                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALSFebruary 7, 2014
                                                                Elisabeth A. Shumaker
                                    TENTH CIRCUIT                   Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                       No. 13-2033
 WARREN RIVERA,                                (D.C. No. 1:11-CR-01204-LH-1)
                                                          (D. N.M.)
           Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and KELLY, Circuit Judges.



      This is a direct appeal following Warren Rivera’s conviction of being a

felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). Rivera appeals the district court’s denial of his request to impeach a

witness, and the district court’s giving of an Allen instruction 1 over his objection.

We affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      1
          Allen v. United States, 164 U.S. 492 (1896).
                                        I
                                    The Arrest

      Warren Rivera lived in Albuquerque, New Mexico, with his girlfriend,

Valentina Gonzales. On April 4, 2011, Rivera and Valentina got into an

argument—one upsetting enough to prompt Valentina to call her parents, Carlos

and Lorraine Gonzalez. Carlos and Lorraine were already walking toward

Rivera’s apartment in order to baby-sit Valentina’s daughter, but their pace

accelerated to a run when Carlos received the call from a “hysterical” Valentina.

R. Vol. 2, at 22. They arrived at Rivera’s apartment building to find Rivera and

Valentina arguing in the street. Carlos confronted Rivera. In response, Rivera

produced a pistol from his waistband, pointed it at Carlos, and warned Carlos that

he would kill him. Before the situation could escalate, however, Rivera grabbed

Valentina and they walked to a bus stop, leaving Carlos and Lorraine behind.

Lorraine immediately called the police.

      Responding to the call, Officer Martin Smith drove to the bus stop, where

he found Rivera and Valentina. As Officer Smith got out of his vehicle, he

observed Rivera hand something to Valentina. Officer Smith drew his gun,

ordered Rivera and Valentina onto the ground, and handcuffed them both. During

the arrest, Officer Smith found a pistol in Valentina’s waistband. Later,

Valentina would testify that Rivera foisted the pistol on her when Officer Smith

arrived.


                                          2
                                     The Trial

      On May 11, 2011, a grand jury returned a one-count indictment charging

Rivera with being a felon in possession of a firearm, in violation of 18 U.S.C. §§

922(g)(1) and 924(a)(2).

      Trial commenced on October 17, 2011, and Valentina testified against

Rivera. During her direct examination, Valentina denied ever being convicted of

being a felon in possession of a firearm. Then, during her cross-examination, the

following exchange took place between Valentina and Rivera’s counsel:

            Q.      Now, [the prosecutor] asked you if you have ever been
                    convicted of being a felon with a firearm, didn’t he?

            A.      Yes.

            Q.      Have you ever admitted being in possession of a firearm?

            A.      Never.

R. Vol. II, at 70. This exchange became significant because neither the district

court nor the prosecutor noted the distinction between the two questions.

      Defense counsel promptly sought to impeach Valentina with a copy of a

New Mexico state court document titled “Probation Violation Admission

Agreement,” which was signed by Valentina, and in which Valentina admitted to

having possessed a firearm. The document stated the following:

            Plea:          The defendant agrees to Admit her Violation of
                           Probation to the following offense(s):

            Standard Condition 1: State Laws: in that Probationer was arrested

                                         3
               on April 4, 2011 in possession of a black hand gun sticking out her
               pants in plain view, in violation of the terms and conditions of her
               probation and in violation of State Law

R. Vol. I, pt. 1, at 203.

       The prosecutor objected to defense counsel’s use of the document, arguing

that it did not “constitute[] an admission or appropriate impeachment evidence

under [Rule] 609.” 2 R. Vol. II, at 70. Defense counsel responded, “Your Honor,

this is not 609 stuff. This is basically she told [the prosecutor] that she had never

been convicted, and then I asked her if she ever admitted having possessed a


       2
           Rule 609. Impeachment by Evidence of a Criminal Conviction

               (a) In General. The following rules apply to attacking a witness’s
               character for truthfulness by evidence of a criminal conviction:

                     (1) for a crime that, in the convicting jurisdiction, was
                     punishable by death or by imprisonment for more than one
                     year, the evidence:

                            (A) must be admitted, subject to Rule 403, in a civil
                            case or in a criminal case in which the witness is not a
                            defendant; and

                            (B) must be admitted in a criminal case in which the
                            witness is a defendant, if the probative value of the
                            evidence outweighs its prejudicial effect to that
                            defendant; and

                     (2) for any crime regardless of the punishment, the evidence
                     must be admitted if the court can readily determine that
                     establishing the elements of the crime required proving--or the
                     witness’s admitting--a dishonest act or false statement.

