United States v. Darren Andrew Blandin
784 F.2d 1048
10th Cir.
1986
Check Treatment
LEE R. WEST, District Judge.

Dеfendant was convicted after a jury trial of: (1) rape, [18 U.S.C. §§ 1151, 1153, and 2031]; (2) burglary, [18 U.S.C. §§ 1151 and 1153, and Kan.Stat.Ann. §§ 21-3716 and 21-4501]; (3) robbery, [18 U.S.C. §§ 1151, 1153, and 2111]; (4) theft, [18 U.S.C. §§ 1151, 1153, and 661]; and (5) sodomy, [18 U.S.C. §§ 1151, 7, and 13, and Kan.Stat.Ann. §§ 21-3506, as amended, and 21-4501]. All acts occurred on the Kickapoo Indian Reservation in Kansas. At the date of his conviction, defendant was eighteen years old аnd therefore eligible for sentencing under the Federal Youth Correction Act, 18 U.S.C. §§ 5005-5026. The district court made an express finding of “no benefit” and sentenced defendant under 18 U.S.C. § 5010(c). On appeal, defendant contends:

(1) the evidence is insufficient to sustain his conviction;
(2) the district court erred in giving its Allen instruction;
(3) the district court erred in admitting the government’s exhibits; and
(4) the district court erred in sentencing defendant under 18 U.S.C. § 5010(c) because the court did not state supporting reasons for its express finding of “no benefit.”

*1050 I.

Sufficiency of the evidence

In reviewing a criminal conviction, wе examine the evidence in the light most favorable to the Government in order to determine whether the evidence, both direct and circumstantial, together with all reasonable inferences to be drawn therefrom, is substantial enough to establish guilt beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Kendall, 766 F.2d 1426 (10th Cir.1985). All reasonable inferences and credibility choices must be made in support of the jury’s verdict. United States v. Massey, 687 F.2d 1348 (10th Cir.1982).

The victim, V.M., was an acquaintance of defendant. At trial, V.M. positively identified defendant as the man who broke into her home, raped her, sodomized her, stole nine dollars and change from her purse, and then stole her car. V.M. further testified that during the assault: (a) she smelled beer on defendant's breath, (b) ‍‌​‌​​‌​​​​‌‌​‌‌‌​‌‌​​‌​​‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌‌​​​​‍defendant asked V.M. if she liked “half breeds,” and (c) defеndant asked V.M. if her car had automatic or standard transmission. Finally, V.M. testified that defendant pulled panty hose around her neck so tight that she cоuld neither swallow nor breathe and threatened V.M. and her children should she dare report the attack.

V.M. immediately reported the attack. V.M. was initially examined by a family physician. He described V.M. as emotionally traumatized. A pelvic examination revealed blood in V.M.’s vaginal cаnal. The family physician referred V.M. to a specialist in obstetrics and gynecology for further evaluation. The specialist noted small hemоrrhages on V.M.’s skin from mid to upper neck in almost a straight line across her mid neck. A rectal examination revealed two tears of the lining of V.M.’s rеctum extending from the outside inward.

Defendant was arrested not long after the attack, which occurred at 7:00 a.m., on August 28, 1983. Defendant admits he was drinking beer into the early morning hours of August 28, 1983. Defendant is a Sac and Fox tribe enrollee with 7/i<;th Indian blood. Defendant’s car, inoperable on the day of the аttack, has a standard transmission. Defendant at first denied having seen V.M.’s car, then later admitted knowing where her car could be found. V.M.’s car was found in а soybean field approximately one-half mile from where defendant was arrested.

The dash of V.M.’s car had been torn apart and the car’s eight-track tape/radio and stereo speakers were piled up on the front seat. The radio knobs were missing. Defendant admits trying to steal the eight-track tape/radio and speakers. At his booking, defendant was in possession of radio knobs and ten dollars and change. The lаrge tennis shoes defendant was wearing at the time of his arrest are similar in size and pattern to shoeprints found at V.M.’s house and near her car. We hold the evidence is sufficient to sustain defendant’s conviction.

II.

The Allen instruction

Defendant next contends the district court erred in giving its Allen instruction. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). We have approved the Allen instruction as permissible in the Tenth ‍‌​‌​​‌​​​​‌‌​‌‌‌​‌‌​​‌​​‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌‌​​​​‍Circuit, but urge caution in its use. United States v. Brunetti, 615 F.2d 899 (10th Cir.1980); United States v. Dyba, 554 F.2d 417 (10th Cir.), cert. den. 434 U.S. 830, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). If the Allen instruction is given at all, it should be incorporated into the body of the court’s original instructions to the jury. It should not be given during the coursе of deliberations. Munroe v. United States, 424 F.2d 243 (10th Cir.1970); United States v. Wynn, 415 F.2d 135 (10th Cir.1969), cert. den. 397 U.S. 994, 90 S.Ct. 1133, 25 L.Ed.2d 402 (1970); United States v. Winn, 411 F.2d 415 (10th Cir.) cert. den. 396 U.S. 919, 90 S.Ct. 245, 24 L.Ed.2d 198 (1969). Caution should be used to ensure the Allen instruction is not coercive.

