U.S. v. Aldridge

• Decision Date: 13 July 2005
• Docket Number: No. 03-3894.,03-3894.
• Citation: 413 F.3d 829
• Parties: UNITED STATES of America, Appellee, v. Tywanne M. ALDRIDGE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

413 F.3d 829

UNITED STATES of America, Appellee, v. Tywanne M. ALDRIDGE, Appellant.

No. 03-3894.

United States Court of Appeals, Eighth Circuit.

Submitted: September 13, 2004.

Filed: July 13, 2005.

COPYRIGHT MATERIAL OMITTED

Charles Carson Eblen, argued, Kansas City, MO (Adam W. Graves, Kansas City, MO, and Matthew J. Eickman, Overland Park, KS, on brief), for appellant.

Gregg R. Coonrod, argued, Asst. U.S. Atty., Kansas City, MO, for appellee.

Before BYE, BOWMAN, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Appellant Tywanne Maurice Aldridge appeals his conviction for conspiracy to possess 500 or more grams of cocaine and possession of a firearm in furtherance of a drug trafficking offense. Aldridge argues that the district court¹ erred when it submitted a supplemental Allen charge to a deadlocked jury and when it limited the defense's use of impeachment evidence against a government witness. We affirm as to both issues. However, we vacate the sentence in this case and remand for resentencing under the Booker remedial scheme.

I.

Aldridge was tried and convicted for conspiracy to possess 500 or more grams of cocaine and possession of a firearm in furtherance of a drug trafficking offense. Aldridge was arrested as the result of a "reverse sting" operation during which a government agent attempted to sell Aldridge "sham" drugs. At trial, Aldridge argued an affirmative entrapment defense. As a result, the government had to prove that Aldridge was predisposed to commit the crimes charged. To meet that burden, the government called Chris McFarlane, Aldridge's uncle, to testify that Aldridge was a part of McFarlane's drug distribution scheme. The trial court barred Aldridge from cross-examining FBI special agent Rick Young about McFarlane's debriefing report because a co-defendant objected that such a line of questioning constituted "prior bad act" evidence. The report contained information about Aldridge and his co-defendants, but in one portion relating to the crimes for which he was charged, Aldridge's name was omitted.

At the conclusion of the trial, the district court submitted an entrapment jury instruction patterned after the Eighth Circuit Model Criminal Jury Instructions § 9.01. During deliberations, the jury twice requested further instructions on the issue of entrapment. First, the jury asked to review an exhibit relating to entrapment. The district court allowed a tape-recorded phone call to be played for the jury in response to the jury's request. Second, the jury asked the court to elaborate regarding the definition of entrapment and requested to see a visual aid that had been used in closing argument, but was not admitted into evidence. The jury identified that the exhibit was from a co-defendant, even though only Aldridge was arguing an entrapment defense. The district court did not allow the jury to review the visual aid and again read the jury instruction regarding entrapment.

After further deliberations, the jury reported that they had reached a verdict on two defendants, but were unable to do so on the third. The district court then read the Allen charge to the jury as outlined in the Eighth Circuit Model Criminal Jury Instructions § 10.02. After returning from more deliberation, the jury found Aldridge guilty and his two co-defendants not guilty. Aldridge was sentenced to 157 months in prison.

II.

The first issue raised by Aldridge on appeal is whether the Allen charge issued after the jury's reported deadlock was improper. Because there was no objection to the supplemental jury instruction, this court reviews the district court decision for plain error. United States v. Holy Bear, 624 F.2d 853, 855 (8th Cir. 1980).

An Allen charge is a supplemental jury instruction that advises deadlocked jurors to reconsider and attempt to reach a verdict. Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896); United States v. Walrath, 324 F.3d 966, 970 (8th Cir.2003). This court has held that the issuance of an Allen charge is neither inherently coercive nor prejudicial. United States v. Cortez, 935 F.2d 135, 141 (8th Cir.1991). In order to determine if the charge was improper due to coercive effect, the court must evaluate the context in which it was given. United States v. Felix, 996 F.2d 203, 208 (8th Cir.1993); United States v. Robinson, 953 F.2d 433, 436 (8th Cir.1992).

This court has recognized four factors to consider as to whether an Allen charge was impermissibly coercive: (1) the content of the instruction; (2) the length of deliberation after the Allen charge was issued; (3) the total length of the deliberation; and (4) any indicia that the jury was coerced or pressured. United States v. Warfield, 97 F.3d 1014, 1022 (8th Cir.1996).

