United States v. Clinton ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Clinton No. 01-5731
ELECTRONIC CITATION: 2003 FED App. 0269P (6th Cir.)File Name: 03a0269p.06 ON BRIEF: Gregory C. Krog, Jr., Memphis, Tennessee, for
Appellant. Paul M. O’Brien, ASSISTANT UNITED
UNITED STATES COURT OF APPEALS STATES ATTORNEY, Memphis, Tennessee, for Appellee.
FOR THE SIXTH CIRCUIT _________________
_________________
OPINION
_________________
UNITED STATES OF AMERICA , X
Plaintiff-Appellee, - MARTHA CRAIG DAUGHTREY, Circuit Judge. The
- defendant, Karlos Clinton, was convicted by a jury at a retrial
- No. 01-5731 on two counts of armed robbery, in violation of 18 U.S.C.
v. -
> §§ 2 and 2113(a), (d), and two counts of carrying, using, or
, brandishing a firearm during and in relation to a crime of
KARLOS A. CLINTON , - violence, in violation of 18 U.S.C. §§ 2 and 924(c). Clinton’s
Defendant-Appellant. - first trial had ended in a mistrial when the jury was unable to
N reach a verdict despite a supplemental instruction from the
Appeal from the United States District Court district judge consisting of the Sixth Circuit’s pattern
for the Western District of Tennessee at Memphis. “dynamite charge,” delivered pursuant to Allen v. United
No. 00-20059—Julia S. Gibbons, District Judge. States, 164 U.S. 492 (1896). During jury deliberations at
Clinton’s second trial before a different district judge, the jury
Argued: May 9, 2003 sent out a note asking whether it could reach a verdict on the
counts related to one robbery and remain hung on the counts
Decided and Filed: August 5, 2003 related to the other robbery. In response, the district court
delivered a “modified” Allen charge, described more fully
Before: BOGGS and DAUGHTREY, Circuit Judges; below. Less than an hour later the jury returned guilty
OBERDORFER, District Judge.* verdicts on all four counts, and Clinton was ultimately
sentenced to two concurrent terms of 70 months’
_________________ imprisonment for each robbery count, a consecutive sentence
of seven years on the first firearms count, and an additional
COUNSEL consecutive sentence of 25 years on the second firearms
count. The defendant now argues on appeal that the modified
ARGUED: Gregory C. Krog, Jr., Memphis, Tennessee, for Allen charge was unduly coercive and, therefore, requires
Appellant. Paul M. O’Brien, ASSISTANT UNITED reversal. We find no reversible error and affirm.
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
*
The Honorable Louis F. Oberdorfer, United States District Judge for
the District of Co lumbia, sitting by designation.
1
No. 01-5731 United States v. Clinton 3 4 United States v. Clinton No. 01-5731
PROCEDURAL AND FACTUAL BACKGROUND any one count, or counts, the case is left open and
undecided as to those counts. And like all cases, it will
The armed robberies charged in the indictment both still need to be disposed of at some point in time. There
occurred at the same federally-insured credit union, appears to be no reason to believe that the case can be
approximately a month apart. The defendant was identified tried again by either side better or more exhaustively than
as one of the two robbers involved in the offenses by several it has been tried before you. Any future jury would have
victims of both robberies – both from pretrial photo arrays to be selected in the same manner as you would. We
and in the courtroom – and an expert testified that Clinton’s would have to go through the same process, and they
fingerprint was found at the scene after one of the robberies. would be selected from the same source or same group of
(The other perpetrator was never identified.) Despite this individuals. So, there appears no reason to believe that
evidence, the first jury that heard the case was unable to reach the case would ever be submitted to twelve men and
a verdict, and the second jury also ran into some difficulty. women who would be more conscientious, more partial
When the second jury appeared to be hung with regard to one [sic] or more competent to decide it, or that more or
of the robberies, the district judge delivered the following clearer evidence could be produced on behalf of either
supplemental instruction, reproduced here in full: side.
