In United States v. Catherine Melhuish, No. 19-485 (2d Cir. July 27, 2021) (opinion by Judge Nardini, joined by Judges Walker and Wesley), the Circuit rejects the defendant’s argument that the trial judge erred in responding to a jury note and in proposing an Allen charge during deliberations; concludes that 18 U.S.C. § 111, prohibiting the assault of a federal officer, is a general-intent offense; and remands for further fact-finding on the defendant’s claim that trial counsel rendered ineffective assistance by failing to introduce evidence supporting an insanity defense. The first is worth discussing.
The principal issue is the trial judge’s egregious refusal to follow the Circuit’s long-established procedures for how to deal with jury notes and supplemental instructions during deliberations. These are the steps that a trial judge must follow:
(1) the jury inquiry should be in writing; (2) the note should be marked as the court’s exhibit and read into the record with counsel and defendant present; (3) counsel should have an opportunity to suggest a response, and the judge should inform counsel of the response to be given; and (4) on the recall of the jury, the trial judge should read the note into the record, allowing an opportunity to the jury to correct the inquiry or to elaborate upon it.
Op. at 22. The trial judge did none of that here. But the Circuit nonetheless finds no plain error.
The trial judge received this note from the jury on the first day of deliberation: “[A]s of 3:30 p.m., the jury is not able to come to a unanimous decision as to a verdict.” Without alerting the parties, the judge took it on himself to write the following to the foreperson: “Please continue to deliberate until you have reached a unanimous verdict. If you need help on anything, please ask.”
The court’s deputy later informed the parties about what had happened. No one objected.
The following morning, the judge told the parties that he wanted to give an Allen charge to the jury. Defense counsel did not object but asked to see its wording. The judge refused, stating, “No. You’re not going to see it. The hell you want to see it for? It’s a standard Allen charge.”
Counsel then asked the judge whether its charge would “tell them that they don’t have to give up their conviction or position if it would go against what they believe?” “The district court responded that it did not know whether the charge would include this caution.”
The judge then brought the jury into the courtroom and said:
I remind you that you have to be unanimous in your verdict. It’s important that each of you consider the case individually, discuss it among yourselves. You don’t have to give up your individual beliefs as you hold them, but you can examine the logic of both sides and try to work out a disposition that will accommodate everybody’s beliefs after hearing all of the evidence.
The jury returned a guilty verdict a few minutes later.
The Circuit rejected Melhuish’s arguments regarding these two responses by the district court on plain-error review. Although the trial judge clearly erred (thus meeting the first two prongs of the plain-error test), the defendant’s “substantial rights” were not affected under the third prong.
Regarding the trial judge’s ex parte response to the jury note, the Court ruled that no prejudice befell the defendant from what the judge actually wrote to the jury. Telling the jurors to “[p]lease continue to deliberate until you have reached a unanimous verdict” is not, in itself, prejudicial.
The Court rejected the defendant’s argument that she was prejudiced by what was omitted in the trial judge’s note – the “balancing” reminder necessary to every Allen charge that even though the jurors should continue to deliberate and try to reach agreement if possible, “a juror may not cast a vote for a verdict against his conscientiously held individual belief.”
The Court agreed that “prejudice . . . can result when a jury is told to keep deliberating, but given no guidelines as to the balance required in the deliberation.” And it acknowledged that the trial “court’s note initially — and problematically — encouraged continued deliberations without an admonition that jurors should maintain their individual views.”
But there was ultimately no prejudice to the defendant because of what the judge told the jury the following morning – “It’s important that each of you consider the case individually, discuss it among yourselves. You don’t have to give up your individual beliefs as you hold them . . . .” This sufficed as the requisite balancing language and the Court did “not think the temporal gap between the instruction to continue deliberating and the instruction not to relinquish individual beliefs is sufficiently prejudicial to satisfy the third prong of the plain-error standard.”
For the same reason, the court’s refusal to allow defense counsel to see its proposed Allen charge did not prejudice the defendant under the third plain-error prong. Yes, the court “ran afoul” of well-settled law: “We have repeatedly held that defense counsel should be afforded the opportunity to review a proposed jury instruction” and, in particular, “that it is inappropriate for a district court to refus[e] to allow defense counsel to review and comment upon proposed Allen instructions.” But Melhuish was not prejudiced by the court’s mistake because what it ultimately told the jury was satisfactory.
As the Circuit explained, “in assessing the propriety of an Allen charge, the critical question is whether it tends to coerce undecided jurors into reaching a verdict — that is, whether the charge encourages jurors to abandon, without any principled reason, doubts that any juror conscientiously holds as to a defendant’s guilt.” And “[h]ere, critically, the district court’s oral instruction included a caution to jurors that they did not have to relinquish individual beliefs.” This was good enough on plain-error review: “[W]hile the district court erred in failing to follow proper procedures with respect to its oral instruction, this was not plain error warranting vacatur of the conviction.”