                                                                                      FILED
                           NOT FOR PUBLICATION
                                                                                        JUL 22 2011

                    UNITED STATES COURT OF APPEALS                                 MOLLY C. DWYER, CL
                                                                                    U .S. C O U R T OF APPE A


                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 10-10109

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00222 MCE

  v.
                                                 MEMORANDUM *
ANTHONY EUGENE WASHINGTON,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                        Argued and Submitted May 9, 2011
                            San Francisco, California



Before: B. FLETCHER and THOMAS, Circuit Judges, and GERTNER, District
Judge.**

__________________________________
      * This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       ** The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
       After a five-day trial, a jury convicted Defendant/Appellant Anthony Eugene

Washington ("Washington") of conspiring to distribute over 50 grams of crack

                                          -1-
cocaine ("crack") between January 13, 2006, and May 18, 2006, in violation of 21

U.S.C. §§ 846 and 841(a)(1) (Count One); and of distributing cocaine on May 18,

2006, in violation of 21 U.S.C. § 841(a)(1) (Count Two). Washington appeals on

two grounds. First, Washington claims that the district court erred by failing to

instruct the jury that he was liable for only the quantity of crack that (1) fell within

the scope of his agreement with his dealer or (2) was a reasonably foreseeable

consequence of the conspiracy to distribute cocaine. Second, Washington argues

that the district court coerced the jurors into returning a guilty verdict by instructing

them to continue their deliberations after "five hours of intense debate" on the issue

of whether Washington was liable for 50 grams of crack.

      The district court plainly erred with its instructions on drug quantity.

However, Washington cannot satisfy his burden of proving that this error affected

his substantial rights. See United States v. Olano, 507 U.S. 725, 734-35 (1993).

With respect to the district court's jury charge to continue deliberations, it is a closer

call, but we need not resolve it because Washington cannot prove that any error was

"plain." Id.




                                   BACKGROUND



                                            -2-
      Working undercover, Agent Brian Nehring ("Nehring") of the Drug

Enforcement Administration made a series of controlled buys from drug dealer

Douglas Frost ("Frost") between August 2005 and May 2006, purchasing between 5

grams and 75.5 grams of crack cocaine each time, while recording their

conversations. Nehring and fellow agents eventually concluded that Frost's supplier

was Washington. In 2006, Nehring made eight controlled buys from Frost, and, as

revealed by the phone records investigators gathered, each time Frost called

Washington within minutes of receiving Nehring's request. Investors also

witnessed Frost visiting Washington's residence on the days of some of the

controlled buys.

      Frost was arrested on May 18, 2006, with 185 grams of crack on him. Later

that afternoon, agents searched Washington's residence and found two digital

scales, plastic bags, and an empty bag of baking soda (which can be used to convert

cocaine to crack).

      Washington was charged with 1) conspiring with Frost to distribute, and

possess with the intent to distribute, at least 50 grams of crack cocaine and at least

500 grams of cocaine; and 2) distributing cocaine. His trial started on March 31,

2009. The government sought to prove that Washington supplied Frost with

powder cocaine and sometimes crack; that all of the drugs Frost sold to Nehring in

2006 came from Washington; and that Washington knew that Frost converted the

                                           -3-
cocaine he purchased from Washington into crack. The government introduced five

types of evidence: 1) phone records documenting the time and date of calls between

Washington and Frost, including records showing that, for each controlled buy,

Frost called Washington within minutes of receiving Nehring's drug order; 2)

recordings and other documentation of Nehring's three controlled buys from Frost

in 2005 and eight in 2006; 3) descriptions of what the agents witnessed on

surveillance, including Frost's visits to Washington's house on some of the days

Nehring purchased drugs; 4) Frost's testimony about his arrangement with

Washington and his conversations with Washington, in which he told Washington

he was cooking the cocaine from Washington in crack; and 5) the items collected

from Washington's residence.1

      The court instructed the jurors that they had to determine the quantity of

drugs involved, but it did not instruct them how to go about doing so. Jury

Instruction No. 22, the only instruction to deal with the weight and nature of the

drugs distributed, stated:

             If you find the defendant guilty of the charge in Count
             One of the Superseding Indictment, you are then to
             determine (1) the net weight of the substances and (2) if
             the substance is crack cocaine and/or cocaine. Your



1
 A forensic chemist testified that cocaine residue was found on both of the digital
scales as well as the baggies.

                                          -4-
             decision as to the net weight and substance must be
             unanimous and must be beyond a reasonable doubt.

