                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             FEB 1 1999
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 98-4035
           v.                                                 (D. Utah)
 JOSE WILFRED HERNANDEZ-                          (D.C. No. 97-CR-042-02-C)
 GONZALES,

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The 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.
      Defendant Jose Wilfredo Hernandez-Gonzales appeals his conviction by a

jury for possession and transfer of methamphetamine with intent to distribute and

aiding and abetting such possession and transfer, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. We affirm.



                                 BACKGROUND

      On January 29, 1997, Mr. Hernandez-Gonzales was a passenger in his own

car, which was driven by Jesus Alberto Tobar, a/k/a David Monterrossa. A third

man, Cristo Ernesto Rivas, was also a passenger in the car. As they drove north

on Interstate 15 near Nephi, Utah, en route from Los Angeles, Utah Highway

Patrol Sergeant Paul Mangelson stopped the car because the windows were tinted

darker than permitted under Utah law.

      When Sgt. Mangelson asked Mr. Tobar for his license and registration, Mr.

Tobar produced neither and stated that the car belonged to a “friend.” He did not

inform Sgt. Mangelson that the car belonged to Mr. Hernandez-Gonzales, who

was sitting in the rear seat of the car. Sgt. Mangelson testified that he smelled

burnt marijuana and air freshener in the vehicle, and he observed a can of air

freshener on the car floor next to Mr. Hernandez-Gonzales’s foot, as well as

another air freshener canister, and a pager. The trooper then asked all three men




                                         -2-
to exit the vehicle, and he frisked each one. He found a small plastic baggie

containing a substance he suspected to be marijuana in Mr. Rivas’ pants pocket.

      Sgt. Mangelson testified that he asked Mr. Tobar for permission to search

the car, and Mr. Tobar consented. His search of the car revealed additional

marijuana and drug paraphernalia. In the trunk of the car the officer found, inter

alia, a can of Fix-a-Flat and two screwdrivers. There were virtually no other

personal belongings or luggage in the car. The officer found registration

materials in the glove compartment indicating that the car belonged to Mr.

Hernandez-Gonzales and his sister. The officer further noted that the three to

four-year-old car had over 102,000 miles on it. When searching the engine area

of the car, Sgt. Mangelson found four separately wrapped packages containing

more than 700 grams of methamphetamine taped inside the car’s air filter. The

wrapping included layers of cayenne pepper and mustard. The three men were

then arrested.

      Following their arrest, Sgt. Mangelson found a wallet lying on the ground

near where the three men had stood while the search took place. In it was a

phone number with a Utah area code, which police personnel eventually identified

as belonging to a Scott Hamilton. Mr. Tobar said the wallet was his.

      While the three men were being detained in the Juab County Jail, they all

initially denied any knowledge of the drugs. Mr. Tobar then asked Sgt.


                                         -3-
Mangelson and special agent Bruce Provost of the Utah Bureau of Investigation if

it would be better for the other two if he alone took responsibility for the drugs.

He then told the officers that he alone knew that the drugs were in the car, and

that Mr. Hernandez-Gonzales and Mr. Rivas knew nothing about them. The next

day, Mr. Hernandez-Gonzales asked the same hypothetical question–would the

others go free if one of them took full responsibility for the methamphetamine.

Mr. Hernandez-Gonzales had $317 in his possession when he was arrested, Mr.

Tobar had $28 and Mr. Rivas had $2.00.

      Mr. Tobar and Mr. Hernandez-Gonzales were each indicted on one count of

possession of a controlled substance with intent to distribute and aiding and

abetting. They filed motions to suppress, which were denied. Mr. Tobar

ultimately pled guilty and was sentenced to 120 months. Mr. Hernandez-Gonzales

has consistently maintained he knew nothing about the methamphetamine. He

pled not guilty and proceeded to trial. The jury found him guilty, and he was

sentenced to a term of 168 months. This appeal followed.

