           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 19, 2009

                                       No. 08-30618                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

GREGORY J HILL

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 5:07-CR-50057-01


Before BARKSDALE, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
       Having been acquitted on two firearm, but found guilty on two controlled-
substance, counts, Gregory J. Hill contends: evidence seized from his vehicle
should have been suppressed because he did not consent to the search; and an
Allen charge was coercive and prejudicial. AFFIRMED.
                                              I.
       In February 2007, the vehicle Hill was driving was stopped by a
Shreveport, Louisiana, police officer for a traffic violation. During this stop, the

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-30618

police officer requested (and, as discussed below, received) permission to look in
Hill’s vehicle. Among the items discovered in the search were crack cocaine and
a pistol.
      Hill was indicted for, inter alia, two counts of possession with intent to
distribute a controlled substance, in violation of 21 U.S.C. § 841; possession of
a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and
possession of a firearm during commission of a drug-trafficking offense, in
violation of 18 U.S.C. § 924(c)(1). His two-day trial was held in February 2008;
after being given an Allen charge, a jury found him guilty of the two controlled-
substance, but not guilty of the two firearm, charges.
                                        II.
      Hill claims: pursuant to the exclusionary rule, evidence seized from his
vehicle should have been suppressed as resulting from a search to which he did
not consent; and the Allen charge was coercive and prejudicial.
                                        A.
      “The exclusionary rule is ‘a judicially created remedy designed to
safeguard Fourth Amendment rights generally through its deterrent effect
. . . .’” United States v. Sibley, 448 F.3d 754, 757 n.2 (5th Cir. 2006) (quoting
United States v. Leon, 468 U.S. 897, 906 (1984)). “When properly invoked, the
rule allows the suppression of the fruits of a search that violates the Fourth
Amendment.” Id. (citing Leon, 468 U.S. at 905).
                                        1.
      A consensual search is, of course, a “well-established exception to the
Fourth Amendment’s warrant requirement”. United States v. Mata, 517 F.3d
279, 290 (5th Cir. 2008) (citing Florida v. Jimeno, 500 U.S. 248, 250 (1991)). Hill
maintains: any consent given to the officer was conditioned on his accompanying
the officer during the search; and, because Hill was not permitted to do so, the
officer did not have his consent to search his vehicle.

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      When reviewing the denial of a suppression motion, conclusions of law are
reviewed de novo; findings of fact, only for clear error. E.g., United States v.
Pope, 467 F.3d 912, 915-16 (5th Cir. 2006). Whether consent to search was given
is a factual issue; accordingly, the district court’s finding consent is reviewed
only for clear error. E.g., United States v. Fierro, 38 F.3d 761, 771 (5th Cir.
1994). “‘A factual finding is not clearly erroneous as long as it is plausible in
light of the record as a whole.’” United States v. Brown, 470 F.3d 1091, 1094 (5th
Cir. 2006) (quoting United States v. Holmes, 406 F.3d 337, 363 (5th Cir. 2005)).
      Prior to the February 2008 trial, Hill moved to suppress the seized
evidence. He claimed, inter alia, that he did not consent to the search. The
parties submitted briefs and waived an evidentiary hearing. The magistrate
judge, in August 2007, issued a report and recommendation: recommending,
inter alia, that Hill gave valid consent; and, recommending denying the
suppression motion. Hill filed an objection to this report and recommendation.
The district judge, in September 2007, denied Hill’s suppression motion,
adopting the report and recommendation.
      The vehicle Hill was driving was stopped for a traffic violation—a brake
light was not working. Video and audio recordings of the traffic stop, and of the
subsequent conversation between Hill and the police officer, were made by a
recording system in the police car and a body microphone worn by the officer.
      At the beginning of the traffic stop, as the officer approached the vehicle
on foot, Hill opened the driver’s-side door; it remained open for the remainder of
the stop. The officer told Hill to remain in the vehicle, explained the reason for
the stop, and asked for Hill’s driver’s license and insurance card. Hill replied
that he did not have any identification with him. The officer had Hill step out
of the vehicle; patted him down, pursuant to Terry v. Ohio, 392 U.S. 1 (1968)
(permitting law enforcement officers to conduct a pat down of a suspect for
officer safety if they have a reasonable suspicion that: a crime has taken, or is

