                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3137
                                   ___________

United States of America,           *
                                    *
          Appellee,                 *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * District of Minnesota.
Armando Ybarra, also known as       *
Armando Ybarra Reta, also known as *
Armando Reta Ybarra,                *
                                    *
          Appellant.                *
                               ___________

                             Submitted: June 9, 2009
                                Filed: September 8, 2009
                                 ___________

Before COLLOTON, JOHN R. GIBSON, and BEAM, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Armando Ybarra appeals his conviction on one count of conspiracy to distribute
less than 100 kilograms of marijuana. He argues that the district court’s supplemental
charge to the jury, based on Allen v. United States, 164 U.S. 492, 501 (1896),
impermissibly coerced a guilty verdict. We affirm the judgment of the district court.1



      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
                                            I.

       On June 12, 2007, a grand jury indicted Ybarra on one count of distribution of
marijuana and one count of conspiracy to distribute 100 kilograms or more of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(D), and
846. Jury selection occurred on March 24, 2008. Just before releasing the prospective
jurors for the first lunch recess, the court admonished them not to discuss the case
with anyone, and to inform the court if anyone attempted to speak with them about the
case. The court stated: “[W]e’re taking a lot of time, this is a very expensive
proposition, and, so, we do not need outside influences influencing your decision-
making process.” Moments later, the court again reminded the prospective jurors to
avoid outside influences, noting that the “administration of justice is a very serious
matter.” Jury selection resumed after lunch, and opening statements began that
afternoon. Excluding jury selection, the trial lasted two-and-a-half-days, or roughly
twenty hours.

      The jury retired to deliberate at 3 p.m. on March 27. Before deliberations
commenced, the court excused two alternate jurors. The court commented to the jury
that the alternates had served as an “insurance policy to make sure that this case could
come to a conclusion during this trial.” The court also stated, “if we went down to
less than 12 jurors, then I would have to – I have a mistrial, which means we’d have
to try the case again,” and “as you can see, trials are very expensive – calling in jurors,
having the witnesses brought in and having the attorneys present in court.” The jury
deliberated for approximately two hours on March 27 and eight hours on March 28.



      On March 31, after a two-day weekend, the jury resumed its deliberations. That
morning, the jury sent a question to the court asking, “If we cannot come to a
unanimous decision on element #4, of count 6 [charging conspiracy to distribute 100
kilograms or more of marijuana], are we to find the defendant ‘not guilty’ . . . and then

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move onto the conspiracy of ‘less than 100 kilograms’?” One of the jurors also sent
the court a letter asking to be replaced because her fiancé had been hospitalized. The
court instructed the jury that it was required to reach a unanimous verdict of either
“guilty” or “not guilty” on the conspiracy count, and that if it acquitted Ybarra on that
count, then it could proceed to consider the lesser-included offense of conspiracy to
distribute less than 100 kilograms of marijuana. In addition, given the situation with
the juror’s fiancé and the expectation of a snowstorm, the court informed the jury that
if it did not reach a verdict by 12:30 p.m. that day, then it would resume deliberations
at noon on the following day.

       The jury failed to reach a verdict on March 31, and reconvened the next day.
After nearly two hours of deliberation, the jury submitted another question to the
court. The jury asked whether it was obligated to reach unanimous agreement on each
count, and what would happen if it could not unanimously agree on both counts. At
2 p.m., over Ybarra’s objection, the court instructed the jury in accordance with
Eighth Circuit Model Criminal Jury Instruction 10.02, commonly known as an Allen
charge. See Judicial Comm. on Model Jury Instructions for the Eighth Circuit,
Manual of Model Criminal Jury Instructions for the District Courts of the Eighth
Circuit § 10.02, at 495 (2008). The court said:

      There is no reason to think that another trial would be tried in a better
      way or that a more conscientious, impartial or competent jury would be
      selected to hear it. Any future jury must be selected in the same manner
      and from the same source as you. If you should fail to agree on a
      verdict, the case is left off and must be disposed of at some later time.
      Please go back now to finish your deliberations in a manner consistent
      with your good judgment as reasonable persons.


      Nearly two-and-a-half hours after this instruction, the jury returned its verdict.
The jury acquitted Ybarra of conspiracy to distribute 100 kilograms or more of
marijuana, found him guilty of a lesser-included offense of conspiracy to distribute

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less than 100 kilograms of marijuana, and remained undecided on the distribution
count. In total, the jury deliberated for approximately eighteen hours.

       Ybarra filed a motion for judgment of acquittal or, alternatively, a new trial.
He argued that the Allen charge had the effect of coercing the jury into returning a
guilty verdict. The district court denied the motion, concluding that the record did not
establish any coercion. On appeal, Ybarra contends that he is entitled to a new trial,
because the Allen charge violated his rights to due process and trial by jury under the
Fifth and Sixth Amendments.

                                            II.

       “An Allen charge is a supplemental jury instruction that advises deadlocked
jurors to reconsider their positions.” United States v. Walrath, 324 F.3d 966, 970 (8th
Cir. 2003) (internal quotation omitted). Supplemental jury instructions are
permissible, so long as they are not coercive. Id. Our cases provide that in
determining whether a particular Allen charge had an unduly coercive effect, we
consider (1) the content of the instruction, (2) the length of deliberation after the Allen
charge, (3) the total length of the deliberation, and (4) any indicia in the record of
coercion or pressure on the jury. Id.; United States v. Thomas, 946 F.2d 73, 76 (8th
Cir. 1991).