      Mr. Hernandez-Gonzales argues: 1) the trial court gave the jury an “anti-

deadlock” instruction which improperly coerced the jury into finding him guilty;

2) the evidence was insufficient to support his conviction; 3) the trial court erred

in refusing to grant him a continuance so he could attempt to secure Mr. Tobar’s




                                          -4-
testimony; 4) the trial court erroneously denied his motion to suppress; and 5) his

trial counsel was ineffective.



                                  DISCUSSION

I.    Anti-Deadlock Instruction

      Trial to the jury lasted two days. The jury then commenced deliberations,

and it deliberated for 22 hours, including until 11:30 p.m. on Thursday, December

11. When it returned at 10:00 a.m. on Friday, December 12, to resume its

deliberations, the court gave the jury the following “anti-deadlock” instruction:

             I thought that this instruction maybe can help you. You’ve
      now been out altogether about 21 or 22 hours, so I’d ask you to listen
      to me very carefully if you would. This is an important case. The
      trial has been expensive in time, effort and money to both the defense
      and the prosecution. If you should fail to agree upon a verdict, the
      case is left open and must be tried again. Obviously, another trial
      would only serve to increase the costs to both sides, and there’s no
      reason to believe that the case can be tried again by either side better
      or more exhaustively that it’s been tried before you.
             It’s your duty as jurors to consult with one another and to deliberate
      with a view toward reaching an agreement, if you can do so without
      violence to individual judgment. Each of you must decide the case for
      yourself, but do so only after impartial consideration of the evidence with
      your fellow jurors.
             Remember, you are not advocates; you are not partisans; you
      are judges of the facts.
             In the course of your deliberations, do not hesitate to
      reexamine your own views and change your opinion if you’re
      convinced it’s erroneous, but do not surrender your honest
      opinion–your honest conviction 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.

                                         -5-
             I’m going to ask you to retire once again, continue your
       deliberations with these additional comments in mind, to be applied
       of course in conjunction with all of the instructions I have previously
       given you.

R. Vol. IV, at 472-73. Mr. Hernandez-Gonzales’s counsel objected to the

instruction as given, arguing that it should have included the statement that

“should you still remain unable to reach a unanimous conclusion, then that will be

your conclusion.”      Id. at 470. The judge refused to modify it.

       The jury resumed its deliberations. At 11:30 a.m., juror number 12,

Ms. Emeline Lines, complained about some health problems she had been

experiencing and voiced doubts about her ability to continue to serve.    1
                                                                              The judge

urged her to return to the jury room. At 12:30 p.m., the jury returned a guilty

verdict.

       We urge caution in the use of     Allen instructions like the one given in this

case. 2 United States v. Rodriguez-Mejia     , 20 F.3d 1090, 1091 (10th Cir. 1994).

“We review whether an       Allen instruction was erroneously given on a case-by-case

basis with a view towards determining whether the instruction had a coercive

effect on the jury.”    Id. Factors relevant to determining whether the instruction

was coercive include “(1) [t]he language of the instruction; (2) its incorporation


       1
           Ms. Lines had apparently made similar complaints the day before.

      The so-called Allen instruction derives its name from jury instructions
       2

approved in Allen v. United States, 164 U.S. 492 (1896).

                                            -6-
with other instructions; and (3) the timing of the instruction, for example, whether

given before the jury has commenced deliberations and whether given before the

jury has reached an impasse or deadlock.”         United States v. Porter , 881 F.2d 878,

888 (10th Cir. 1989) (footnotes omitted).

       Mr. Hernandez-Gonzales argues that the wording and the timing of the

Allen instruction impermissibly coerced the jury into returning a guilty verdict.

We disagree. We have previously approved virtually identical language.           See

Rodriguez-Mejia , 20 F.3d at 1091-92; United States v. Butler , 904 F.2d 1482,

1487-88 (10th Cir. 1990). Furthermore, as in        Rodriguez-Mejia , the instruction

was directed at the entire jury, not just the minority, thereby reducing further the

possibility of coercion.   See Rodriguez-Mejia , 20 F.3d at 1092; see also United

States v. Meuli , 8 F.3d 1481, 1487 (10th Cir. 1995). The instruction also

emphasized, as in Rodriguez-Mejia , that the jurors should not surrender their

honest convictions. We therefore perceive no error in the language of the

instruction.

       We further hold that there was no error in the timing of the instruction.

“We have held on many occasions that, while not preferred, it is not error to give

an Allen instruction after deliberations have begun but before the jury declares

deadlock.” Rodriguez-Mejia , 20 F.3d at 1092; see also United States v. Smith ,

857 F.2d 682, 684 (10th Cir. 1988)   . We decline to speculate that the jury


                                            -7-
necessarily felt coerced simply because they reached a verdict two hours after the

Allen anti-deadlock instruction was given.



II.   Sufficiency of the Evidence

      Mr. Hernandez-Gonzales argues there was insufficient evidence to support

his conviction for possession and transfer or aiding and abetting the possession

and transfer of the methamphetamine. “We review claims of insufficiency of the

evidence by ‘review[ing] the record de novo and ask[ing] only whether, taking the

evidence–both direct and circumstantial, together with reasonable inferences to be

drawn therefrom–in the light most favorable to the government, a reasonable jury

could find the defendant guilty beyond a reasonable doubt.’”       United States v.

Flores , 149 F.3d 1272, 1276-77 (10th Cir. 1998) (quoting      United States v. Voss ,

82 F.3d 1521, 1524-25 (10th Cir. 1996)),     cert. denied , 1999 WL 8590 (Jan. 11,

1999) (No. 98-7192).

      Mr. Hernandez-Gonzales was charged with knowing and intentional

possession of methamphetamine with intent to distribute and with aiding and

abetting Mr. Tobar’s knowing and intentional possession of methamphetamine

with intent to distribute. The government accordingly had to prove “beyond a

reasonable doubt the following elements: ‘(1) the defendant knowingly possessed

the illegal drug; and (2) the defendant possessed the drug with the specific intent


                                           -8-
to distribute it.’”   United States v. Reece , 86 F.3d 994, 996 (10th Cir. 1996)

(citations omitted). To prove the aiding and abetting charge, the government had

to show that Mr. Hernandez-Gonzales

       willfully associate[d] himself with the criminal venture and [sought]
       to make it succeed through some action on his part. The government
       must prove more than mere presence at the scene of the crime even if
       coupled with knowledge that the crime is being committed.
       However, participation may be established by circumstantial
       evidence, and the evidence may be of relatively slight moment.

United States v. McDonald , 150 F.3d 1301, 1305 (10th Cir. 1998) (quoting        United

States v. Esparsen , 930 F.2d 1461, 1470 (10th Cir. 1991)).

       The sheer volume of the methamphetamine in the car is strong evidence of

the intent to distribute element.   See United States v. Gay , 774 F.2d 368, 372

(10th Cir. 1985) (“The quantity of the drug possessed is a circumstance which

may permit the inference that the possessor intended to sell, deliver, or otherwise

distribute.”). The main issue is whether, in light of Mr. Tobar’s claim that he

alone knew of the drugs and Mr. Hernandez-Gonzales’s claim that he did not

know of them, the evidence supports the conviction for knowing possession of the

methamphetamine.

       “Possession may be actual or constructive.”     United States v. Carter , 130

F.3d 1432, 1441 (10th Cir. 1997),     cert. denied , 118 S. Ct. 1856 (1998). In this

case, the question is whether Mr. Hernandez-Gonzales had constructive

possession of the methamphetamine in his car. “Generally, a person has

                                            -9-
constructive possession when he or she knowingly holds ownership, dominion or

control over the object and premises where it is found.”   United States v.

