United States v. Deane Young , 585 F. App'x 932 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 02 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10456
Plaintiff - Appellee, D.C. No. 3:10-cr-08216-DGC-2
v.
MEMORANDUM*
DEANE JAMES YOUNG,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-10457
Plaintiff - Appellee, D.C. No. 3:10-cr-08216-DGC-1
v.
SHELIA RUTH YOUNG,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted September 12, 2014
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and W. FLETCHER, Circuit Judges, and CURIEL,
District Judge.**
Deane and Shelia Young appeal their convictions, arguing that the district
court erred by reading a supplementary Allen instruction to the jury and thereby
impermissibly coerced the jury. We have jurisdiction pursuant to 28 U.S.C. § 1291and we affirm.
We review the district court’s decision to give an Allen charge for abuse of
discretion. United States v. Daas, 198 F.3d 1167, 1179 (9th Cir. 1999). We “must
uphold the district court’s decision unless the record makes it clear that the Allen
charge had a coercive effect on the jury.” Id. An Allen charge has the potential for
improper coercion because individual jurors may feel pressured to abandon
sincerely held beliefs in service of reaching a verdict. See United States v. Mason,
658 F.2d 1263, 1265 n.1 (9th Cir. 1981). Whether the court has improperly
coerced a jury’s verdict is a mixed question of law and fact that we review de
novo. United States v. Berger, 473 F.3d 1080, 1089 (9th Cir. 2007). If defense
counsel does not object to the instruction, however, we review for plain error.
United States v. Banks, 514 F.3d 959, 974 (9th Cir. 2008). Shelia Young’s
**
The Honorable Gonzalo P. Curiel, United States District Judge for the
Southern District of California, sitting by designation.
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attorney agreed that the instruction was proper, so our review as to her appeal is
plain error. The parties agree that the abuse of discretion standard is appropriate
with regard to Deane Young’s appeal.
The Youngs claim that the court gave the Allen charge prematurely. We
disagree. In United States v. Steele, 298 F.3d 906, 910 (9th Cir. 2002), the jury
sent a note to the court stating: “We have not been able to reach a unanimous
verdict. How do we proceed from this point forward?” We held that this “specific
indication by the foreman that the jury had reached an impasse” was sufficient to
show that the jury was deadlocked for purposes of an Allen charge. Id. at 911. In
contrast, in United States v. Contreras, 463 F.2d 773, 774 (9th Cir. 1972), we held
that an Allen charge was premature where the court gave it sua sponte after the jury
had requested further instructions on two legal questions, but had not notified the
court that it was deadlocked. The first jury note here stated, “At this time we’re
hung,” and asked for more information about the timing and procedures for a hung
jury and about finishing the day’s deliberations before returning the next morning.
This note alerted the court that the jury was having trouble reaching a verdict in
essentially the same form as the note we held sufficient in Steele. See Contreras,
463 F.2d at 774; Steele, 298 F.3d at 910.
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Even if the charge was premature, we would find reversible error only if it
impermissibly coerced the jury. Steele, 298 F.3d at 911. To determine whether an
Allen charge imposed impermissibly coercive pressure on the jury, we evaluate: (1)
the form of the instruction; (2) the duration of jury deliberation following the
instruction both absolutely and in relation to the total duration of the deliberations;
and (3) any other indicia of coercion that may be present. Berger, 473 F.3d at
1090. The key underlying principle is that “the integrity of individual conscience
in the jury deliberation process must not be compromised.” Mason, 658 F.2d at
1268. None of the three factors supports the Youngs’ claim in this case.
AFFIRMED.
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