Case o' The Week: Ninth Holds Out for Holdout, Williams and Allen Charges

"Wait, wait: don't tell me!" A witty and satiric news quiz found on NPR? Or the plaintive cry of a district judge as a hold-out juror is about to reveal her identity? Both, it turns out.

In United States v. Williams, __ F.3d __, 2008 WL 4812012 (9th Cir. Nov. 6, 2008), Judge Bybee reverses when a district court gave a watered-down Allen charge after the identity of a holdout juror was disclosed. Opinion available here. An important case for the Allen analysis framework, and an opinion that provides some handy new rules for the defense.

Players: Another win for former San Diego AFPD Ben Coleman.

Facts: Williams, et al., were charged with conspiracies to interfere with commerce by robbery and to sell cocaine, and § 924(c)’s. Id. at *1. Williams and his crew agreed to rob a cocaine “stash” house that was, in reality, a sting operation set up by a government snitch. Id. at *1.

The jury deliberated for 2 ½ hours, then the foreman sent a note asking if a juror could send the judge a note – without the foreman seeing it. Id. at *10. A half-hour later, the foreman sent another: “Your Honor, the juror refuses to proceed until you have responded to her note.” Id. at *10. The note said (verbatim):

Judge Gonzales, I disagree with my fellow jurers of (a) entrapment, (b) conspiracy of possession to distribution of drugs, concerning David Williams, Steele, & Brown. I can't get pass this issue, & feel the other jurers have already convicted the three defendants on all accounts. As it stands, my headache is worst and will not be bombarded to change my opinion. May I please be excused from this case, as I feel very strong about my decision & could not face the defendants with the charges the other jurers are hard on declaring. P.S. I hate to use the word prejudice, but feel its presence strong in the room above the law.

Id. at *10.

The judge gave a supplemental instruction, the jury came back with guilty verdicts five hours later. Id. at *11.

Issue(s): “Williams, Brown, and Steel challenge the district court's decision to give a supplemental jury instruction in response to a juror’s note. They argue that the district court was required to declare a mistrial because the juror’s note revealed that she was a holdout.” Id. at *10 (footnote omitted).

Held: “We agree.” Id. at *10. “Because the district court gave an Allen charge after a juror disclosed that she was a holdout, we reverse and remand for a new trial.” Id. at *1.

Of Note: “An Allen charge is the generic name for a class of supplemental jury instructions given when jurors are apparently deadlocked.” Id. at *11 (quotation omitted). In its model instruction set, the Ninth has a pretty forceful Allen charge – Model Instruction 7.7, “Deadlocked Jury.” The instruction given here was not that Allen charge: it was more considerably more tame. Thus, the threshold question was whether this fact pattern even falls into the Allen charge analysis?

It does.

Even though the district court didn’t intend for its supplemental instruction to be an Allen charge, and even though this was a “neutral” instruction that had been previously given to the jury, Judge Bybee still used the Allen framework for the Ninth's analysis. Id. at *13. “So long as the defendant has offered facts that fairly support an inference that jurors who did not agree with the majority felt pressure from the court to give up their conscientiously held beliefs in order to secure a verdict, we must proceed to the Allen charge analysis.” Id. at *11.

This is an interesting rule, and one worth remembering at trial: an impermissibly coercive charge can become an issue even before the jury formally gives notice of deadlock, and even though the full “dynamite” Allen Model Instruction 7.7. is not given.

How to Use: Williams is a useful primer on Allen charges -- it collects and compares many of the Ninth's Allen cases. Id. at *14. Williams also flags a key fact for Allen analyses: was the identity of the holdout juror disclosed? If so, that’s pretty close to the silver bullet – time for a mistrial, and not for an Allen charge. Doesn’t matter if the jury had taken a vote, doesn’t matter that the foreman had not opined on whether further deliberations would be productive: when the holdout juror is identified, the district court cannot give an instruction to keep deliberating. Id. at *15.

For Further Reading: The Ninth distributes handy little jury instruction manuals. Or rather, they were handy – a year before Obama gave his first speech at the Boston DNC. Things change, in five years.

The manual is from ‘03. The most recent on-line instruction pack is from August ‘08. Thirty-five instructions have changed in the five years since the book was published. PDF and Wordperfect versions of the Ninth’s most-recent Model Criminal Jury Instructions can be found here.

The Allen charge discussed in this memo -- Ninth Circuit Model Criminal Jury Instruction 7.7 (deadlocked jury) -- can be found at page 130 of this on-line packet.



Image of the "Wait, wait" panelists from http://www.npr.org/programs/waitwait/


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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