United States v. Daniel

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 15, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 06-60822
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
BYRON DANIEL,
Defendant-Appellant
Appeal from the United States District Court
For the Southern District of Mississippi
5:05-CR-19
Before DAVIS, DENNIS and PRADO, Circuit Judges.
PER CURIAM:*
Defendant-appellant Bryon Daniel (“Daniel”) appeals his
conviction for the crime of escape in violation of 18 U.S.C. §
751(a). Daniel argues that the district court erred in (1) denying
his motion for new trial based on improper comments made by the

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prosecutor during closing argument; (2) denying his motion to
dismiss for double jeopardy; and (3) denying his second motion for
new trial or in the alternative request for interviews of jurors.
For the following reasons, we AFFIRM.
I.
In April 2005, Daniel was serving a federal sentence in a
minimum security facility at the Federal Correctional Complex in
Yazoo City, Mississippi (“FCC-Yazoo”). The Government alleged that
Daniel escaped from this facility on April 16, 2005 by crossing the
property line. Although Daniel admitted that leaving the prison
camp building was a violation of prison policy, he denied he
crossed the FCC-Yazoo property line. As a result of his violation
of prison policy, Daniel was placed in solitary confinement for a
period of about seven months, lost visiting and work privileges,
and was ultimately transferred to a higher security facility.
In December 2005, an indictment was filed against Daniel for
escape. Prior to trial, the Government filed a motion in limine,
which sought to prohibit Daniel “from introducing into evidence,
mentioning in voir dire or opening statement, or otherwise
presenting before the jury any evidence pertaining to any
administrative disciplinary action or punishment received by the
defendant, or that he was subject to, as a result of his actions
resulting in the instant charges.” The motion was granted by the
district court. Daniel was subsequently found guilty of escape and

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was sentenced to ten months of imprisonment, three years of
supervised release, and ordered to pay a $100 special assessment.
Daniel timely appealed.
II.
As his first assignment of error, Daniel argues that the
following portion of the prosecutor’s closing argument was
improper:
[The Prosecutor]: The only thing that keeps inmates in
a camp facility that has no fence,
the only thing that keeps those
inmates up there at Yazoo City FCI
at the camp, is the knowledge that
if they cross that line and leave
the prison grounds, they’re going to
be caught and punished. And if you
take away that punishment -
[Defense Counsel]: Objection. Your Honor, he’s talking
about punishment here.
[The Court]: Well, that deterrent.
[The Prosecutor]: I used the wrong word. I should
have used the word “deterrent.”
[The Court]: Substitute the word - objection
sustained. Substitute the word
“deterrent” on that.
[The Prosecutor]: I apologize. I didn’t mean to
mislead anybody.
The point I’m trying to make is it’s
important. When inmates at a camp
can freely go across and leave that
campground and nothing happens,
there is no deterrent to keep the
next guy from going and maybe even
going further.
Daniel claims that this argument was improper for two reasons:
(1) it urged the jury to consider “deterrence” as a factor in its
deliberations; and (2) it permitted the government to argue
deterrence when the defense was prohibited by the ruling on the

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2United States v. Gallardo-Trapero, 185 F.3d 307, 321 (5th
Cir. 1999).
3United States v. Fields, 72 F.3d 1200, 1207 (5th Cir.
1996).
4Gallardo-Trapero, 185 F.3d at 320 (internal citation and
quotations omitted).
5Fields, 72 F.3d at 1207.
6Id.
4
motion in limine from presenting any testimony that Daniel suffered
administrative punishment for his act. Since defense counsel did
not contemporaneously object to the prosecutor’s use of the word
“deterrent” in his argument, we must review Appellant’s claim based
upon plain error.2
This court has set forth a two-part test for reversible
prosecutorial misconduct: (1) the prosecutor’s remarks must in fact
have been improper; and (2) the remarks must have prejudicially
affected the substantive rights of the defendant.3 In determining
whether the prosecutor’s comments prejudiced the defendant’s
substantive rights, consideration is given to “(1) the magnitude of
the statement’s prejudice; (2) the effect of any cautionary
instructions given; and (3) the strength of the evidence of the
defendant’s guilt.”4 “The magnitude of the prejudicial effect is
tested by looking at the prosecutor’s remarks in the context of the
trial in which they were made and attempting to elucidate their
intended effect.”5 The district court’s on-the-scene assessment of
the prejudicial effect, if any, carries considerable weight.6

