1 18 U.S.C. § 922(b)(3) provides:

"It shall be unlawful for any licensed importer, licensed

manufacturer, licensed dealer, or licensed collector to sell or

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________________________

No. 91-1355

________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GARY EUGENE STRAACH,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court

for the Northern District of Texas

______________________________________________

(March 19, 1993) 

Before POLITZ, Chief Judge, GOLDBERG, and JONES, Circuit Judges.

GOLDBERG, Circuit Judge:

Defendant Gary Eugene Straach is a licensed firearms dealer

who owns and operates Shooting Sports, a gun shop in Dallas,

Texas. After a lengthy "sting" operation carried out by the

government, Straach was indicted and later convicted of knowingly

selling firearms to nonresidents by way of "strawman

transactions." A strawman transaction is one in which a resident

of the state in which the firearms dealer's business is located

acts as an intermediary or agent for a nonresident who wishes to

purchase a gun. With few exceptions, such transactions are

prohibited by the Gun Control Act of 1968, 18 U.S.C. § 921 et

seq.1 The government contends that not only was Straach aware
deliver --

(3) any firearm to any person who the licensee knows or has

reasonable cause to believe does not reside in (or if the person

is a corporation or other business entity, does not maintain a

place of business in) the State in which the licensee's place of

business is located, except that this paragraph (A) shall not

apply to the sale or delivery of any rifle or shotgun to a

resident of a State other than a State in which the licensee's

place of business is located if the transferee meets in person

with the transferor to accomplish the transfer, and the sale,

delivery, and receipt fully comply with the legal conditions of

sale in both such States (and any licensed manufacturer, importer

or dealer shall be presumed, for purposes of this subparagraph,

in the absence of evidence to the contrary, to have had actual

knowledge of the State laws and published ordinances of both

States), and (B) shall not apply to the loan or rental of a

firearm to any person for temporary use for lawful sporting

purposes." Defendant does not contend that either of the

exceptions contained in subparagraph (b)(3) applies to him. 

18 U.S.C. § 924(a)(1) provides: 

"Except as otherwise provided in paragraph (2) or (3) of this

subsection, subsection (b), (c), or (f) of this section, or in

section 929, whoever --

(A) knowingly makes any false statement or representation

with respect to the information required by this

chapter to be kept in the records of a person licensed

under this chapter or in applying for any license or

exemption or relief from disability under the

provisions of this chapter;

(B) knowingly violates subsection (a)(4) (a)(6), (f), (k)

or (q) of section 922;

(C) knowingly imports or brings into the United States or

any possession thereof any firearm or ammunition in

violation of section 922(l); or

(D) willfully violates any other provision of this chapter,

shall be fined not more than $5,000, imprisoned not more than

five years, or both." 

2

that he was selling firearms to Texas residents acting as agents

for nonresidents, Straach was also aware that the nonresidents

were drug dealers who would use the firearms to commit violent

acts. 

Straach was indicted and tried on five counts, each of which
 

2 Count one involved alleged violations of 18 U.S.C. §§

371; 922(b)(3); 924(a)(1); 924(c)(2); 924(c)(3)(A); and 924(g). 

Counts two through five pertained to alleged violations of 18

U.S.C. §§ 922(b)(3) and 924(a)(1).

3

charged that he acted as a principal and that he aided and

abetted his employees Pischer and Hogue. Counts two through five

pertained to the substantive offenses of willful sales of

firearms to nonresidents; while count one pertained to conspiracy

to sell firearms to nonresidents, with knowledge or a reasonable

belief that the firearms would be used to commit drug-related

violent crime.2 A jury convicted Straach on counts two and five,

and acquitted him on counts one, three and four. Straach was

fined $100 and sentenced to one year in prison, to be followed by

three years supervised release. 

On appeal, defendant contends that the evidence was

insufficient to support the jury's verdict on counts two and

five; that the jury's verdict of acquittal on count three bars

his conviction on count two; that the court erred in refusing to

declare a mistrial due to jury misconduct; and that the court

erred in instructing the jury to continue deliberations after the

jury indicated that it had reached a verdict on counts two

through five, but was unable to reach a verdict on count one. 

Straach seeks acquittal or a new trial. Our jurisdiction is

predicated upon 28 U.S.C.§ 1291. Finding no error, we affirm the

defendant's conviction. 

