UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4147

JOHN FITZGERALD PRESCOTT,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Peter J. Messitte, District Judge.

(CR-95-323-PJM)

Submitted: December 10, 1996

Decided: December 26, 1996

Before HALL, HAMILTON, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James K. Bredar, Federal Public Defender, Denise C. Barrett, Assistant Federal Public Defender, Baltimore, Maryland, for Appellant.

Lynne A. Battaglia, United States Attorney, Larry A. Adams, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

John F. Prescott appeals from his conviction for possession of a

firearm after a felony conviction. 18 U.S.C.A. § 922(g) (West Supp.

1996). On appeal, he argues that the district court abused its discretion by giving an Allen* charge after the jury reported a deadlock.

Officer McClanahan testified that he initiated a traffic stop of Prescott, intending to issue a speeding ticket. After Prescott and McClanahan pulled to the side of the highway, McClanahan observed Prescott

reach to the glove compartment, the front floor, the back seat and the

rear floor of the car. Prescott then moved from the driver seat to the

passenger seat and exited the car on the passenger side. He stood with

his body wedged between the frame of the vehicle and the passenger

side door.

McClanahan got out of the police cruiser and repeatedly ordered

Prescott to show his hands. Prescott displayed his left hand, but not

his right. Officer McClanahan ordered Prescott back into the car.

Prescott complied. McClanahan testified that as he walked around the

back of his cruiser and approached the passenger side of Prescott's

vehicle, he saw Prescott fling a handgun through the passenger window.

McClanahan called for assistance, and other officers arrived along

with a canine unit. After a forty-minute search, the firearm was

located by Officer McClanahan. No fingerprints were lifted from the

firearm. Prescott's defense was that McClanahan planted the firearm

and that he was being victimized with a false weapons charge.

The jury deliberated for an hour and a half, then retired for the evening. One hour into deliberations the following morning, the jury sent

out a note asking to rehear Officer McClanahan's testimony. The trial

judge instructed them to rely on their recollection. Two hours later,

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*In Allen v. United States, 164 U.S. 492 (1896), the Supreme Court

approved the trial court's admonishment to a deadlocked jury to make an

additional effort to reach a verdict.

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the jury reported that they were unable to reach a unanimous verdict.

Over Prescott's objection, the judge gave a modified Allen charge,

encouraging further deliberations in an effort to reach a unanimous

verdict. The court also instructed:

each of you who finds yourself in the minority must reconsider your views in light of the opinions of the majority, or

if the vote is six/six, with the other side, and, likewise, each

of you who finds yourself in the majority must reconsider

your views in light of the opinion of the minority.

After an additional hour of deliberations, the jury returned a verdict

of guilty. After the district court imposed a fifty-one month sentence,

Prescott appealed, arguing that the trial judge abused his discretion by

giving an Allen charge when the jury reported a deadlock after deliberating for a long period of time over simple and straightforward

facts. He also contends that the charge was improper because the

court failed to include a reference to the reasonable doubt standard.

In determining whether an Allen charge has an impermissibly coercive effect on jury deliberations, the reviewing court should consider

the content of the instruction as well as the context. Jenkins v. United

States, 380 U.S. 445, 446 (1965). In a traditional Allen charge, the

jury was informed that a new trial would be expensive, there is no

reason to believe that another jury would do a better job, it is important to reach a unanimous verdict, and jurors in the minority should

consider whether the position of the majority is correct. See United

States v. Russell, 971 F.2d 1098, 1107 n.18 (4th Cir. 1992), cert.

denied, 506 U.S. 1066 (1993).

Based on the concern that the instruction to the minority members

may be impermissibly coercive, this court mandated the modification

of the Allen charge to require the district court to instruct both the

minority and the majority on the jury to reconsider their positions in

light of the other side's views. United States v. Burgos, 55 F.3d 933,

941 (4th Cir. 1995); United States v. West, 877 F.2d 281, 291 (4th

Cir.), cert. denied, 493 U.S. 959 (1989).

The instruction given the jury here is substantially similar to the

instruction approved by this court in United States v. Sawyers, 423

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F.2d 1335 (4th Cir. 1970). The trial judge instructed all members of

Prescott's jury--minority and majority--to reconsider their views in

light of the opinions of the other side. Additionally, the court

instructed "none of you should surrender your honest belief 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." This last

sentence factors against a finding of coercion.

The jury deliberated for approximately an hour after the Allen

charge. This suggests that the jury did listen to the others' viewpoints

rather than the minority simply being coerced into agreeing with the

majority. Cf. United States v. Rogers, 289 F.2d 433, 436 (4th Cir.

1961) (verdict few minutes after Allen charge "hardly long enough to

have permitted a painstaking re-examination of the views which the

minority had held steadfastly until the charge was given.").

We find that the Allen charge given the jury in Prescott's case was

not coercive, but rather encouraged the members of the jury to consider the views of the other members. Because the language is similar

to the language of the charge upheld in Sawyers , we find that the

wording of the Allen charge was not an abuse of discretion. Further,

there is no authority in this Circuit to support Prescott's contention

that giving an Allen charge after the jury had deliberated for longer

than the length of the trial is per se an abuse of discretion.

Prescott contends that the judge should have instructed the jury on

the reasonable doubt standard as a preliminary instruction to the jury,

at the close of the trial, and during the Allen charge. Although other

circuits have endorsed a reference to the reasonable doubt standard in

an Allen charge, Potter v. United States , 691 F.2d 1275, 1280 (8th

Cir. 1982), this Circuit has not. Sawyers, 423 F.2d at 1339.

Further, the judge instructed the jury concerning reasonable doubt,

the tape-recorded instructions were available for the jury to replay if

there was any question on the standard, and Prescott's counsel spoke

at length about reasonable doubt during his closing to the jury. There

was no error in the failure of the district court's preliminary charge

or Allen charge to include a reference to the reasonable doubt standard.

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In conclusion, we affirm Prescott's conviction. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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