Unpublished Disposition, 863 F.2d 886 (9th Cir. 1988)

MEMORANDUM^* 

Jesus Ayub appeals from his conviction on one count of conspiracy to knowingly possess heroin with the intent to distribute and two counts of aiding and abetting heroin trafficking in violation of 21 U.S.C. §§ 846 and 841(a) (1), and 18 U.S.C. § 2(a).

Appellant argues that:

(1) there was insufficient evidence to sustain the jury's finding that Ayub was not entrapped, and

(2) the polling of the jurors prior to the court's delivery of a modified Allen instruction coerced the jury into finding the defendant guilty.

There was conflicting testimony on several of the factors that bear on entrapment. Viewing the evidence in the light most favorable to the government, however, this court must conclude that there was sufficient evidence for the jury to find that Mr. Ayub was not entrapped. While there was no evidence of Mr. Ayub having engaged in criminal activities before, he was not reluctant to participate in the drug deal he set up for Mr. Garcia and took part in several meetings regarding the sale of heroin. The government agents present at the meetings testified that Mr. Ayub did not show any reluctance to take part in the deal. Mr. Garcia testified that Mr. Ayub initiated the discussions regarding the sale of drugs. There was sufficient evidence for the jury to find that Mr. Ayub was predisposed to commit the crime before being induced to do it by Mr. Garcia.

Appellant argues that the jury was coerced into reaching its guilty verdict because the court polled the jurors as to whether any further deliberations would be useful before giving a modified Allen instruction. Appellant argues that the court's action "raises the question of whether [by polling the jurors] the court in fact received information as to how the jury was numerically divided on the question of guilt or innocence."

Since the trial court did not poll the jurors to find out how they were divided on the question of guilt or innocence, and in fact expressly told the jurors not to make any such indication, this case is controlled by the Supreme Court's decision in Lowenfield v. Phelps, 108 S. Ct. 546 (1988). There the Supreme Court held that a trial court's actions in polling jurors to ascertain whether further deliberations would help them to reach a verdict, followed by the giving of a modified Allen instruction to the jury, were not coercive. The court noted that

[h]ere the inquiry as to the numerical division of the jury was not as to how they stood on the merits of the verdict, but how they stood on the question of whether further deliberations might assist them in returning a verdict. There is no reason why those who may have been in the minority on the merits would necessarily conclude that further deliberation would not be helpful, or that those in the majority would necessarily conclude otherwise.

Id. at 552.

The trial court's instructions to the jury, and its actions in polling them prior to the delivery of the Allen instruction, were not so coercive as to deny the defendant due process.

AFFIRMED.