United States v. Smith

MEMORANDUM **

Smith appeals from his judgment of conviction and sentence 1 for assault with a dangerous weapon, in violation of 18 U.S.C. §§ 1153 (a) and 113(a)(3). He contends the district court coerced the jury into rendering a unanimous guilty verdict after the jury foreperson indicated to the court that the jury was deadlocked at seven to five.

We must uphold the district court’s modified Allen charge, see Allen v. United States, 164 U.S. 492, 501-02 , 17 S.Ct. 154 , 41 L.Ed. 528 (1896), unless “it’s clear from the record that the charge had an impermissibly ‘coercive effect’ on the jury.” United States v. Ajiboye, 961 F.2d 892, 893 (9th Cir.1992) (citations omitted). Although the district judge failed to warn the jurors that they should not change their convictions solely for the purpose of returning a verdict, “we look not only to the form of the jury charge, but also to the amount of time of deliberation following the charge, the total time of deliberation, and any other indicia of coerciveness or pressure.” United States v. Estacio, 64 F.3d 477, 482 (9th Cir.1995). The jury deliberated for a substantial period of time after the court’s modified Allen charge, the jury…