Here, the Allen instruction was given in the court's original instructions to the jury. *1051 The wording of the district court’s instruction was not “coercive so as to influenсe the jury to reach a particular verdict.” Dyba, 554 F.2d at p. 421. We hold the district court did not err in giving its Allen instruction.

III.

Admission of evidence

Defendant urges the district court erred in admitting the government’s exhibits into evidence.

In United States v. Latimer, 780 F.2d 868, 870 (10th Cir.1985), we reviewed the scope of the prosecutor’s duty to turn over evidence to the defendant:

Under Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], the prosecution is required to turn over to the defendаnt evidence favorable or exculpatory ‍‌​‌​​‌​​​​‌‌​‌‌‌​‌‌​​‌​​‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌‌​​​​‍to the defendant’s case when such evidence is material as to guilt or punishment. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court articulated three situations where the Brady doctrine applies. First, where the prosecution knew or should have known that its ease contained perjured testimony a conviction will be set aside “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs at 103, 96 S.Ct. at 2397. Second, where the prosеcution fails to respond to a specific request for information, a new trial should be granted if the withheld evidence might have affected thе outcome of the trial. Agurs at 104, 96 S.Ct. at 2397. Finally, where the defendant generally requests exculpating evidence and such evidence is withheld, reversal is required only if the omitted evidence “creates a reasonable doubt that did not otherwise exist.” “Agurs at 112, 96 S.Ct. at 2401.

Defendant contends the prosecution withheld unsрecified exhibits from defendant until the day of trial, then introduced these exhibits into evidence against him. It is difficult to find support for this allegation in the record. The record contains no specific request for any particular evidence, nor a general request for Brady material or exсulpatory information. Indeed, the parties’ briefs seem to indicate the government maintained this case as an “open file.” Further, defendаnt failed to make a contemporaneous objection at trial to the introduction of any of the government’s exhibits. Our examination of thе trial transcript reveals that when the prosecution offered the government’s exhibits into evidence, defendant explicitly stated he had nо objection. Finally, defendant has demonstrated no prejudice. He fails to show how the allegedly suppressed evidence is favorablе to him. He also fails to show the materiality of the allegedly suppressed evidence.

We strongly disapprove of delayed disclosure of Brady materials. United States v. Warhop, 732 F.2d 775 (10th Cir.1984). Here, however, defendant has failed to bear thе required burden of demonstrating: (1) the prosecution suppressed ‍‌​‌​​‌​​​​‌‌​‌‌‌​‌‌​​‌​​‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌‌​​​​‍the evidence, (2) the favorable character of the suppressed evidence, and (3) the materiality of the suppressed evidence. Warhop, 732 F.2d at 778. Further, defendant failed to timely and properly object to the introductiоn of the evidence at trial. Where no contemporaneous objection is made at trial, alleged error will be reviewed on aрpeal only if it constitutes plain error. Fed.R.Crim.P. 52; United States v. Douglas, 668 F.2d 459 (10th Cir.) cert. den. 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982); United States v. DeLuzio, 454 F.2d 711 (10th Cir.) cert. den. 407 U.S. 922, 92 S.Ct. 2467, 32 L.Ed.2d 808 (1972); United States v. Nelson, 448 F.2d 1304 (10th Cir.1971). We find no plain error. The prosecutor does not violate his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial. Agurs, 427 U.S. at 108, 96 S.Ct. at 2399. We believe defendant had a fair trial.

IV.

Sentencing under 18 U.S.C. § 5010(c)

For his fourth and final proposition, defendant urges the district court erred in sentencing defendant under § 5010(c) of the Federal Youth Corrections Act, 18 *1052 TJ.S.C. §§ 5005-5026, because the court did not state supporting reasons for its express finding of “no benefit.” [Section 5010 has now been repealed, Pub.L. 98-473, Title II, § 218(a)(8), Oct. 12, 1984, 98 Stat. 2027.] Defendant's argument is without merit. In Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), appeal after remand, 524 F.2d 190 (7th Cir.1975), cert. den. 424 U.S. 977, 96 S.Ct. 1483, 47 L.Ed.2d 747 (1976), the Supreme Court held that in sentencing under § 5010(d), an express finding of no benefit must be made on the record, but the Act does not require that it be accompanied by supporting reasons. Dorszynski, 418 U.S. at pp. 425-426, 94 S.Ct. at 3044. We hold that the reasoning of Dorszynski under § 5010(d), that the district court need only make an express finding of no ‍‌​‌​​‌​​​​‌‌​‌‌‌​‌‌​​‌​​‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌‌​​​​‍benefit and need not give supporting reasons, is equally applicable to § 5010(c).

AFFIRMED.