
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1385                                    UNITED STATES,                                      Appellant,                                          v.                                DANIEL PANIAGUA-RAMOS,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                 Cyr, Circuit Judge,                                      _____________                         and DiClerico, Jr.,* District Judge.                                              ______________                                _____________________               Jos   A. Quiles-Espinosa,  Senior  Litigation Counsel,  with               ________________________          whom Guillermo  Gil, United  States Attorney,  Edwin O.  V zquez,               ______________                            _________________          Assistant  United   States  Attorney,   Deputy  Chief,   Criminal          Division,  Desire  Laborde-Sanfiorenzo,  Assistant United  States                     ___________________________          Attorney,  and   Nelson  P rez-Sosa,   Assistant  United   States                           __________________          Attorney, were on brief for appellant.               Jos  R.  Aguayo, with  whom Joaqu n Monserrate-Matienzo  and               _______________             ___________________________          Joaqu n Monserrate-Pe agar cano were on brief for appellee.          _______________________________                                 ____________________                                   February 3, 1998                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    DICLERICO, District  Judge.   After a  conviction by  a                    DICLERICO, District  Judge.                               _______________          federal jury for conspiracy to possess with intent  to distribute          a controlled substance and an acquittal on a charge of aiding and          abetting  possession  of a  controlled substance,  the defendant-          appellee, Daniel Paniagua-Ramos, was  granted a new trial by  the          trial judge on  the ground that the district  court's jury charge          was  prejudicial.   On appeal,  the  government asserts  that the          district court  abused its discretion  by finding plain  error in          its charge and  granting a new trial.   Because we find  that the          district court  did not abuse  its discretion in  concluding that          its charge was improper, we affirm.                          Factual and Procedural Background                          Factual and Procedural Background                          _________________________________                    This  is an appeal  from an  order entered  January 15,          1997, by the district court granting a new trial.  The government          prosecuted the appellee, Daniel Paniagua-Ramos, for conspiracy to          possess  400 kilograms of  cocaine with the  intent to distribute          it, and for aiding and abetting the possession of the cocaine  in          violation of 18 U.S.C.   2 and 21 U.S.C.    841(a)(1), 846.                    The  case was  tried in  district  court from  Tuesday,          December  3, 1996,  to  Friday,  December 6,  1996.   On  Friday,          December 6, the jury retired to deliberate for three hours, after          which they requested leave to continue on Monday, December 9.  On          Monday  morning they  began  deliberating  at approximately  9:30          a.m.,  but at  10:30  a.m. they  forwarded a  note  to the  court          stating:   "We have not  reached an unanimous decision,  and will          not  be changed."   The  court  instructed the  jury to  continue                                         -2-          trying to  decide.   After lunch,  they continued  deliberations.          The jury sent another note to the court at 4:16 p.m. stating: "We          still don't  have a unanimous  verdict, and none wants  to change          its decision."   At 4:33 p.m. the  jury sent yet another  note to          the court, stating:   "We  suggest to  retire our  position as  a          juror for the case  of Mr. Daniel Paniagua.  Due  to no unanimous          verdict between  all jurors."   The  court then  gave the jury  a          charge  based in part  on the modified  Allen1 charge  found in a                                                  _____          draft  of proposed criminal  law pattern jury  instructions under          consideration for  use as an  aid to  the district courts  of the          First Circuit.2  The court instructed the jury as follows:                                        ____________________          1  Allen v. United States, 164 U.S. 492 (1896).             _____    _____________          2  The draft pattern instruction from which the court derived its          Allen charge, titled  Pattern Criminal Jury Instructions  for the          _____                 ___________________________________________          District Courts  of the  First Circuit, "Charge  to a  Hung Jury"          ______________________________________          Part 6.06, provides as follows:                      I am going  to instruct you to go  back and                    resume your  deliberations.   I will  explain                    why and give you further instructions.                      In trials absolute certainty can be neither                    expected nor  attained.  You  should consider                    that  you are selected in the same manner and                    from the same source as any future jury would                    be selected.   There is no reason  to suppose                    that  this case would ever be submitted to 12                    men   and   women  more   intelligent,   more                    impartial or more competent to decide it than                    you, or that more  or clearer evidence  would                    be produced in the future.  Thus, it is  your                    duty   to  decide   the  case   if  you   can                    conscientiously  do  so without  violence  to                    your individual judgment.                      The verdict to  which a juror agrees  must,                    of course,  be his  or her  own verdict,  the                    result of his or her own convictions, and not                    a mere acquiescence in  the conclusion of his                                         -3-                                        ____________________                    or her fellow jurors.  