United States v. Jarvis Sisson ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0304n.06
Case No. 20-5957
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 30, 2021
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR
v. )
) THE WESTERN DISTRICT OF
) KENTUCKY
JARVIS ROOSEVELT SISSON,
)
)
Defendant-Appellant. )
BEFORE: SILER, MOORE, and THAPAR, Circuit Judges.
THAPAR, J., delivered the opinion of the court in which SILER, J., joined. MOORE, J.
(pp. 4–5), delivered a separate opinion concurring in the judgment.
THAPAR, Circuit Judge. Police officers spotted Jarvis Sisson quickly enter and leave a
house in a high-crime area. When Sisson left the house, he had bulges in his pant pockets that
hadn’t been there before. So an officer approached him to talk. But instead of talking, Sisson fled
on his bike. While fleeing from the police, Sisson twice threw items from his pockets or waistband.
And where the items landed, officers recovered baggies of meth and over $4,000 in cash.
The police then searched the house that Sisson had previously entered. They discovered a
pound of methamphetamine, some heroin, scales, two guns, ammunition, and a cutting agent called
methylsulfonylmethane (also called MSM). The same cutting agent was found in the
methamphetamine that Sisson discarded.
Case No. 20-5957, United States v. Sisson
A federal grand jury indicted Sisson. It charged him with (1) conspiracy to possess with
intent to distribute fifty grams or more of methamphetamine, and (2) possession with intent to
distribute five grams or more of methamphetamine.
The grand jury also indicted Kevin Evans as an alleged co-conspirator. Evans lived in the
house where the pound of methamphetamine was discovered and had tried to escape through the
back door when police arrived.
The case went to trial, and Sisson and Evans were tried jointly. The jury began deliberating
at 5:00 p.m. on a Friday evening. Neither defendant objected to the jury beginning deliberations
at that time.
At 8:31 p.m., the jury sent a note to the judge. The note said, “We cannot reach a
unanimous decision for either defendant.” R. 132, Pg. ID 1808. The judge met with counsel and
told them she was contemplating giving the jury the Sixth Circuit’s pattern Allen charge. An Allen
charge instructs the jury to continue deliberating, stresses the importance of unanimity, and
encourages jurors to conscientiously consider their fellow jurors’ views. See Allen v. United
States, 164 U.S. 492 (1896); Robert E. Larsen, Navigating the Federal Trial § 2:73 (2020 ed.).
The judge also told counsel that she was going to give the jurors the option of returning on
Monday if they would prefer. But—perhaps sensing the possibility of an acquittal—Evans’
attorney asked the judge not to do so. He explained, “[W]e just don’t like the idea of the jurors
going home. We really don’t. They talk to their families, they get—subject to outside influences,
they can easily hear from other people, they can talk about it with other people. . . . [I]t’s not so
much I want a verdict tonight, but I don’t want them to go home for two days.” R. 132, Pg. ID
1815–16. He also asked that the judge wait to give the Allen charge. Sisson’s attorney said he
shared “all the same concerns.” Id. at 1819.
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Case No. 20-5957, United States v. Sisson
Since the jury was deadlocked, the judge determined that an Allen charge was appropriate.
But the judge agreed with the defendants that at that point she should not offer the jury the
opportunity to leave for the weekend. The judge also told the jurors not to “rush” and said they
should take “as much time as you need to discuss things.” Id. at 1822.
At 11:45 p.m., the jury returned its verdict. The jury acquitted Evans of all counts,
acquitted Sisson of the conspiracy count, and convicted Sisson of possessing with intent to
distribute between five and fifty grams of methamphetamine. Sisson now appeals.