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about to take, place; and, the subject is armed and dangerous); discovered that
Hill was carrying a large amount of money; and, smelled the odor of burnt
marijuana emanating from the vehicle.
      Because Hill’s identity was still not known, the officer placed Hill in the
back seat of the officer’s vehicle. (Hill was not handcuffed, and he was allowed
to keep possession of his cellular telephone.) The following conversation was
then recorded by the above-described recording system:
      OFFICER: Is it all right if I look in your car? Hold on let me, hold
      on.
      HILL: Look in my car? What for?
      OFFICER: Okay, listen to me now okay. Listen to me now, listen
      to me, is there something in that car that is not supposed to be
      there?
      HILL: No sir.
      OFFICER: Okay, so you don’t have any problem if I look?
      HILL: No, no but can I look when you look? I just want to be right
      there, you can put the hand cuffs on me and everything, just let me
      be right there.
      OFFICER: I am not going to let you back out of this car because I
      don’t know who you are, okay.
      HILL: I can tell you who I am.
      OFFICER: Okay let’s start out with why are you shaking right
      now? Because I think that there’s something in that car now.
After further conversation about Hill’s identity, the officer approached the still-
open driver’s-side door of Hill’s vehicle, while Hill remained in the back seat of
the police car.
      The officer, upon looking into Hill’s vehicle, saw an empty, plastic Ziploc
bag—the kind commonly used in drug-dealing activities—in plain view. He
showed the bag to Hill, who insisted that he did not know how it happened to be
in the vehicle. The officer then returned to the vehicle and found, inter alia,
crack cocaine in the center console and a pistol in the back-seat area.
      Regarding obtaining consent to search, as discussed above, the officer said
to Hill: “[S]o you don’t have any problem if I look [in the vehicle]”?        Hill

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responded: “No, no but can I look when you look? I just want to be right there,
you can put the hand cuffs on me and everything, just let me be right there”.
(Emphasis added.)     The district court construed Hill’s statement as giving
consent, followed by a separate request to accompany the officer during the
search. Hill contends his statement is better construed as giving conditional
consent, dependent upon his accompanying the officer. In short, Hill challenges
whether consent was given.
      Hill’s above-quoted response to the officer’s asking for consent to search
provides support for the district court’s finding consent. Among other things,
Hill did not use the word “if”, or other conditional language; and, he did not
revoke his consent when the officer refused to permit Hill’s accompanying him.
There is adequate support for the district court’s ruling; accordingly, it did not
clearly err in finding this to be a consensual search. Therefore, the denial of
Hill’s motion to suppress was proper.
                                        2.
      The magistrate judge’s report and recommendation, adopted by the district
court, also provided: even without consent, marijuana odor may provide probable
cause to conduct a warrantless search. See, e.g., United States v. McSween, 53
F.3d 684, 686-87 (5th Cir. 1995). The Government urges this as an alternate
basis for not suppressing the seized evidence. Because the district court did not
clearly err in finding consent, we need not address this issue.
                                        B.
      The phrase “Allen charge” originates from Allen v. United States, 164 U.S.
492 (1896).   It generally refers to a judge’s instructions to a seemingly-
deadlocked criminal-trial jury, encouraging continuing trying to reach a verdict.
      If a jury is having difficulty reaching a unanimous verdict, it is
      permissible to instruct it “that in a large proportion of cases
      absolute certainty could not be expected; that, although the verdict
      must be the verdict of each individual juror, and not a mere

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      acquiescence in the conclusion of his fellows, yet they should
      examine the question submitted with candor, and with a proper
      regard and deference to the opinions of each other; that it was their
      duty to decide the case if they could conscientiously do so; that they
      should listen, with a disposition to be convinced, to each other’s
      arguments; that, if much the larger number were for conviction, a
      dissenting juror should consider whether his doubt was a reasonable
      one which made no impression upon the minds of so many men,
      equally honest, equally intelligent with himself. If, on the other
      hand, the majority were for acquittal, the minority ought to ask
      themselves whether they might not reasonably doubt the
      correctness of a judgment which was not concurred in by the
      majority.” [Allen, 164 U.S. at 501.] Any similar supplemental
      instruction that urges members of a deadlocked jury to forego their
      differences is now known as an “Allen charge,” or “the dynamite
      charge, the third degree instruction, the shotgun instruction, or the
      nitroglycerin charge.” United States v. Bailey, 468 F.2d 652, 666
      (5th Cir. 1972). This “standard supplemental instruction has been
      well-received by the nation’s trial court judges. The charge is used
      precisely because it works, because it can blast a verdict out of a
      jury otherwise unable to agree that a person is guilty.” Id.
United States v. Fields, 483 F.3d 313, 338-39 (5th Cir. 2007), cert. denied, 128 S.
Ct. 1065 (2008).
      Our court has consistently held that “[d]istrict courts have broad discretion
to give Allen charges when the jury indicates deadlock”. United States v. Hitt,
473 F.3d 146, 153 (5th Cir. 2006) (citing United States v. Rivas, 99 F.3d 170, 175
(5th Cir. 1996)); see also United States v. Allard, 464 F.3d 529, 536 (5th Cir.
2006) (noting the district court has “broad discretion” to evaluate whether an
Allen charge is coercive). Accordingly, our court typically reviews challenged
Allen charges for abuse of discretion. E.g., Fields, 483 F.3d at 338. This is not
so, however, when the challenge to the Allen charge was not raised in district
court; if the defendant failed to object, our review is instead only for plain error.
E.g., Hitt, 473 F.3d at 153.




