Friday, September 19th, 2014

Modified Allen Charge Not Required Where Jury Poll Reveals Non-Unanimity

United States v. McDonald, No. 12-2056-CR (2d Cir. July 22, 2014) (Cabranes, Sack, and Lynch), Available Here

During deliberations in defendant’s fraud trial, the jury announced that it had reached a guilty verdict. When the jury was polled, Jurors 1-10 so confirmed, but Juror No. 11, asked whether guilty was her verdict, answered “no.” With the parties’ agreement, the trial court (Koeltl, J.) told the jury that he would “send you back to deliberate to see whether you can reach a unanimous verdict, in light of all the instructions I have given you.”

After deliberations resumed, the court told the parties that he had identified a model instruction (Sand ¶ 9.12) applicable where a jury poll reveals a lack of unanimity. The first part of the model instruction tracks what the jury had already been told. The second part, however, contains a modified Allen charge, encouraging the jurors to consult with one another and to change their minds if convinced of a new view, while admonishing them not to surrender sincerely held convictions. With the parties’ agreement, the court declined to give that modified Allen charge, and the jury (unanimously, this time) convicted an hour later.

On appeal, the Circuit held that the court’s instruction was appropriate and its failure to admonish the jurors not to surrender conscientiously held beliefs was not error, let alone plain error. The court only asked the jurors “to see whether” they could reach a unanimous verdict. The charge was not coercive because it did not suggest that unanimity was required, did not urge jurors to change their views or try to persuade each other, and left open the possibility that no verdict would be reached. Thus, although an Allen charge generally requires an accompanying admonition, this was not an Allen charge, so no admonition was necessary.

Notwithstanding Sand’s commentary that instruction ¶ 9.12 should be given “whenever” a jury poll reveals a lack of unanimity, the Circuit observed that the instruction given here was “a sensible and manageable alternative.” Finally, the Circuit added cautionary language regarding Allen charges generally, noting that trial courts “should be mindful of presenting them in a way that aids, rather than confuses the jury,” especially “after a jury poll reveals a lone dissenter.”

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