                                             Filed:    February 12, 1996


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                            Nos. 93-5954(L)
                            (CR-92-260-WN)



United States of America,

                                                 Plaintiff - Appellee,

           versus

Romanus Nwaneri, etc., et al,

                                              Defendants - Appellants.




                               O R D E R


      The Court amends its opinion filed January 17, 1996, as

follows:
      On page 7, fifth full paragraph, line 4 -- the words "majority

did   necessarily"    are   corrected   to   read     "majority   did   not
necessarily."

      On page 10, first full paragraph, line 7 -- the word id.

should not be capitalized.

                                        For the Court - By Direction



                                             /s/ Bert M. Montague

                                                         Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                              No. 93-5954
ROMANUS NWANERI, a/k/a Frank
Davis, a/k/a Romero,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                              No. 94-5020
BENNET CHIKA ABOH, a/k/a JB, a/k/a
Chika,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-92-260-WN)

Argued: September 29, 1995

Decided: January 17, 1996

Before RUSSELL and WIDENER, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.

_________________________________________________________________

Reversed and remanded for a new trial by unpublished per curiam
opinion.

_________________________________________________________________
COUNSEL

ARGUED: William B. Purpura, Arcangelo Michael Tuminelli, Balti-
more, Maryland, for Appellants. Christine Manuelian, Assistant
United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This case involves the efforts of the district judge to avoid a mis-
trial, after a lengthy trial, when faced with a jury that had not come
to agreement and a distraught juror who, after the jury had been
excused for the night, became hysterical before leaving the court-
house and demanded to see the trial judge. This juror then complained
that she could not continue as a juror, because she could not deal with
the pressure and the acrimonious nature of the jury deliberations. The
district judge handled this emergency with tact and compassion and
persuaded the juror to return the following morning and continue
deliberations. However, we find that the instruction given in this
meeting and the instructions given to the jury the following morning
were defective in content, and when considered under all of the cir-
cumstances were coercive. We reverse the convictions and remand for
a new trial.

I.

Appellants, Bennet Chika Aboh and Romanus Nwaneri, together
with one Collins Nnadozie were tried for conspiracy to distribute and
possession with intent to distribute heroin in violation of 21 U.S.C.
§ 846 and distribution of heroin in violation of 21 U.S.C. § 841(a)(1).

                    2
Nwaneri was separately charged with conspiracy to import heroin in
violation of 21 U.S.C. § 963, and Aboh was charged with a second
count of heroin distribution. Following a lengthy trial, Nnadozie was
acquitted of the only charge against him, Nwaneri was convicted on
both conspiracy counts and acquitted on the charge of distributing
heroin. Aboh was convicted of conspiracy to distribute and possession
with intent to distribute heroin, and with distribution of heroin.

For the purposes of this appeal it is not necessary to review in any
depth the evidence supporting the charges in the indictment. The case
involved a large heroin conspiracy, which allegedly imported and dis-
tributed drugs that had come into this country from Singapore, Thai-
land, Nigeria, and the Philippines.

After lunch on August 11, 1993, the jury began its deliberations but
did not reach a verdict before it was allowed to go home for the night.
It resumed deliberations the following day and during the afternoon
sent a note to the district judge stating, "We the jury, have failed to
reach a unanimous decision on each of the counts concerning all of
the defendants. Numerous attempts have failed, and numerous votes
were taken. The jury is adamant. Further attempts are futile. Signed
by Mr. McMullen the foreperson."

At approximately 3:30 p.m., the district judge gave the jury an
Allen charge1 and directed the jury to continue its deliberations. This
charge was well balanced and not coercive, and there was no objec-
tion made to it. The deliberations continued until approximately 6:00
p.m., when the jury was excused for the night. At that time, the defen-
dants, the attorneys, and the jurors left the courtroom.