FACTS

 After several Jamaican drug traffickers were apprehended in
4

1987 and 1988 and found to possess guns purchased from Shooting

Sports, the Bureau of Alcohol, Tobacco and Firearms of the United

States Department of the Treasury ("BATF") began an undercover

investigation of Straach. Prior to beginning their undercover

investigation, representatives of various law enforcement

agencies visited Straach at Shooting Sports, to ascertain that

Straach understood what the law required of him and to ask

Straach to report license plate numbers of vehicles owned by

buyers about whom he was suspicious. These law enforcement

officers claim they gave Straach a BATF circular which defined

the term "strawman transaction" and stated that strawman

transactions are illegal. 

Straach was indicted in 1990 and tried on five counts

involving conspiracy and willful sales of firearms to

nonresidents by way of strawman transactions, in some cases with

knowledge or reason to believe that the firearms would be used to

commit violent acts in furtherance of the trade in illegal drugs. 

Straach pled "not guilty" to all counts. 

At trial, evidence of the strawman sales listed in counts

two through five was provided by audiotapes of the transactions. 

These transactions involved a nonresident undercover law

enforcement officer (Albritton), accompanied by a Texas resident

(Bishop) who filled out the necessary paperwork and displayed a

Texas driver's license. Straach claims he was not present during

crucial parts of the transactions that were taped, but the

government presented witnesses who testified that Straach was
 

3 Hogue testified as part of a plea agreement with the

government. 

 

4 Persons generally ineligible to purchase firearms from

licensed dealers include nonresidents, persons who have been

adjudicated incompetent, and persons who have been convicted of

certain crimes.

5

present during the transactions. Evidence of strawman

transactions predating the undercover operation was presented by

witnesses, including Straach's employees, Hogue and Pischer.3 

The audiotapes and witnesses both demonstrated that

nonresidents came to Shooting Sports with Texas residents in

order to purchase firearms, and that in at least some instances

the nonresidents openly discussed their domiciles while in the

shop. Although the Texas residents showed their drivers'

licenses and filled out the necessary paperwork, the nonresidents

selected the guns to be purchased, asked all or most of the

questions about the guns, and negotiated prices. 

Straach made his customers complete BATF Form 4473

("Firearms Transaction Record"), which Straach usually filed with

BATF as required. Form 4473 contains the following caution to

sellers and buyers alike:

WARNING -- The sale or delivery of a firearm by a

licensee to an eligible purchaser who is acting as an

agent, intermediary or "straw purchaser" for someone

whom the licensee knows or has reasonable cause to

believe is ineligible to purchase a firearm directly,

may result in a violation of the Federal firearm laws.4

On August 4, 1988, Albritton, a nonresident BATF agent

entered Shooting Sports accompanied by Bishop, a resident law

enforcement agent. Neither Albritton nor Bishop disclosed that
6

they were law enforcement agents. Bishop asked no questions and

did not examine any of the firearms. Albritton asked Straach

questions about the firearms available for purchase in the store,

and after looking at several firearms, said he was interested in

buying three guns. Straach told Hogue to continue handling the

sale. Hogue asked Albritton for his driver's license, and

Albritton indicated that Bishop would complete the necessary

paperwork. Bishop completed Form 4473 and displayed his Texas

driver's license. Straach told Bishop which part of Form 4473 he

needed to sign. Albritton paid the bill and took the receipts. 

While in the store, Bishop asked Albritton to give him one of the

three firearms just purchased. Albritton carried all three

firearms out of the store. This transaction was audiotaped and

formed the basis for count two of the indictment. Albritton then

requested that eight more guns be put on hold for him until he

returned the next day, and paid the required deposit.

 On August 5, 1988, Albritton returned with Bishop and

purchased eight guns. Straach was present in the store but was

talking to someone else who was present in the store. Straach

acknowledged Albritton and told him that Pischer had started the

necessary paperwork for the sale. Pischer then handed Albritton

Form 4473, which Bishop filled out for him. No one requested any

identification, so none was offered by Bishop or Albritton. 

Albritton paid for the guns and carried them away. This

transaction was audiotaped and formed the basis for count three. 

Later that same day, Albritton telephoned Straach and informed
7

Straach that he was returning to Oklahoma. 

On November 2, 1988, Albritton and Bishop again entered the

store and succeeded in purchasing fourteen guns. Prior to

purchasing the guns, Albritton informed Straach that the guns he

had previously purchased at Shooting Sports had sold well in

Oklahoma. Albritton specifically informed Straach that Albritton

only had an Oklahoma driver's license and asked whether he would

need Bishop to complete the necessary paperwork. Straach

responded that Albritton should give the purchase money to

Bishop, who should complete the form. Bishop then completed Form

4473, and both Bishop and Straach signed it. Albritton and

Bishop then left the store. Albritton returned later the same

day and picked up the fourteen firearms. This transaction as

audiotaped and formed the basis for count five. 