Valadez-Gallegos , No. 98-2017, 1998 WL 879735, at *7 (10th Cir. Dec. 17,

1998). “To prove constructive possession when there is joint occupancy of a

vehicle, the government must present direct or circumstantial evidence to show

some connection or nexus individually linking the defendant to the contraband.”

Id.

       The evidence presented to the jury in this case established the following:

Mr. Hernandez-Gonzales was the registered owner of the vehicle; when it was

stopped, the driver told Sgt. Mangelson, in Mr. Hernandez-Gonzales’s presence,

that the car belonged to a “friend,” and neither Mr. Tobar nor Mr. Hernandez-

Gonzales ever informed the officer that Mr. Hernandez-Gonzales was the

registered owner; Mr. Hernandez-Gonzales was traveling along a known drug

corridor (Interstate 15) from a known drug source city (Los Angeles); Mr.

Hernandez-Gonzales had no luggage and virtually no supplies, although he was

making a fairly long trip; the car contained two air fresheners, which drug

traffickers commonly use to mask the odor of drugs, as well as a pager; the

occupants of the car told the officer they were going to visit an uncle, whose

name and address they were all unable to provide; while Mr. Hernandez-Gonzales

had told his wife he was going to Utah to purchase a car, he never informed the


                                           -10-
police officer of this intention;   3
                                        Mr. Hernandez-Gonzales had $317 when arrested,

presumably an insufficient amount with which to buy a car; and the three to four-

year-old car had exceptionally high mileage.

       Given that we must view this evidence in the light most favorable to the

government, and considering what reasonable inferences may be drawn from the

evidence, we hold that a reasonable jury could have convicted Mr. Hernandez-

Gonzales of possession with intent to distribute beyond a reasonable doubt.

Additionally, the same evidence could reasonably support the aiding and abetting

conviction.



III.   Continuance

       On the first day of trial, Mr. Hernandez-Gonzales’s counsel informed the

court that, although he had not previously tried to secure the attendance of Mr.

Tobar at trial, Mr. Hernandez-Gonzales had now changed his mind and wanted

Mr. Tobar to testify in person about his statement to police personnel taking full




       Mr. Hernandez-Gonzales’s wife testified that she and Mr. Hernandez-
       3

Gonzales were experiencing financial difficulties and that Mr. Tobar had, by
himself, taken the car for approximately two hours prior to the departure to
Ogden. Defense counsel emphasized this testimony to the jury, arguing it gave
Mr. Tobar ample opportunity to himself place the methamphetamine in the car,
without Mr. Hernandez-Gonzales’s knowledge. Mr. Hernandez-Gonzales’s wife
never informed anyone of that event until she was called to testify at trial.

                                              -11-
and sole responsibility for the methamphetamine.      4
                                                          Mr. Tobar was incarcerated in

California on murder and attempted murder charges. The court signed a writ of

habeas corpus ad testificandum. When the U.S. Marshal’s office told the court

that it would take days, perhaps a week, to bring Mr. Tobar to Utah from

California, Mr. Hernandez-Gonzales’s counsel then said, “If it’s possible to bring

Tobar in from California next week, I understood earlier from Your Honor’s clerk

that there may have been a day next week that Your Honor might have had a half-

a-day available.” R. Vol. II, at 79. In response, the court stated that “I can’t do

that to the jury. We’re going to have–the case is going to go.”       Id.

       On the second day of trial, the marshal’s office reported that it would be

unable to secure Mr. Tobar’s presence at trial. The court therefore held that Mr.

Tobar was unavailable, and the Mr. Tobar’s hearsay statement would be

admissible under Federal Rule of Evidence 804. Mr. Hernandez-Gonzales did not

object to that ruling.




       4
         Apparently, defense counsel had known for several weeks that the
government would object to any attempt to introduce Mr. Tobar’s statement as
hearsay. But defense counsel made no effort to obtain Mr. Tobar’s presence so he
could testify in person because Mr. Hernandez-Gonzales did not want Mr. Tobar
to testify and defense counsel was worried about impeachment of Mr. Tobar and
possible negative effects from his testimony. On the first day of trial, however,
Mr. Hernandez-Gonzales changed his mind and decided he wanted Mr. Tobar to
testify.