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                                  No. 08-30618

      Regarding the Allen charge, claimed to have been coercive and prejudicial,
Hill maintains the wording used by the district judge requires reversal of his
conviction. Preliminary to the Allen charge, and in the second (last) day of trial,
the jury began deliberating at 10:58 a.m. At approximately 1:10 and 2:15 p.m.,
it sent notes to the district judge, requesting further instruction; the second note
included a statement that it was “deadlocked”. At approximately 2:35 p.m., the
jury sent a third note; it again advised being “deadlocked”.
      Upon receiving this third note, the district judge and counsel discussed
giving an Allen charge, encouraging the jurors to continue trying to reach a
verdict. The district judge ultimately decided to do so. Hill’s objection to this
decision was overruled.
      At approximately 2:45 p.m., the jurors were brought into the courtroom.
The district judge then said to them:
      This may not be what you expected to hear when you came in this
      door, but look at the clock. It’s a quarter to three. I’m paying you
      guys $40 a day and mileage. I’m going to ask that you go back in
      there and that you continue your deliberations for a while in an
      effort to agree on a verdict and dispose of this case. I have a few
      additional comments.
The district judge then essentially read from the Fifth Circuit’s pattern Allen
charge. Among other things, it reminds the jury that: trials are expensive;
failure to reach a verdict results in having to conduct a new trial; there is no
reason to believe the case could be tried again better or more exhaustively, or
that a future jury might be more able to decide the case; all should consider
whether any doubts that they have are reasonable; it is the jury’s duty to reach
a verdict, if possible; and the Government’s failure to establish guilt beyond a
reasonable doubt should result in a unanimous verdict of not guilty.
      The district judge concluded by saying:
            I’m going to put you on the clock. You have until 4:45 to go
      back in that jury room and earn the rest of your keep. And you

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      might go back and read, beginning with the instructions on the four
      different charges. The fact that you can’t agree on all four of the
      charges, do you agree on one of the charges. If you don’t agree on
      any of the charges, see if you can get together enough to vote
      unanimously one way or the other so that all of us don’t—all of us
      don’t have to come back in here and try this case again.
             Give it your best shot. . . . [The lawyers] did a good job. They
      did what the tradition of lawyers in such a contest are supposed to
      do.
             But somehow if you can reach a unanimous verdict, do so. If
      you can’t and it’s a quarter to five, send me a note just like this note
      you just sent me, and we will send you home.
The jury resumed deliberations at 2:53 p.m.
      At 4:15 p.m., the jury reached a verdict. It found Hill guilty of the two
controlled-substance, but not guilty of the two firearm, charges.
      As noted, Hill objected to the district court’s giving an Allen charge. On
appeal, however, he does not challenge the court’s doing so; instead, he
challenges portions of the given charge.       After the charge was given, the
following colloquy occurred between the district judge and Hill’s attorney. It
demonstrates that the wording currently challenged was not objected to in
district court:
      THE COURT: Are you all right . . . ?
      [HILL’S ATTORNEY]: Yes, sir. Although I objected to the charge,
      I appreciate the way you read it. You changed it a little bit.
      THE COURT: I did. I livened it up a little. It’s duller than
      dishwater the way it’s written, but it’s in the pattern. But
      anyway—you still object to having done it, but you like the way it
      was done; is that it?
      [HILL’S ATTORNEY]: That’s correct.
(Emphasis added.)
      Hill’s objection to giving an Allen charge is insufficient to preserve a
challenge to the wording of that charge.       See Hitt, 473 F.3d at 153 & n.5
(reviewing for plain error, where “[d]efendants’ counsel objected to the reading
of an Allen charge in toto . . . , but neither counsel objected to the charge’s