After listening to all of the evidence described here, the

jury retired. On the final day of the jury's deliberations, the

jury notified the judge that it had reached agreement on counts

two through five, but could not reach agreement on count one. 

The judge conferred with counsel for each of the parties. The

government asked the judge to instruct the jury to continue

deliberations. Defendant's counsel stated that defendant "would

be willing to accept the jury verdict as it is." In a written

exchange, the judge instructed the jury: "Members of the jury:

Considering the length of the trial and the amount of the

evidence to be considered, the Court requests that you continue

your deliberations in an effort to reach a verdict on all
 

5 Straach received a one year sentence for each of counts

two and five, to be served concurrently.

8

counts." The judge indicated to defendant's counsel that he

considered it the jury's prerogative to reconsider the verdicts

they had reached on counts two through five as they continued to

deliberate.

The transcript of the judge's colloquy with the parties'

lawyers, prior to sending the jury instructions to continue

deliberations, demonstrates that the judge would have been

disinclined to sentence Straach if he was found guilty only of

conspiracy (count one). Instead, the judge indicated that he

would "consider very carefully a motion for a new trial in the

event the only convictions would be on count one." 

When the jury finally finished deliberating, they found

Straach guilty of counts two and five, and not guilty of counts

one, three, and four. He was fined $100 and sentenced to one

year in prison,5 to be followed by three years supervised

release. 

The day the verdicts were rendered and recorded, two of the

jurors went to the office of defendant's lawyer and signed

affidavits stating: (1) they believed Straach to be innocent on

all counts, and (2) while the jury deliberated they had

repeatedly stated their belief that Straach was innocent. 

Neither juror had indicated any lack of agreement with the

verdicts when polled by the judge. 

Dannie Heil, one of the two jurors who completed affidavits,
 

6 This may be related to the fact that Straach's

employee, Hogue, testified that some of the sales made by Hogue

and Pischer were "morally wrong because they felt the guns would

be used in drug deals and to commit crime." 

 

7 Heil's affidavit stated:

"We had lengthy discussions on that and it was finally

decided that if we would go on two and five that we

would drop one. That is ultimately what we did. To

this time, and I said so at the time, I said, I do not

feel that he is guilty on any five, I am compromising

on two and five for one, but I still do not believe

that Gary Straach is guilty, and I do not believe that

9

stated that prior to reading the court's note telling them to

continue deliberating, the jury had decided Straach was not

guilty on counts two through five. According to Heil, the

judge's note influenced the jury to reconsider the decision they

had reached on counts two through five. Had the judge directed

the jury to render their verdicts on counts two through five at

the time the jury told the judge they were at an impasse, the

only crime of which Straach might have been convicted was that

listed in count one (conspiracy), a crime for which the judge had

indicated he was unwilling to sentence defendant if defendant was

acquitted on all other charges. Heil's affidavit also stated

that some of the jurors wanted to convict Straach because they

considered his behavior to be legal, but morally wrong;6 that on

the first day of deliberations the jurors had agreed to

"compromise and trade off a guilty verdict on [count] five for a

not guilty on [count] one;" and that on the last day of

deliberations, the jurors agreed to another compromise, involving

a guilty verdict on counts two and five in exchange for a verdict

of "not guilty" on count one.7 
at this time, I never did and I never will. When I

left the courtroom I began to feel strange and that I

had done something that I'm not very proud of and I

decided that I couldn't live with this. I came down

here and looked up [defendant's counsel] and I said, I

am going to see what I can do to undo what I have done

because I did not feel right that I made concessions

when I should not have made concessions and I should

have stuck to my guns and I did not do it." 

In a supplemental affidavit, Heil stated: "Some of the jurors

wanted to find Gary Straach guilty because he had sold guns to

people who were originally from Jamaica. These jurors did not

care if the sales were legal or not. These same jurors (more or

less) wanted to find Gary Straach guilty because he had done some

morally wrong things. I also believe that Gary Straach was

entrapped." (emphasis added)

10

When defendant sought declaration of a mistrial, he was

given permission by the court to contact the other jurors. 

Ultimately, however, the court denied defendant's motion for a

mistrial. The court acknowledged that it appeared the jury had

"compromised," but considered significant the absence of any 

evidence that "any juror relied on, or attempted to introduce,

any extraneous material into the jury deliberation process." The

judge noted that "when polled, each juror indicated that [the

jury's] verdict had been unanimous." The court continued:

[I]t is clear to the Court that, based on the facts as

alleged by Straach, he is not entitled to a mistrial. 