Fed. R. Evid. 609(a).

                                           4
firearm, she said no.” Id.

      At first, the district court sustained the prosecutor’s objection on the basis

that the document did not constitute a sworn statement. 3 Later, however, after

further argument from both sides, the court again sustained the prosecutor’s

objection, but this time on the basis that the document did not constitute an

admission that Valentina had been convicted of being a felon in possession of a

firearm. In other words, the court did not note the distinction between (1)

Valentina’s denial that she had been convicted of being a felon in possession of a

firearm, and (2) Valentina’s denial that she had ever admitted to possessing a

firearm. As a result, defense counsel was unable to impeach Valentina with her

prior inconsistent statement.

                                The Allen Instruction

      The jury began its deliberations the next morning, October 18, 2011, at

10:14 a.m. At 11:40 a.m, the district court received the following note from the

jury, which was read to the parties: “We are not unanimous in our verdict, and it

is very unlikely that we will agree.” Supp. R. Vol. II, at 38. Then the court

announced its intention to give the Allen instruction found in the Tenth Circuit

pattern jury instructions. 10th Cir. Pattern Crim. Jury Instr. 1.42 (2011). Defense

counsel objected, arguing that the instruction is “far too coercive” and “puts too

      3
        The district court did not realize until later that Valentina had signed the
document. See id. at 80 (the court stating, when shown the document again, “I
didn’t notice that. She signed it?”).

                                          5
much pressure to try to make the jury come to some sort of decision when

obviously they can’t do it of their own free will.” Id. The court replied, “[i]t is

not obvious at all. They have only had an hour.” Id. The court also stated that

the note “doesn’t say that they are firmly deadlocked.” Id. at 39. Therefore, the

court overruled the objection and instructed the jury as follows:

             I have received the note from the foreman regarding your difficulty
             in reaching a verdict. I will give you another instruction at this time.

             Members of the jury, I’m going to ask that you return to the jury
             room and deliberate further. I realize that you are having some
             difficulty reaching a unanimous agreement, but that is not unusual.
             Sometimes, after further discussion, jurors are able to work out their
             differences and agree.

             This is an important case. If you should fail to agree upon a verdict,
             the case is left open and must be tried again. Obviously, another trial
             would require the parties to make another large investment of time
             and effort, and there is no reason to believe that this case can be tried
             again by either side better or more exhaustively than it has been tried
             before you.

             You are reminded that the defendant is presumed innocent, and that
             the government, not the defendant, has the burden of proof, and it
             must prove the defendant guilty beyond a reasonable doubt.

             Those of you . . . who believe that the government has proved the
             defendant guilty beyond a reasonable doubt should stop and ask
             yourself if the evidence is really convincing enough given that other
             members of the jury are not convinced. Those of you who believe
             that the government has not proved the defendant guilty beyond a
             reasonable doubt should stop and ask yourselves if the doubt you
             have is a reasonable one given that other members of the jury do not
             share your doubt. In short, every individual juror should reconsider
             his or her views.

             It is your duty as jurors to consult with one another and deliberate

                                           6
             with a view toward reaching an agreement if you can do so without
             violence to individual judgment. Each of you must decide the case
             for yourself , but do so only after an impartial consideration of the
             evidence with your fellow jurors. In the course of your deliberations,
             do not hesitate to reexamine your own views and change your
             opinion if you are convinced it is erroneous. But do not surrender
             your honest conviction as to the weight or effect of evidence solely
             because of the opinion of your fellow jurors, or for the mere purpose
             of returning a verdict.

             What I have said is not meant to rush or pressure you into agreeing
             on a verdict. Take as much time as you need to discuss things. There
             is no hurry.

             I will ask now that you retire again and continue your deliberations
             with these additional comments in mind to be applied, of course, in
             conjunction with all of the instructions I have previously given you.

