United States v. Clinton

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 5, 2003
• Docket: 01-5731
• Status: Published

Opinion

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.

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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