                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2824
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Arkansas.
Patrick Lynn Walrath,                   *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 10, 2002

                                  Filed: April 3, 2003
                                   ___________

Before BOWMAN, MORRIS SHEPPARD ARNOLD, and RILEY, Circuit Judges.
                         ___________

RILEY, Circuit Judge.

       A jury convicted Patrick Lynn Walrath (Walrath) of being a felon in possession
of an IMI mini Uzi 9mm rifle in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(2000). The district court1 sentenced Walrath to seventy-two months imprisonment.
Walrath appeals the conviction, arguing the district court erred by not viewing in
camera a surveillance videotape, by allowing into evidence an inculpatory statement
made by Walrath, and by prematurely giving the jury the Allen charge. Walrath also

      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
argues the cumulative effect of these errors requires dismissal of the charges or
retrial. We disagree and affirm.

I.     BACKGROUND
       Working with an informant, law enforcement officials set up surveillance of
Walrath’s mother’s house. An investigator saw the informant and Walrath walk into
the residence. After examining the IMI mini Uzi 9mm carbine rifle, the informant
returned to the Sheriff’s office for authorization to buy the weapon. The investigator
again set up surveillance approximately seventy-five feet from the residence, but this
time he videotaped the activity occurring outside the house from behind some bushes
and trees. The officer saw the informant arrive and enter the residence. A second
unidentified individual accompanied the informant into the residence. Inside, the
informant purchased the weapon by giving $2000 to Walrath’s mother. Walrath then
gave the weapon and ammunition to the informant.

       During trial, Walrath’s parole officer advised the government for the first time
that Walrath had undergone state parole revocation proceedings in April 2001 based
on possession of an Uzi. The parole officer provided the government with three
parole revocation documents: a violation report; a violation notice; and a hearing
waiver form. The government provided the documents to defense counsel at 3:00
p.m. on January 23, 2002. A hearing on the admissibility of the documents was held
the next morning. Over Walrath’s objection, the district court admitted the
documents into evidence, finding the government had not violated its duty to
disclose, and the prejudicial effect of the documents did not substantially outweigh
their probative value.

      After deliberating for seven hours, the jury sent a note to the district court
asking, if the jury could not come to a unanimous decision, what would be the next
step. Based on the note, the district court read the jury a supplementary instruction
describing the jury’s duty to deliberate, the Allen charge. Just over an hour later, the

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jury returned a guilty verdict. The district court sentenced Walrath to seventy-two
months imprisonment. Walrath appeals his conviction.

II.    DISCUSSION
       A.     Surveillance Videotape
       Walrath argues the Assistant United States Attorney, rather than the district
court, made the ultimate determination about the potential relevance of a surveillance
videotape, in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). During a
pretrial hearing, Walrath complained the government failed to release the videotape.
The government indicated the content of the videotape was “pretty indistinguishable,”
but made the videotape available to the defendant. Walrath now contends the district
court should have viewed the videotape in camera, although he did not at the time ask
for an in camera review. Walrath argues the videotape “could have been useful to the
defense as exculpatory evidence or for impeachment of government witnesses.”

       The government’s interest is justice, not just winning. See Berger v. United
States, 295 U.S. 78, 88 (1935). “[T]he prosecution is required to divulge all evidence
favorable to the accused that is material either to guilt or to punishment, a rule known
as the Brady rule.” Dye v. Stender, 208 F.3d 662, 665 (8th Cir. 2000) (internal
quotation omitted) (citing Brady, 373 U.S. at 87). “To establish a violation of Brady,
a defendant must show that: (1) the prosecution suppressed evidence, (2) the evidence
was favorable to the accused, and (3) the evidence was material.” Dye, 208 F.3d at
665. A conviction will stand where a Brady violation was “not prejudicial and
amount[s] to harmless error.” Id. (citation omitted). A defendant fails to show the
prosecution suppressed evidence when the defendant was aware of and had access to
the evidence. See United States v. Zuazo, 243 F.3d 428, 431 & n.2 (8th Cir. 2001).

      Walrath’s argument fails on all three prongs. The videotape was not
suppressed. Before trial, the videotape was acknowledged and made available to
Walrath. He chose not to view it.

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        No evidence supports Walrath’s conclusory assertion the videotape contains
exculpatory or material evidence. By all accounts, the videotape depicts only the
exterior of a residence and two people entering the residence. The videotape neither
shows what happened inside the residence nor contributes anything pertinent as to
whether or not Walrath possessed the weapon or whether he lacked criminal intent.
Therefore, the district court did not err, and Walrath was not prejudiced by the events
surrounding the videotape. See United States v. Pou, 953 F.2d 363, 366-67 (8th Cir.
1992) (“Mere speculation that a government file may contain Brady material is not
sufficient to require a remand for in camera inspection, much less reversal for a new
trial.”).