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7Unlike the cases cited by the defendant, the prosecutor’s
closing argument using the word “deterrent” did not appeal to an
emotionally-charged, wide-scale, social problem such as the war
on drugs. See United States v. Johnson, 968 F.2d 768, 772 (8th
Cir. 1992); United States v. Solivan, 937 F.2d 1146, 1153 (6th
Cir. 1991); United States v. Lee, 743 F.2d 1240, 1253 (8th Cir.
1984). There is no evidence in the record indicating that inmate
escapes are a frequent and recurring problem, and the
prosecutor’s closing arguments did not imply that such was the
case.
8Fields, 72 F.3d at 1208 (emphasis added).
9We have upheld as proper the following prosecutor’s
argument: “You are the arbiters of truth. You are the ones who
stand between citizens of this country and an injustice, crimes
that were committed against the nation in which we live.” United
States v. Ruiz, 987 F.2d 243, 248 (5th Cir. 1993). Similarly, we
upheld the following argument as proper: “It’s a neighborhood
problem. If we take neighborhoods back by putting these people
in jail, we can eventually work our way to solving this problem.
But it’s got to start right here.” Fields, 72 F.3d at 1207.
5
Daniel concedes that there is no Fifth Circuit case directly
addressing the issue of whether “deterrence” is a proper element
for the jury to consider in a criminal trial, and the cases relied
upon by Daniel as persuasive authority are distinguishable from the
instant circumstances.7 Contrary to Daniel’s argument, our case law
indicates that “appeals to the jury to act as the conscience of the
community are permissible, so long as they are not intended to
inflame.”8
In this case, we conclude that it was not improper for the
prosecutor to urge the jury to consider deterrence in his closing
argument.9 During trial, Daniel testified, inter alia, that “being
out of bounds or going to pick up some food is not like a real bad
thing.” We agree with the district court that the prosecutor’s

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10See Ruiz, 987 F.2d at 249 (“The prosecutor’s statements
were merely a plea to the jury to do its duty - the record
reveals no evidence of an intent to inflame.”).
6
closing remarks sought to encourage the jury to perform its duty to
convict on the evidence in spite of the fact that Daniel’s
infraction seemed minor. On the whole, the prosecutor’s comments
regarding the need to deter similar conduct in the future by the
defendant and the general inmate population were not inflammatory,
and therefore, were not improper.10
It is a closer call whether in the context of this case it was
plain error for the court to allow the prosecutor to argue there
was nothing to deter Daniel or other inmates from escaping from a
camp other than a fear of criminal punishment, and at the same time
prevent the defense from informing the jury of the administrative
punishment that Daniel suffered. However, even if the district
court did err in allowing the prosecutor to argue deterrence after
granting the government’s motion in limine, we conclude that the
remarks did not operate to the substantial prejudice of Daniel, and
thus, do not warrant reversal.
III.
As a result of Daniel’s escape, the Bureau of Prisons (the
“Bureau”) placed him in solitary confinement for a period of about
seven months, and ultimately transferred him to a higher security
facility, which resulted in a loss of visiting, recreational and
work privileges he enjoyed in the minimum security facility.

