           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.

                                   1
No. 01-5731                      United States v. Clinton          3   4      United States v. Clinton                    No. 01-5731

   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