All right. Ladies and gentlemen, the short answer to Of course, these things suggest themselves upon brief
the question is yes, each count must receive a separate reflection to all of us who have been through this trial,
verdict. Any inability to reach judgement on a particular and I’m sure you have thought of these things, to some
count does not effect [sic] the jury’s obligation to attempt extent, in your deliberation. The reason that I am
to reach a unanimous verdict on all of the other counts. mention[ing] them now is because some of them may
So, yes, each verdict is separate, and each can be returned have escaped your attention, which has to this point been
separately. fully occupied with an examination of the evidence in the
case. They are matters, which along with other and
Having said that, before I send you back to complete perhaps more obvious ones, remind us how desirable it
your deliberations, I want to address the question of what is for you to unanimously agree upon a verdict, if you
is implied here, which is the concept that you may be can.
having difficulty with respect to unanimity on one or
more counts. I want to suggest a few thoughts, which As I told you in the instructions at the close of all the
you may desire to consider in your deliberations, along evidence, you should not surrender your honest
with the evidence in the case and the instructions that I convictions as to the weight of the evidence solely
have previously given you. because of the opinion of other jurors, or for the mere
purpose of returning a verdict. That is not what I am
Like all federal criminal cases in this district, this is an suggesting.
important matter. It is an important matter to the
government, and it is an important matter to the However, it is your duty as jurors to consult with one
defendant. The trial has been expensive, and preparation another, and to deliberate with a view to reaching an
time and effort are difficult for both the defense and the agreement, if you can do so without violence to your
prosecution. If you should fail to agree on a verdict as to individual judgement. Each of you must decide the case
No. 01-5731 United States v. Clinton 5 6 United States v. Clinton No. 01-5731
for yourselves but you should do so only after effect of all the evidence. In the performance of this high
consideration of the evidence in the case with your duty, you are at liberty to disregard all comments of both
fellow jurors. In the course of your deliberations, you counsel and court, including, of course, these remarks I
should not hesitate to re-examine your own views and am making now.
change your opinion, if convinced it is erroneous.
Remember at all times that no juror is expected to
In order to bring twelve minds to a unanimous result, yield a conscientious conviction he or she may have as to
you must examine the question submitted to you with the weight or effect of evidence. But remember also that
candor and frankness, and with proper deference to and after full deliberation and consideration of all the
regards for the opinions of each other. That is to say, in evidence in the case, it is your duty to agree upon a
conferring together, each of you should pay due attention verdict, if you can do so without violating your
and respect to the views of the others and listen to each individual judgement and your cons[cience]. Remember
others’ arguments with a disposition to re-examine your too that if the evidence in the case fails to establish guilt
own views, if appropriate. beyond a reasonable doubt, the accused should have your
unanimous verdict of not guilty.
If the greater number of you are for conviction on a
given count, each dissenting juror ought to consider In order to make the decision more practicable, the law
whether a doubt in his or her own mind is truly a imposes the burden of proof on one party or the other in
reasonable one, since it makes no effective impression all cases. In the present case, the burden of proof is on
upon the minds of so many equally honest, equally the government. Above all, keep constantly in mind that
conscientious fellow jurors, who bear the same unless your final conscientious appraisal of the evidence
responsibility, serve under the same oath, and have heard in this case clearly acquires [sic] it, the accused should
the same evidence, with, [one] may assume, the same never be exposed to the risk of having to run twice the
attention and equal desire to arrive at the truth. ga[u]ntlet of a criminal prosecution, and to endure a
second time the mental, emotional, and financial strain of
On the other hand, if a majority or even a lesser a criminal trial.
number of you are for acquittal, other jurors ought to
seriously ask themselves again, and most thoughtfully, You may conduct your deliberations as you choose,
whether they do not have reason to doubt the correctness but I suggest that you now carefully re-examine and
of a judgement, which is not concurred in by many of reconsider all the evidence in the case bearing on the
their fellow jurors, and whether they should not distrust questions before you. You may be leisurely in your
the weight and sufficiency of evidence which fails to deliberations, and as leisurely as the occasions may
convince the minds of several of their fellow jurors require, and you shall take all the time that you feel is
beyond a reasonable doubt. necessary. No one is here to rush you to a judgement or
decision in this case.