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11Fields, 72 F.3d at 1209.
12522 U.S. 93 (1997). In Hudson, the Supreme Court held
that the Double Jeopardy Clause “protects only against the
imposition of multiple criminal punishments for the same
offense.” Id. at 99 (emphasis in original).
13See, e.g., Porter v. Coughlin, 421 F.3d 141 (2d Cir.
2005); Welch v. Epps, 103 F. App’x 828 (5th Cir. 2004); United
States v. Shepard, 78 F. App’x 387 (5th Cir. 2003); Singleton v.
Page, 202 F.3d 274 (7th Cir. 1999); United States v. Mayes, 158
F.3d 1215 (11th Cir. 1998); United States v. Galan, 82 F.3d 639
(5th Cir. 1996); United States v. Hernandez-Fundora, 58 F.3d 802
(2d Cir. 1995); United States v. Brown, 59 F.3d 102 (9th Cir.
1995); Garrity v. Fiedler, 41 F.3d 1150 (7th Cir. 1994); United
States v. Newby, 11 F.3d 1143 (3d Cir. 1993); United States v.
Rising, 867 F.2d 1255 (10th Cir. 1989); United States v.
Williamson, 469 F.2d 88 (5th Cir. 1972); Gilchrist v. United
States, 427 F.2d 1132 (5th Cir. 1970); Keaveny v. United States,
405 F.2d 821 (5th Cir. 1969).
7
Daniel moved to dismiss the indictment against him on the ground
that his administrative punishment constituted “punishment”, and
that the instant prosecution therefore violated the Double Jeopardy
Clause. We review the double jeopardy claim de novo, although the
district court’s factual findings are accepted unless clearly
erroneous.11
We conclude that Daniel’s argument lacks merit. We, as well
as other courts, have held, pre- and post-Hudson v. United States,12
that disciplinary sanctions imposed by prison authorities for
infractions of prison regulations do not bar a subsequent criminal
prosecution.13 We see no reason to depart from this general rule
in this case. We therefore affirm the district court’s denial of
Daniel’s motion to dismiss the indictment.
IV.

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14United States v. Straach, 987 F.2d 232, 242 (5th Cir.
1993).
15Federal Rule of Evidence 606(b) provides in pertinent
part:
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or
statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or
any other juror’s mind or emotions as influencing the
juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes
in connection therewith. But, a juror may testify
about (1) whether extraneous prejudicial information
was improperly brought to the jury’s attention . . . .
Fed. R. Evid. 606(b) (emphasis added).
8
After Daniel was convicted, but before his sentencing, the
district court received a letter from a juror claiming, inter alia,
that a juror had commented during deliberations that he made
deliveries to FCC-Yazoo and stated that “people come and go” all
the time. As a result, Daniel filed a second motion for new trial
or, in the alternative, for interview of jurors, arguing that the
jury improperly considered extraneous prejudicial evidence in
reaching its verdict. Without holding a hearing, the district
court denied the motion. The district court found that, although
the jury was exposed to extraneous evidence, it was highly unlikely
that Daniel was prejudiced by this statement. We review the
district court’s denial for an abuse of discretion.14
Assuming that the alleged statement made by the juror is
properly characterized as “extraneous prejudicial information”
under Federal Rule of Evidence 606(b),15 we agree with the district

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16We also conclude that the district court did not abuse its
discretion in failing to hold a hearing to assess whether the
jury was adversely influenced by the subject statement. See
United States v. Weber, 750 F.2d 307, 338 (5th Cir. 1984). In
general, the manner of handling jury misconduct is left to the
sound discretion of the trial judge. See id.
9
court that Daniel was not prejudiced by this statement. During
trial, Daniel stated that the rules restricting movement around the
camp were very lax and often went unenforced, even testifying that
persons would enter from outside the camp to play basketball with
the prisoners. As a result, the statement allegedly made by the
juror concerning the freedom with which people came and went at the
camp served only to confirm Daniel’s own testimony. In fact, in
his motion, Daniel admitted that the juror’s statement “could be
taken as favorable to the defense theory.” Accordingly, we find
that the district court did not abuse its discretion in denying
Daniel’s motion for new trial.16
V.
For the foregoing reasons, we AFFIRM.

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