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language”). Hill’s challenge to the wording of the Allen charge, raised for the
first time on appeal, is, therefore, reviewed only for plain error. In reviewing for
plain error,
      we first determine whether there is “(1) error, (2) that is plain, and
      (3) that affects substantial rights”. [United States v.] Mares, 402
      F.3d [511,] 520 [(5th Cir. 2005)]. Under this narrow standard of
      review, an error is not “plain” unless it is “clear” or “obvious”.
      United States v. Olano, 507 U.S. 725, 734 (1993). Even if plain error
      is found to exist, we retain discretion whether to correct it; generally,
      we will do so only if “the error seriously affects the fairness,
      integrity, or public reputation of judicial proceedings”. Mares, 402
      F.3d at 520.
United States v. Salazar, 542 F.3d 139, 147-48 (5th Cir. 2008) (emphasis added),
cert. denied, 129 S. Ct. 1669 (2009); see also Allard, 464 F.3d at 535.
      For reviewing the wording of an Allen charge, we consider: whether any
“semantic deviation from approved Allen charges” is “so prejudicial to the
defendant as to require reversal”; and, whether “the circumstances surrounding
the giving” of the charge are “coercive”.      Fields, 483 F.3d at 339 (internal
quotation marks and citation omitted).
      [W]e “review the entire record and the ‘totality of the circumstances’
      surrounding the judge’s conduct to ‘determine whether the judge’s
      behavior was so prejudicial that it denied the defendant a fair, as
      opposed to a perfect, trial.’” [United States v.] Sanchez, 325 F.3d
      [600,] 603 [(5th Cir. 2003)] (quoting [United States v.] Saenz, 134
      F.3d [697,] 702 [(5th Cir. 1998)]). The judge’s conduct rises to the
      level of a constitutional error only if the conduct, “viewed as a whole,
      . . . amount[s] to a ‘quantitatively and qualitatively’ substantial
      intervention that could have led the jury to ‘a predisposition of
      guilt.’” Sanchez, 325 F.3d at 603 (quoting Saenz, 134 F.3d at 702).
United States v. Redd, 355 F.3d 866, 877 (5th Cir. 2003) (“[c]onsidering the
record as a whole”, in holding that the Allen charge given was not coercive or
otherwise improper).




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                                        1.
      One of Hill’s Allen-charge contentions is that commentary about trial-
related costs was improper.       He points, inter alia, to the district judge’s
references to the “$40 a day and mileage” paid to each juror, the salaries of the
attorneys, the expense of the United States Marshals, and the overall trial
expense.
      These comments are substantially consistent with our court’s pattern
Allen charge. The pattern charge instructs the jury that “[t]he trial has been
expensive in time, effort, and money to both the defense and the prosecution”;
and, “another trial would only serve to increase the cost to both sides”. Given
the pattern charge’s inclusion of trial costs, the district court did not plainly err
(commit “clear” or “obvious” error) in referencing the trial costs.
                                          2.
      Hill also urges that the district judge’s reference to the United States
Marshals escorting Hill was improper; he contends the jurors were unaware that
he was in custody until this reference. When a defendant’s custodial status is
referenced, “[i]t is the trial court’s function to ensure that jurors do not use [that
status] as evidence”. United States v. Mendoza, 522 F.3d 482, 493 (5th Cir.),
cert. denied, 129 S. Ct. 269 (2008) (addressing the projection of guilt by arrest,
indictment, and the issuance of prison clothing).
      The reference to the Marshals—made while focusing the jury’s attention,
not on Hill’s custodial status, but on the trial expense—cannot be said to have
been plain (“clear” or “obvious”) error. Moreover, any error on the district judge’s
part was remedied by, inter alia, the portion of the Allen charge instructing the
jury: “[I]f the evidence in the case fails to establish guilt beyond a reasonable
doubt, Mr. Hill should have your unanimous verdict of not guilty”.