There is no indication that the jury engaged in any

unpermitted activity during its deliberative process. 

Further, given the facts of this case, it is clear that

Straach' [sic] right to a unanimous verdict was not

violated. 

DISCUSSION
11

I. SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CONVICTION ON 

COUNTS TWO AND FIVE

The jury found defendant guilty of counts two and five

(willful sales of particular firearms to nonresidents). 

Defendant claims that there was not enough evidence on which the

jury could conclude that he intentionally sold firearms to

nonresidents. More particularly, he claims he did not know that

strawman transactions are illegal (or, what amounts to the same

thing, that he did not know the transactions he engaged in were

strawman transactions), and therefore he lacked the criminal

intent required for a conviction. 

An appellate court reviews the evidence if possible in a

manner consistent with the verdict. Glasser v. United States,

315 U.S. 60, 80 (1942) ("The verdict of the jury must be

sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it") (citations omitted);

United States v. Fortna, 796 F.2d 724, 740 (5th Cir.) ("[W]e must

examine all the evidence and reasonable inferences in the light

most favorable to the government and determine whether a

reasonable trier of fact could find that the evidence establishes

guilt beyond a reasonable doubt") (citations omitted), cert.

denied, 479 U.S. 950 (1986); United States v. Bell, 678 F.2d

547, 549 (5th Cir.) ("It is not necessary that the evidence

exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except guilt....A jury is free

to choose among reasonable constructions of the evidence"),

aff'd, 462 U.S. 356 (1983). The appellate court's role does not
12

include weighing the evidence or assessing the credibility of

witnesses. Bell, 678 F.2d at 549; United States v. Martin, 790

F.2d 1215, 1219 (5th Cir.), cert. denied, 479 U.S. 868 (1986); 

United States v. Varca, 896 F.2d 900, 905 (5th Cir. 1990), reh'g

denied, 901 F.2d 1110 (5th Cir. 1990), cert. denied, 111 S.Ct.

209 (1990); United States v. Espinoza-Franco, 668 F.2d 848, 851

(5th Cir. 1982). If a rational trier of fact could have found

the defendant guilty, beyond a reasonable doubt, of the essential

elements of the offense, then the conviction must be upheld. 

Jackson v. Virginia, 443 U.S. 307 (1979) (habeas review of state

court conviction). We conclude that there was sufficient

evidence in the instant case on which a reasonable jury could

have decided that defendant was guilty of the substantive

offenses charged in counts two and five.

Witnesses testified that prior to the BATF sting operation,

Straach had engaged in strawman transactions after having been

informed that the buyers intended to send the guns to New York

for use in drug-related crimes. The government introduced not

only testimony of witnesses to certain strawman transactions, but

tape recordings of several strawman transactions (including those

forming the basis for counts two and five). 

With respect to the strawman transaction comprising count

two, Straach was present when a nonresident undercover agent

asked for help in selecting firearms. Straach contends, however,

that he was not the salesperson responsible for processing that

particular sale, and that he was not present when the nonresident
13

paid for the guns and the resident undercover agent filled out

the necessary paperwork. However, the government contends that

throughout the entire taped transaction, Straach was present,

even though he was not the salesperson directly handling the

sale. The jury was, of course, entitled to determine for itself

the credibility of the witnesses to the tape-recorded

transaction, when considering whether Straach was in fact present

during the entire transaction.

While the evidence supporting defendant's conviction on

count two was adequate, the evidence supporting his conviction on

count five was overwhelming. The government introduced an

audiotape of the transaction, in which a nonresident undercover

agent accompanied by a resident purchased fourteen guns from

Straach. The nonresident told Straach that the guns he had

previously purchased from Straach had sold well in Oklahoma. The

nonresident then told Straach that he only had an Oklahoma

license, and asked whether his Texan friend should therefore

complete the necessary paperwork. Straach told the nonresident

that he should give the purchase money to the resident, who

should fill out the Form 4473. The Texan and Straach joked that

the Texan should receive a commission for the service he was

providing the nonresident. The form memorializing the sale

listed Straach as the salesperson. The nonresident returned

later the same day, unaccompanied by the Texan, to pick up the

guns. 

