WALLACE, Circuit Judge:
A jury found Beattie guilty on five counts of mail fraud, 18 U.S.C. § 1341, and one count of conspiracy to commit mail fraud, 18 U.S.C. § 371. Beattie appeals his conviction claiming that the trial judge erred when he instructed the jury, sua sponte, in a manner similar to that approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). That instruction, Beattie claims, coercively produced the guilty verdict and deprived him of a fair trial. We reject his claim and affirm the conviction.
The jury began deliberating at 3:40 p. m. on May 30, 1978, following four days of prosecution and defense presentations, including the testimony of more than 20 witnesses and the introduction of numerous exhibits. After deliberating for one hour the jury recessed for the night. Deliberations continued throughout the day on May 31, with the jury returning to the court once to be reinstructed on the elements of mail fraud, and once to hear the testimony of a prosecution witness read from the record. The following morning, after two hours of deliberation, the jury' submitted four questions to the district judge concerning substantive elements of the offense charged and proper procedures for reaching a verdict. After responding to these questions, the district judge asked the jury if they were in agreement on any count of the indictment. When the foreman indicated that they were not, the judge made the following statement to the jury:
Just a word or two about approaching your task.
It frequently develops that a jury may be evenly divided where half of you think there’s reasonable doubt, the other half see no reasonable doubt. I’d suggest in a case like that, if half or almost half of you have doubts about the proof, that those who have no doubts would wonder if they were right to be as certain as they are when a substantial number of other jurors seem to find doubts about the sufficiency of the evidence.
Conversely, it would seem to me that if only one or two had doubts, that they should reappraise those doubts and consider the views of the fellow jurors and decide whether those doubts are reasonable when so many of their fellow jurors don’t see them as reasonable doubt.
This is simply a method of re-examining your views about the case and it is without any intention of the Court to suggest that anyone should give up an honestly held conviction about the weight [764]*764and sufficiency of the evidence. But you will recall I did tell you that it would be desirable, from time to time, to reappraise your views, to consider the impact on your views and the views of your fellow jurors and to change your views from time to time if you thought it appropriate to do so.
But always remember that it is your conscientious view about the evidence that must control and you don’t give up a conscientiously held view solely for purposes of arriving at a verdict, although, as I say, it is highly desirable that there be a verdict on all or substantially all of the counts or at very least on some of the counts.
Any other questions that you wanted to raise now? All right. You will resume your deliberations. We will be at your call.
Five hours later, following a one and one-half hour lunch break and three and one-half hours of deliberation, the jury returned a guilty verdict.
The primary reason for judicial disfavor of an Allen charge such as that delivered in this case is its potentially coercive effect upon those members of a jury holding to a minority position at the time of the instruction. United States v. Fioravanti, 412 F.2d 407, 416-17 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); Note, Due Process, Judicial Economy and the Hung Jury: A Reexamination of the Allen Charge 53 Va.L.Rev. 123, 126 (1967). It is contended that the Allen charge persuades minority jury members to alter their individually held views not on the basis of evidence and law, but on the basis of majority opinion.
We have in countless cases approved an Allen charge, e. g., United States v. Guglielmini, 598 F.2d 1149 (9th Cir. 1979); United States v. Handy, 454 F.2d 885 (9th Cir. 1971), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Moore, 429 F.2d 1305 (9th Cir. 1970); Sullivan v. United States, 414 F.2d 714 (9th Cir. 1969); Dearinger v. United States, 378 F.2d 346 (9th Cir.), cert. denied, 389 U.S. 885, 88 S.Ct. 156, 19 L.Ed.2d 183 (1967), and thus do not join other circuits which have held such an instruction to be error per se. See cases cited, United States v. Contreras, 463 F.2d 773, 774 n. 2 (9th Cir. 1972). Rather, our approach has been to determine if the instruction, when challenged, improperly affected the jury verdict. Thus, to determine the propriety of the trial court’s use of an Allen charge in this case, we must examine the instruction “in its context and under all the circumstances” to see if it had a coercive effect upon the jury. Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965); United States v. Seawell, 583 F.2d 416, 418 (9th Cir.), cert. denied, 439 U.S. 991, 99 S.Ct. 591, 58 L.Ed.2d 666 (1978); Marsh v. Cupp, 536 F.2d 1287, 1290 (9th Cir.), cert. denied, 429 U.S. 981, 97 S.Ct. 494, 50 L.Ed.2d 590 (1976).
