United States v. Jose Andaverde-Tinoco, 741 F.3d 509

Andaverde-Tiñoco was convicted of illegal reentry after removal following an aggravated felony; district court sentenced him to 70 months and three years of supervised release, plus 4 months consecutive to the sentence for a total of 74 months.
At Border Patrol processing, Andaverde-Tiñoco admitted cross-border entry by swimming and prior removal, with contemporaneous accounts from co- travelers of being robbed; other companions were allowed voluntary returns.
Andaverde-Tiñoco testified he entered under duress, claiming armed robbers forced him to cross the river; his account differed from the agents’ field-recorded Miranda Rights and statements.
The jury was deadlocked 6–6; the district court gave an Allen charge; after deliberating ~2.5 hours, the jury convicted.
During sentencing, Reyna Flores’s affidavit (claiming the group was forced to cross) was sought to be admitted; the district court excluded the affidavit as hearsay but allowed testimony from the investigator; the court deemed the evidence unreliable but harmless.
On appeal, the majority AFFIRMS the conviction and sentence; a dissent would grant a new trial due to Doyle v. Ohio violations.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Allen-charge coercion/anomaly	Andaverde-Tiñoco argued the charge was coercive or plain error.	The charge tracked the pattern instruction with minor modification; no coercion occurred.	No plain error or abuse of discretion in Allen charge.
Doyle violations and plain-error relief	Government comments on post-arrest silence violated Doyle and affected the trial.	Open-door and strategic trial context mitigated error; no reversal warranted.	Doyle violations found; plain error acknowledged, but remedy declined (conviction affirmed).
Admission of Reyna Flores affidavit at sentencing	Affidavit should be admitted to support duress-based downward departure.	Affidavit hearsay but could be used for reliability; district court abused discretion.	Error harmless; affidavit exclusion did not affect the outcome.
Remand versus affirmance of conviction	If conviction is vacated, related revocation of supervised release should also be reconsidered.	New trial should be ordered to re-evaluate guilt with proper procedures.	Conviction and sentence affirmed; no remand required.

United States v. Winters, 105 F.3d 200 (5th Cir. 1997) (Allen-charge standard and plain-error review framework)
United States v. Hitt, 473 F.3d 146 (5th Cir. 2006) (Allen charge review when no objection; plain-error standard)
United States v. Gutierrez, 635 F.3d 148 (5th Cir. 2011) (specific-objective test for preservation of evidentiary issues)
United States v. Allard, 464 F.3d 529 (5th Cir. 2006) (pattern jury instructions and deviations considered)
United States v. Betancourt, 427 F.2d 851 (5th Cir. 1970) (Allen-charge timing considerations)
United States v. Bottom, 638 F.2d 781 (5th Cir. Unit B 1981) (Allen charge timing and deliberation duration)
United States v. Rodriguez, 260 F.3d 416 (5th Cir. 2001) (open-door Doyle impeachment limitations and permissible scope)
Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (prohibition on comment on post-arrest silence after Miranda warnings)
United States v. Meneses-Davila, 580 F.2d 888 (5th Cir. 1978) (severe Doyle violations warrant reversal despite defense invited questions)
United States v. Edwards, 576 F.2d 1152 (5th Cir. 1978) (Doyle line and permissible conduct framing)