1

The Honorable Raymond C. Clevenger, III, Judge of the United States Court

of Appeals for the Federal Circuit, sitting by designation.

2

The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-1282

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Olga Echerivel, *

* [UNPUBLISHED]

Defendant-Appellant *

* 

*

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Submitted: June 14, 2010

Filed: June 22, 2010

___________

Before BYE, CLEVENGER,1

 and COLLOTON, Circuit Judges.

___________

PER CURIAM.

A jury found Olga Echerivel guilty of conspiring to distribute and possess with

intent to distribute fifty grams or more of methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1), and 846. The district court2

 sentenced Echerivel to 130 months
3

Allen v. United States, 164 U.S. 492 (1896). “An Allen charge is a

supplemental jury instruction that advises deadlocked jurors to reconsider their

positions.” United States v. Walrath, 324 F.3d 966, 970 (8th Cir. 2003).

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imprisonment. Echerivel appeals, arguing there was insufficient evidence to support

her conviction. Echerivel also contends the district court erred when it gave the jury,

which was having difficulty arriving at a verdict, a supplemental instruction advising

the deadlocked jurors to reconsider their position. We affirm.

 Echerivel argues the government presented insufficient evidence she conspired

to distribute and possess with intent to distribute fifty grams or more of

methamphetamine. We review the sufficiency of evidence de novo, and reverse only

if no reasonable jury could have found the accused guilty beyond reasonable doubt.

United States v. Santana, 524 F.3d 851, 853 (8th Cir. 2008). The evidence is clearly

sufficient to support the conspiracy conviction. See United States v. Chavez-Alvarez,

594 F.3d 1062, 1066-67 (8th Cir. 2010) (describing the elements of conspiracy). In

2007, the Omaha Police Department used controlled buys to infiltrate a conspiracy

headed by Juan Correa-Gutierrez. Correa-Gutierrez used a tan Windstar van to bring

drugs into the Omaha area from California. Echerivel admitted she took numerous

trips in the Windstar with Correa-Gutierrez to California. A witness at trial stated that

Echerivel drove the Windstar, relinquished possession of the Windstar to CorreaGutierrez, and later seventeen pounds of narcotics were unloaded from the Windstar.

The Windstar, which was registered to Echerivel, was eventually searched by Omaha

Police, and methamphetamine was removed from a hidden compartment. Also, the

government adduced physical evidence establishing the utilities at Correa-Gutierrez’s

residence were in the name of Echerivel. From the evidence, the jury could

reasonably infer Echerivel’s participation in a conspiracy with Correa-Gutierrez and

others to distribute and possess with intent to distribute methamphetamine.

Echerivel also argues the Allen3

 charge was coercive, resulting in a deadlocked

jury reaching a verdict less than two hours after the supplemental instruction was
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given. This court reviews a challenged jury instruction for abuse of discretion.

United States v. Walrath, 324 F.3d 966, 970 (8th Cir. 2003). After eight hours of

deliberation, the jury stated they had trouble reaching a unanimous decision. A

supplemental jury instruction was provided and ninety minutes later the jury reached

a guilty verdict. Echerivel submits that the supplemental instruction was coercive

because it is not a coincidence the same jury which could not reach a unanimous

decision after eight hours, returned a guilty verdict less than two hours after the

supplemental instruction was given. 

In determining whether a particular Allen charge has a coercive effect, the court

considers (1) the content of the instruction, (2) the length of deliberation after the

Allen charge, (3) the total length of deliberation, and (4) any indicia in the record of

coercion or pressure on the jury. United States v. Ybarra, 580 F.3d 735, 738 (8th Cir.

2009). In Walrath, there was no coercion when an Allen charge was provided after

seven hours of jury deliberation, and the jury subsequently reached a verdict an hour

after receiving the supplemental instruction. 324 F.3d at 971. See also United States

v. Warfield, 97 F.3d 1014, 1021-22 (8th Cir. 1996) (holding one hour post Allen

instruction deliberation raises no inference of coercion). As in Walrath, considering

the length of trial and the degree of complexity of this case, we cannot say the total

period of deliberation was “so disproportionate as to raise an inference that the Allen

charge coerced the jury.” 324 F.3d at 971. Furthermore, to the extent Echerivel

argues the particular wording of the Allen instruction was problematic, we reject that

claim. See United States v. Smith, 635 F.2d 716, 721-23 (8th Cir. 1980) (approving

the use of a substantially similar Allen charge).

Accordingly, we affirm.

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