NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 12-3964
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                     ROD PEREZ,
                                              Appellant
                                    ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                        (D.C. Crim. No. 2-11-cr-00862-001)
                  District Judge: Honorable Katharine S. Hayden
                                  ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    July 11, 2013
                                   ____________

         Before: GREENAWAY, JR., SLOVITER and BARRY, Circuit Judges

                             (Opinion Filed: July 19, 2013)
                                    ____________

                                       OPINION
                                     ____________

BARRY, Circuit Judge

      Appellant Rod Perez was found guilty at trial of eight drug-related offenses and

was sentenced to 120 months‟ imprisonment. He appeals the decision of the District

Court denying his request to give the jury a supplemental instruction in response to two
of its questions. We will affirm.

                                             I.1

       On December 16, 2011, Perez was charged in an eight-count indictment, which

included conspiracy counts involving the importation and distribution of heroin and

cocaine, and counts of aiding and abetting the distribution and importation of those

narcotics. During trial, among other instructions, the District Court charged the jury on

accomplice liability in accordance with the Third Circuit‟s Model Jury Instruction § 7.02.

See Supp. App. 155.

       While the jury was deliberating, it sent a note asking two questions about the

accomplice liability instruction. Specifically, it asked: “Is providing an instruction

sufficient to show „some act‟ for the purposes of the 3rd and 4th elements of aiding and

abetting? Same question . . . but a suggestion rather than an instruction.” App. 501. In

broad summary, the third and fourth elements require the jury to find that a defendant

knowingly did some act for the purpose of aiding or encouraging the commission of the

specific offense charged, with the intent that that offense be committed, and that his act

aid or encourage the commission of the offense.

       During a discussion with the District Court about the jury‟s questions, the parties

agreed that an instruction by the defendant would be sufficient to constitute an act for

purposes of aiding and abetting liability, but disagreed as to whether a suggestion would

be enough. The government argued that “a suggestion may be enough depending upon

1
 The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. This Court
exercises jurisdiction under 28 U.S.C. § 1291.
                                             2
the circumstances surrounding that suggestion.” App. 506. On the other hand, Perez

asserted that “a suggestion could not be sufficient because it is just inconsistent with what

the jury would have to find beyond a reasonable doubt, to find that the instruction was

with a specific intent to commit an offense.” 

Court considered providing affirmative answers to the jury‟s

questions, it ultimately declined to do so out of concern for unduly influencing the jury.

The Court acknowledged that our caselaw had “given jurors and judges and lawyers

every possible thing in the world to fill in for some act,” and concluded that “getting too

particularized [in answering these questions, would risk] driving a verdict in a way that is

not [its] job to do.” 

the Court responded in the following manner:

       You have asked 2 questions that focus on the 3rd and 4th requirements
       which the government must prove beyond a reasonable doubt in order to
       find Mr. Perez guilty of aiding and abetting the crimes enumerated in
       Counts 3 and 4 and 7 and 8.

             It is for you to decide if the government has proven beyond a
       reasonable doubt that the defendant did some act and if that act was done
       knowingly and for the purpose of assisting the commission of the offenses
       charged in each of Counts 3 and 4 and 7 and 8 and with the intent that the
       charged offenses committed and that the act did in some way assist in the
       commission of the offenses charged in Counts 3 and 4 and 7 and 8. The act
       need not itself be against the law.

objected to the Court‟s response and asked the Court to instruct the

jury that “a suggestion in and of itself would not be sufficient.” 

argues to us that the District Court abused its discretion in failing to give the

jury appropriate guidance as to whether a suggestion could satisfy the “some act”


                                              3
element. We review for abuse of discretion a district court‟s refusal to give a

supplemental jury instruction and will reverse only if the decision was “„arbitrary,

fanciful or clearly unreasonable.‟” United States v. Jackson, 

, 297 (3d Cir.

2006) (quoting Stich v. United States, 

, 118 (3d Cir. 1984)).

       There is no merit to Perez‟s argument that the District Court‟s response failed to

give the jury appropriate guidance. Given the lack of context for the word “suggestion”

in the jury‟s note and the potential impact of a supplemental instruction excluding

“suggestion” from qualifying as “some act,” the Court‟s measured response was neither

arbitrary nor clearly unreasonable. See App. 521 (“[W]ho knows how [the jury is]

defining a suggestion. Who knows what particular thing they believe that Mr. Perez did

fits in. And I think by getting too particularized on this, we‟re making a decision for them

and it is not our job it is their job.”). Instead of risking unduly influencing the jury, the

Court sufficiently answered the jury‟s question in referring to its previous instructions,

and this decision was well within its discretion.

                                              II.

       For the foregoing reasons, we will affirm the judgment of sentence.




                                               4