Case: 13-14558   Date Filed: 07/21/2014   Page: 1 of 5


                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14558
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:13-cr-20111-DMM-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus


AZAEL GUARIN MORENO,

                                                         Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (July 21, 2014)

Before PRYOR, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
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      Azael Guarin Moreno appeals his convictions for (1) smuggling 153

emeralds into the United States, in violation of 18 U.S.C. § 545; and (2) making

false or fraudulent statements to the Department of Homeland Security regarding

the emeralds, in violation of 18 U.S.C. § 1001(a)(2). On appeal, Moreno argues

the district court’s supplemental instructions to the jury in response to a question

from the jurors (1) constructively amended the indictment because it allowed the

jury to convict him for intending to defraud Colombia or a private broker, rather

than the United States; (2) repudiated or impaired the effectiveness of his defense;

and (3) misled the jurors and prejudiced him. After review of the record and

consideration of the parties’ briefs, we affirm.

      The district court’s response to the jury’s question did not constructively

amend the indictment. See United States v. Sanders, 

, 1309 (11th

Cir. 2012) (“A constructive amendment to the indictment occurs where the jury

instructions so modify the elements of the offense charged that the defendant may

have been convicted on a ground not alleged by the grand jury’s indictment.”

(quotation omitted)). While deliberating, the jury sent a question to the district

court asking: “Clarity: #3 the defendant acted willfully with intent to defraud the

United States.” After consulting both parties, and over Moreno’s objections, the

district court responded:

      Intent to defraud is defined on Page 13 of the instructions. Basically,
      it means to . . . act with the intent to deceive or cheat.

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      Willfully is defined on Page 17. To act willfully means to act with the
      intent to do something unlawful. It requires proof that the defendant
      knew his conduct was generally unlawful but does not require that a
      defendant knew of the specific requirement he was violating.

In context, the district court’s response did not expand the grounds on which the

jury could convict Moreno. See United States v. Vernon, 

, 1264

(11th Cir. 2013) (“In evaluating whether the indictment was constructively

amended, we review the district court’s jury instructions in context to determine

whether an expansion of the indictment occurred either literally or in effect.”

(quotations and alteration omitted)). The district court specifically referred the

jury to the court’s written instructions, which explained that Moreno could be

found guilty of the smuggling charge only if it was proven beyond a reasonable

doubt that he acted willfully with intent to defraud the United States. The court

also verbally instructed the jury consistent with the written instructions. By

repeating the definitions of “intent to defraud” and “willfully” in its supplemental

instructions, the district court in no way indicated Moreno could be convicted for

intending to defraud a party or entity other than the United States and no

constructive amendment occurred.

      For the same reasons, the district court’s response to the jury’s question did

not repudiate or impair the effectiveness of Moreno’s defense, which was premised

on his contention that he hid the emeralds in the lining of his jacket and in his


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luggage to avoid paying the Colombian government and a private broker, not to

defraud the United States. In answering the jury’s question, the district court did

not alter or modify any elements of the charged offenses or its initial instructions

such that Moreno was prevented from addressing all of the elements in his

arguments to the jury. See United States v. Descent, 

, 707 (11th Cir.

2002) (explaining that the district court impaired the effectiveness of the defense’s

arguments when it modified the amount the defendant could be required to forfeit

in response to a jury question, thereby preventing counsel from addressing the

entire amount during closing argument); see also United States v. Lopez, 

, 1252-54 (11th Cir. 2009). Moreno specifically argued that he was not

charged with avoiding paying a broker’s fee or intending to defraud the Colombian

government, and that the jurors should find he was not guilty if his intent was to

avoid paying a broker or paying fees to Colombia. The district court’s

supplemental instructions reiterating the definitions of the requisite mental states

for the charged offenses did not undermine or repudiate those arguments.

      The district court’s supplemental instructions also did not mislead the jury or

prejudice Moreno. Although Moreno argues that, as charged by the grand jury,

“willfully” means “to act with the intent to deceive or cheat the United States

government,” the Supreme Court has held that “in order to establish a willful

violation of a statute, the Government must prove that the defendant acted with


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knowledge that his conduct was unlawful.” Bryan v. United States, 

,

191-92 (1998) (quotations omitted). The district court’s supplemental instructions

accurately stated the law, see id.; see also 11th Cir. Pattern Jury Instr. (Crim) 20

(2010), and did not mislead or confuse the jury, particularly when viewed in light

of the entire jury charge, indictment, evidence, and argument of counsel, see

United States v. Johnson, 

, 1366 (11th Cir. 1998) (“A challenged

supplemental jury instruction is reviewed as part of the entire jury charge, in light

of the indictment, evidence presented and argument of counsel to determine

whether the jury was misled and whether the jury understood the issues.”

(quotation omitted)).

      Accordingly, Moreno’s convictions are AFFIRMED.




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