You are not partisans, you are judges. Judges of the
facts. Your sole interest here is to speak the truth from I am now going to ask you to retire and to continue
the evidence in the case. You are the exclusive judges of your deliberations in such manner as shall be determined
the credibility of all the witnesses, and of the weight and
No. 01-5731 United States v. Clinton 7 8 United States v. Clinton No. 01-5731
by good and conscientious judgement, which I know you this opinion, we conclude that the defendant has not met that
will duly exercise. standard in this case.
And Mr. Foreperson, certainly, if you have any other Well-settled precedent establishes that a criminal defendant
questions or any information you want us to provide, being tried by a jury is entitled to an uncoerced and
other than the things I have already told you [that] you unanimous verdict of that body. See Lowenfield v. Phelps,
should not provide to the Court, we will certainly take 484 U.S. 231, 241 (1988). The practice of giving a “dynamite
more questions. This is not to say that you can’t ask charge,” meant to “blast” a deadlocked jury into rendering a
questions. I just thought that in light of this question that unanimous verdict, was first approved by the Supreme Court
was asked and the implications of the question, that these in Allen v. United States, in which the Court found that
words would be appropriate at this time. reversal was not warranted based on a supplemental
instruction to the jury that told those jurors who were in the
Less than an hour after receiving this instruction, the jury minority to reconsider their views in light of those held by the
returned guilty verdicts on all four counts of the indictment. majority. See 164 U.S. at 501-02.
DISCUSSION Since Allen, the federal courts of appeal have approved
various supplemental instructions, and many, exercising
Normally, we review the decision to give an Allen charge supervisory authority, have mandated the use of a particular
for abuse of discretion, recognizing that “the presiding instruction.1 In this circuit, while we have generally approved
judicial officer is in the best position to decide when to give use of the Sixth Circuit Pattern Instruction, we have never
the charge.” United States v. Frost, 125 F.3d 346, 373 (6th explicitly mandated the use of that or any instruction to the
Cir. 1997) (citation and internal quotation omitted). The exclusion of others. We decline to do so now, although we
relevant inquiry is “whether, in its context and under all the take the occasion to express a strong preference for the pattern
circumstances, [ the charge] . . . was coercive.” Id. (citation instruction and to point out that its use will, in most instances,
and internal quotation omitted). In this case, however, there insulate a resulting verdict from the type of appellate
was no objection to the Allen charge at trial, and we therefore challenge that we now face in this case.
review the defendant’s claim under Rule 52(b) of the Federal
Rules of Criminal Procedure to determine whether there was The charge given at Clinton’s retrial was modeled closely
plain error. See Frost, 125 F.3d at 373. on the instruction set out in the Devitt & Blackmar practice
Plain error is that which is “clear” or “obvious.” United
States v. Olano, 507 U.S. 725, 734 (1993). To establish plain
1
error, the defendant must show: (1) that an error occurred, For example, the D.C. Circuit has mandated use of the American
(2) that it was plain and (3) so seriously affected the Bar Association mod el deadlock instructio n. See United States v.
defendant’s substantial rights (4) that it called into question Thomas, 449 F .2d 1 177 , 118 3-86 (D.C . Cir. 19 71)(en banc); United
States v. Strothers, 77 F.3d 138 9, 1391 (D .C.Cir. 1996)(invalidating
the fairness, integrity, or public reputation of the proceedings. district court’s use of the “Alternative B” deadlock charge in the model
See United States v. Vincent, 20 F.3d 229, 234 (6th Cir. 1994) jury instructions because it was not the “Alternative A” charge approved
(citing Olano, 507 U.S. at 732-37). For the reasons set out in in Thomas). The Seventh Circuit, acting under its supervisory p owers,
devised its own Allen charge in United States v. Silvern, 484 F.2d 879,
882 (7th C ir. 197 3).
No. 01-5731 United States v. Clinton 9 10 United States v. Clinton No. 01-5731
manual and repeated in the Committee Commentary to Sixth twelve jurors will be any more conscientious and
Circuit Pattern Jury Instruction 8.04. See E. Devitt & C. impartial than you are.
