                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 23 2005
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 03-2313
 v.                                              (D.C. No. CR-02-501-BB)
                                                         (D.N.M.)
 DAVID DURAN-SALAZAR,

          Defendant - Appellant.



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 04-2063
 v.                                              (D.C. No. CR-02-501-BB)
                                                         (D.N.M.)
 ARTURO RASCON-GARCIA, also
 known as Rigoberto Marquez,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and LUCERO, Circuit Judges.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendants-Appellants David Duran-Salazar and Arturo Rascon-Garcia

appeal their convictions for conspiracy to import and importation of at least five

kilograms of cocaine and at least 50 kilograms of marijuana into the United States

from Mexico. 18 U.S.C. § 2; 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1), (b)(3),

963. Defendants argue: (1) the evidence was insufficient to support the jury’s

verdict, and (2) the court coerced the jury by giving multiple Allen instructions,

depriving them of their Sixth Amendment right to a unanimous verdict.

Exercising jurisdiction under 18 U.S.C. § 1291, we affirm.



                                    Background

      In January 2002, United States Border Patrol Agent Mark Shank was using

a Forward Looking Infrared Radar (“FLIR”) mounted to his vehicle to observe the

border between Mexico and the United States near Sunland Park, New Mexico. V

R. at 43. In the early morning hours, the agent observed five people moving

around outside a house and nearby shed on the Mexican side of the border. Id. at

43-44. He then saw three of the individuals bend down, appear to pick something

up and place it on their backs, and walk towards the international border, stopping

just before crossing. Id. at 44. The other two individuals waited outside the

house for five to ten minutes, and then they also bent down, placed something on

their backs, and met up with the others. Id. at 45. All five then proceeded to


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walk in a single-file line across the border into New Mexico. Id. As the travelers

proceeded into the United States, the agent saw they were carrying large duffle

bags, which their behavior indicated were heavy. Id. at 46.

      Upon observing this activity, Agent Shank radioed his fellow agents,

advising them of the group’s location, Id. at 46, and several agents responded in

an attempt to surround and apprehend the travelers. However, as the agents

approached, four of the five individuals fled. Id. at 49. The one who remained

was arrested immediately, and the others were all arrested within ten minutes. Id.

at 136. Agent Shank testified he never lost site of the five travelers from the time

he first observed them in Mexico until they were all apprehended. Id. at 51, 76,

108. Upon arresting the five travelers, the agents discovered six duffel bags in

the area where the individual who had not fled was apprehended, Id. at 134-35,

containing a total of 23.7 kilograms of cocaine and 69.1 kilograms of marijuana.

VI R. at 315.

      A grand jury indicted the defendants on four counts; however, before trial,

the government dismissed the fourth count, VI R. at 383-84, and the defendants

were tried before a jury on the remaining three. 1 The jury began deliberating on a

Friday afternoon, and then returned the following Saturday morning. After




      A third defendant, Ignacio Alvarez-Perez, was also tried at the same time
      1

and convicted on all three counts; however, he has not appealed his conviction.

                                         -3-
deliberating for only 20 minutes on Saturday, one juror told the court’s clerk that

“she was having difficulty and that she had already reached a decision in the case

and that she . . . was not going to be persuaded otherwise.” VIII R. at 4. Over

objection and a motion for mistrial, the judge sent the jury an additional copy of

Instruction No. 11, “Duty to Deliberate.” Id. at 5. However, two hours later, the

jury as a whole sent the court a note stating, “Judge, we can not reach a verdict.”

VII R. at 2. Again, indicating deliberations had only proceeded a short time, the

court refused to declare a mistrial and sent the jury a note stating, “Ladies and

gentlemen of the jury, please continue deliberations in an effort to reach a

verdict.” Id.

      Approximately one hour after encouraging the jury to continue, the court

received another note indicating the jury had reached a verdict as to both

defendants on count one, but could not reach a verdict as to counts two and three.

Id. at 5. The court inquired whether “further deliberations [would] assist [the

jury] in reaching a unanimous decision as to all counts,” and reminded the jury it

could revisit all the issues if needed. Id. at 6. The jury responded that “[w]ith

regards to those counts in which we have not reached a unanimous verdict, we,

the jury, feel we cannot reach a unanimous decision.” Id. at 10.

      At this point, again over objection, the court returned the jury to the

courtroom and gave an Allen charge. Id. at 11-13. The court stated that the “trial


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has been expensive in time, effort, and money . . . . [and] [i]f you should fail to

agree on a verdict as with regard to all counts . . . the case is left open and must

be tried again on any counts on which you have not reached a verdict.” Id. at 11.

Continuing, the court instructed each juror to carefully assess the evidence,

stating:

      [N]o juror is expected to yield a conscientious conviction he or she
      may have as to the weight or effect of the evidence. But remember,
      also, that after full deliberation and consideration of the evidence in
      the case, it is your duty to agree to a verdict, if you can do so without
      surrendering your conscientious conviction . . . . You may be as
      leisurely in your deliberations as the occasion may require and should
      take all the time which you may feel is necessary.”

Id. at 12-13. Within thirty minutes of returning to deliberate, the jury returned a

guilty verdict on all counts as to both defendants. See id. at 10, 24 (court gave

Allen instruction at approximately 1:10 p.m. and jury had returned its verdict,

been individually polled, received parting comments from the court, and been

dismissed by 1:56 p.m.).

      Two months later, one of the jurors was called for jury duty in unrelated

proceedings in which Defendant Duran-Salazar’s attorney was also involved.