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                                   No. 08-30618

                                          3.
      Hill’s final Allen-charge contention is that the district judge imposed a
coercive, impermissible deadline, by instructing the jury: “I’m going to put you
on the clock. You have until 4:45 to go back in that jury room and earn the rest
of your keep”. Hill notes that, in addition to making this comment, the district
judge also omitted the following portion of our pattern Allen charge: “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”.
      There are numerous examples of our court viewing Allen charges as
impermissibly coercive when they include time deadlines. As noted, our pattern
Allen charge instructs jurors to “take all the time which you may feel is
necessary”. In United States v. Straach, our court stated: “[A] judge errs . . .
when the instruction . . . set[s] a time limit for the deliberations”. 987 F.2d 232,
242 (5th Cir. 1993) (internal quotation marks and citations omitted). In Fields,
on the other hand, our court held the given Allen charge acceptable because,
among other things, it did not set a time limit on deliberations. 483 F.3d at 340;
see also United States v. Cheramie, 520 F.2d 325, 330 & n.7 (5th Cir. 1975).
      In this regard, the district judge’s time-related condition was arguably an
abuse of discretion. Given our court’s precedent expressing disapproval for
setting time limits, it might even amount to a “clear” or “obvious” error.
Assuming arguendo there was such an error, but based on this record, it did not
affect Hill’s substantial rights. Moreover, even assuming it did, and as discussed
infra, it did not “seriously affect[] the fairness, integrity, or public reputation of
[this] judicial proceeding[]”, Mares, 402 F.3d at 520, when, again, the record is
reviewed as a whole. See Redd, 355 F.3d at 877. Accordingly, we decline to
exercise our discretionary power to correct any plain error that occurred. See
Mares, 402 F.3d at 520.



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                                    No. 08-30618

        Viewing the given Allen charge in toto, it largely matches our court’s
pattern Allen charge.       In addition, the district judge included mitigating
statements, such as “[g]ive it your best shot”; and, “[i]f you can reach a
unanimous verdict, do so. If you can’t . . . , send me a note”. In addition, the jury
neither reached its verdict immediately after the charge was given, nor
immediately prior to the deadline; its reaching a verdict in between these two
extremes supports our view that the jurors were not pressured by the court
sufficiently to require reversal under plain-error review.
        Similarly, the jury’s verdict was a discriminating one. Following the Allen
charge’s being given, and after further deliberation, the jury convicted on two
counts and acquitted on two. In United States v. Heath, our court construed a
similar jury verdict as indicative that the Allen charge was not coercive. 970
F.2d 1397, 1406 (5th Cir. 1992) (noting that, despite the jury’s convicting on
some counts, “the jury’s verdict was a discriminating one—after further
deliberation, the jury remained deadlocked on two counts and acquitted the
Defendants of several others”).
        Our decision is further buttressed by other instances where the district
judge exhibited a friendly, jocular, and yet somewhat blunt style of interaction
with the jury. For example, at the end of the first day, before deliberations
began on the second, the district judge said to the jury:
        And I would hope that when the clock says 9 o’clock in the morning
        and I say to the Marshal, [a]re all twelve jurors here, that his
        answer will be yes.          Because we are going to start
        Johnny-on-the-spot at 9 o’clock. Don’t be late. You don’t live too far.
        The furthest guy out there is 53 miles. That’s [full name of one
        juror]. [First name of that juror], 53 miles, can you get here at 9
        o’clock without a problem?
        At another point, the following exchange took place in the presence of the
jury:



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      [HILL’S ATTORNEY]: Excuse me. It’s not really an objection, but
      I’m willing to stipulate that [the witness] is an expert in drug
      trafficking investigations. . . .
      THE COURT: Now, you see, he really is all right. Ladies and
      gentlemen, when a person is presented to the jury in the form of an
      expert witness, it’s because of experience . . . . [Hill’s attorney] has
      agreed that the gentleman is qualified to give such testimony, and
      that saves heaps of time.
      These, and other similar exchanges, support the view that the judge had
a good rapport with the jury, and that, by the final day of the two-day trial, the
jurors would have viewed a statement such as “I’m going to put you on the clock”
as reflective of the judge’s jocular style; such a statement, when this record is
examined as a whole, is not, for plain-error-review purposes, coercive or
prejudicial to the extent that we should exercise our discretion and reverse the
conviction. See also Rivas, 99 F.3d at 174 (“Our affirmance should not be read
to approve the procedure used by the district court.            However, we are
unpersuaded that the procedure prejudiced [the defendant], given the specific
circumstances of this case.”).      Again, any plain error did not taint the
deliberations to a degree that, under plain-error review, would require reversal
of Hill’s conviction.
                                        III.
      For the foregoing reasons, the judgment is AFFIRMED.




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