       B.     Inculpatory Statement
       Walrath argues the district court abused its discretion by failing to exclude, as
a discovery violation sanction, an earlier statement made by Walrath. The statement
occurred at a “Waiver of Parole Revocation Hearing,” characterized by Walrath as a
plea bargain between him and state parole authorities. The waiver was based on the
same allegations underlying the instant conviction and other allegations of parole
violations. In the waiver, Walrath agreed to waive a hearing on the evidence and
instead submit to revocation of his parole. The waiver, signed by Walrath,2 states, “I
admit that I have violated the following condition(s) of release as alleged: #4 Laws,
#5 Weapons, #6 Alcohol/Controlled Substances.”3


      2
       Walrath submitted a handwritten letter to this court, claiming the signature on
the waiver form is a forgery. We decline to address the argument, which was not
raised before the district court or in Walrath’s appeal brief or at oral argument. See
Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir. 2002) (“We consider a
newly raised argument only if it is purely legal and requires no additional factual
development, or if a manifest injustice would otherwise result.”).
      3
       Another exhibit, not challenged on appeal, reported the violations as,
      Condition #4 LAWS On January 19, 2001, WALRATH possessed a
      9 mm UZI mini carbine rifle.

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      During trial Walrath objected to admission of the waiver into evidence, arguing
the waiver had not been disclosed until after trial began and the waiver was more
prejudicial than probative in violation of Federal Rule of Evidence 403. Neither the
timing nor the effect of the waiver was unfairly prejudicial under the circumstances.
The district court did not abuse its discretion in admitting the waiver into evidence.
See United States v. Oleson, 310 F.3d 1085, 1091 (8th Cir. 2002) (standard of
review).

      C.     Allen Charge
      Walrath contends the district court erred by prematurely reading the Allen
charge to the jury. “An Allen-charge is a supplemental jury instruction that advises
deadlocked jurors to reconsider their positions.” United States v. Glauning, 211 F.3d
1085, 1086 n.2 (8th Cir. 2000) (citing Allen v. United States, 164 U.S. 492 (1896)).
We review a challenged jury instruction for abuse of discretion. United States v.
Whitefeather, 275 F.3d 741, 742 (8th Cir. 2002). A district court may “issue
supplemental instructions to the jury so long as the instruction is not impermissibly
coercive. Jury coercion is determined by (1) the content of the instruction, (2) the
length of the deliberation after the instruction, (3) the total length of deliberations,
and (4) any indicia in the record of coercion.” United States v. Washington, 255 F.3d
483, 485-86 (8th Cir. 2001) (no coercion where jury deliberated over four hours
before and forty-five minutes after the Allen charge, following a four-day trial).

       Walrath’s trial lasted less than two days. After seven hours of deliberation, the
jury asked, “Your Honor, if, as a group having discussed all evidence and testimony,


      Condition #5 WEAPONS On January 19, 2001, WALRATH possessed
      a 9 mm UZI mini carbine rifle.
      Condition #6 ALCOHOL/CONTROLLED SUBSTANCES On April
      6, 2001, WALRATH tested positive and admitted to the use of
      marijuana.


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we cannot come to a unanimous decision, what is the next step?” In response to the
question, and over Walrath’s objection, the district court read to the jury the Eighth
Circuit Model Criminal Jury Instruction 10.02, Duty to Deliberate. We approved the
content of Model Instruction 10.02 for use as an Allen charge in United States v.
Thomas, 946 F.2d 73, 76 (8th Cir. 1991).

       The jury returned a guilty verdict one hour later. The jury deliberated for a
total of eight hours. Taking into consideration the length of the trial and the degree
of complexity of the case, we cannot say the total period of deliberation was so
disproportionate as to raise an inference that the Allen charge coerced the jury. See,
e.g., United States v. Warfield, 97 F.3d 1014, 1021-22 (8th Cir. 1996) (one hour of
post-Allen charge deliberation raises no inference of coercion); Thomas, 946 F.2d at
76 (nine hours of total deliberation for two-day trial raises no inference of coercion);
United States v. Smith, 635 F.2d 716, 720-22 (8th Cir. 1980) (four hours of total
deliberation for two-day trial rendering verdict forty-five minutes after the Allen
charge raises no inference of coercion). Nor do we find any indication of coercion
in the record.

       D.     Cumulative Effect
       Finally, Walrath argues the cumulative effect of the above three incidents, if
not errors in and of themselves, resulted in a deprivation of his constitutional rights.
We acknowledge “[w]e may reverse where the case as a whole presents an image of
unfairness that has resulted in the deprivation of a defendant’s constitutional rights,
even though none of the claimed errors is itself sufficient to require reversal.” United
States v. Riddle, 193 F.3d 995, 998 (8th Cir. 1999). However, the alleged errors in
this case, individually and cumulatively, do not warrant reversal because they do not
present an image of unfairness.




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III.  CONCLUSION
      Because we find no abuse of discretion or error in the district court’s admission
of evidence or instructions to the jury, we affirm.

       A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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