United States v. Olga Echerivel ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1282
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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* [UNPUBLISHED]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
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Before BYE, CLEVENGER,1 and COLLOTON, Circuit Judges.
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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
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.
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 Correa-
Gutierrez, 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
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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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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