Stephen J. Knorr, Federal Public Defender, and Stephen J. Greubel, Asst. Federal Public Defender, Tulsa, OK, for appellant Dwight Reed.

Stephen C. Lewis, U.S. Atty., (Thomas Scott Woodward, Asst. U.S. Atty., with him on the brief), Tulsa, OK, for plaintiff-appellee.

Before ANDERSON and BALDOCK, Circuit Judges, and BROWN, Senior District Judge.**

WESLEY E. BROWN, Senior District Judge.

The appellant Dwight Reed was convicted of possessing a firearm after a former conviction of a felony in violation of 18 U.S.C. Sec. 922(g)(1) and 924(a)(2). He appeals that conviction, presenting the sole issue of whether the trial court erred by giving the jury an Allen charge after the jury announced it was unable to reach a verdict.

After reviewing the pleadings, trial transcript, and briefs, we conclude that the Allen instruction was appropriate under the circumstances of Mr. Reed's trial and affirm the judgment.

There is no dispute concerning the facts surrounding appellant's arrest and prosecution, and the case was presented to the jury upon the testimony of only three witnesses--two for the prosecution and one for the defense. The entire case took less than two hours to complete.1

Officer Lori Visser of the Tulsa Police Department testified that she was called to the scene of a domestic dispute at 10:00 p.m., July 2, 1993. When she and another officer Howard Goad arrived at the scene, the front yard of a private home, they found three males and one female. The three men were arguing over the woman and one, a Mr. Crawford, was wielding a baseball bat. Appellant and the other man were entering Mr. Reed's vehicle which was parked in the driveway of the residence at the time the officers arrived. Crawford told them that appellant had a gun, and appellant gave his consent for search of his vehicle. The firearm, a Smith & Wesson 9 millimeter semi-automatic pistol, and several rounds of ammunition were found beneath the driver's seat of appellant's vehicle.

Officer Howard Goad testified then when he arrived at the scene he saw two males coming from the house "in kind of a fast paced run" to a Jeep Cherokee that was parked in the driveway and that he pulled his vehicle up behind the Jeep to keep them from leaving the area. The man with the baseball bat in his hand told Goad that appellant had threatened him with a gun and, after the firearm was discovered, appellant was arrested. Goad further testified that after reading of Miranda rights, appellant told him that "he needed to carry a gun because people were shooting at him all the time." (Vol III Record, Transcript p. 23).

After Visser and Goad testified, Felecia Davis (the lady at the center of the controversy) was called as a witness for the defense. She testified that she had been out with appellant Reed that evening and that her boyfriend Rick Crawford became angry because she had another friend. Ms. Davis testified that Reed never told her that he had a weapon, that she did not tell Officer Visser that he had a weapon, and that she did not see the firearm in question until it was discovered in Reed's vehicle.2

After the testimony of the three witnesses was presented, jury instructions were read without objection from either side; and the jury retired at 2:10 p.m. Two hours later, the jury returned with a note which read: "We are unable to reach a unanimous decision. No one has changed their position since 2 p.m. What happens if we stay this way?" The court discussed with counsel the possibility of using an Allen instruction but elected to dismiss the jury for the evening with a direction that they return in the morning for further deliberations.3

The jury reconvened at 9:00 a.m. the next day, and the court held an in-chambers conference with counsel concerning his intention to give an Allen instruction and to declare a mistrial if the jury did not return with a verdict by noon.4 During this conference, the jury presented another note requesting a definition of "possession." The court advised the jury that it already had been given and directed the jurors to continue their work. The jury was then dismissed at 9:20 a.m. to continue deliberations.

Around 10:35 a.m., after receiving another note from the jury stating that "We are unable to reach a verdict," the court advised counsel that he would give the Allen instruction as approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 498-502, 17 S. Ct. 154, 156-157, 41 L. Ed. 528, 530-531 (1896), and allow further deliberations until noon when he would grant defendant's motion for a mistrial if there was no verdict. The jury was again returned to the jury room at 11:00 a.m. At noon, the court received a note that the jury had reached a verdict.

The Allen instruction which was given over the objection of defense counsel has been approved by this circuit in U.S. v. McKinney, 822 F.2d 946 (10th Cir.1987).5 In this appeal defendant claims that it was error for the trial court to give this instruction after the jury had twice announced it could not reach a verdict since the instruction, given separate prominence from other instructions, "introduced a coercive atmosphere into the deliberations."

Under this circuit's standard of review, we have examined the circumstances under which the instruction was given and find there was no abuse of discretion in its use in this case. After the first note from the jury, the court dismissed them for the day with instructions to return for further deliberations. The Allen charge eventually given was evenhanded; it did not presume that the majority favored a guilty verdict; and it emphasized that no juror was expected to yield a conscientious conviction on the evidence. See U.S. v. Butler, 904 F.2d 1482 (10th Cir.1990), where a similar instruction was given after nine hours of deliberation and was found not to be coercive in nature.

Since the trial court properly exercised its judgment and did not abuse its discretion in giving an Allen instruction in this case, the judgment is AFFIRMED.