       Ybarra first complains that the content of the Eighth Circuit’s model Allen
charge is per se coercive, because it incorrectly implies that the only result from a
hung jury is a retrial by another jury. This contention is foreclosed by circuit
precedent, which has approved the model instruction. Thomas, 946 F.2d at 76; see
also United States v. Aldridge, 413 F.3d 829, 832-33 (8th Cir. 2005) (noting that the
model charge “has been accepted by this court as non-coercive in content”); United
States v. Hagan, 412 F.3d 887, 890 (8th Cir. 2005) (“Model Instruction 10.02 is
approved by this court as to content.”).

                                           -4-
       Ybarra argues that even if the instruction is not per se objectionable, it
nonetheless became unduly coercive under the circumstances of this case. He asserts
that the jury deliberated for only two-and-a-half hours after the issuance of the Allen
charge, and that total deliberations took slightly less time than the entire trial. There
is no bright-line rule concerning a requisite amount of post-charge or overall
deliberation, Aldridge, 413 F.3d at 832, and we cannot say that either period raises an
inference of coercion here. We have concluded that a post-charge deliberation lasting
two-and-a-half hours does not indicate a coercive effect. United States v. Johnson,
411 F.3d 928, 930 (8th Cir. 2005). The overall deliberation in this case – eighteen
hours following a twenty-hour trial – is within the range that we have deemed
consistent with due process. In United States v. Glauning, 211 F.3d 1085, 1087 (8th
Cir. 2000), we concluded that sixteen to eighteen hours of deliberation following a
two-day trial did not demonstrate that an Allen charge was coercive, and in Hagan,
412 F.3d at 890, we held that fifteen hours of deliberation after a simple, five-hour
trial was not dispositive in the coercion analysis. Likewise, the time periods in this
case are not so disproportionate as to raise an inference of undue coercion.

       Ybarra acknowledges these authorities, but contends that his situation is
distinguishable because there are several other coercive factors present in this case.
He points to the court’s two statements about the expense of jury trials, arguing that
they improperly suggested to the jury that it had to reach a verdict. While a district
court should be cautious about references to the cost of trials, we think the court’s
statements here were, “realistically, of small consequence,” and not likely to have
been coercive. Hodges v. United States, 408 F.2d 543, 554 (8th Cir. 1969)
(Blackmun, J.). The first statement – directed at prospective jurors during jury
selection – arose in the context of the court’s routine instructions not to discuss the
case with anyone during the lunch break. The second statement – that “trials are very
expensive” – was part of the court’s explanation to the jury that alternate jurors serve
an important purpose in the trial. Neither of these statements strikes us as inherently
coercive, as “[i]t is obvious to a jury that a lawsuit is costly and time consuming,” id.,

                                           -5-
and neither statement mentioned any particular party. See United States v.
Washington, 255 F.3d 483, 485 (8th Cir. 2001) (concluding that an Allen charge with
the statement, “this case has been extensive and expensive,” was not inherently
coercive, because the statement did not single out one side or the other); United States
v. Smith, 635 F.2d 716, 722 (8th Cir. 1980).

       Ybarra also argues that the court improperly described alternate jurors as an
“insurance policy” to ensure that the case would come to a conclusion, and incorrectly
noted that if a mistrial occurs, “we’d have to try the case again.” He asserts that these
comments misstate the law, because there are other possible outcomes in the event of
a mistrial, including dismissal or a negotiated resolution. While it is technically true
that a mistrial would not require a retrial, we do not believe the court’s statement had
an impermissible effect on the jury. “‘If [the jurors] already knew what would likely
happen if they deadlocked, it was surplusage; if they did not know, this information,
far from being coercive, would have had the effect of reducing the pressure on them
to reach a verdict.’” Hodges, 408 F.2d at 554 (quoting Fulwood v. United States, 369
F.2d 960, 963 (D.C. Cir. 1966) (Burger, J.)). We see no reversible error in these
statements.

       Citing dicta from decisions of this court, which in turn relied on an advisory
committee of the American Bar Association, e.g., United States v. Skillman, 442 F.2d
542, 558-60 (8th Cir. 1971), Ybarra next contends that the court should have delivered
the Allen charge as part of its original set of instructions to the jury, rather than after
the jury reached deadlock. This preference for including an Allen charge in the
original instructions, however, is not universally shared, and “we have never held that
to be the only permissible method of giving an Allen charge.” United States v.
Warfield, 97 F.3d 1014, 1022 (8th Cir. 1996). “In fact, Allen itself, like the
overwhelming majority of cases we have encountered in which an Allen issue has
been raised, dealt with the propriety of the instruction after deadlock occurred.” Id.



                                           -6-
       Ybarra also asserts that the court erred in delivering the instruction at 2 p.m.
instead of the following morning, “thereby putting more pressure on the Jury to ‘hurry
up’ and decide the case before the end of that business day,” so it would not have to
return the next morning. Ybarra adds that the area had been hit by a snowstorm the
day before, one of the jurors had a fiancé in the hospital, some of the jurors lived far
away from the courthouse, and the proceedings had already spanned seven business
days – all pressures facing the jury. Almost any jury composed of twelve citizens,
however, will encounter issues with travel and scheduling, and these factors do not
make an Allen charge impermissible. We do not perceive a material difference
between the circumstances in this case and the inconveniences attendant to jury
service generally.

       The substance of the Allen charge in this case was consistent with instructions
approved by this court. The circumstances of the trial are not sufficiently unusual to
render the charge impermissible or to raise a strong inference of coercion. After
hearing the disputed instruction, the jury acquitted on one count, convicted on another,
and remained deadlocked on a third, thus indicating that it was not coerced to resolve
all charges against Ybarra or to decide points on which it could not in good faith reach
agreement. See United States v. Wiebold, 507 F.2d 932, 934 (8th Cir. 1974). We
therefore hold that the district court did not violate Ybarra’s constitutional rights by
issuing the Allen charge.

      The judgment of the district court is affirmed.
                        ______________________________




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