             My clerk will have a few copies of this instruction to take with you
             into the jury room. You’re excused.

Id. at 39-41. This was a “modified” Allen instruction, which “differs from a

traditional Allen charge in that the court asks each juror, rather than only those in

the minority, to carefully reconsider their views.” Gilbert v. Mullin, 302 F.3d

1166, 1174 (10th Cir. 2002).

      The jury resumed deliberations at 11:49 a.m. At 2:01 p.m., the court

advised the parties that the jury had reached a verdict. 4 The jury found Rivera

guilty of being a felon in possession of a firearm.

                                          II

      On appeal, Rivera contends that the district court committed two reversible

      4
        The record presented does not indicate whether the jury broke for lunch,
or continued to deliberate without a break.

                                          7
errors. First, Rivera argues that his counsel should have been permitted to

impeach Valentina. Second, Rivera argues that the Allen instruction was unduly

coercive.

                The Limitation on the Scope of Cross-Examination

      Although Rivera offers three arguments to support his contention that the

district court erred by preventing his counsel from impeaching Valentina at trial,

only one argument—Rule 613 impeachment—was both properly preserved below

and adequately raised in his appellate brief.

      To begin, Rivera waived any argument that the Probation Violation

Admission Agreement should have been admitted to refresh Valentina’s memory.

The only mention of this argument in Rivera’s opening brief is in a point-heading.

This mention in passing, and without further argument in support, is insufficient

to raise the argument on appeal. See United States v. Cooper, 654 F.3d 1104,

1128 (10th Cir. 2011) (“It is well-settled that arguments inadequately briefed in

the opening brief are waived.” (alteration omitted) (internal quotation marks

omitted)).

      Likewise, Rivera waived any argument that the district court violated

Rivera’s rights under the Confrontation Clause of the Sixth Amendment by not

permitting Rivera to impeach Valentina with the Probation Violation Admission

Agreement. Because the argument was not raised below, “we will not address the

constitutional issue in the absence of a conclusion that it was plain error for the

                                          8
district court to fail to raise the constitutional issue sua sponte.” United States v.

Solomon, 399 F.3d 1231, 1237-38 (10th Cir. 2005). That said, the plain error

standard does not apply “where the defendant has failed to argue on appeal that

the district court committed plain error in not raising the constitutional issue sua

sponte.” Id. at 1238. Because Rivera did not mention plain error in his opening

brief, we deem it waived.

      Rivera does, however, successfully raise the argument that he should have

been allowed to impeach Valentina under Federal Rule of Evidence 613. Rule

613 reads as follows:

             Rule 613. Witness’s Prior Statement

                    (a) Showing or Disclosing the Statement During
                    Examination. When examining a witness about the witness’s
                    prior statement, a party need not show it or disclose its
                    contents to the witness. But the party must, on request, show
                    it or disclose its contents to an adverse party’s attorney.

                    (b) Extrinsic Evidence of a Prior Inconsistent Statement.
                    Extrinsic evidence of a witness’s prior inconsistent statement
                    is admissible only if the witness is given an opportunity to
                    explain or deny the statement and an adverse party is given an
                    opportunity to examine the witness about it, or if justice so
                    requires. This subdivision (b) does not apply to an opposing
                    party’s statement under Rule 801(d)(2).

Fed. R. Evid. 613. “We review for abuse of discretion a district court’s rulings

regarding the admissibility of evidence, including evidence intended to impeach a

witness.” United States v. Apperson, 441 F.3d 1162, 1194 (10th Cir. 2006).

      “[T]he most widely used impeachment technique is proof that the witness

                                           9
made a pretrial statement inconsistent with her trial testimony.” 1 Kenneth S.

Broun et al., McCormick on Evidence § 34, at 207 (7th ed. 2013). It was for this

purpose that Rivera’s counsel sought to introduce the Probation Violation

Admission Agreement. Missing the distinction between defense counsel’s two

questions, the district court ruled that Valentina’s testimony was consistent with

the Probation Violation Admission Agreement.