Beattie contends that our decision is controlled by United States v. Contreras, supra, 463 F.2d 773. There, the trial court gave the jury an Allen charge after eight hours of deliberation and prior to any specific indication in the record that they were unable to reach a verdict. We held that the charge was premature and coercive. Id. at 774. Here, the jury had also deliberated for eight hours before receiving the charge and had not stated to the trial judge that they were deadlocked. The similarity of these facts to those of Contreras would suggest that here, as there, an Allen charge was premature. We have observed, however, that jury difficulty in reaching a verdict, sufficient to warrant an Allen charge, may be shown other than by specific statements from the jury. For example, a jury deliberating eight hours on a very simple factual issue may in itself show such difficulty. See Sullivan v. United States, supra, 414 F.2d at 716 (Allen
Free access — add to your briefcase to read the full text and ask questions with AI
WALLACE, Circuit Judge:
A jury found Beattie guilty on five counts of mail fraud, 18 U.S.C. § 1341, and one count of conspiracy to commit mail fraud, 18 U.S.C. § 371. Beattie appeals his conviction claiming that the trial judge erred when he instructed the jury, sua sponte, in a manner similar to that approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). That instruction, Beattie claims, coercively produced the guilty verdict and deprived him of a fair trial. We reject his claim and affirm the conviction.
The jury began deliberating at 3:40 p. m. on May 30, 1978, following four days of prosecution and defense presentations, including the testimony of more than 20 witnesses and the introduction of numerous exhibits. After deliberating for one hour the jury recessed for the night. Deliberations continued throughout the day on May 31, with the jury returning to the court once to be reinstructed on the elements of mail fraud, and once to hear the testimony of a prosecution witness read from the record. The following morning, after two hours of deliberation, the jury' submitted four questions to the district judge concerning substantive elements of the offense charged and proper procedures for reaching a verdict. After responding to these questions, the district judge asked the jury if they were in agreement on any count of the indictment. When the foreman indicated that they were not, the judge made the following statement to the jury:
Just a word or two about approaching your task.
It frequently develops that a jury may be evenly divided where half of you think there’s reasonable doubt, the other half see no reasonable doubt. I’d suggest in a case like that, if half or almost half of you have doubts about the proof, that those who have no doubts would wonder if they were right to be as certain as they are when a substantial number of other jurors seem to find doubts about the sufficiency of the evidence.
Conversely, it would seem to me that if only one or two had doubts, that they should reappraise those doubts and consider the views of the fellow jurors and decide whether those doubts are reasonable when so many of their fellow jurors don’t see them as reasonable doubt.
This is simply a method of re-examining your views about the case and it is without any intention of the Court to suggest that anyone should give up an honestly held conviction about the weight [764]*764and sufficiency of the evidence. But you will recall I did tell you that it would be desirable, from time to time, to reappraise your views, to consider the impact on your views and the views of your fellow jurors and to change your views from time to time if you thought it appropriate to do so.
But always remember that it is your conscientious view about the evidence that must control and you don’t give up a conscientiously held view solely for purposes of arriving at a verdict, although, as I say, it is highly desirable that there be a verdict on all or substantially all of the counts or at very least on some of the counts.
Any other questions that you wanted to raise now? All right. You will resume your deliberations. We will be at your call.
Five hours later, following a one and one-half hour lunch break and three and one-half hours of deliberation, the jury returned a guilty verdict.
The primary reason for judicial disfavor of an Allen charge such as that delivered in this case is its potentially coercive effect upon those members of a jury holding to a minority position at the time of the instruction. United States v. Fioravanti, 412 F.2d 407, 416-17 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); Note, Due Process, Judicial Economy and the Hung Jury: A Reexamination of the Allen Charge 53 Va.L.Rev. 123, 126 (1967). It is contended that the Allen charge persuades minority jury members to alter their individually held views not on the basis of evidence and law, but on the basis of majority opinion.
We have in countless cases approved an Allen charge, e. g., United States v. Guglielmini, 598 F.2d 1149 (9th Cir. 1979); United States v. Handy, 454 F.2d 885 (9th Cir. 1971), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Moore, 429 F.2d 1305 (9th Cir. 1970); Sullivan v. United States, 414 F.2d 714 (9th Cir. 1969); Dearinger v. United States, 378 F.2d 346 (9th Cir.), cert. denied, 389 U.S. 885, 88 S.Ct. 156, 19 L.Ed.2d 183 (1967), and thus do not join other circuits which have held such an instruction to be error per se. See cases cited, United States v. Contreras, 463 F.2d 773, 774 n. 2 (9th Cir. 1972). Rather, our approach has been to determine if the instruction, when challenged, improperly affected the jury verdict. Thus, to determine the propriety of the trial court’s use of an Allen charge in this case, we must examine the instruction “in its context and under all the circumstances” to see if it had a coercive effect upon the jury. Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965); United States v. Seawell, 583 F.2d 416, 418 (9th Cir.), cert. denied, 439 U.S. 991, 99 S.Ct. 591, 58 L.Ed.2d 666 (1978); Marsh v. Cupp, 536 F.2d 1287, 1290 (9th Cir.), cert. denied, 429 U.S. 981, 97 S.Ct. 494, 50 L.Ed.2d 590 (1976).
