                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 07 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 13-50160

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00137-GW-2

  v.
                                                 MEMORANDUM*
EDWARD ALARCON, AKA Edward M.
Alarcon, AKA Edward M. Valverde
Alarcon, AKA Edward Maurice Alarcon,
AKA Maurice Valverde Alarcon, AKA
Edward Valverde,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                            Submitted March 5, 2014**
                               Pasadena, California




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: BYBEE and IKUTA, Circuit Judges, and ZILLY, Senior District Judge.***

      Defendant Edward Alarcon assigns error to the district court’s issuance of an

Allen charge after polling the jurors concerning whether they were “hopelessly

deadlocked.” A district court’s decision to give an Allen instruction is reviewed for

an abuse of discretion. United States v. Berger, 473 F.3d 1080, 1089 (9th Cir.

2007). Such decision must be upheld unless “it’s clear from the record that the

charge had an impermissibly ‘coercive effect’ on the jury.” United States v.

Ajiboye, 961 F.2d 892, 893 (9th Cir. 1992). In determining whether an Allen

charge is coercive, the court examines: (i) the form of the instruction; (ii) the time

the jury deliberated after receiving the charge in relation to the total time of

deliberation; and (iii) any other indicia of coerciveness. United States v. Steele,

298 F.3d 906, 911 (9th Cir. 2002).

      In this case, before issuing the Allen instruction, the district court inquired of

each juror whether the jury was “hopelessly deadlocked.” This procedure was

consistent with Section 5.4 of the Jury Instructions Committee of the Ninth

Circuit’s A MANUAL ON JURY TRIAL PROCEDURES (2013). Eleven of the twelve

jurors answered in the affirmative, but many of them qualified their responses with



      ***
            The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
                                           2
the phrase “at this time,” “at this point,” or “right now.” One of the jurors replied

in the negative, indicating “a problem with the word ‘hopelessly.’” In light of the

jurors’ responses, the district court acted within its broad discretion in declining to

declare a mistrial. See United States v. Sommerstedt, 752 F.2d 1494, 1497-98 (9th

Cir. 1985).

      The Allen instruction that the district court subsequently gave in this case did

not have an impermissibly coercive effect. The district court used the neutral form

of an Allen charge that is set forth in Ninth Circuit Model Criminal Jury Instruction

7.7. See Steele, 298 F.3d at 911. Moreover, the Allen charge was issued in the

absence of any disclosure by the jurors concerning the nature of their perceived

deadlock or how they were divided. Thus, the Allen instruction could not have

been interpreted as being directed to a particular juror or jurors. Cf. Ajiboye, 961

F.2d at 893-94 (an Allen charge can be deemed coercive if jurors could perceive

the instruction to be aimed at them as a result of the trial judge’s inquiry into the

numerical division of the jury or knowledge of which jurors were “holdouts”).

      In this case, the jury deliberated for a total of seven hours. Almost two of

those seven hours were expended after receiving the Allen charge. The jury found

defendant guilty on only two of the four counts of trafficking in counterfeit goods.

As to the other two counts, concerning which the evidence of mens rea was


                                           3
weaker, defendant was acquitted. The amount of time spent in deliberations after

the Allen instruction was sufficient to “allow the jury to reach a reasoned decision,”

Berger, 473 F.3d at 1093, and the resulting verdict indicates that the jury engaged

in a “rational and independent review of the evidence” and “did not succumb” to

any coercion allegedly associated with the Allen charge, id. at 1094.

      No other “indicia of coerciveness” are present in this case. Defendant’s

reliance on United States v. Seawell, 550 F.2d 1159 (9th Cir. 1977), is misplaced

because, unlike in Seawell, in this case, the Allen charge was read only once, and

defendant’s allusion to colloquies between the district court and counsel about how

best to proceed establishes nothing because the jury was not privy to such

discussions. The district court committed no error in issuing the Allen charge.

      AFFIRMED.




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