Shortly thereafter, the courtroom clerk was called to the courthouse
security station where juror No. 4, Lori Crawford, a 26-year-old
female, lay on the floor in a fetal position, crying hysterically. The
jury foreman, Clifton McMullen, and juror No. 10, Clara Sparrow,
were with Ms. Crawford trying to calm her. Ms. Crawford insisted on
meeting with the judge and did not calm down until told that he
would meet with her and the other two jurors in the courtroom. The
_________________________________________________________________

1 Allen v. United States, 164 U.S. 492 (1896).

                    3
court reporter was brought in and the discussion between the judge
and the jurors was placed on the record. Neither defendants, defense
counsel, nor government counsel were present, and they were
unaware of this meeting until they arrived at court the following day.

During this meeting, Ms. Crawford advised the judge that she was
incapable of reaching a decision. She stated that the pressure, yelling
and screaming were too much for her and she felt pressured to make
a decision. In an effort to calm this juror, the trial judge reminded her
of the oath she had taken as a juror and explained that any sentence
imposed, if a guilty verdict was returned, was not the juror's concern
and should not cause her any worry. He requested that the jurors go
home and try to put the matter aside for the night and "give it your
best shot tomorrow. That is all I am asking that you try to do."

The judge sensed that juror Sparrow was also upset and asked that
she not disclose to him "how things are going in terms of numbers
and that sort of thing." Ms. Sparrow responded:

        I don't agree with everything that is being said and I feel
        like I am being scrutinized because I don't. And I can't just
        be as candid as most people. It is not a cut and dry[case],
        no matter how clear it looks to everybody else, it doesn't --
        I have doubt and I can't come in here and agree just because
        everybody else is agreeing or disagreeing, and I am not
        capable of judging anybody based on what is given here.

The judge reminded the jurors that they were not called upon to
judge people, but were to look at the evidence and make a decision
based upon the evidence. He advised the jurors that they should
express their concerns to the rest of the jurors the following morning.
The judge reminded the jurors that they would feel fresher in the
morning and requested that they return and advise their fellow jurors
that they wished to speak their minds without others putting them
down and that each juror was entitled to his or her opinions and views
of the evidence.

During his meeting with the three jurors, the judge twice reminded
the jurors of the oath they had taken to reach a verdict and twice he
reminded them of the time, effort and expense that had been expended

                    4
in the trial and would be lost if they could not continue as jurors and
reach a verdict. He did not instruct them that they should not surren-
der their honest convictions just to return a unanimous verdict.

The following morning the judge presented the attorneys with tran-
scripts of the meeting he had with the three jurors the previous eve-
ning. After reviewing the transcript, counsel for the three defendants
moved for a mistrial, and the government consented to the motion.
The government now contends that this was not a confession of error,
but was a choice made between the option of proceeding with a juror
who had clearly indicated she was incapable of deciding the fate of
another person, and the prospect of an immediate retrial.

The trial judge denied the motion for a mistrial and then gave a
supplemental instruction to the jury over the objection of defense
counsel. This instruction was as follows:

        Ladies and gentlemen, I am sorry for the delay this morn-
        ing. I had some other matters that had to be taken care of,
        and I also wanted to discuss with counsel the supplemental
        comments that I want to make to you, by way of some
        instructions, although what I am about to say to you in
        effect, I have already said.

        But first of all, I want to remind you that you have taken
        an oath as jurors to well and to truly try this case which
        means that you are duty bound by that oath to carefully and
        to impartially consider all of the evidence in order to reach
        a verdict as to guilt or innocence of each defendant on each
        count.

        All the instructions that I gave to you before are equally
        important and you have all of them in writing available to
        you to refer to, but there are a few that I want to remind you
        of.

        First, that your verdict must be considered exclusively on
        the evidence, or the lack of evidence. That you must not
        allow your decision on the evidence to be guided by sympa-

                    5
thy, or by any other consideration than the evidence and
whether or not the evidence indicates that the government
has proven guilt as to any defendant on any count beyond
a reasonable doubt. And as I instructed you initially, once
you let any fear or any prejudice or any bias or any sympa-
thy interfere with your thinking, and your analysis of the
evidence, then there is a considerable risk that you will not
arrive at a true and a just verdict.

