UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4813

GEORGE RANDALL THACKER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Glen M. Williams, Senior District Judge.
(CR-98-10024)

Submitted: June 29, 1999

Decided: July 21, 1999

Before WILKINS and HAMILTON, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Jonathan Seth Kurtin, SHAPIRO & KURTIN, Roanoke, Virginia, for
Appellant. Robert P. Crouch, Jr., United States Attorney, Thomas E.
Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Following a jury trial, George R. Thacker was convicted on two
counts each of selling a firearm to a convicted felon (18 U.S.C.
§ 922(d)(1) (1994)), failing to maintain firearms records (18 U.S.C.A.
§ 922(b)(5) (West Supp. 1999)), and making a false entry in a firearm
transaction record (18 U.S.C. § 922(m) (1994)). The district court
sentenced him to fifty-one months in prison. Thacker appeals, claim-
ing that the district court gave an improper Allen* charge and gave
an improper response to a jury question. Finding no merit to his
claims, we affirm.

Thacker claims that there were two fatal flaws with the Allen
charge in this case. First, he claims that it was improperly coercive
because the district court subtly suggested to the minority that it
should compromise with the majority because the evidence appeared
to be clear. However, the district court never expressed an opinion
about in whose favor the evidence appeared to be clear. Furthermore,
the court expressly directed the jurors in the minority and the majority
to consider each other's opinions. See United States v. Burgos, 55
F.3d 933, 941 (4th Cir. 1995). The length of the jurors' deliberations
following the Allen charge also suggests that they listened to each
other's 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 a 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."). Finally, we find that the fact that the jurors reached a mixed
verdict, finding Thatcher guilty on some charges and not guilty on
others, belies Thatcher's claim that the jurors were coerced.
_________________________________________________________________
*In Allen v. United States, 164 U.S. 492 (1896), the Supreme Court of
the United States approved the trial court's admonishment to a dead-
locked jury to make an additional effort to reach a verdict.

                    2
Thatcher also argues that the court erred by setting a 7:00 p.m.
deadline for the jury to reach its verdict. Although Thatcher correctly
notes that the jury reached its verdict very close to 7:00 p.m., he mis-
characterizes the Allen charge as setting a 7:00 p.m. deadline. The
court simply advised the jury that it should deliberate until around
7:00 or shortly thereafter if it was making progress. At that time, if
the jury was not making good progress, the judge said that he would
end for the night so that everyone could get a good night's rest and
so jurors living far away would not have to travel in the dark. We find
that such a directive was not coercive and did not establish a deadline
for reaching a verdict.

Two of the firearms transactions for which Thacker was charged
involved undercover law enforcement officers who acted as straw
men to purchase firearms for a convicted felon who was cooperating
with police. When the jury asked the judge whether these agents had
committed perjury by signing the state and federal firearm transaction
documents, certifying that they were the purchasers of the firearms,
the court answered, "No. They were undercover agents." Thatcher
argues that this answer improperly bolstered the credibility of these
officers, both of whom testified against him.

Even if the court should have responded differently to this ques-
tion, we find that the answer, at most, amounts to harmless error.
First, Thatcher does not argue that the district court's response was
inaccurate. Second, whether or not the agents committed perjury was
irrelevant to Thatcher's conviction. Third, although the jury found
Thatcher guilty on all the counts pertaining to the transaction involv-
ing one of the officers, it acquitted Thatcher on all the counts pertain-
ing to the transaction involving the other officer. Under these
circumstances, we find that the court's answer did not improperly bol-
ster the witnesses' credibility. For these reasons, we affirm Thacker's
convictions. 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

                     3
