* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 23 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

ORDER AND JUDGMENT *

Before KELLY , ANDERSON , and LUCERO , Circuit Judges.- 2 -

Defendants-Appellants David Duran-Salazar and Artur o Rascon-Garcia appeal their convictions for conspiracy to import a nd importation of at least five kilograms of cocaine and at least 50 kilograms of m arijuana into the United States from Mexico. 18 U.S.C. § 2; 21 U.S.C. §§ 952(a), 9 60(a)(1), 960(b)(1), (b)(3), 963. Defendants argue: (1) the evidence was insuff icient to support the jury’s verdict, and (2) the court coerced the jury by givi ng multiple Alleninstructions, 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 t o his vehicle to observe the border between Mexico and the United States near Su nland Park, New Mexico. V R. at 43. In the early morning hours, the agent ob served five people moving around outside a house and nearby shed on the Mexic an side of the border. Id. at 43-44. He then saw three of the individuals bend d own, appear to pick something up and place it on their backs, and walk towards th e international border, stopping just before crossing. Id. at 44. The other two individuals waited outside t he house for five to ten minutes, and then they also b ent down, placed something on their backs, and met up with the others. Id. at 45. All five then proceeded to1 A third defendant, Ignacio Alvarez-Perez, was also tried at the same time

and convicted on all three counts; however, he has not appealed his conviction. - 3 - walk in a single-file line across the border into N ew Mexico. Id. As the travelers proceeded into the United States, the agent saw the y were carrying large duffle bags, which their behavior indicated were heavy. I d. at 46. Upon observing this activity, Agent Shank radioed h is 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 a rrested within ten minutes. Id. at 136. Agent Shank testified he never lost site o f the five travelers from the time he first observed them in Mexico until they were al l 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. at383-84, 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 S aturday morning. After- 4 -

deliberating for only 20 minutes on Saturday, one j uror 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 ot herwise.” VIII R. at 4. Over objection and a motion for mistrial, the judge sentthe 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, “Jud ge, we can not reach a verdict.” VII R. at 2. Again, indicating deliberations had o nly proceeded a short time, the court refused to declare a mistrial and sent the ju ry a note stating, “Ladies and gentlemen of the jury, please continue deliberation s in an effort to reach a verdict.” Id. Approximately one hour after encouraging the jury t o continue, the court received another note indicating the jury had reach ed a verdict as to both defendants on count one, but could not reach a verd ict as to counts two and three. Id. at 5. The court inquired whether “further deliber ations [would] assist [the jury] in reaching a unanimous decision as to all co unts,” 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 reache d a unanimous verdict, we, the jury, feel we cannot reach a unanimous decision .” Id. at 10. At this point, again over objection, the court retu rned the jury to the courtroom and gave an Allencharge. Id. at 11-13. The court stated that the “trial- 5 -

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 con viction he or she may have as to the weight or effect of the evidence . But remember, also, that after full deliberation and consideratio n 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 Alleninstruction at approximately 1:10 p.m. and jury ha d 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 atto rney was also involved. During voir dire, the juror stated that her experie nce 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 fe lt like [she] had to sway [her] opinion, even though [she] didn’t believe it.” Dur an-Salazar Br., attach. C at 3-5.- 6 -

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 y ears supervised release. Both defendants filed timely notices of appeal.

Discussion A.) Sufficiency of the Evidence The Defendants argue that as they were not apprehen ded 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 r eview sufficiency of the evidence de novo, “viewing the evidence in the ligh t most favorable to the government and asking whether a reasonable jury cou ld find the defendant guilty beyond a reasonable doubt.” United States v. Campo s , 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 spotte d them by the house in Mexico until they were apprehended, we find the Defendants ’ argument meritless. B.) Allen Instruction We review whether an Alleninstruction was coercive, thus violating the- 7 -

Sixth Amendment guarantee of a unanimous verdict, o n 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 i nstruction, (2) whether the instruction is presented with other instructions, ( 3) the timing of the instruction, and (4) the length of the jury’s subsequent deliber ations.” 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 st atement from a juror, about “the effect of anything upon that or any other juror’s m ind 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 a ffidavit concerning the coercive effect of the court’s Allencharge 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 n ote 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 givi ng the Allencharge has been previously upheld by this court. United Stat es v. Arney , 248 F.3d 984, 988 (10th Cir. 2001); United States v. Hernandez-Garcia , 901 F.2d 875, 876-77 (10th- 8 -

Cir. 1990). Likewise, even though the district cou rt gave the Allencharge for the first time after hearing of the jury’s deadlock, rather than in conjunction with the jury’s initial instructions, we have never prohibit ed such practice. Id. at 988-89. Further, the short period of deliberation after the Alleninstruction was given is also, in and of itself, insufficient to establish c oercion; though, as the government concedes, it “suggests the possibility” of such. I d. at 990; see also Aplee Br. at 22. Thus, the key in this case concerns the Defend ants’ argument that the timing and repetition of the district court’s communicatio ns to the jury were coercive. Defendants argue that the district court gave the j ury four subsequent instructions after being informed of a deadlock. D uran-Salazar Br. at 19; RasconGarcia Br. at 20. This is incorrect. There were o nly three communications that could properly be characterized as “instructions,” as the court’s note to the jury asking whether additional deliberations would assis t in rendering a verdict as to all counts was primarily a question. And of the th ree 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 reque st to continue deliberations, and the other, a formal Allen charge. This court has not categorically prohibited multipl e Alleninstructions.- 9 -

See Gilbert v. Mullin , 302 F.3d 1166, 1175 (10th Cir. 2002) (finding that even if there were multiple Alleninstructions, there was no coercion). Indeed, the district court must have some discretion in directi ng 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 Allencharge, using language this court has previously accepted. Further, the jurors were individually polled in open court regarding the fin al verdict. VII R. at 16-20. Given these facts, we cannot say the court abused i ts discretion in seeking to have the jury take additional time in attempting to reac h a verdict, or that the final verdict was coerced. Finally, the Defendants filed a Federal Rule of App ellate Procedure 28(j) supplemental authority letter raising for the firsttime 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 r aised 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.- 10 -

AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge