mistake
in reciting the language of the instruction and that, instead, the instruction the court
would give would indicate that use of a commercial interstate carrier satisfied the
relevant element of the mail-fraud statute.
And in fact, turning our hindsight vision to defense counsel, when the
district court announced that it would revise the instruction, instead of remaining
mute, defense counsel should have explored with the court the appropriate way to
communicate that decision to the jury, such that any remarks the prosecutor
subsequently made during rebuttal would have been better scripted. As to defense
counsel’s request for a curative instruction, it would likewise have been useful for
the district court to explain to the jury as part of its instruction on the elements of
mail fraud that there had been a mistake in the drafting of the instruction, which
both attorneys had recited during their closing arguments, and that the court had
now corrected this mistake.
Nevertheless, none of these things happened. And while in retrospect the
matter could have been handled better, the district court’s refusal to give a curative
instruction regarding the prosecutor’s brief comment—a decision that we review
under the generous abuse of discretion standard—does not warrant reversal. See
United States v. Palma, 511 F.3d 1311, 1317 & n.4 (11th Cir. 2008). We conclude
that the prosecutor’s remark was simply not a significant enough matter to justify
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upending a conviction that appears to have been based on overwhelming evidence.
Accordingly, we decline to reverse Defendant’s conviction based on the court’s
alleged Rule 30 violation or its refusal to give a curative instruction.
D. Whether the District Court Plainly Erred in Giving a Modified
Allen Charge Similar to the Pattern Instruction
Defendant argues for the first time on appeal that the language of the district
court’s Allen charge was impermissibly coercive. Because Defendant did not
object at trial, we review the district court’s Allen charge for plain error. United
States v. Jones, 504 F.3d 1218, 1219 (11th Cir. 2007). Plain error occurs when
(1) there was an error, (2) the error was plain or obvious, (3) the error affected the
defendant’s substantial rights, and (4) the error seriously affected the fairness,
integrity, or public reputation of the judicial proceedings. United States v.
Johnson, 694 F.3d 1192, 1195 (11th Cir. 2012).
“The Supreme Court held long ago that a trial court may instruct a
deadlocked jury to keep deliberating,” an instruction commonly referred to as an
Allen charge. United States v. Davis, 779 F.3d 1305, 1312 (11th Cir. 2015) (citing
Allen v. United States, 164 U.S. 492, 501–02 (1896)). Although we have criticized
the practice of giving Allen charges, we have squarely held that they are
permissible. Id. (citing United States v. Rey, 811 F.2d 1453, 1459–60 (11th Cir.
1987)). “A district court has broad discretion in this area but must not coerce any
juror to give up an honest belief.” Id. “We will find that a district court has
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abused its discretion in giving a modified Allen charge only if the charge was
inherently coercive.” United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir.
2008) (alteration accepted). To determine whether a charge was impermissibly
coercive, “we consider the language of the charge and the totality of the
circumstances under which it was delivered.” Id.
Here, it is undisputed that the district court’s modified Allen charge largely
tracked this Court’s pattern instruction, which we have approved “on numerous
occasions.” United States v. Bush, 727 F.3d 1308, 1320 (11th Cir. 2013) (quoting
Woodard, 531 F.3d at 1364). Accordingly, Defendant’s argument hinges on
specific differences between the pattern instruction’s language and that of the
district court’s charge. But the argument fails from the outset because Defendant
has not identified any binding precedent holding that the court’s novel language
renders an otherwise acceptable Allen charge impermissibly coercive. See
Johnson, 694 F.3d at 1195 (“In order for an error to be obvious for purposes of
plain error review, it must be plain under controlling precedent or in view of the
unequivocally clear words of a statute or rule.” (quotation marks omitted)).
Indeed, the only case Defendant relies on to show plain error is United States v.
Rey, 811 F.2d 1453 (11th Cir. 1987), a case where a panel of this Court expressed
a desire to eliminate Allen charges but concluded that precedent bound it to uphold
a charge that—like the one here—“was virtually identical to the pattern Allen
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instruction for this circuit.” Rey, 811 F.2d at 1458–60. Defendant has therefore
failed to carry his burden of showing plain error.
Even if we accepted Defendant’s argument that we should review his claim
for an abuse of discretion, which we do not, we discern no error in the district
court’s modified Allen charge.
