Unpublished Disposition, 867 F.2d 613 (9th Cir. 1989)

MEMORANDUM^* 

This is an appeal from appellant's conviction of conspiracy to possess and distribute cocaine. Appellant contends that the district court erred in refusing to give the defendant's proposed multiple conspiracy instruction and that it further erred in allowing prosecution and defense counsel to summarize the evidence during jury deliberations after a 14-day recess.

The failure of a district court to deliver an instruction to the jury on a defendant's theory of the case is reversible error if the proposed instruction is correct as a matter of law and there is some basis for it in the evidence presented in the case. United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984). However, the district court has considerable discretion in formulating jury instructions. A defendant is not entitled to any particular form of an instruction so long as the instructions given fairly and adequately cover his theory of defense. United States v. Faust, 850 F.2d 575, 583 (9th Cir. 1988) (citing United States v. Solomon, 825 F.2d 1292, 1295 (9th Cir. 1987), cert. denied, --- U.S. ----, 108 S. Ct. 782 (1988)).

The government argues that here the jury instructions were sufficient to permit the jury to consider the defendant's theory of defense. The defendant's theory of the evidence was that he had had drug dealings with one member of the conspiracy, but was not part of the conspiracy charged in the indictment. In this case, however, there is no evidence of separate conspiracies. Cf. United States v. Zemek, 634 F.2d 1159, 1168-69 (9th Cir. 1980) (where evidence tends to show a single conspiracy, failure to instruct jury on multiple conspiracies is not reversible error). If the jury believed the evidence presented by the government as to the existence of any conspiracy, it was the conspiracy charged in the indictment. There was therefore no basis in the evidence for the defendant's multiple conspiracy claim. He was given ample opportunity to argue his theory of the case to the jury, and the instructions advised the jury that it could convict only if it found that the defendant was part of the conspiracy charged. No further instruction was required.

Appellant also challenges the district court's decision to allow additional arguments to the jury by both sides during the jury's deliberations. The arguments followed a two-week recess over the holiday season, to which there was no objection. Because the issue was not briefed or argued, we hesitate to make more than the obvious comment that such a recess is undesirable and should not occur unless required by the most compelling circumstances.

The supplemental arguments, apparently intended to resummarize the evidence for the jury's benefit, were unusual and not in accordance with the order and time of closing arguments as established by the Rules of Criminal Procedure. Fed. R. Crim. P. 29.1.

Because we find no error in connection with the original instructions, however, we cannot agree with the appellant's contention that he was prejudiced because reargument made it easier for the jury to convict him upon an erroneous government theory. We find nothing in the circumstances to indicate that the argument coerced the jury into reaching a guilty verdict. This is not a case in which the court itself encouraged the jury to reach a verdict. Cf. United States v. Guglielmini, 598 F.2d 1149, 1151 (9th Cir. 1979) (delivery of jury deadlock instruction, or Allen charge, to the jury is error under circumstances where impermissible coercion is implied). There was no reversible error.

AFFIRMED.