Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding D.C. No. 3:06-CR-00069-RRB.
The opinion of the court was delivered by: Beezer, Circuit Judge
Submitted January 23, 2009*fn1 -- Seattle, Washington.
Before: Robert R. Beezer, Richard C. Tallman and Milan D. Smith, Jr., Circuit Judges.
John Jefferson appeals from a final judgment entered in the district court upon his conditional guilty plea to the charge of attempted possession of methamphetamine with intent to distribute. Jefferson challenges the district court's denial of his motion to suppress by arguing that the detainment of his express mail package, which had a contractually guaranteed time of delivery, violated the Fourth Amendment. Jefferson also challenges, as a violation of the Double Jeopardy Clause of the Fifth Amendment, his retrial after the first jury indicated that it was "unable to come to a decision" on the intent to distribute offense but convicted him of the lesser-included offense of attempted possession.
The district court had jurisdiction under 21 U.S.C. §§ 841(b)(1)(A) and 846. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
On the morning of April 6, 2006, an express mail package addressed to John Jefferson arrived at the United States Post Office in Juneau, Alaska. The package was sent from Oregon on April 5 and delivery was guaranteed by 3:00 p.m. on April 7. The postal clerk processing the package telephoned a postal inspector in Anchorage. The inspector had previously instructed clerks to notify him if any packages arrived that were to be delivered to Jefferson's address. The inspector told the clerk to detain the package overnight.
The inspector arrived in Juneau the morning of April 7 along with a law enforcement team and a narcotics-detection canine. The inspector visually inspected the outside of the package and submitted it to a canine sniff. The canine alerted to narcotics. Law enforcement applied for a search warrant, which the magistrate judge granted at 11:55 a.m. Law enforcement opened the package and discovered 253 grams of methamphetamine. At approximately 1:30 p.m., law enforcement obtained a beeper warrant and placed a beeper inside the package. Around 5:00 p.m., law enforcement made a controlled delivery of the package to Jefferson's address. The beeper soon went off and law enforcement arrested Jefferson.
The government prosecuted Jefferson for attempted possession of methamphetamine with intent to distribute and the lesser-included offense of attempted possession. Jefferson moved the district court to suppress the methamphetamine. The district court denied the suppression motion.
At trial, the district court provided the jury with a verdict form for the intent to distribute offense and a verdict form for the attempted possession offense. The jury instructions provided that "if after all reasonable efforts you are unable to reach a verdict [on the intent to distribute offense], you should record the decision on the verdict form and go on to consider whether defendant is guilty or not of the lesser included offense of Attempted Possession of a Methamphetamine." After deliberating, the jury informed the district court that it had reached a verdict.
The verdict form for the intent to distribute offense originally read, in pertinent part: "We, the Jury . . . do find the Defendant, JOHN D. JEFFERSON, ___________ (Guilty or Not Guilty) of the crime of Attempted Possession of a Controlled Substance with Intent to Distribute . . . ." The jury crossed out the word "do" and wrote in "were unable to." The jury also wrote the following on the verdict form: "The jury was unable to come to a decision on this verdict." On the verdict form for the attempted possession offense, the jury found Jefferson "Guilty."
Jefferson requested the district court to order continued deliberations, which the court did after reading the jury a modified Allen charge.*fn2 After continued deliberations, the jury sent the court a note, which the court read into the record: "We were under the impression that if we were unable to come to a decision on verdict 1, we would record the decision on the verdict form and go (indiscernible) the defendant's guilty or not unless-if we cannot come to a unanimous verdict on 1, are we able ...