I also want to remind you that punishment or sentencing
or the consequences of your verdict, whatever that may be,
that may result from either a guilty verdict or a not guilty
verdict, should not be considered in any way in your deci-
sion as to what a proper verdict is in accordance with the
evidence or lack of evidence.

So, in fulfilling your duty, you are to consult with one
another and deliberate on the evidence. You should remem-
ber that you are not partisans, you are judges, and you need
to respect the fact that differing views than yours are worthy
of consideration and analysis in the light of the evidence.

So I am going to ask that you continue deliberating with
a unified determination to focus on and to discuss and to
analyze the evidence. Much of that is available to you in
written form in the telephone transcripts and other docu-
ments that you have.

I did notice that most of you took very few notes during
the course of the testimony, but among the 12 of you, I am
confident that you will find that your collective memory of
the testimony, along with the written evidence that you do
have, will stand you in good stead as you continue to focus
on the evidence.

So with those supplemental comments, I am going to ask
that you please return to the jury room and continue your
deliberations. Thank You. (Emphasis added).

            6
The jury went to the jury room at 11:33 a.m. and approximately
one hour later returned its verdict of guilty on all counts as to Aboh
and on counts 1 and 2 as to Nwaneri and acquitted Nnadozie, thereby
disposing of the charges against him.

II.

We review the decision to give or not to give a jury instruction and
the content thereof under an abuse of discretion standard. United
States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992), cert. denied,
113 S. Ct. 1013 (1993).

In Allen v. United States, 164 U.S. 492 (1896), the United States
Supreme Court considered the form, substance and circumstances in
which a supplemental charge is given to a jury that has announced to
the court that it is deadlocked and cannot reach a unanimous verdict.
In Jenkins v. United States, 380 U.S. 445 (1965), the Court held that
a trial judge's statement to a deadlocked jury must be examined "in
its context and under all the circumstances" to determine if it had a
coercive effect. Id. at 446.

Here we are not dealing with an Allen charge per se, because these
supplemental instructions did not follow all of the language of an
original Allen instruction. In an Allen charge, the court informs a
deadlocked jury that a new trial would be expensive for both sides;
that there is no reason to believe that another jury would do a better
job; that it is important that a unanimous verdict be reached; that the
jurors who are in a minority should consider, without surrendering
their convictions, whether the majority's position might be correct
and whether their doubt is reasonable when it has not made an
impression on the minds of the other jurors.

In United States v. Sawyers, 423 F.2d 1335 (4th Cir. 1970), we
strongly recommended the use of a modified version2 of the instruc-
tion that includes an admonition to the majority to listen to and con-
sider any minority viewpoint, because being in the majority did not nec-
essarily make one right.
_________________________________________________________________

2 Supplement to Report of the Committee on the Operation of the Jury
System of the Judicial Conference of the United States.2 (1969).

                    7
The final instructions given in this case cause us concern. First,
why were they given? The jury was given a full Allen charge at 3:30
p.m. on the preceding day, and deliberated for only two and one half
hours after receiving this instruction. First thing the next morning, the
jury received additional instructions over the defendant's objections
and without any indication that it was still deadlocked or needed fur-
ther instructions. As a result, the jury received two supplemental
charges, in less than three hours of court time, urging it to come to
an agreement. When these final instructions were given nothing had
changed from the afternoon before, except the judge's meeting with
the three jurors, and this meeting was not mentioned in the last
instructions.

