FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 22-10249

              Plaintiff-Appellee,            D.C. No.
                                          4:18-cr-02220-
 v.                                         RM-EJM-3

ROBERT B. SPROAT,

OPINION

              Defendant-Appellant.

      Appeal from the United States District Court
               for the District of Arizona
      Rosemary Márquez, District Judge, Presiding

       Argued and Submitted November 14, 2023
                 San Jose, California

                Filed December 28, 2023

Before: Susan P. Graber, Richard A. Paez, and Michelle T.
               Friedland, Circuit Judges.

                Opinion by Judge Graber
2                          USA V. SPROAT


                          SUMMARY *


                          Criminal Law

   The panel affirmed Robert Sproat’s securities fraud
conviction in a case in which Sproat argued that the district
court improperly coerced the jurors into reaching a
unanimous guilty verdict by sending them home at 4:30 p.m.
with the instruction to return the next day.
    The panel was not persuaded by Sproat’s argument that
the instruction to return was the equivalent of an Allen
charge. The panel wrote that simply excusing the jurors for
an evening recess did not equal an instruction to them to
strive for a unanimous verdict. And even if the jury had been
firmly deadlocked, instructing them to return the next day—
without more—would not have been the equivalent of an
Allen charge. The panel noted that the late-afternoon
instruction did not convey that the jurors were required to
continue to deliberate the next day; the district court did not
ask the jury to identify the nature of its impasse or the vote
count before excusing the jurors for the evening; and any
theoretical risk of coercion was cured by the partial Allen
instruction that the district court gave the following day, an
instruction that Sproat endorsed.
  The panel rejected Sproat’s other arguments in a separate
memorandum disposition.




*
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                          USA V. SPROAT                          3


                          COUNSEL

Thomas S. Hartzell (argued), T.S. Hartzell Attorney at Law,
Tucson, Arizona, for Defendant-Appellant.
Terry Michael Crist, III, (argued), Assistant United States
Attorney; Christina M. Cabanillas, Deputy Appellate Chief;
Gary M. Restaino, United States Attorney, District of
Arizona; United States Attorney’s Office, Tucson, Arizona;
for Plaintiff-Appellee.

OPINION

GRABER, Circuit Judge:

   Defendant Robert Sproat engaged in a securities fraud
scheme by promising his victims profitable, low-risk returns
on dubious ventures that never materialized. A jury
convicted him on ten counts of securities fraud. He appeals,
and we affirm. In this opinion, we address and reject
Defendant’s argument that the district court improperly
coerced the jury into returning guilty verdicts. 1
       FACTUAL AND PROCEDURAL HISTORY
    A federal grand jury indicted Defendant and two co-
defendants, Robert Moss and Jeffrey McHatton, on ten
counts of securities fraud, in violation of 15 U.S.C. §§ 78j(b)
and 78ff, and 

.10b-5. Moss pleaded guilty,
and Defendant and McHatton proceeded to a joint trial.



1
  In a separate memorandum disposition, we reject Defendant’s other
arguments.
4                            USA V. SPROAT


    The superseding indictment alleged that all three
defendants fraudulently promoted and sold securities in
various ventures, including the recovery of hidden gold in
the Philippines, the procurement of low-alpha lead in South
and Central America, and the processing of a large diamond
in Africa. Defendants allegedly promised investors 500%
returns on some of the supposed ventures, even though the
Fortitude Foundation, the Christian foundation that the
defendants purported to represent, was in default and had
failed to fund an earlier promised joint venture.
    Trial began on June 24, 2022. The jury started its
deliberations two-and-a-half weeks later, at about 2:00 p.m.
on July 12, 2022. The next day, July 13, at 2:42 p.m., the
jury sent the judge a note stating: “After reviewing the
evidence and discussion, the jury is at an impasse. We need
advice as to next steps.” The judge responded with a
question: “Would coming back tomorrow help you?” The
jury responded at 3:30 p.m.: “No, we don’t think breaking
today and resuming tomorrow will change our impasse.”
   The parties then met with the judge, beginning at 4:18
p.m. The government sought an Allen charge. 2 Defendant
and his co-defendant objected. The judge noted the late

