                                                 [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT           FILED
                  ________________________ U.S. COURT OF APPEALS
                                                ELEVENTH CIRCUIT
                         No. 11-11392              JAN 20, 2012
                     Non-Argument Calendar          JOHN LEY
                   ________________________          CLERK

             D.C. Docket No. 3:09-cr-00309-MMH-JBT-1



UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

                             versus

TIMOTHY LEE MILLER,

                                              Defendant-Appellant.

                   ________________________

                         No. 11-11398
                     Non-Argument Calendar
                   ________________________

            D.C. Docket No. 3:09-cr-00312-MMH-TEM-1



UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,
                                              versus

CHRISTOPHER REID,

                                                                     Defendant-Appellant.

                                ________________________

                       Appeals from the United States District Court
                            for the Middle District of Florida
                              ________________________

                                       (January 20, 2012)



Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

       At the conclusion of an eight-day trial, a Middle District of Florida jury,

following deliberations on the ninth day, found Timothy Miller and Christopher

Reid guilty on all counts of a ten-count superceding indictment alleging one count

of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349;

five counts of mail fraud, in violation of 18 U.S.C. § 1341; and four counts of wire

fraud, in violation of 18 U.S.C. § 1343.1 The district court thereafter sentenced the


       1
          The criminal conduct giving rise to these charges involved the submission of false
information to lenders in applications for residential mortgages to the lenders to grant the mortgage
loans.

                                                 2
two defendants to concurrent prison terms of 15 months each. They now appeal

their convictions, contending that the district court effectively coerced the jury

verdicts by giving the jury an Allen2 charge after the jury reported a deadlock. The

most obvious factor suggesting coercion, they submit, was the speed with which

the verdict was returned following the Allen charge. Other evidence of coercion is

(1) the giving of a prior charge urging continued deliberation; (2) the language of

the final jury note reporting a deadlock; (3) the timing of the Allen charge; and (4)

the language of the charge.

      We review a district court’s decision to give an Allen charge for abuse of

discretion, and will find such an abuse only if the charge was inherently coercive.

See United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008). In

conducting this assessment, we consider the language of the charge and the totality

of the circumstances under which it was delivered. Id. Specifically, we have

considered (1) whether the charge stated that no juror is expected to give up his or

her honest belief as to the weight of the evidence; (2) whether the jury was polled

before the charge; (3) whether the charge was given after a second notification

from the jury that there was difficulty reaching a verdict; and (4) the amount of

time between the giving of the charge and the announcement of the verdict. See


      2
          Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

                                                 3
United States v. Trujillo, 146 F.3d 838, 846-47 (11th Cir. 1998) (finding no

coercion when the language specifically requested that no juror was to give up his

or her honest opinion of the evidence); United States v. Chigbo, 38 F.3d 543,

545–46 (11th Cir. 1994) (stating that polling itself, or in conjunction with an Allen

charge, can be coercive and finding no coercion when the verdict was returned 15

minutes after the charge); Woodard, 531 F.3d at 1364 (finding no coercion when

the charge was given after the jury’s second notification, the jury was not polled

before the charge, and the verdict was returned four hours after the charge).

       Although we have acknowledged the potential for coercion in the pattern

instructions,3 United States v. Dickerson, 248 F.3d 1036, 1050 (11th Cir. 2001),

we have approved the use of our pattern Allen charge on numerous occasions,

Woodard, 531 F.3d at 1364. Accordingly, recognizing that we were bound by

precedent, in the absence of other evidence of coercion, we have consistently

upheld a district court’s use of the pattern Allen instruction. See, e.g., Dickerson,

248 F.3d at 1050-51; see also United States v. Archer, 531 F.3d 1347, 1352 (11th

Cir. 2008) (noting that, under the prior precedent rule, a panel of this court is

bound by prior precedent unless and until it is overruled or undermined to the


       3
          See U.S. Eleventh Circuit District Judges Ass'n, Pattern Jury Instructions (Criminal Cases),
Trial Instructions n.6 (West 1997) [hereinafter “Pattern Allen Instruction”].


                                                  4
point of abrogation by the Supreme Court or by this court sitting en banc).

      Having examined the record, we conclude that district court did not abuse

its discretion giving the Allen charge, as the charge was not inherently coercive.

To the extent that Miller challenges the language of the charge itself, that

argument is foreclosed, as we would be bound by our precedents repeatedly

approving substantially similar language, unless and until they are overruled or

undermined to the point of abrogation by the Supreme Court or by this court

sitting en banc. See Archer, 531 F.3d at 1352.

      The circumstances surrounding the giving of the charge also do not indicate

coercion. We have held that neither repeated reports of deadlock by the jury, nor

the giving of an Allen charge following an instruction merely urging the jury to

continue its deliberations, are indicative of coercion. See Woodard, 531 F.3d at

1364. Any concern about the timing of the Allen charge, after 5:00 p.m. on a

Friday, was ameliorated by the specific language of the court’s charge instructing

the jury that it could still decide not to return a verdict and that, even if it thought

further deliberations would be worthwhile, it could retire for the evening and

return on Monday to continue deliberating. Finally, turning to the speed with

which the verdicts were returned, we have approved of the issuance of an Allen

charge where the jury returned a verdict 15 minutes after the charge was given.

                                            5
See Chigbo, 38 F.3d at 545–46. The district court in Chigbo had also polled the

jurors prior to issuing the charge, a more potentially coercive practice than any

practice engaged in by the district court in this case. See Id. While the time

between the issuance of the charge and the return of the verdict here was shorter

than in Chigbo, about eight minutes, that difference alone is not significant enough

to conclude that, taken in the totality, the circumstances indicate an inherently

coercive charge. See Woodard, 531 F.3d at 1364.

      AFFIRMED.




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