Blackmar, Federal Jury Practice & Instructions (3rd Edition
1977), § 18.14. The opening paragraph addressing the jury’s (3) Let me remind you that it is your duty as jurors to
specific question is the only relevant respect in which the talk with each other about the case; to listen carefully
district court deviated from the modified Devitt & Blackmar and respectfully to each other’s views; and to keep an
charge. open mind as you listen to what your fellow jurors have
to say. And let me remind you that it is your duty to
Clinton’s primary objection to the charge is the claim that make every reasonable effort you can to reach unanimous
it improperly created the impression that each juror’s own agreement. Each of you, whether you are in the majority
view of the evidence did not achieve significance until or the minority, ought to seriously reconsider your
“many” or “several” of his fellow jurors shared that view. position in light of the fact that other jurors, who are just
The relevant portion of the charge read as follows: as conscientious and impartial as you are, have come to
a different conclusion.
On the other hand, if a majority or even a lesser number
of you are for acquittal, other jurors ought to seriously (4) Those of you who believe that the government has
ask themselves again, and most thoughtfully, whether proved the defendant guilty beyond a reasonable doubt
they do not have reason to doubt the correctness of a should stop and ask yourselves if the evidence is really
judgement, which is not concurred in by many of their convincing enough, given that other members of the jury
fellow jurors, and whether they should not distrust the are not convinced. And those of you who believe that
weight and sufficiency of evidence which fails to the government has not proved the defendant guilty
convince the minds of several of their fellow jurors beyond a reasonable doubt should stop and ask
beyond a reasonable doubt. yourselves if the doubt you have is a reasonable one,
given that other members of the jury do not share your
In contrast, the Sixth Circuit Pattern Jury Instruction 9.04 doubt. None of you should hesitate to change your mind
reads as follows: if, after reconsidering things, you are convinced that
other jurors are right and that your original position was
(1) Members of the jury, I am going to ask that you wrong.
return to the jury room and deliberate further. I realize
that you are having some difficulty reaching unanimous (5) But remember this. Do not ever change your mind
agreement, but that is not unusual. And sometimes after just because other jurors see things differently, or just to
further discussion, jurors are able to work out their get the case over with. As I told you before, in the end,
differences and agree. your vote must be exactly that – your own vote. As
important as it is for you to reach unanimous agreement,
(2) Please keep in mind how very important it is for you it is just as important that you do so honestly and in good
to reach unanimous agreement. If you cannot agree, and conscience.
if this case is tried again, there is no reason to believe
that any new evidence will be presented, or that the next
No. 01-5731 United States v. Clinton 11 12 United States v. Clinton No. 01-5731
(6) What I have just said is not meant to rush or pressure Supreme Court in Kawakita did not discuss or explicitly rule
you into agreeing on a verdict. Take as much time as on the Allen charge at issue. Of course, we are not at liberty
you need to discuss things. There is no hurry. to second-guess Giacalone’s reliance on Kawakita because of
circuit precedent establishing that a published decision of the
(7) I would ask that you now return to the jury room and court is binding on subsequent panels unless an “inconsistent
resume your deliberations. decision of the United States Supreme Court requires
modification of the decision or this Court sitting en banc
In addition to contending that the reference to a “numerosity overrules the prior decision.” United States v. Smith, 73 F.3d
requirement” rendered the instruction given in this case 1414, 1418 (6th Cir. 1996) (citation omitted).
unduly coercive, the defendant also challenges the charge
because it emphasized the expense of the trial. We note, nevertheless, that the majority of Sixth Circuit
cases dealing with Allen charge challenges since Giacalone
In response, the government contends that the Devitt & have involved the pattern instruction. See, e.g., United States
Blackmar charge was approved by this court in United States v. Reed, 167 F.3d 984, 991 (6th Cir. 1999) (approving the use
v. Giacalone, 588 F.2d 1158 (6th Cir. 1978). There, in of the pattern Allen charge and observing that charge was
affirming the defendant’s conviction over his objection that “properly worded”); Frost, 125 F.3d at 374-75 (noting that
the modified Allen charge coerced the jury into finding him the pattern instruction given in the case “contained language
guilty, we observed: which this circuit has identified as critical to any Allen
charge: it directed both majority and minority jurors to
While it is true that we have held that any variation upon reconsider their positions, and it cautioned all jurors not to
the precise language approved in Allen imperils the surrender their personal convictions merely in order to
validity of the trial, we observe that the trial judge’s achieve consensus by acquiescing in the majority opinion”)
statement roughly follows the instruction contained in 1 (citations omitted); United States v. Tines, 70 F.3d 891, 896-
E. Devitt & C. Blackmar, Federal Jury Practice and 97 (6th Cir. 1995) (holding that the use of the pattern Allen
Instructions, § 18.14 (3d ed. 1977), an instruction charge was not coercive because it asked both the minority
implicitly approved by the Supreme Court in Kawakita and majority jurors to reconsider the views of others, and
v. United States, 343 U.S. 717 (1952). there was no charge for one side to change its mind).