Straach claims he was lulled by representatives of BATF and
14

other law enforcement agencies into thinking that he was not

breaking the law. He claims that he believed the transactions he

carried out assisted BATF, insofar as he sometimes gave BATF the

license plate numbers of vehicles owned by buyers. In 1986, two

years prior to the transactions upon which counts two and five

are based, a BATF officer named Ray told Straach, "As long as

they're legal sales, go ahead and sell all the guns you want to

the Jamaicans." Straach contends that Ray's statement further

reinforced his belief that if a Texas resident accompanied a

nonresident who wanted a gun, filled out the required paperwork

and handed over the money, the transaction was legal. However,

the government points out that Ray specifically stated that all

sales of firearms must be legal. A reasonable interpretation of

Ray's statement therefore is that sales to "Jamaicans" would be

acceptable if the sales could be fit into one of the exceptions

to the Gun Control Act permitting sales to nonresidents, or if

the buyers were of Jamaican origin but were currently Texas

residents. In any case, in April 1988, three months prior to the

sting operation, a BATF officer visited Straach's store and gave

Straach a circular prepared by BATF, explaining straw man

transactions in detail and warning that they are illegal. 

Although one of the jurors stated in an affidavit that

he believed Straach was entrapped by BATF, there is little

evidence that BATF inculcated in Straach the disposition to

engage in strawman transactions. In fact, evidence was presented

to show that Straach engaged in strawman transactions prior to
 

8 Witnesses testified that they had observed Straach

selling firearms to persons who informed Straach that the guns

would be shipped immediately to New York.

15

being contacted by BATF representatives.8 The defense of

entrapment is unavailing if there is evidence that the defendant

was predisposed to commit the crime. See Hampton v. United

States, 425 U.S. 484, 488-89 (1976); United States v. Russell,

411 U.S. 423, 436 (1973). See also Sherman v. United States, 356

U.S. 369, 373-76 (1958). 

Straach said something on the tape of the strawman

transaction comprising count five which suggests Straach might

not have understood what a strawman transaction was, or that what

he was doing was illegal: Straach told Albritton that Albritton

needed to give the money to Bishop so that Bishop could pay Hogue

and "avoid a strawman sale." Prior to the sting operation,

Straach was also reported to have told an employee, "We must

educate the Jamaicans on how to buy the guns legally." (emphasis

added).

Nevertheless, Straach had every reason to know what a

strawman transaction was, that this was just such a transaction,

and that it was illegal. Straach required buyers to complete

BATF Form 4473, which listed the definition of a "strawman

transaction" and warned that such transactions are generally

illegal. BATF officers testified that over the years, they had

informed Straach that merely requiring a resident purchaser to

use his own money and identification, and to fill out the

paperwork himself, was insufficient to assure compliance with the
 

9 Although Brooks did not involve a question as to the

sufficiency of the evidence, the case is otherwise on all fours

with the instant case. Brooks was reversed on grounds not

bearing upon the instant case. See United States v. Henry, 749

F.2d 203, 206 (5th Cir. 1984). 

16

law against strawman transactions. Specifically, Straach was

informed that knowledge or a reasonable suspicion that a gun was

being purchased by a resident for an ineligible buyer (such as a

nonresident, an adjudicated incompetent, or a convicted felon),

made the transaction an illegal strawman transaction. 

Finally, defendant's attempt to demonstrate a general lack

of criminal intent by pointing to evidence that he did on

occasion turn away strawman purchasers belies his claim that he

did not understand such transactions to be illegal. The jury was

entitled to assess the credibility of the witnesses and to

disbelieve Straach's feigned innocence of the illegality of

strawman transactions. 

The facts of this case are similar to those of United States

v. Brooks, 611 F.2d 614, 616 (5th Cir. 1980), in which this

court upheld a conviction under 18 U.S.C. § 922(b)(3) for the

sale of firearms by a licensed Florida dealer to a nonresident.9

In Brooks, a nonresident attempted to buy a gun, but was told

that to do so he would have to return with someone who was a

Florida resident. When the nonresident returned with a Florida

resident, the resident filled out the necessary forms and

tendered the amount due. The resident did not "shop" for any

guns in the store: he asked no questions of the dealer, handled

none of the guns, and did not attempt to negotiate the price. 
 

10 Straach's brief contends that the undercover agents

posing as a nonresident and a resident conferred with one another

about the selection of the guns that were ultimately purchased on

August 4 and 5, 1988. (These transactions formed the basis of

counts two and three respectively.) He does not, however, contend

that the undercover agent posing as a resident talked to Straach

about the guns.