During voir dire, the juror stated that her experience in the present case was very

difficult and that “everybody else was against [her], and the judge would not

accept a hung jury; so, therefore, [she] kind of felt like [she] had to sway [her]

opinion, even though [she] didn’t believe it.” Duran-Salazar Br., attach. C at 3-5.


                                          -5-
The Defendants then filed motions for a new trial, which were denied.

Subsequently, Defendant Duran-Salazar was sentenced to 151 months

imprisonment and five years supervised release, and Defendant Rascon-Garcia

was sentenced to 360 months imprisonment and five years supervised release.

Both defendants filed timely notices of appeal.



                                    Discussion

A.) Sufficiency of the Evidence

      The Defendants argue that as they were not apprehended near the duffle

bags and there was no direct evidence linking them to the bags, the evidence was

insufficient to prove beyond a reasonable doubt that they imported the narcotics

contained in the bags into the United States. We review sufficiency of the

evidence de novo, “viewing the evidence in the light most favorable to the

government and asking whether a reasonable jury could find the defendant guilty

beyond a reasonable doubt.” United States v. Campos, 221 F.3d 1143, 1151 (10th

Cir. 2000). Upon reviewing Agent Shank’s testimony, specifically that he never

lost sight of the travelers from the time he spotted them by the house in Mexico

until they were apprehended, we find the Defendants’ argument meritless.

B.) Allen Instruction

      We review whether an Allen instruction was coercive, thus violating the


                                        -6-
Sixth Amendment guarantee of a unanimous verdict, on a case by case basis.

United States v. McElhiney, 275 F.3d 928, 940 (10th Cir. 2001). In doing so, we

consider such factors as “(1) the language of the instruction, (2) whether the

instruction is presented with other instructions, (3) the timing of the instruction,

and (4) the length of the jury’s subsequent deliberations.” Darks v. Mullin, 327

F.3d 1001, 1013 (10th Cir. 2003).

      We initially note that Federal Rule of Evidence 606(b) prohibits jurors from

testifying, or the court otherwise receiving any statement from a juror, about “the

effect of anything upon that or any other juror’s mind or emotions as influencing

the juror to assent to or dissent from the verdict.” The juror’s comments in the

unrelated voir dire fall within this proscription. See United States v. Tines, 70

F.3d 891, 896 (6th Cir. 1995) (holding that juror affidavit concerning the coercive

effect of the court’s Allen charge is not properly considered under Rule 606(b));

United States v. Tallman, 952 F.2d 164, 166 (8th Cir. 1991) (holding that Rule

606(b) prohibits the court from considering juror note sent during deliberations

alleging coercion by fellow jurors). Accordingly, we do not consider the juror’s

subsequent comments impugning the verdict.

      The language employed by the district court in giving the Allen charge has

been previously upheld by this court. United States v. Arney, 248 F.3d 984, 988

(10th Cir. 2001); United States v. Hernandez-Garcia, 901 F.2d 875, 876-77 (10th


                                         -7-
Cir. 1990). Likewise, even though the district court gave the Allen charge for the

first time after hearing of the jury’s deadlock, rather than in conjunction with the

jury’s initial instructions, we have never prohibited such practice. Id. at 988-89.

Further, the short period of deliberation after the Allen instruction was given is

also, in and of itself, insufficient to establish coercion; though, as the government

concedes, it “suggests the possibility” of such. Id. at 990; see also Aplee Br. at

22. Thus, the key in this case concerns the Defendants’ argument that the timing

and repetition of the district court’s communications to the jury were coercive.

      Defendants argue that the district court gave the jury four subsequent

instructions after being informed of a deadlock. Duran-Salazar Br. at 19; Rascon-

Garcia Br. at 20. This is incorrect. There were only three communications that

could properly be characterized as “instructions,” as the court’s note to the jury

asking whether additional deliberations would assist in rendering a verdict as to

all counts was primarily a question. And of the three remaining communications,

one was simply sending in a copy of Instruction No. 11, which the jury had

already received and was bound to follow. This is not properly characterized as

an Allen, or Allen-type, instruction. See McElhiney, 275 F.3d at 941. Thus, we

are left with two communications–one, a brief request to continue deliberations,

and the other, a formal Allen charge.

      This court has not categorically prohibited multiple Allen instructions.


                                         -8-
See Gilbert v. Mullin, 302 F.3d 1166, 1175 (10th Cir. 2002) (finding that even if

there were multiple Allen instructions, there was no coercion). Indeed, the

district court must have some discretion in directing the proceedings before it.

See United States v. Cooper, 375 F.3d 1041, 1045 (10th Cir. 2004). Here, the

jury had only been deliberating a short time before the court was alerted it was

having trouble proceeding, and the court only gave one formal Allen charge,

using language this court has previously accepted. Further, the jurors were

individually polled in open court regarding the final verdict. VII R. at 16-20.

Given these facts, we cannot say the court abused its discretion in seeking to have

the jury take additional time in attempting to reach a verdict, or that the final

verdict was coerced.

      Finally, the Defendants filed a Federal Rule of Appellate Procedure 28(j)

supplemental authority letter raising for the first time a Sixth Amendment claim

based on United States v. Booker, __ U.S.__, 125 S. Ct. 738 (2005). We have

previously held that such claims are not properly raised in 28(j) letters. United

States v. Maynard, 2004 WL 2407224, at *3 (10th Cir. Oct. 28, 2004) (citing

United States v. Kimler, 335 F.3d 1132, 1138 n.6 (10th Cir. 2003)). Thus, we

will not address this issue.




                                          -9-
AFFIRMED.


            Entered for the Court


            Paul J. Kelly, Jr.
            Circuit Judge




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