             The term "net weight" means the weight of the crack
             cocaine and/or cocaine without any packaging material.

             The government does not have to prove that the defendant
             knew the exact quantity of crack cocaine and/or cocaine.

The verdict form did little to clarify the issue. It asked first if Washington was

guilty of Count One, conspiring to distribute cocaine or possess with intent to

distribute cocaine, and then if he was guilty of Count Two, distribution of cocaine.

If the jury found Washington guilty on Count One, they were asked: 1) "[D]id you

find that the substance involved was at least 50 grams of a mixture or substance

containing a detectable amount of cocaine base, that is, crack cocaine?" and 2)

"[D]id you find that the substance involved was at least 500 grams of a mixture or

substance containing a detectable amount of cocaine?" (emphasis added). There

was no explanation of the meaning of the phrase "substance involved" or how the

jury would arrive at that finding.

      Deliberations began on April 14, 2009. The next day, the jury sent a note

inquiring whether it could find the defendant guilty on Count One if it was unable

to reach a unanimous decision as to the weight of the crack or cocaine. The court

told the jury the answer to its question was "yes," namely, they could return a

verdict on the conspiracy count without a finding of quantity, but nevertheless


                                           -5-
re-read Instruction No. 22, which instructed them to find "the net weight of the

substance" and "if the substance is crack cocaine and/or cocaine." 2 An hour later,

the jury sent another note:

      We are unable to reach a unanimous decision on only 1 question
      notwithstanding 5 hours of intense debate. That issue is whether the
      substance involved in Count One was at least 50 grams of a mixture or
      substance containing a detectable amount of cocaine base.

Without objection from counsel, the court responded to the jury as follows:

      I have reviewed the communication that was received from you
      regarding your inability, apparently, to reach a particular question. I
      will tell you that in light of the amount of evidence that was brought in
      during the course of this trial, the number of days that this Court met in
      trial taking that evidence, that I am not prepared to declare a mistrial of
      this particular issue at this point in time. I'm going to ask that you
      continue your deliberations again. It is almost 11:15. I might suggest
      that you take an early lunch. Do something else that might adjust your
      schedule, give yourself a little bit longer period of time to think about
      this. But the bottom line is that I'm going to ask you to return and
      continue your deliberations and attempt to reach a verdict, a
      unanimous verdict, if you can in fact do so. Again, the five hours of
      intense debate, I recognize that can be very trying when you are in a
      jury deliberation situation, but in light of the overall amount of time
      that has been put into this case, I'm not prepared to do that at this time.


2
 When the court answered "yes," it was correct that the jury could find
Washington guilty of Count One without making any findings with respect to the
quantity of drugs or whether the drugs were crack or cocaine. See Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). Pursuant to 21 U.S.C. § 841(b)(1)(C) (2009),
such a verdict would have subjected Washington to a statutory maximum sentence
of 20 years and no mandatory minimum sentence. However, the court confused its
point by then reading Instruction No. 22, which said: "If you find the defendant
guilty of the charge in Count One . . . you are then to determine (1) the net weight
of the substance . . . ." (emphasis added).

                                          -6-
      So I'm going to ask you to go back and deliberate. Again, if you want
      to take a break now or do something else that might alter your schedule
      and give you a different[] perspective, please feel free to do so. Is
      there anything that I can do to give you something to work with, any
      additional supplies, or anything else that you need in the jury
      deliberation room?

      Soon thereafter, the jury announced: "We have reached verdict!" As to

Count One, the jury found Washington guilty of conspiring to distribute and

possess with intent to distribute cocaine. The jury found that the "substance

involved was" at least 50 grams of crack, but answered "no" to the question of

whether the "substance involved was" at least 500 grams of cocaine. As to Count

Two, the jury also found Washington guilty of distribution of cocaine. The court

sentenced Washington to 210 months. The court entered judgment on March 9,

2010; Washington timely appealed.