17

The defendant admitted he sold firearms to a resident of

Florida who bought the firearms for a nonresident, but claimed he

thought the sale was permissible. This court upheld the

defendant's conviction, saying:

[T]he statute is violated by a sham sale made to a

resident when the transaction is really with a

nonresident, and it is for the jury to decide, on all

the relevant evidence and with proper instructions,

whether such a charade occurred or whether there was a

bona fide sale to a resident.

611 F.2d at 619. In the instant case, Straach sold the firearms

listed in counts two and five to a resident of Texas who was

accompanied by a nonresident. The nonresident did the shopping,

asking all the questions, selecting the guns he wanted, and

supplying the purchase money.10 As in Brooks, the resident

simply filled out the necessary paperwork and displayed his own

driver's license. 

II. WHETHER A VERDICT OF ACQUITTAL ON COUNT THREE BARS

DEFENDANT'S CONVICTION ON COUNT TWO 

Defendant contends that the not guilty verdict on count 

three bars defendant's conviction on count two, because each

count pertains to the offense of willful sale of firearms to a

nonresident. In other words, defendant argues that a verdict of

acquittal on count three means the jury considered him to lack

the requisite criminal intent for the offense charged in either
18

of counts two or three. We disagree with defendant's assessment

of the import of the verdict of acquittal on count three. It is

entirely possible that the jury found that defendant knowingly

participated in a "sham transaction" with respect to the sale of

the three firearms listed in count two, while he did not

participate in selling to a nonresident the eight firearms with

the serial numbers listed in count three. Counts two and three

refer to transactions involving different batches of guns sold to

the same nonresident buyer on two different days. 

 However, even if the two counts were related factually, a

not guilty verdict on count three would not necessarily bar a

guilty verdict on count two. In United States v. Fesler, 781

F.2d 384, 390 (5th Cir. 1986), reh'g denied, 783 F.2d 1063 (5th

Cir. 1986), cert. denied, 476 U.S. 1118 (1986), the defendant

argued that his acquittal on a conspiracy count involving child

abuse collaterally estopped his conviction by the same jury for

aiding and abetting child abuse. This court responded: 

"Collateral estoppel does not apply to the inconsistency of a

verdict returned in a single trial. Rather, the doctrine applies

in situations where the verdict of one jury precludes a

subsequent jury from returning a verdict inconsistent with the

earlier verdict." See also Harris v. Rivera, 454 U.S. 339, 346

(1981) (finding it well established that a jury has "unreviewable

power...to return a verdict of not guilty for impermissible

reasons"); United States v. Powell, 469 U.S. 57, 63-67 (1984). 

In United States v. Morris, 974 F.2d 587 (5th Cir. 1992), this
 

11 284 U.S. 390 (1932).

19

court considered whether a defendant's acquittal on charges

involving one drug sale barred his conviction on charges related

to a second drug sale. Defendant's only defense was that he was

entrapped, and he argued that an acquittal on the first count

would necessarily entail an acquittal on the second count

(involving a drug sale occurring later in time). Defendant

argued that in acquitting him on the first count, the jury must

have found that defendant had no criminal predisposition until

the government inculcated the criminal intent within him. In

rejecting this argument, this court joined the Second and Ninth

Circuits. See United States v. Smith, 802 F.2d 1119, 1125 (9th

Cir. 1986) ("An initial entrapment does not immunize a defendant

from criminal liability for subsequent transactions that he

readily and willingly undertook"); United States v. North, 746

F.2d 627, 630 (9th Cir.), cert. denied, 470 U.S. 1058 (1985);

United States v. Khubani, 791 F.2d 260, 264 (2d Cir.), cert.

denied, 479 U.S. 851 (1986). 

Finally, we note that even if the verdicts were

inconsistent, that alone would not be grounds for reversal. In 

Powell, the Supreme Court reaffirmed that portion of Dunn v.

United States11 which did not apply to the doctrine of res

judicata. In so doing, the Court stated: 

[W]here truly inconsistent verdicts have been reached,

the most that can be said...is that the verdict shows

that either in the acquittal or in the conviction the

jury did not speak their real conclusions, but that

does not show that they were not convinced of
20

defendant's guilt....The fact that the inconsistency

may be the result of lenity, coupled with the

Government's inability to invoke review, suggests that

incompatible verdicts should not be reviewable. 

469 U.S. at 64, 66. See also Morris, 974 F.2d at 588. An

acquittal does not necessarily equate with a finding that the

defendant was innocent. The not guilty verdict may be the result

of compromise, confusion, leniency, and so forth. See, e.g.,

Dunn v. United States, 284 U.S. 390, 393-94 (1932). See also

Powell, 469 U.S. at 65-69. Just as none of these factors can be

raised by a juror attempting to overturn a guilty verdict, none

can be used to argue that an acquittal on one count requires

reversal of a guilty verdict on another count. 