      We disagree with the district court. The pertinent question was this: “Have

you ever admitted being in possession of a firearm?” “Never,” Valentina

answered. Because the Probation Violation Admission Agreement was a signed

admission by Valentina that she “was arrested on April 4, 2011 in possession of a

black hand gun,” the district court abused its discretion when it concluded that

Valentina’s present testimony was not inconsistent with her prior statement.

Rivera’s counsel should have been allowed to impeach Valentina with her prior

inconsistent statement under Rule 613.

      Nevertheless, “[a] non-constitutional error, such as the admission or

exclusion of impeachment evidence, is subject to harmless error analysis.”

United States v. Clifton, 406 F.3d 1173, 1179 (10th Cir. 2005). “A

non-constitutional error is harmless unless it had a ‘substantial influence’ on the

outcome or leaves one in ‘grave doubt’ as to whether it had such effect.” Id.

(alteration omitted).

      With that in mind, and in light of the evidence presented at trial, we

                                         10
conclude that the error was harmless. First and foremost, both Carlos and

Lorraine Gonzalez testified that they observed Rivera holding a gun during their

encounter in the street. An attack on Valentina’s credibility would not change the

fact that the testimony of Carlos and Lorraine was sufficient to support Rivera’s

conviction. In urging that the government’s case rose or fell with Valentina’s

credibility, Rivera overlooks the testimony given by Carlos, Lorraine, and Officer

Smith.

      Second, the jury had already heard Officer Smith testify that as he

approached he saw Rivera hand something to Valentina, and both Officer Smith

and Valentina testified that the pistol was found in Valentina’s waistband when

she was arrested at the bus stop. As a result, the jury already knew that Valentina

had “possessed” a firearm, which was the only fact Rivera’s counsel intended to

highlight via impeachment. By his attempted use of the Probation Violation

Admission Agreement, Rivera’s counsel sought to impeach Valentina’s testimony

by a more distant statement when her own testimony on direct established the

same inconsistency. We are unpersuaded that the district court’s ruling had a

substantial influence on the outcome of the trial.

      Third, defense counsel’s “gotcha” was an objectively unimpressive attack

on Valentina’s credibility. Valentina likely missed the subtle distinction between

the two questions during the flow of cross-examination. Further, impeachment on

such a trivial point would not have had a “substantial influence” on the outcome

                                         11
of the trial.

       Therefore, although the district court abused its discretion in refusing to

allow defense counsel to impeach Valentina with the Probation Violation

Admission Agreement, the error was harmless.

                        The Alleged Allen Instruction Error

       After approximately an hour-and-a-half of deliberations, the jury sent a

note to the court that read: “We are not unanimous in our verdict, and it is very

unlikely that we will agree.” Supp. R. Vol. II, at 38. In response, and over

Rivera’s objection, the court called the jury in and gave a modified Allen

instruction (or Allen charge). See Allen v. United States, 164 U.S. 492 (1896).

On appeal, Rivera contends that the Allen instruction, under these circumstances,

was unduly coercive.

       “An Allen charge is a supplemental instruction given to the jury and

designed to encourage a divided jury to agree on a verdict.” United States v.

LaVallee, 439 F.3d 670, 689 (10th Cir. 2006) (internal quotation marks omitted).

Notably, “a ‘modified’ Allen charge . . . differs from a traditional Allen charge in

that the court asks each juror, rather than only those in the minority, to carefully

reconsider their views.” Gilbert, 302 F.3d at 1174. The district court gave a

modified Allen instruction here.

       We review an “Allen charge for an abuse of discretion by the district

court.” United States v. Cornelius, 696 F.3d 1307, 1321 (10th Cir. 2012). “[A]

                                          12
reviewing court must look at the [Allen] charge given by the judge ‘in its context

and under all the circumstances.’” Gilbert, 302 F.3d at 1173 (quoting Lowenfield

v. Phelps, 484 U.S. 231, 237 (1988)). “A district court may issue an Allen

instruction urging deadlocked jurors to review and reconsider the evidence in the

light of the views expressed by other jurors so as to avoid a mistrial, provided

that the instruction does not impose such pressure on the jury such that the

accuracy and integrity of the verdict becomes uncertain.” Id. (alterations omitted)

(internal quotation marks omitted). “When an Allen charge imposes such

pressure on the jury such that the accuracy and integrity of their verdict becomes

uncertain, it violates a defendant’s right to due process and Sixth Amendment

rights to an impartial jury trial and to a unanimous verdict.” LaVallee, 439 F.3d

at 689.