Sisson raises a single argument: The district court unconstitutionally coerced the jury by
giving an Allen charge at 8:30 p.m. on a Friday evening. But district courts have broad discretion
to determine when an Allen charge is appropriate. After all, they are present in the courtroom and
know when the best time is to give a charge. United States v. Sawyers, 902 F.2d 1217, 1220 (6th
Cir. 1990). And it is often better to give the charge early on—when a judge knows the jury is
deadlocked—rather than waiting until the jury is worn out. Id.That is exactly what happened here. Once the jury told the district court judge that they
were having trouble reaching a unanimous verdict, she gave the Allen charge. And the fact that
the jury deliberated for several hours after the Allen charge was read “supports the conclusion that
they did not feel they had been ordered to return a verdict.” Id. at 1221.
Sisson argues that reading an Allen charge at 8:30 p.m. on a Friday evening is inherently
coercive. But he cites no law for this proposition. Why? Because the time of day is irrelevant.
Deadlock can occur at eight in the morning or eight in the evening. The state of the deliberations,
not the clock, is what matters.
We affirm.
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KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur in the
judgment. I write separately to underscore that the timing of an Allen charge is a relevant
consideration in our determination of whether a trial court’s use of an Allen charge coerced the
jury into reaching a verdict.
“In determining whether or not an instruction is ‘coercive,’ a reviewing court must consider
the totality of circumstances surrounding the instruction and evaluate it in context.” United States
v. Markey, 693 F.2d 594, 597 (6th Cir. 1982). Although no court has held that an Allen charge
given late in the evening is per se coercive, courts have expressed strong concerns that an
instruction to a jury to continue deliberating when the hour is late may, in certain circumstances,
be coercive. See United States v. Parks, 411 F.2d 1171, 1173 (1st Cir. 1969) (“[W]e do frown
upon the practice of keeping the jury at work until the small hours of the morning particularly
when it reports that it is tired.”); United States v. Tubbs, 461 F.2d 43, 48 (7th Cir. 1972) (Kiley, J.,
concurring) (“[T]rial judges take the risk of committing reversible error where, except in the
extraordinary case, deliberations are continued after midnight, with the probability that jurors,
because of fatigue, agree to a verdict which they would otherwise not have agreed to.”); United
States v. Murvine, 743 F.2d 511, 515 (7th Cir. 1984) (recognizing that jurors deliberating late on
a Friday night “may be eager to reach a verdict and go home,” but “declin[ing] to hold, without
clear indications that the jury was exhausted, hungry, confused, or otherwise uncomfortable, that
deliberations begun on a Friday night are incapable of producing a fair verdict”).
Here the district court issued the Sixth Circuit’s Pattern Instruction for an Allen charge and
did not suggest that the jury was required to agree or to reach a verdict by a certain time. Nor was
there any indication that the jurors were fatigued, hungry, or unwilling to continue deliberating.
Under these circumstances, the late hour at which the district court issued the Allen charge does
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Case No. 20-5957, United States v. Sisson
not create an inference that the Allen charge coerced one or more of the jurors into surrendering
“conscientious views to arrive at the verdict.” United States ex rel. Latimore v. Sielaff, 561 F.2d
691, 697 (7th Cir. 1977). Thus, the district court did not abuse its discretion by delivering the
Allen charge at 8:30 p.m. on a Friday night and allowing the jury to continue deliberating. See
United States v. Mitchell, 104 F. App’x 544, 549 (6th Cir. 2004) (holding that the district court did
not coerce the jury into reaching a verdict despite asking the jury to continue deliberations late at
night when “[t]here was no indication by the jury that they were tired or unwilling to continue”);
see also Gibson v. United States, 271 F.3d 247, 259 n.7 (6th Cir. 2001) (holding that a trial court
acts within its discretion when it allows a jury to deliberate late in the evening when there is no
evidence of jury fatigue), overruled on other grounds by United States v. Leachman, 309 F.3d 377(6th Cir. 2002). However, I reiterate the shared concern of our sibling circuits: trial judges risk
converting thoughtful deliberation into coerced judgment when they allow a jury to deliberate late
into the night and fatigue overcomes jurors’ conscientious convictions.
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