                           NOT FOR PUBLICATION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. § 1291

and 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.

                                         -2-
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.




                                         -3-
      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.




                                          -4-