A supplemental instruction given so quickly after a full Allen
charge may indicate to the jurors that the trial judge is impatient with
the minority and thereby be coercive. In United States v. Burgos, 55
F.3d 933 (4th Cir. 1995), we held, "At the heart of our Allen charge
jurisprudence is the basic principle that a defendant has `the right to
have the jury speak without being coerced.'" Id. at 936 (citing United
States v. Sawyers, 423 F.2d at 1341. We also observed, "An evalua-
tion of a suspect Allen charge must be conducted, in part, from the
prospective of a juror in the minority because `[t]hey always know
their minority status, and if fearfully inclined, may presumably sus-
pect a disgruntled judge can find them out.'" Id. at 940 (quoting
Sawyers at page 1340).

Our second concern is with the language of the final instructions.
At the beginning of these instructions, the court stated, "I want to
remind you that you have taken an oath as jurors to well and to truly
try this case which means that you are duty bound by that oath to
carefully and impartially consider all of the evidence in order to reach
a verdict as to the guilt or innocence of each defendant on each
count." Later he instructs, "You need to respect the fact that differing
views than yours are worthy of consideration and analysis in the light
of the evidence." However, at no point does he advise the jurors not
to surrender their honest convictions as to the weight or effect of evi-
dence solely because of the opinion of fellow jurors or for the mere
purpose of returning a verdict. From his meeting with the foreman
and the two female jurors the previous evening, the trial judge knew
that both women were upset about the antagonism in the jury deliber-

                    8
ations, were most likely a small minority on the jury, and were hold-
ing out against conviction. Therefore, the instructions must be
examined from the prospective of jurors Crawford and Sparrow.

Next, the final instructions in almost every sentence instruct the
jurors to consider the evidence or lack of evidence carefully or impar-
tially, and twice makes particular reference to written evidence,
including telephone transcripts. Only the prosecution entered any
written evidence, documents or telephone transcripts. This presents a
grave problem. It is not advisable for a judge to give an instruction
that calls attention to any particular type of evidence if only the gov-
ernment has introduced such evidence. If such a reference is made, it
should be balanced by mentioning evidence introduced by the defen-
dant or by reminding the jury that the defendant has no duty to pres-
ent evidence and may stand on his claim that the government has not
presented sufficient evidence to prove him guilty beyond a reasonable
doubt.

In his remarks to the distraught juror and the other two jurors who
were present, the trial judge reminded them of the expense on both
sides that had gone into the presentation of the case, which lasted
three and a half weeks, and that if they could not continue as jurors
the entire effort would collapse and a retrial would be necessary. The
court advised them to consider this and to express their opinions on
the evidence to the other jurors and try to consider the evidence objec-
tively and not emotionally. With knowledge that these two female
jurors were probably in a minority, the judge should have reminded
them not to surrender their honest convictions to reach a verdict. This
would have reduced the possibility of coercion from the meeting with
and comments by the trial judge.

In United States v. Rogers, 289 F.2d 433, 437 (4th Cir. 1961), we
held:

        We have thus indicated that the permissibility of a direction
        to jurors to reexamine the views in the light of those of their
        fellows is dependent upon the moderating reminder of their
        own individual responsibility, and the necessity that any
        verdict be that of each of the jurors and not just that of a
        majority. When the moderating condition which makes the

                    9
        direction to reexamine their views permissible, and desirable
        in many cases, is omitted, then the direction becomes so
        likely to be coercive, that a verdict rendered promptly there-
        after should not be allowed to stand.

It is also significant that within an hour of the supplemental
instructions given on the third day of deliberations, the jury returned
a unanimous verdict. Although one defendant was acquitted, the two
appellants were convicted. The speed with which a jury returns a
unanimous verdict after receiving an Allen charge is considered evi-
dence of possible coercion of the minority to go along with the major-
ity. United States v. Rogers, id. at 437.

After weighing all of the aforementioned circumstances, we find
that the trial court's supplemental instructions were an abuse of dis-
cretion. They favored the prosecution in calling attention to certain
evidence. Without a clear statement to protect the minority view, they
were coercive. Accordingly, a new trial is required of the charges
against Aboh and Nwaneri. We have not considered the sentencing
question raised by appellant Nwaneri, because his conviction has been
reversed and the case remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL

                    10