2
  “The term ‘Allen charge’ is the generic name for a class of
supplemental jury instructions given when jurors are apparently
deadlocked . . . . In their mildest form, these instructions carry reminders
of the importance of securing a verdict and ask jurors to reconsider
potentially unreasonable positions. In their stronger forms, these charges
have been referred to as ‘dynamite charges,’ because of their ability to
‘blast’ a verdict out of a deadlocked jury.” United States v. Berger, 

 (9th Cir. 2007) (citations and internal quotation marks
omitted); see also Weaver v. Thompson, 

 (9th Cir.
1999) (“In the archetypal Allen charge context, the judge instructs a
deadlocked jury to strive for a unanimous verdict.”).
                       USA V. SPROAT                     5


hour—“the problem is it’s 4:22 right now”—and decided to
bring the jury into the courtroom. The judge then had the
following exchange with the presiding juror, Juror 37:

       THE COURT: . . . Juror 37, in your opinion,
       is the jury unable to agree on a verdict as to
       one or more counts?
       JUROR 37: Yes.
       THE COURT: And is there any reasonable
       possibility -- probability that the jury could
       reach a unanimous verdict on all counts if you
       were sent back to the jury room for further
       deliberation?
       JUROR 37: At this time we have said that,
       no, not a unanimous verdict on all counts.
       THE COURT: And would you be able -- do
       you believe that there is a reasonable poss- --
       probability that you would be able to reach a
       unanimous verdict on all counts if you came
       back tomorrow and continued your
       deliberations?
       JUROR 37: When we posed that to the
       group, the answer was no, from a minority of
       us, that no amount of deliberating would
       change a decision.
       THE COURT: And is that -- as to all jurors,
       is there anyone that disagrees with the
       answers provided by your foreperson, Juror
       Number 37?
       (Jurors shaking their heads.)
6                       USA V. SPROAT


       THE COURT: If I can see a show of hands,
       is there anyone that disagrees? Can I see a
       show of hands, does everyone agree with
       Juror 37? I see all hands.

    At a sidebar, the parties again disputed whether the court
should give an Allen charge. The judge conferred again with
the foreperson and told the jury:

       THE COURT: Juror 37, is there unanimous
       agreement as to some of the counts?
       JUROR 37: No.
       THE COURT: Well, it is 4:30, I am going to
       let the parties -- I am going to excuse the
       jurors for evening recess, and I’ll see you
       tomorrow at 9:00 o’clock. I will see you
       tomorrow at 9:00 o’clock. Does 9:30 work?
       Jurors, does 9:30 work better for you?
       JUROR 37: I think 9:30 is less stressful on
       all of us.
       THE COURT: Yes, let’s do 9:30 then. We’ll
       see you tomorrow at 9:30.
       Thank you.
       (Jury out.)
       THE COURT: Thank you. I’ll see counsel
       tomorrow at 9:30. I think at 9:30 tomorrow,
       when they are here, I am more inclined to
                       USA V. SPROAT                       7


       give them the Allen charge and then send
       them back for further deliberation.

Defendant’s lawyer raised a “strong protest and objection.”
He explained: “It’s almost as though they would be here ad
infinitum until they reach a decision. And it is coercive.
And I just want the Court to register my strong, my strenuous
objection.”
    The next morning, July 14, 2022, Juror 37 sent a note at
9:35 a.m., stating: “We would like to continue to try to
deliberate.” The judge proposed to counsel that she give a
partial Allen charge, cautioning the jurors not to change an
honest belief. The judge also explained why she had asked
the jury to return:

       THE COURT: . . . [T]he reason I asked them
       to come back last night was because the
       length of the trial, you know, we’ve been in
       trial for two and a half weeks. We’ve had --
       I don’t know how many witnesses. I think
       [the bailiff] was going to look it up. But
       we’ve had a number of witnesses and victims
       in this case, and a 10-count indictment, or 10
       counts for each defendant, on a complex case.
       And in looking at their responses, from Juror
       Number 37 yesterday, she emphasized that
       they would not be able to reach a verdict on
       all counts. So she hesitated on the “all.” And
       when I asked her about -- she emphasized the
       “all.” And when I asked her about the -- the
       second time, if they were able to reach --
       when I asked her if they would be able to
       reach a verdict on any of the counts, there was
8                      USA V. SPROAT


       hesitation there. So that’s why I asked them
       to come back.
       But by asking them to come back, I don’t
       want to convey that I am forcing them to
       reach a verdict. So that’s why I think that [a
       partial Allen charge is warranted].

    The government sought a full Allen charge. McHatton
asked for minor wording changes. For his part, Defendant’s
lawyer had “no objection to the proposed language” and
asked the court to “give the proposed instruction as quickly
as possible.” But Defendant’s lawyer also reiterated his
earlier objection: “[B]y bringing them back today, that was
the functional equivalent of an Allen charge: Come on back
and deliberate some more. I believe they already feel
sufficiently coerced.”
    The judge brought the jury back into the courtroom and
instructed them:

       THE COURT: . . . Thank you, ladies and
       gentlemen, for coming back.
       I did receive your note indicating that you
       would like to continue to deliberate, but I just
       want to make sure you understand that by
       asking to you [sic] return today, I do not want
       to convey that you must deliberate until you
       reach a unanimous verdict. You should not
       change an honest belief as to the weight or
       effect of the evidence solely because of the
       opinions of your fellow jurors or for the mere
       purpose of returning a verdict. If at any time
       today you feel you would not be able to reach
                       USA V. SPROAT                      9


       a unanimous verdict, please let [the bailiff]
       know and you will be excused.
       But thank you for agreeing to continue with
       your deliberations, and you are excused. You
       may go follow [the bailiff] and continue with
       your deliberations.

    The jury deliberated for the remainder of that day and
into the next day, July 15, 2022. That afternoon, the jury
convicted Defendant and McHatton on all counts. The
district court sentenced Defendant to 30 months’
imprisonment, to be followed by three years of supervised
release. Defendant timely appeals.
                      DISCUSSION
    “Any criminal defendant . . . being tried by a jury is
entitled to the uncoerced verdict of that body.” Lowenfield
v. Phelps, 

 (1988). “[A]n instruction is
unconstitutionally coercive if it denies a defendant the due
process right to a trial by a fair and impartial jury.”
DeWeaver v. Runnels, 

 (9th Cir. 2009).
We review de novo whether a judge has improperly coerced
a jury’s verdict, a mixed question of law and fact. United
States v. Berger, 

 (9th Cir. 2007). In
determining whether the jury was improperly coerced, we
must “consider the supplemental charge given by the trial
court ‘in its context and under all the circumstances.’”
Lowenfield, 

 (quoting Jenkins v. United
States, 

 (1965) (per curiam)); see also
Berger, 

 (holding that we review the
“totality of the circumstances” and that no single factor is
“talismanic” (citations and internal quotation marks
omitted)).
10                      USA V. SPROAT


    Defendant argues that the court improperly coerced the
jurors into reaching a unanimous guilty verdict by sending
them home at 4:30 p.m. on July 13, 2022, with the
instruction to return the next day. We disagree.
    Ordinarily, it is not unconstitutionally coercive merely to
instruct a jury that has informed the court of an impasse to
return the next day. And we are not persuaded by
Defendant’s argument that the instruction to return was the
equivalent of an Allen charge. To be sure, the court was
considering an Allen charge. But simply excusing the jurors
for an evening recess did not equal an instruction to them to
strive for a unanimous verdict. Although Defendant argues
that the command to return amounted to an Allen charge
because the jury was hopelessly deadlocked, the record gives
us reason to question that premise. The judge perceived that
Juror 37 hesitated when saying that the jury would not be
able to reach a verdict.
    But even if the jury had been firmly deadlocked,
instructing them to return the next day—without more—
would not have been the equivalent of an Allen charge.
When a defendant “offer[s] facts that fairly support an
inference that jurors who did not agree with the majority felt
pressure from the court to give up their conscientiously held
beliefs in order to secure a verdict,” the court “must proceed
to the Allen charge analysis.” Weaver v. Thompson, 