      “In considering whether an Allen instruction was improperly coercive, we

consider (1) the language of the instruction, (2) whether the instruction is

presented with other instructions, (3) the timing of the instruction, and (4) the

length of the jury’s subsequent deliberations.” Cornelius, 696 F.3d at 1321

(internal quotation marks omitted). In addition to those four considerations, our

case law reveals a number of more specific ones. The instruction should not be

directed only to the jurors in the minority. United States v. Arney, 248 F.3d 984,

988 (10th Cir. 2001) (“By being directed at all jurors rather than only those

holding the minority view, a modified Allen charge reduces the possibility of


                                          13
coercion.”). The instruction should emphasize that “no jurors should surrender

his or her conscientious convictions.” Id. at 988 (internal quotation marks

omitted); see United States v. Alcorn, 329 F.3d 759, 767 (10th Cir. 2003)

(upholding an instruction that “contained the cautionary language to each juror

not to ‘surrender your honest conviction as to the weight or effect of the

evidence,’ but . . . did not contain the embellishments we have found problematic

in prior cases.” (citing United States v. McElhiney, 275 F.3d 928, 944 (10th Cir.

2001))). The instruction should remind jurors “that the burden of proof belonged

to the government, not the defendant.” McElhiney, 275 F.3d at 938. And we

should look with particular suspicion on verdicts returned soon after the giving of

an Allen instruction, because such timing suggests the possibility of coercion.

Lowenfield, 484 U.S. at 240; Arney, 248 F.3d at 990.

      In view of the totality of the circumstances, the Allen instruction given here

was appropriately respectful of minority jurors and their conscientious

convictions. The language of the approved, modified Tenth Circuit Allen

instruction is faction-neutral. The instruction cautioned the jurors not to

“surrender your honest conviction as to the weight or effect of evidence solely

because of the opinion of your fellow jurors, or for the mere purpose of returning

a verdict.” Supp. R. Vol. II, at 40. And it reminded the jury that “the

government, not the defendant, has the burden of proof.” Id. at 39.

      Nor are we concerned by the length of the jury’s deliberations. In this


                                         14
uncomplicated case, the time (about two hours) between the jury receiving the

Allen instruction and the jury rendering its verdict was not so short as to make us

suspicious of the Allen instruction’s effect. See, e.g., Arney, 248 F.3d at 990

(upholding an Allen instruction that elicited a verdict within two hours); United

States v. Butler, 904 F.2d 1482, 1488 (10th Cir. 1990) (same).

      While not all possible conditions were present here to mitigate the effect of

the Allen instruction, when viewed in context we conclude that the instruction

was not unduly coercive. Although the instruction was not given along with the

initial jury instructions, as we noted in McElhiney, “this positioning of the

instruction does not by itself establish coercion.” 275 F.3d at 942 (citing United

States v. McKinney, 822 F.2d 946, 951 (10th Cir. 1987) (“[A]lthough it is a

preferred rule of procedure that an Allen instruction be given the jury at the same

time as other instructions, it is not a per se rule.” (emphasis in original))).

      We also note that in Butler, we upheld the use of the traditional, more

coercive Allen instruction, which took aim only at jurors in the minority, even

where (1) the instruction was given after deliberations began, (2) the instruction

was prompted by the jury sending the judge a note announcing their inability to

decide, and (3) the result of the instruction was a verdict within two hours. 904

F.3d at 1487-88.

      We conclude that the district court did not abuse its discretion when it gave

a modified Allen instruction to the jury.


                                            15
                                        III

      In sum, we conclude that although the district court erred when it prevented

Rivera’s counsel from impeaching Valentina Gonzalez with her Probation

Violation Admission Agreement, the error was harmless in light of the other

evidence presented in support of the verdict. Further, the district court did not

abuse its discretion when it gave a modified Allen instruction to the jury.

      AFFIRMED.


                                       Entered for the Court


                                       Mary Beck Briscoe
                                       Chief Judge




                                         16