12 Defendant argues that six linguistic differences
rendered the court’s charge impermissibly coercive.
Pattern Instruction13 District Court’s Instruction
1 If you fail to agree on a verdict,
the case will be left open and
may have to be tried again.
If you should fail to agree on a
verdict, then the case is left open
and must be tried again.
2 Another trial would increase the
cost to both sides, and there is no
reason to believe that the case
can be tried again by either side
any better or more exhaustively
than it has been tried before you.
And obviously another trial would
only serve to increase the cost to
both sides, and there’s no reason to
believe that the case can be tried
again by either side better or more
exhaustively than it’s been tried
3 If a substantial majority of you
are in favor of a conviction,
those of you who disagree
should reconsider whether your
doubt is a reasonable one since it
appears to make no effective
If a substantial majority of your
number are for a conviction, then
each dissenting juror ought to
consider whether a doubt in his or
her mind is a reasonable one since it
appears to make no effective
12 We reject Defendant’s argument that he did not have an opportunity to object at trial, and thus
that we should review for an abuse of discretion. Because the district court stayed on the bench
to address other matters after giving the Allen charge, the record shows that Defendant had a
chance to object.
13 Eleventh Circuit Pattern Jury Instructions, Criminal Cases, T5 Modified Allen Charge (2017).
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impression upon the minds of the
impression upon the minds of the
4 On the other hand, if a majority
or even a smaller number of you
are in favor of an acquittal, the
rest of you should ask yourselves
again – and most thoughtfully –
whether you should accept the
weight and sufficiency of
evidence that fails to convince
your fellow jurors beyond a
On the other hand, if a majority or
even a lesser number of you are for
acquittal, the other jurors seriously
ought to ask themselves again, and
most thoughtfully, whether they do
not have a reason to doubt the
correctness of a judgment which is
not shared by several of their fellow
jurors and whether they should
distrust the weight and efficiency of
evidence which fails to convince
several of their fellow jurors beyond
a reasonable doubt.
5 Remember at all times that no
juror is expected to give up an
honest belief about the weight
and effect of the evidence.
Remember at all times that no juror
is expected to yield a conscientious
conviction that he or she may have
as to the weight or effect of the
6 But after fully considering the
evidence in the case you must
agree upon a verdict if you can.
But remember also that after full
deliberation and consideration of
the evidence in the case, it’s your
duty to agree upon a verdict, if you
can do so without surrendering your
This side-by-side comparison makes clear that the district court’s deviations
from the pattern instruction were minor wording changes. Defendant fails to show
how that the district court’s use of synonymous or near-synonymous terms and
phrases rendered the court’s modified Allen charge any more confusing or coercive
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than the pattern instruction, which we have repeatedly upheld. See Bush, 727 F.3d
Finally, to the extent that Defendant argues the charge was coercive because
“only an hour elapsed between the Allen charge and the jury’s verdict,” we are
unpersuaded. The jury continued deliberating for another hour and a half after the
charge, suggesting that jurors in the minority did not feel forced to roll over
without engaging in further conscientious deliberation. See Rey, 811 F.2d at 1458,
1460 (affirming convictions where the jury deliberated for an hour and a half after
receiving an Allen charge, and noting that the circumstances were no more
coercive than in a former Fifth Circuit case where the jury deliberated for only 25
minutes after receiving an Allen charge); United States v. Bailey, 468 F.2d 652,
664–65 (5th Cir. 1972) (concluding that an Allen charge was not impermissibly
coercive where the jury continued deliberating for an hour and a half after
receiving the charge), aff’d on reh’g, 480 F.2d 518 (5th Cir. 1973) (en banc).
Accordingly, the district court did not err, plainly or otherwise, in giving the
modified Allen charge.
Outcome: After careful consideration, we conclude that the district court (1) did not err
in requesting an on-the-record waiver of Defendant’s right to testify, (2) did not
abuse its discretion in declining to give Defendant’s proposed jury instruction
explaining the CDSOA, (3) committed no reversible error, in violation of Rule
30(b), when it revised the mail-fraud jury instruction to correct a misstatement of
the law by defense counsel during her closing argument, and (4) did not plainly err
in giving a modified Allen charge.