III. WHETHER THE DISTRICT COURT ERRED IN REFUSING TO DECLARE A

MISTRIAL 

After reviewing defendant's motion for a mistrial (with

affidavits from Heil and Steger), the court permitted defendant

to contact the other jurors and file a supplemental motion for a

mistrial. In the Order Denying Defendants' Motions for Mistrial, 

the court stated:

Evidence that the jury may have compromised its vote,

and the internal deliberative process of each juror,

are insufficient grounds for a mistrial absent a

showing that the jury relied on external forces in

reaching their verdict....None of [Straach's] evidence

suggests that any outside influence was brought to bear

on the juror deliberations in this case. As such, the

Court is unable to conclude that the verdict reached in

this case was improper. 

The court relied heavily on the text of Fed. R. Evid. 606(b),

which provides that:

Upon an inquiry into the validity of a verdict or

indictment, a juror may not testify as to any matter or
 

12 Fed.R.Crim.P. 31. 

21

statement occurring during the course of the jury's

deliberations or to the effect of anything upon that or

any other juror's mind or emotions as influencing the

juror to assent to or dissent from the verdict or

indictment or concerning the juror's mental processes

in connection therewith, except that a juror may

testify on the question whether extraneous prejudicial

information was improperly brought to the jury's

attention or whether any outside influence was

improperly brought to bear upon any juror. Nor may a

juror's affidavit or evidence of any statement by the

juror concerning a matter about which the juror would

be precluded from testifying be received for these

purposes. 

The court also considered whether the affidavits of Steger and

Heil established that Straach had been denied the right to a

unanimous verdict,12 insofar as these two jurors claimed they had

always maintained Straach's innocence during the jury's

deliberations. The court rejected this argument, because "at the

time the verdict was rendered, each juror indicated that he or

she had agreed to the verdict." 

While a juror may attack the verdict (justifying a new

trial) by testifying concerning outside influences on the jury,

(e.g., newspapers, statements by court personnel), see, e.g.,

Mattox v. United States, 146 U.S. 140 (1892); Parker v. Gladden,

385 U.S. 363 (1966), his testimony about the jury's internal

deliberations cannot result in a mistrial. Even a compromise

verdict cannot be challenged later by a juror if a reasonable

jury could have found that the conviction was supported by the

evidence beyond a reasonable doubt. United States v.

Dotterweich, 320 U.S. 277, 278-79 (1943); United States v.
22

Gordon, 780 F.2d 1165, 1176 (5th Cir. 1986). Although testimony

by jurors about "objective jury misconduct" is admissible in some

jurisdictions, it generally is not admissible in the federal

courts. See Notes following Fed.R.Evid. 606(b). See also Tanner

v. United States, 483 U.S. 107, 117 (1987). Although two jurors

came forward after the verdicts had been returned and recorded,

stating that they had maintained throughout the jury's

deliberations that defendant was not guilty on all counts, but

had been pressured into compromising their verdicts on counts two

and five, this "pressure" cannot count as an outside influence. 

See, e.g., United States v. Vincent, 648 F.2d 1046, 1049-50 (5th

Cir. 1981) (juror's claim that he felt pressured to agree with

other jurors due to the judge's charge that the jury do its best

to reach agreement did not amount to "outside influence" brought

to bear on juror). 

Defendant also claims that jurors considered the penalties

that might be visited upon Straach if they found him guilty on

various counts. However, there is no evidence that they learned

about these penalties from outside sources and therefore the

verdicts must stand. See United States v. Lamp, 779 F.2d 1088,

1097 (5th Cir.), cert. denied, 476 U.S. 1114 (1986). Finally, a

jury verdict cannot be challenged as nonunanimous if the jurors

agreed to the verdict when polled, unless some competent evidence

is presented which does not involve delving into the jurors

actual deliberations. See, e.g., United States v. Gipson, 553

F.2d 453, 457 (5th Cir. 1977) (judge's instruction to jury
23

violated defendant's right to a unanimous verdict), disapproved

on other grounds, Schad v. Arizona, 111 S.Ct. 2491, 2498-99

(1991). 