                                   DISCUSSION

      Washington argues that the court improperly instructed the jury in two

respects, first by failing to define how to determine the drug quantity involved in

the conspiracy, and second by pressing the jury to continue deliberations. Since

Washington failed to object to either of these issues during trial, we review both for

plain error. See United States v. Banks, 514 F.3d 959, 974-76 (9th Cir. 2008);

United States v. Recio, 371 F.3d 1093, 1099-1100 (9th Cir. 2004); Fed. R. Crim. P.

52(b). A court reviewing for plain error may reverse a district court's decision only


                                          -7-
when the defendant establishes that (1) there was error; (2) the error was plain, or

"obvious," under current law; (3) the error "affect[ed] substantial rights" of the

defendant; and (4) the error "seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings." Olano, 507 U.S. at 732-37 (internal quotation

marks omitted).

I.    Lack of Instruction on "Substance Involved"

      While the verdict slip asked whether the "substance involved" in Washington

and Frost's conspiracy was 500 grams of cocaine and/or whether the "substance

involved" was 50 grams of crack, the court did not provide any explanation for the

meaning of "involved." 3 The instructions neglected to say that Washington was

liable for the crack Frost distributed only to the extent that 1) Washington supplied

Frost with the crack; or 2) Washington supplied Frost with the cocaine used to


3
  Washington was entitled to findings by a jury beyond a reasonable doubt with
respect to the quantity and types of drugs involved in the conspiracy. See
Apprendi, 530 U.S. at 490. Under Apprendi, "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt." Id. Indeed, "the amount of drugs for which a defendant is sentenced under
21 U.S.C. § 841(b)(1) is such a fact." United States v. Nordby, 225 F.3d 1053,
1056 (9th Cir. 2000), overruled on other grounds by United States v. Buckland,
289 F.3d 558 (9th Cir. 2002). A person convicted in 2009 of a crime involving at
least 50 grams of crack was subject to a statutory maximum sentence of life, 21
U.S.C. § 841(b)(1)(A) (2009), and a person convicted of a crime involving at least
500 grams of cocaine was subject to a statutory maximum sentence of 40 years
(unless the drugs resulted in a death, and then the statutory maximum sentence was
life), id. § 841(b)(1)(B).

                                           -8-
manufacture the crack and the manufacture of crack was either (a) within the scope

of his conspiracy with Frost or (b) a reasonably foreseeable consequence of the

conspiracy he had joined. See United States v. Lococo, 514 F.3d 860, 865 (9th Cir.

2008); United States v. Banuelos, 322 F.3d 700, 704 (9th Cir. 2003). This

omission, Washington claims, was plain error.

      The verdict slip's "substance involved" language comes from 21 U.S.C. §

841(b)(1), which prescribes mandatory minimum and maximum sentences for

various drug-related crimes depending on the quantity of drugs "involv[ed]." But,

in the case of a conspiracy, as this Court said in Banuelos, the full extent of the

drugs linked to a conspiracy may not automatically be attributed to the defendant.

322 F.3d at 704. A conspirator is liable for only "the quantity of drugs that either

(1) fell within the scope of the defendant's agreement with his coconspirators or (2)

was reasonably foreseeable to the defendant." Id.

      In Lococo, this Court made clear that the rule announced in Banuelos has

special resonance when one conspirator provides his coconspirator with cocaine,

but the second transforms it into crack. 514 F.3d at 864-66. This Court held it was

error to sentence the defendant, who had pled guilty to conspiring to distribute

cocaine while denying he knew that the conspiracy involved crack, based on the

amount of crack "involved" in the conspiracy, without a jury having found that

Lococo knew or reasonably could have foreseen that the conspiracy involved the

                                           -9-
crack. Id. at 865 ("Lococo didn't admit that he knew or could reasonably foresee

that the conspiracy involved crack cocaine. Quite the contrary, he repeatedly

denied it. So even if the district court had made the findings required by Banuelos,

those findings would have violated Apprendi . . . by exposing Lococo to a higher

statutory maximum based on facts he never admitted."). Under Lococo, Banuelos,

and their progeny, the district court's failure to instruct about the meaning of

"substance involved" was error. Indeed, because Lococo is directly controlling

authority, the district court committed "plain error." See Olano, 507 U.S. at 734

(explaining that "plain error" is an error that is "obvious"). Finally, it was an error

of constitutional proportion, relieving the government of its burden to prove all

elements of the crime. See In re Winship, 397 U.S. 358, 364 (1970).