Beattie contends that our decision is controlled by United States v. Contreras, supra, 463 F.2d 773. There, the trial court gave the jury an Allen charge after eight hours of deliberation and prior to any specific indication in the record that they were unable to reach a verdict. We held that the charge was premature and coercive. Id. at 774. Here, the jury had also deliberated for eight hours before receiving the charge and had not stated to the trial judge that they were deadlocked. The similarity of these facts to those of Contreras would suggest that here, as there, an Allen charge was premature. We have observed, however, that jury difficulty in reaching a verdict, sufficient to warrant an Allen charge, may be shown other than by specific statements from the jury. For example, a jury deliberating eight hours on a very simple factual issue may in itself show such difficulty. See Sullivan v. United States, supra, 414 F.2d at 716 (Allen instruction “should be given only when it is apparent to the district judge from the jury’s conduct or the length of its deliberations that it is clearly warranted”) (emphasis added).
Thus, while the Contreras decision does not focus on the factors that led it to the determination that an Allen charge was [765]*765premature there, we could conclude that the district judge here did not err in apparently concluding that the jury was sufficiently “deadlocked,” based on the time of deliberation and the fact that they had returned to the court three times for further instructions and rehearing of testimony. We need not, however, reach that question because even if it were premature, we would not reverse unless the charge was also coercive. United States v. Scruggs, 583 F.2d 238, 241 (5th Cir. 1978); United States v. Smith, 521 F.2d 374, 376-77 (10th Cir. 1975); United States v. Martinez, 446 F.2d 118, 119—20 (2d Cir.), cert. denied, 404 U.S. 994, 92 S.Ct. 297, 30 L.Ed. 259 (1971). Indeed, in Contreras we stated both that the Allen charge given there was premature, and that we had “a profound feeling that it was coercive upon the jury.” United States v. Contreras, supra, 463 F.2d at 774. This suggests that we did examine the charge “in its context and under all the circumstances” as required by Jenkins v. United States, supra, 380 U.S. at 446, 85 S.Ct. at 1060, although we did not directly say so. The brief per curiam opinion in Contreras does not reflect the factual basis of the “profound feeling that it was coercive upon the jury.” The Allen instruction given in Contreras and the one given here are different, but we do not find that difference dispositive. We conclude that Contreras does not require reversal because, for the reasons set forth below, we hold that under all the circumstances the Allen charge given in this case, even if premature, was not coercive.
First, the charge given by the trial judge in this case contained all of the elements of the charge initially sanctioned by the Supreme Court in Allen.1 Instructions admonishing jurors to reconsider their positions have “been consistently approved in the Ninth Circuit when [they are] in a form not more coercive than that in Allen.” United States v. Handy, supra, 454 F.2d at 889. E. g., United States v. Moore, supra, 429 F.2d at 1306-07; Sullivan v. United States, supra, 414 F.2d at 717; Dearinger v. United States, supra, 378 F.2d at 348. We conclude that the instruction given here
Sullivan v. United States, supra, 414 F.2d at 718-19.
Second, the period of deliberation following the Allen charge was sufficiently long to permit jury members to reach a reasoned decision, based upon their individual perception of the evidence and the law. Here, no suspicion of coercion was raised by an immediate post-charge guilty verdict. We have considered the length of deliberation following an Allen charge as a significant factor in detecting coercion, United States v. Moore, supra, 429 F.2d at 1307, as have other circuits, e. g., United States v. Robinson, 560 F.2d 507, 517-18 (2d Cir. 1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978); United States v. DeStefano, 476 F.2d 324, 337 (7th Cir. 1973); United States v. Pope, 415 F.2d 685, 690-91 (8th Cir. 1969), cert. denied, 397 U.S. 950, 90 S.Ct. 973, 25 L.Ed.2d 132 (1970). While the time elapsed between charge and verdict is significant, it is not dispositive of the issue. It is but one of the total circum[766]*766stances to be considered. The jury in this case, however, deliberated for three and one-half hours after the Allen charge before reaching a guilty verdict. By contrast, the jury in Contreras, where coercion was found, took only 35 minutes to find the defendant guilty after receiving its Allen charge.
Third, we cannot say that the total time of jury deliberation, approximately twelve hours, was so disproportionate to the task before the jury as to raise an inference that the Allen charge coercively produced the result. The time needed to reach a verdict is “best left to a trial judge,” United States v. Goldstein, 479 F.2d 1061, 1069 (2d Cir.), cert. denied, 414 U.S. 873, 94 S.Ct. 151, 38 L.Ed.2d 113 (1973), and he apparently found it to be adequate.
Finally, neither Beattie nor the record reveals any indicia of coerciveness or pressure upon the jury. The instruction was not rendered in an atmosphere of judge and jury frustration over the jury’s inability to break a deadlock among its members, nor was the judge aware of how the jury stood so as to suggest to the minority position jurors that he was speaking directly to them.
Thus, an examination of the instruction under all the circumstances reveals no coercion. Any prematurity of the instruction, therefore, could not be sufficient to warrant reversal. It is the rule of this circuit that the necessity, extent, and character of supplemental jury instructions is left to the sound discretion of the trial judge. United States v. Miller; 546 F.2d 320, 324 (9th Cir. 1976); Wilson v. United States, 422 F.2d 1303, 1304 (9th Cir. 1970) (per curiam). That discretion was not abused.
AFFIRMED.