 (9th Cir. 1999). Defendant has not offered
such facts here. Telling the jurors to return the next day
neither explicitly nor implicitly encouraged them to reach a
unanimous verdict. See Jiminez v. Myers, 

, 980–
81 (9th Cir. 1993) (per curiam) (concluding that, because the
district court “effectively instructed the jurors to make every
effort to reach a unanimous verdict,” the “comments and
conduct amounted to giving the jury a de facto Allen
                        USA V. SPROAT                       11


charge”). Nor did the jury’s note to the court, the
foreperson’s comments, or the court’s responses identify or
in any way target jurors with minority views. The record,
therefore, does not support treating the court’s instruction as
an Allen charge.
    Even if an instruction to return could be coercive in
certain circumstances, it was not coercive here. First, the
late-afternoon instruction did not convey that the jurors were
required to continue deliberating the next day; the next day,
the court might have decided to excuse the jury after
concluding that no further deliberation was called for.
Crucially, the jury understood the judge’s instruction to be
nothing more than a recess for the day. When the jury
returned the next morning, it sent a note stating: “We would
like to continue to try to deliberate.” Had the jurors
understood the judge’s instruction the previous afternoon to
require them to continue deliberating, the jurors would not
have asked to continue to deliberate.
    Second, the court did not ask the jury to identify the
nature of its impasse or the vote count before excusing the
jurors for the evening. In other jury coercion cases, we have
considered whether the district court “asked the jury to
identify areas or issues of disagreement.” United States v.
Della Porta, 

 (9th Cir. 2011); see, e.g.,

 at 1050–51 (holding that there was no jury coercion
where no Allen charge was given and where the “district
court did not extract from the jury information about its fact-
finding process” and “never asked the jury to reveal the
nature of its deadlock in the first instance” before ordering
supplemental arguments). Rather, the judge’s inquiries here
were limited to establishing that the jury was at an impasse
and clarifying that there was no unanimity as to any counts.
After bringing the jury back into the courtroom, the judge
12                      USA V. SPROAT


first inquired if, in the foreperson’s opinion, the jury was
unable to agree on a verdict as to any counts. The judge then
asked for a show of hands from the other jurors to ascertain
that the other jurors agreed with the foreperson that further
deliberation would not change the impasse. Finally, the
judge confirmed with the foreperson that there was not
unanimous agreement as to any counts. At no point during
those exchanges with the jurors did the court ask the jury to
reveal vote counts, “areas of disagreement,” or “specific
factual matters on which it disagreed.” 

.
     Finally, any theoretical risk of coercion was cured by the
partial Allen instruction that the court gave the following
day, an instruction that Defendant endorsed. The judge
said: “I just want to make sure you understand that by
asking [you to] return today, I do not want to convey that
you must deliberate until you reach a unanimous verdict.
You should not change an honest belief as to the weight or
effect of the evidence solely because of the opinions of your
fellow jurors or for the mere purpose of returning a verdict.
If at any time today you feel you would not be able to reach
a unanimous verdict, please let [the bailiff] know and you
will be excused.” The court thus emphasized the possibility
that the jurors would not reach a unanimous verdict, the
command that the jurors should not change an honest belief,
and the assurance that the jurors could be excused at any time
if they concluded that they could not overcome their earlier
impasse. Thus, the court’s instruction the next day
ameliorated any coercive effect that might have resulted
from sending the jurors home and instructing them to return.
See Berger, 

 (“[T]he ameliorative
instruction cured any coerciveness that may have resulted
from the judge’s informal comments to the jurors.”).
     AFFIRMED.