Id. at 1166-67 (citation and internal quotation omitted). The The conclusion to be drawn from these cases is that while
government asserts that this explicit approval of a charge very the pattern instruction has typically been viewed as non-
similar to the one used by the district court here forecloses coercive, it is not the only instruction a district court may use.
any finding of error, plain or otherwise. The cases cited above base their findings on the content of an
instruction, namely, that it must address both those in the
The defendant, on the other hand, argues that, although majority and those in the minority, see United States v.
Giacalone approved a charge that “roughly follow[ed]” the Harris, 391 F.2d 348, 352-53 (6th Cir. 1968), and that it must
Devitt & Blackmar charge, it did not set out the charge itself remind the jury that no one should surrender honest beliefs
and thus cannot be taken as authority to approve a reference simply because others disagree, see United States v. Scott,
to the cost of a retrial. In addition, the defense argues that 547 F.2d 334, 337 (6th Cir. 1977). The instruction in this
Giacalone’s reliance on Kawakita is misplaced because the case included both of the requisite elements. Indeed, the
No. 01-5731 United States v. Clinton 13 14 United States v. Clinton No. 01-5731
district judge reminded jurors not to surrender their judge’s seemingly off-hand comment about the jury’s ability
convictions twice, saying: to “disregard” the “comments of both counsel and court” falls
into the same category. It was made in the context of the
As I told you in the instructions at the close of all the instruction to the jury to act as “judges of the facts.”
evidence, you should not surrender your honest
convictions as to the weight of the evidence solely In sum, the district court’s failure to use the Sixth Circuit
because of the opinion of other jurors, or for the mere pattern instruction, while risky, did not amount to reversible
purpose of returning a verdict. That is not what I am error in the context of this case. The instruction included all
suggesting. . . . Remember at all times that no juror is the necessary elements of the Allen charge, and it closely
expected to yield a conscientious conviction he or she followed an instruction that has received some degree of
may have as to the weight or effect of evidence. approval from this court. Given that, we cannot say that the
error here “seriously affected the fairness, integrity or public
Although we find problematic the language challenged by reputation of the proceedings.” Vincent, 20 F.3d at 234
the defendant – that only in the event that “many” or “several (citing Olano, 507 U.S. at 736-37).
of [their] fellow jurors” are for acquittal should the “other
jurors” reexamine their views – we cannot say that the CONCLUSION
instruction rises to the level of plain error, given that it was
accompanied by the statements quoted above. Similarly, the For the reasons set out above, we AFFIRM the judgment
reference to the cost of a retrial, while troubling, does not, in of the district court.
this case, render the charge coercive. Although other circuits
have at times found that references to cost contribute to the
coercive effect of a supplemental instruction, see, e.g., United
States v. McElhiney, 275 F.3d 928, 945 (10th Cir. 2001)
(finding that instruction stressing expense of retrial
contributed to coercive effect requiring reversal), we
conclude that because the reference to the expense of a retrial
was only one of several reasons given to encourage the jury
to agree on a verdict, it did not render the charge coercive per
se and cannot be said to constitute plain error. We
nevertheless caution that such a comment could taint an Allen
charge and counsel strongly against its inclusion.
Finally, the district court’s response to the jury’s question
about a partial verdict does not render the supplemental
instruction plain error. Certainly, the court’s statement in this
regard could have been clearer. However, because it was
followed by a charge that reiterated the instruction that jurors
should not surrender their conscientiously held views, we do
not believe it rises to the level of plain error. The district