142 F.3d 446

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Ofati MALEPEAI, aka "Al", Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii, David A. Ezra, District Judge, Presiding.

Before BRUNETTI, RYMER, and T.G. NELSON, Circuit Judges.

Ofati Malepeai appeals his jury trial conviction for conspiracy and possession with intent to distribute crystal methamphetamine and cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

Malepeai contends that the district court committed reversible error by giving a modified Allen1 jury instruction instead of sua sponte declaring a mistrial. We disagree. "We have long held that jury instructions may be waived by a defendant's attorney." United States v. Perez, 116 F.3d 840, 845 n. 7 (9th Cir.1997) (en banc) (citation omitted). Because Malepeai's attorney expressly assented to the instruction given here, Malepeai waived any objection to it. See United States v. Handy, 454 F.2d 885, 889-90 (9th Cir.1972) (objection to Allen instruction waived where defense counsel stated "no objection" to instruction).

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

See Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896)