In the present matter, the instruction content was the standard instruction from the Eighth Circuit Manual of Model Criminal Jury Instructions. This model instruction has been accepted by this court as non-coercive in content. United States v. Thomas, 946 F.2d 73, 76 (8th Cir.1991).

The duration of deliberation after the charge was issued was approximately twenty minutes. There is no established bright-line for an acceptable length of deliberation after an Allen charge. However, this court has found ten minute, United States v. Hiland, 909 F.2d 1114, 1137 (8th Cir.1990), forty-five minute, United States v. Smith, 635 F.2d 716, 721-22 (8th Cir. 1980), and one hour, Warfield, 97 F.3d at 1022, deliberation periods to be acceptable. Given that there is no record of how the jury was split at the time of deadlock, it is impossible to speculate as to what switching or convincing took place after the district court issued the Allen charge.

The length of the overall deliberation in this case was two hours and forty-two minutes. Again, there is no clear rule as to the proper amount of deliberation time, and the appropriateness of the deliberation time is dependent on the facts of a particular case. See Smith, 635 F.2d at 721 (weighing deliberation time against facts specific to a case such as complexity and length of the trial). In "simple case[s]," a jury may not need much time to deliberate before an Allen charge is acceptable. Potter v. United States, 691 F.2d 1275, 1277 (8th Cir.1982). Further, this court will not conclude that a charge is coercive based solely upon deliberation time. Robinson, 953 F.2d at 437. For a two-day trial, even with multiple defendants, we cannot say that the overall deliberation time " was so disproportionate as to raise an inference that the Allen charge coerced the jury." Smith, 635 F.2d at 722.

There were no other indicators of coercion at the time of the Allen charge. While Aldridge may be correct that the jury could have been confused at not receiving further elaboration regarding entrapment, his counsel's failure to object can be used to infer that the procedures utilized did not seem coercive at the time. Hiland, 909 F.2d at 1137-38.

Aldridge does not offer sufficient evidence that any of the four factors of coerciveness were present. Further, the lack of objection by Aldridge's counsel at the trial means we review the district court decision with great deference. Therefore, we conclude that the Allen charge was administered within the discretion of the district court, and there is no plain error to justify a reversal.

III.

The second issue raised by Aldridge on appeal is whether the district court improperly limited his ability to impeach a government witness in violation of Aldridge's Sixth Amendment right to confront adverse witnesses. We review a trial court's decision to limit cross-examination for an abuse of discretion. United States v. Brown, 110 F.3d 605, 611 (8th Cir.1997). Our review is also subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

In this case, Aldridge attempted to cross-examine Agent Young about a report that contained Rule 404(b) evidence that had previously been excluded by the district court. The counsel for a co-defendant objected, and the district court sustained the objection. The evidence in question was a debriefing report based upon McFarlane's statements to the FBI. The report did not mention Aldridge by name in one instance and, thus, Aldridge argues that it is inconsistent with McFarlane's testimony that he told the police about Aldridge's involvement in the drug conspiracy.

The inconsistency in the evidence is hard to evaluate because the same report which fails to mention Aldridge's involvement in one portion, prominently mentions his role in a prior drug transaction in a different section. This is not a case where there are two, clear contradictory statements, but rather one clear statement and one potential omission. This makes the prejudice suffered by Aldridge speculative. Further, the court did not fully exclude the use of the report for impeachment purposes. Rather, the district court only restricted the use of the debriefing report as to one part of the report in one paragraph about the design of the drug distribution network. Aldridge's counsel did not attempt to use any other part of the report for impeachment purposes.

Further, Aldridge had the opportunity to impeach McFarlane without the use of the report. Generally, if other avenues for impeachment exist, there is no Confrontation Clause issue from the exclusion of particular impeachment evidence. Brown, 110 F.3d at 611. Aldridge had numerous other ways to attack McFarlane's credibility on his testimony regarding Aldridge's role without using the report in a cross-examination of Agent Young. Primarily, Aldridge could have questioned McFarlane about whether the report accurately reflected Aldridge's involvement. Aldridge also could have called FBI Special Agent Richard Schoeberl, who assisted the investigation, to the stand to inquire about McFarlane's statements regarding Aldridge's involvement. This questioning could...