Considering the highly deferential standard that applies to

a trial judge's decision to deny or grant a mistrial, and

defendant's failure to allege or demonstrate that outside

influences were brought to bear on the jury, affirmance of the

trial court's denial of defendant's motions for a mistrial is

appropriate. See e.g., United States v. Sedigh, 658 F.2d 1010,

1014 (5th Cir. 1981 Unit A), cert. denied, 455 U.S. 921 (1982);

United States v. Webster, 960 F.2d 1301, 1305 (5th Cir. 1992),

cert. denied Nelson v. United States, 113 S. Ct. 355 (1992) (each

case applies abuse of discretion standard of review). 

IV. WHETHER THE DISTRICT COURT ERRED IN INSTRUCTING THE JURY TO

CONTINUE DELIBERATIONS

After spending a great deal of time deliberating, the jury

notified the court that it had reached verdicts on counts two

through five, but was unable to each a verdict on count one. The

court instructed the jury to continue deliberating, without

limiting the instruction to count one as requested by defendant's

counsel. Defendant contends this was error. The government

contends that the court's instruction to the jury to continue to

deliberate was "not prejudicial or coercive." Juror Heil's

affidavit suggests that after the jury received the court's

instruction to continue deliberating, they not only reached a not

guilty verdict on count one, but changed their verdicts on counts

two and five from not guilty to guilty. In one sense, then,
24

defendant was "prejudiced" by the judge's instruction to the

jury. However, there was no reversible error.

A judge may encourage jurors who are having difficulty

reaching a verdict to deliberate longer, and to give due

consideration and respect to the views of their peers. Allen v.

United States, 164 U.S. 492 (1896). See also United States v.

Bailey, 480 F.2d 518 (5th Cir. 1973) (affirming en banc United

States v. Bailey, 468 F.2d 652 (5th Cir. 1972)). However, a

judge errs in instructing the jury to deliberate further if the

jury has reached a final verdict, which has been announced and

recorded, United States v. Taylor, 507 F.2d 166, 168 (5th Cir.

1975), or when the instruction "unduly coerce[s] the minority

into surrendering its views for the purpose of rendering a

verdict, or set[s] a time limit for the deliberations," United

States v. Cheramie, 520 F.2d 325, 329-31 (5th Cir. 1975). See

also United States v. Lindell, 881 F.2d 1313, 1321 (5th Cir.

1989), cert. denied, 493 U.S. 1087 (1990).

In this case, there is no suggestion that the jury's verdict

on counts two through five was "final" when the judge instructed

the jury to continue deliberating. In Taylor, this court stated

that:

[A] jury has not reached a valid verdict until

deliberations are over, the result is announced in open

court, and no dissent by a juror is registered. Even

at this point, where the verdict is announced in open

court and no dissent is voiced, the verdict may not be

accepted by the court if a poll taken before the

verdict is recorded indicates a lack of

unanimity....Votes taken in the jury room prior to

being returned in court are preliminary....This applies

particularly where more than one count has been
 

13 See, e.g., Lindell, 881 F.2d at 1320-21.

25

submitted to the jury, for continuing deliberations may

shake views expressed on counts previously considered. 

Jurors are not bound by votes in the jury room and

remain free to register dissent even after the verdict

has been announced, though before the verdict is

recorded. (citations omitted and emphasis added) 

507 F.2d at 168. See also United States v. White, 972 F.2d 590,

595 (5th Cir. 1992), reh'g denied, 977 F.2d 576 (5th Cir. 1992),

petition for cert. filed (Jan. 6, 1993). 

Considering the standard of review that applies (abuse of

discretion),13 we cannot say that the district court erred in

encouraging the jury to deliberate further. The note to the jury

simply said, "Members of the jury: Considering the length of the

trial and the amount of the evidence to be considered, the Court

requests that you continue your deliberations in an effort to

reach a verdict on all counts." The note did not coerce the

minority jury members into agreement with the majority, or set a

time limit on deliberations. The note expressed no opinion as

to what kind of verdict the court preferred, or whether the

verdicts on counts two through five should be revisited. Of

course, the phrase "considering the length of the trial and the

amount of the evidence to be considered" might have been read by

a juror to mean that the result should be obvious to all jurors

upon due consideration of the evidence. However, it remains

difficult to construe the note as coercive or as favoring a

particular verdict, insofar as it simply urged that "an effort"

be made to reach a unanimous verdict. Thus, even if the note's
26

language deviated in some respects from that of previously

approved Allen charges, it was acceptable. See Lindell, 881 F.2d

at 1320-21. Allen's age-old wisdom was intelligently applied in

this case. 

CONCLUSION

 For the foregoing reasons, defendant's conviction is

AFFIRMED.