The Allen instruction used in this case is one expressly approved by the Tenth Circuit in United States v. Reed, 61 F.3d 803 (10th Cir. 1995). See United States v. Ailsworth, 948 F. Supp. 1485 (Kan. 1996) (no abuse of discretion in giving Allen instruction), affd, 138 F.3d 843 (10th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 221, 142 L.Ed.2d 181 (1998); United States v. Burch, 928 F. Supp. 1066 (Kan. 1996) (no abuse of discretion in giving Allen instruction), affd, 113 F.3d 1247, 1997 WL 271316 (10th Cir. 1997) (Table). In sum, the court concludes that it was not error to give the jury the Allen instruction and that under the circumstances the instruction nor its language was coercive.

On April 23, 1996, the jury returned a verdict finding the defendant, Gale F. Burch, guilty of conspiracy to possess with the intent to distribute 538 pounds of marijuana and possession with the intent to distribute 538 pounds of marijuana. See United States v. Burch, 928 F. Supp. 1066 (Kan. 1996), aff'd, 113 F.3d 1247 (10th Cir. 1997) (Table; available on Westlaw at 1997 WL 271316). Burch was sentenced to a 108 month primary term of incarceration.

The jury found Gale Burch guilty on both counts. See United States v. Burch, 928 F. Supp. 1066 (D.Kan. 1996) (denying Gale Burch's motion for judgment of acquittal, or, in the alternative, for a new trial). Prior to trial, Gerald Burch terminated the employment of his first retained attorney.

Over the defendant's objection, the court then gave the jury an Allen instruction. See United States v. Reed, 61 F.3d 803 (10th Cir. 1995); United States v. Burch, 928 F. Supp. 1066 (D.Kan. 1996) (over defendant's objection, this court gives the jury an Allen instruction approved in Reed). On August 15, 1996, the jury returned a verdict on 9 of the 11 remaining counts.