UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4147

JOHN FITZGERALD PRESCOTT,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Peter J. Messitte, District Judge.
(CR-95-323-PJM)

Submitted: December 10, 1996

Decided: December 26, 1996

Before HALL, HAMILTON, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James K. Bredar, Federal Public Defender, Denise C. Barrett, Assis-
tant Federal Public Defender, Baltimore, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Larry A. Adams, Assis-
tant United States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

John F. Prescott appeals from his conviction for possession of a
firearm after a felony conviction. 18 U.S.C.A. § 922(g) (West Supp.
1996). On appeal, he argues that the district court abused its discre-
tion by giving an Allen* charge after the jury reported a deadlock.

Officer McClanahan testified that he initiated a traffic stop of Pres-
cott, intending to issue a speeding ticket. After Prescott and McClana-
han pulled to the side of the highway, McClanahan observed Prescott
reach to the glove compartment, the front floor, the back seat and the
rear floor of the car. Prescott then moved from the driver seat to the
passenger seat and exited the car on the passenger side. He stood with
his body wedged between the frame of the vehicle and the passenger
side door.

McClanahan got out of the police cruiser and repeatedly ordered
Prescott to show his hands. Prescott displayed his left hand, but not
his right. Officer McClanahan ordered Prescott back into the car.
Prescott complied. McClanahan testified that as he walked around the
back of his cruiser and approached the passenger side of Prescott's
vehicle, he saw Prescott fling a handgun through the passenger win-
dow.

McClanahan called for assistance, and other officers arrived along
with a canine unit. After a forty-minute search, the firearm was
located by Officer McClanahan. No fingerprints were lifted from the
firearm. Prescott's defense was that McClanahan planted the firearm
and that he was being victimized with a false weapons charge.

The jury deliberated for an hour and a half, then retired for the eve-
ning. One hour into deliberations the following morning, the jury sent
out a note asking to rehear Officer McClanahan's testimony. The trial
judge instructed them to rely on their recollection. Two hours later,
_________________________________________________________________
*In Allen v. United States, 164 U.S. 492 (1896), the Supreme Court
approved the trial court's admonishment to a deadlocked jury to make an
additional effort to reach a verdict.

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the jury reported that they were unable to reach a unanimous verdict.
Over Prescott's objection, the judge gave a modified Allen charge,
encouraging further deliberations in an effort to reach a unanimous
verdict. The court also instructed:

          each of you who finds yourself in the minority must recon-
          sider your views in light of the opinions of the majority, or
          if the vote is six/six, with the other side, and, likewise, each
          of you who finds yourself in the majority must reconsider
          your views in light of the opinion of the minority.

After an additional hour of deliberations, the jury returned a verdict
of guilty. After the district court imposed a fifty-one month sentence,
Prescott appealed, arguing that the trial judge abused his discretion by
giving an Allen charge when the jury reported a deadlock after delib-
erating for a long period of time over simple and straightforward
facts. He also contends that the charge was improper because the
court failed to include a reference to the reasonable doubt standard.

In determining whether an Allen charge has an impermissibly coer-
cive effect on jury deliberations, the reviewing court should consider
the content of the instruction as well as the context. Jenkins v. United
States, 380 U.S. 445, 446 (1965). In a traditional Allen charge, the
jury was informed that a new trial would be expensive, there is no
reason to believe that another jury would do a better job, it is impor-
tant to reach a unanimous verdict, and jurors in the minority should
consider whether the position of the majority is correct. See United
States v. Russell, 971 F.2d 1098, 1107 n.18 (4th Cir. 1992), cert.
denied, 506 U.S. 1066 (1993).

Based on the concern that the instruction to the minority members
may be impermissibly coercive, this court mandated the modification
of the Allen charge to require the district court to instruct both the
minority and the majority on the jury to reconsider their positions in
light of the other side's views. United States v. Burgos, 55 F.3d 933,
941 (4th Cir. 1995); United States v. West, 877 F.2d 281, 291 (4th
Cir.), cert. denied, 493 U.S. 959 (1989).

The instruction given the jury here is substantially similar to the
instruction approved by this court in United States v. Sawyers, 423

                     3
F.2d 1335 (4th Cir. 1970). The trial judge instructed all members of
Prescott's jury--minority and majority--to reconsider their views in
light of the opinions of the other side. Additionally, the court
instructed "none of you should surrender your honest belief as to the
weight or effect of the evidence solely because of the opinion of your
fellow jurors or for the mere purpose of returning a verdict." This last
sentence factors against a finding of coercion.

The jury deliberated for approximately an hour after the Allen
charge. This suggests that the jury did listen to the others' viewpoints
rather than the minority simply being coerced into agreeing with the
majority. Cf. United States v. Rogers, 289 F.2d 433, 436 (4th Cir.
1961) (verdict few minutes after Allen charge "hardly long enough to
have permitted a painstaking re-examination of the views which the
minority had held steadfastly until the charge was given.").

We find that the Allen charge given the jury in Prescott's case was
not coercive, but rather encouraged the members of the jury to con-
sider the views of the other members. Because the language is similar
to the language of the charge upheld in Sawyers , we find that the
wording of the Allen charge was not an abuse of discretion. Further,
there is no authority in this Circuit to support Prescott's contention
that giving an Allen charge after the jury had deliberated for longer
than the length of the trial is per se an abuse of discretion.

Prescott contends that the judge should have instructed the jury on
the reasonable doubt standard as a preliminary instruction to the jury,
at the close of the trial, and during the Allen charge. Although other
circuits have endorsed a reference to the reasonable doubt standard in
an Allen charge, Potter v. United States , 691 F.2d 1275, 1280 (8th
Cir. 1982), this Circuit has not. Sawyers, 423 F.2d at 1339.

Further, the judge instructed the jury concerning reasonable doubt,
the tape-recorded instructions were available for the jury to replay if
there was any question on the standard, and Prescott's counsel spoke
at length about reasonable doubt during his closing to the jury. There
was no error in the failure of the district court's preliminary charge
or Allen charge to include a reference to the reasonable doubt stan-
dard.

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In conclusion, we affirm Prescott's conviction. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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