                                           -12-
       He argues on appeal that the court erred in failing to grant what he views as

his request for a continuance. We agree with the government that Mr. Hernandez-

Gonzales did not clearly request a continuance, and we perceive no error in the

court’s failure to sua sponte grant a continuance.   See United States v. Harvey ,

959 F.2d 1371, 1377 (7th Cir. 1992) (holding that defendant had waived his claim

that the court erred in failing to grant a continuance “because he never asked the

district court for a continuance”). Moreover, Mr. Tobar’s statement was admitted,

so the jury heard his claim that he alone was responsible for the

methamphetamine.

       Mr. Hernandez-Gonzales also argues that the court erred in admitting his

own statement to Trooper Provost asking whether the others would go free if one

of the three men arrested took full responsibility for the drugs. The court ruled

that the statement was not a confession, but rather a voluntary statement, and

admitted it. Mr. Hernandez-Gonzales’s expressed objection to the admission of

the statement was that the government did not disclose that the statement had

been made, and that it intended to use it at trial, until December 5, a few days

before the trial. We agree with the district court that it was a voluntary statement,

not a confession, and was admissible. Moreover, we hold that it was not

prejudicial to Mr. Hernandez-Gonzales, inasmuch as, unlike Mr. Tobar’s similar

question which was immediately followed by his acceptance of full and sole


                                            -13-
responsibility for the drugs, Mr. Hernandez-Gonzales’s statement is as easily

construed as simply a question about the effect of Mr. Tobar’s confession.     5
                                                                                   The

court did not abuse its discretion in admitting evidence of the statement.



IV.   Motion to Suppress

      Mr. Hernandez-Gonzales argues that the district court erred in adopting the

report of the magistrate judge recommending the district court hold that the search

of Mr. Hernandez-Gonzales’s vehicle was lawful and recommending that the

district court deny his motion to suppress the methamphetamine. We agree with

the government that Mr. Hernandez-Gonzales has waived this claim because he

failed to object to the magistrate judge’s report and recommendation.        See United

States v. One Parcel of Real Property    , 73 F.3d 1057, 1059 (10th Cir. 1996)

(noting our “‘firm waiver rule’ that ‘provides that the failure to make timely

objections to the magistrate’s findings or recommendations waives appellate

review of both factual and legal questions’”) (quoting     Moore v. United States ,

950 F.2d 656, 659 (10th Cir. 1991)). Moreover, Mr. Hernandez-Gonzales does

not cite to the record in support of his otherwise conclusory assertion that the

search of his car was invalid.


      5
       The government’s theory about Mr. Hernandez-Gonzales’s hypothetical
question, which Agent Provost articulated to the jury, was that the three men
agreed among themselves that Mr. Tobar would take responsibility for the drugs.

                                           -14-
V.     Ineffective Assistance of Counsel

       Finally, Mr. Hernandez-Gonzales argues that his counsel, who also

represents him on appeal, was ineffective at trial. We have held that

“‘[i]neffective assistance of counsel claims should be brought in collateral

proceedings, not on direct appeal. Such claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.’”     United States v.

Gell-Iren , 146 F.3d 827, 831 (10th Cir. 1998) (quoting      United States v. Galloway ,

56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)). The reason for that practice is to

permit the development of a factual record and to permit the district court to

examine the merits of the issue in the first instance.     See id. There has been no

finding by the district court on Mr. Hernandez-Gonzales’s trial counsel’s

effectiveness. We therefore decline to consider this issue on direct appeal, and

dismiss this claim without prejudice.



                                     CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.

                                                    ENTERED FOR THE COURT



                                                    Stephen H. Anderson
                                                    Circuit Judge




                                             -15-
