United States v. Daniela Glauning ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2824
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Daniela Glauning, *
*
Appellant. *
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Submitted: March 16, 2000
Filed: May 3, 2000
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Before RICHARD S. ARNOLD, BEAM, and MURPHY, Circuit Judges.
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BEAM, Circuit Judge.
Daniela Glauning appeals her conviction for possession with intent to distribute
crack cocaine. See 21 U.S.C. § 841(a)(1). A brief summary of her contentions and our
reasons for rejecting them will suffice.
1. At the close of the first full day of jury deliberations in Glauning's trial, the
jury sent a note to the district court1 asking, "What happens if we are unable to make
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
a unanimous decision?" The district court advised the jury to take a break and resume
discussion the next day. The jury then continued to deliberate. At about noon on the
third full day of deliberation, the jury sent another note stating, "We have deliberated
this case and have examined all evidence and we are unable to reach agreement. What
can be done? How much longer should we deliberate?" The district court then
delivered an Allen2 charge to the jury. Roughly two hours later, the jury returned a
guilty verdict.
Glauning contends the Allen charge was unconstitutionally coercive. We
determine whether an Allen charge is unconstitutionally coercive by focusing on the
language of the instruction, the length of deliberation after the charge, the total length
of deliberation, and any other evidence of coercion or pressure on the jury. See United
States v. Johnson, 114 F.3d 808, 814-15 (8th Cir. 1997). The language of the
instruction given to Glauning's jury was clearly proper—the district court gave an
almost verbatim rendition of an instruction we approved in United States v. Smith, 635
F.2d 716, 722-23 (8th Cir. 1980). The jury's two hours of deliberation after the charge
similarly raises no inference of coercion. See United States v. Warfield, 97 F.3d 1014,
1022 (8th Cir. 1996) (one hour of post-Allen charge deliberation raises no inference of
coercion). We acknowledge that the sixteen to eighteen hours of total deliberation time
for a two-day trial is somewhat longer than the amount of time we have previously
approved. See, e.g., United States v. Thomas, 946 F.2d 73, 76 (8th Cir. 1991) (nine
hours of total deliberation for two-day trial raises no inference of coercion).
Nonetheless, the total deliberation time is not dispositive in analyzing the effect of an
Allen charge. See United States v. Robinson, 953 F.2d 433, 437 (8th Cir. 1992). In
addition, the record contains no other evidence of coercion. Thus, we find no error in
the use of the Allen charge.
2
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. See United
States v. Robinson, 953 F.2d 433, 436 n.1 (8th Cir. 1992).
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2. Glauning waived her Miranda3 rights and made a statement to the police.
She claims her statement was not voluntary because she was interviewed in a bathroom
by two large policemen who threatened Glauning with separation from her child if she
did not cooperate. Glauning's statement would not be voluntary if the totality of
circumstances demonstrates her will was overborne. See United States v. Kilgore, 58
F.3d 350, 353 (8th Cir. 1995). We review the district court's factual findings for clear
error while applying de novo review to the question of Glauning's voluntariness. See
id. We find the district court4 did not clearly err in crediting a police officer's denial
that Glauning was threatened with separation from her child. We similarly find no clear
error in the district court's finding that Glauning was an adult with no "intellectual
deficiencies" who was briefly interviewed soon after her arrest, and whose demeanor
and experience with the criminal justice system showed she was not weak-willed. See
Tippitt v. Lockhart, 859 F.2d 595, 598 (8th Cir. 1988) (listing factors to consider when
analyzing voluntariness). The statement was voluntary.
3. Glauning claims the federal government reneged on an agreement not to
prosecute her. We apply de novo review to the interpretation and enforcement of a
non-prosecution agreement. See United States v. Van Thournout, 100 F.3d 590, 594
(8th Cir. 1996) (standard of review for plea agreement); United States v. Johnson, 861
F.2d 510, 512 (8th Cir. 1988) (non-prosecution agreement similar to plea agreement).
Glauning contends a county prosecutor and county police officer agreed to not bring
federal charges if Glauning submitted to an interview with the county police. Contrary
to Glauning's contention, no agreement is contained in the series of negotiation letters
exchanged by Glauning's counsel and the county prosecutor. Moreover, state and local
government officials have no power to bind the federal government. See Hendrix v.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
The district court adopted a Report and Recommendation from The Honorable
John M. Mason, United States Magistrate Judge for the District of Minnesota.
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Norris, 81 F.3d 805, 807 (8th Cir. 1996).5 Finally, even if a binding agreement existed,
Glauning breached it when she adamantly refused to answer any questions during an
interview with the county police officer. See United States v. Britt, 917 F.2d 353, 359-
61 (8th Cir. 1990) (defendant cannot enforce agreement if he breaches it). Thus, we
reject Glauning's argument about the non-prosecution agreement.
4. Glauning argues there is insufficient evidence to support her conviction.
In our de novo review of this claim, we view the evidence in the light most favorable
to the verdict and reverse only if no jury could have found Glauning guilty beyond a
reasonable doubt. See United States v. Jackson, 204 F.3d 812, 814 (8th Cir. 2000).
At trial, the government presented evidence that Glauning had five grams of crack on
her person and seven grams of crack in her apartment. The crack was packaged for
distribution. Also, during a search of Glauning and her apartment, the police found no
drug paraphernalia, such as a pipe, to indicate the drugs were for Glauning's personal
use. This evidence provided a sufficient basis for the jury to convict Glauning of
possession with intent to distribute.
The conviction is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
5
Glauning claims the county police officer was working with the Drug
Enforcement Agency. The record is ambiguous on this point. However, even if this
were so, Glauning has not shown the county police officer had actual authority to bind
the federal government to an agreement. See Margalli-Olvera v. I.N.S., 43 F.3d 345,
353 (8th Cir. 1994).
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