      Since Washington failed to object to the instruction at trial, he bears the

burden of persuasion with respect to demonstrating that the error affected his

"substantial rights." See Olano, 507 U.S. at 734. To satisfy this burden,

Washington must show that the erroneous instruction "affected the outcome" of his

trial. Id. He has failed to do so.

      The government offered both direct and circumstantial evidence that

Washington knew Frost was converting Washington's cocaine into crack for sale to

Nehring—Frost's testimony, the items found during the search of Washington's

home, the longstanding Frost-Washington relationship. Washington cannot prove

                                           -10-
"with fair assurance, after pondering all that happened without stripping the

erroneous action from the whole," that a properly instructed jury would have found

that Washington was not liable for 50 grams of crack.4 See Kotteakos v. United

States, 328 U.S. 750, 765 (1946).

II.   Charge to Continue Deliberations

      Washington further claims that the district court coerced the jury into finding

that the conspiracy involved 50 grams of crack by instructing them to continue

deliberating after they announced their failure to reach a unanimous verdict on

whether the conspiracy involved 50 grams of crack, despite five hours of intense

debate on that subject. Whether the court's instruction was improperly coercive is

debatable. In any case, it was not plain error.

      The controlling question is whether the court's instruction was coercive. See,

e.g., Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir. 1999); Jiminez v. Myers, 40

F.3d 976, 979-80 (9th Cir. 1994). In answering that question, we consider four

factors: (1) the form of the jury charge, (2) the length of deliberations following the


4
 Rather than arguing that the outcome would have been different had the jury
received proper instruction, Washington claims that the verdict subjected him to a
harsher sentence than he would have received for a conspiracy involving 50 grams
of cocaine. While Washington is indeed correct that the mandatory minimums for
50 grams of these two types of drugs are different, this fact alone does not fulfill
Washington's obligation to show that the outcome of his trial would have been
different if the jury had received proper instructions. See Olano, 507 U.S. at 734-
35.

                                          -11-
charge, (3) the total time of deliberations, and (4) any other indicia of pressure.

Weaver, 197 F.3d at 366.

         On the one hand, as Washington argues, the court required the jury to

continue deliberations after five hours of what they described as "intense debate" on

the crack issue. And it did so without offering cautionary language—that no juror

should abandon his or her reasonable beliefs to arrive at a verdict.

         But neither did the court request that any juror reexamine the legitimacy of

his or her position, as in the traditional Allen charge.5 See Allen v. United States,

164 U.S. 492, 501 (1896). While courts have not "settled upon a precise

formulation for the charge," United States v. Mason, 658 F.2d 1263, 1265 (9th Cir.

1981), the defining feature of an Allen charge is the request that jurors, particularly

minority jurors, re-examine their views of the evidence, see, e.g., Rodriguez v.



5
    Indeed, in its initial instructions to the jury, the court said:

                Each of you must decide the case for yourself, but you
                should do so only after you have considered all the
                evidence, discussed it fully with the other jurors, and
                listened to the views of your fellow jurors. Do not be
                afraid to change your opinion if the discussion persuades
                you that you should. But do not come to a decision
                simply because other jurors think it is right. It is
                important that you attempt to reach a unanimous verdict,
                but, of course, only if each of you can do so after having
                made your own conscientious decision. Do not change
                an honest belief about the weight and effect of the
                evidence simply to reach a verdict.

                                               -12-
Marshall, 125 F.3d 739, 750 (9th Cir. 1997) ("An Allen charge is traditionally

understood as an instruction to work towards unanimity by considering the views of

others when a jury has reached an impasse in its deliberations."), overruled on other

grounds by Payton v. Woodford, 299 F.3d 815, 829 n.11 (9th Cir. 2002); United

States v. Wills, 88 F.3d 704, 716 (9th Cir. 1996). For the most part, the court was

merely asking the jurors to take a break and then continue deliberations. On a plain

error review, we cannot say such an instruction was coercive.6

                                  CONCLUSION

      For the foregoing reasons, the district court's judgment is AFFIRMED.




6
 While within about two hours of resuming deliberations, the jury reached a
verdict, the record does not establish that jurors felt pressured by the court to
surrender their views. It is not enough to claim, as Washington does, that the
exclamation point in the foreperson's note "We have reached verdict!" suggests
"they were giving the court what it wanted."

                                         -13-