Yet, in order to bring                    12  minds to  a  unanimous result,  you  must                    examine the questions  submitted to you  with                    an  open mind and with proper regard for, and                    deference  to,  the  opinion of  your  fellow                    jurors.                      In  conferring together  you  ought to  pay                    proper respect to  each other's opinions  and                    you ought to listen with a mind open to being                    convinced by  each other's arguments.   Thus,                    where there is  disagreement, jurors favoring                    acquittal should consider whether a doubt  in                    their  own mind is  a reasonable one  when it                    makes  no impression  upon the  minds of  the                    other equally  honest and  intelligent jurors                    who  have heard  the same  evidence with  the                    same  degree of  attention and with  the same                    desire  to  arrive  at  the truth  under  the                    sanction of the same oath.                      On   the   other  hand,   jurors   favoring                    conviction ought seriously  to ask themselves                    whether they should  not distrust the  weight                    or  sufficiency of  evidence  which fails  to                    dispel reasonable doubt in the minds of their                    fellow jurors.                      Not only should jurors  in the minority re-                    examine their  positions, but  jurors in  the                    majority should  do so  also, to  see whether                    they  have  given careful  consideration  and                    sufficient weight  to the  evidence that  has                    favorably    impressed    the    persons   in                    disagreement with them.                      Burden of proof is a legal tool for helping                    you  decide.    The   law  imposes  upon  the                    prosecution  a  high burden  of  proof.   The                    prosecution has the burden to establish, with                    respect to each count, each essential element                    of  the  offense,   and  to  establish   that                    essential element beyond  a reasonable doubt.                    And if  with respect  to any  element of  any                    count you  are left in reasonable  doubt, the                    defendant  is entitled to the benefit of such                    doubt and must be acquitted.                      It is your duty to  decide the case, if you                    can conscientiously do so without violence to                                         -4-                      Members of the  jury, I have seen  your two                    notes but I  want you to listen  carefully to                    what I have to say and, of course, this is an                    additional instruction.  I want all of you to                    pay  careful  attention to  this  instruction                    that I am going to give you.                      In  trials,  such  as  this  one  that  you                    participated  in,   absolute  certainty   can                    neither be  expected nor attained.   And that                    happens,  I would say, in the majority of the                    trials.   You  should consider  that you  are                    selected or you were selected in this case in                    the same manner  and from the same  source as                    any future jury  will be selected.   In other                                        ____________________                    your individual  judgment.  It  is also  your                    duty to return a verdict  on any counts as to                    which  all of you  agree, even if  you cannot                    agree  on  all  counts.   But  if  you cannot                    agree, it is your right to fail to agree.                      I  now instruct you  to go back  and resume                    your deliberations.          Pattern Criminal  Jury Instructions  Drafting Committee,  Pattern                                                                    _______          Criminal Jury Instructions  for the District Courts  of the First          _________________________________________________________________          Circuit, "Charge to  a Hung  Jury," Part  6.06 (discussion  draft          _______          later adopted without significant revision).                    This  charge  was  contained  in  a  discussion   draft          prepared  by  the  Pattern Criminal  Jury  Instructions  Drafting          Committee.   At  the First  Circuit Judicial  Conference held  on          October 1,  1997, the  federal  judges present  voted to  approve          publication of the final version of the pattern instructions with          the following caveat appearing in the Preface:                    Although   we   believe  that   the   pattern                    instructions   and,   in    particular,   the                    commentary  that  accompanies  them  will  be                    helpful  in  crafting  a  jury  charge  in  a                    particular  case, it  bears emphasis  that no                    district judge is required to use the pattern                    instructions, and  that the Court  of Appeals                    has  not in  any way  approved the  use of  a                    particular instruction.          Pattern  Criminal Jury  Instructions Drafting  Committee, Pattern                                                                    _______          Criminal  Jury Instructions for the  District Courts of the First          _________________________________________________________________          Circuit,      Preface      (visited      Dec.      17,      1997)          _______          .                                          -5-                    words,  the  fact  that you  have  not agreed                    doesn't  mean that  this is  the  end of  the                    case.   The case will have  to be tried again                    if you cannot  agree.  The point I  am making                    is this:   There is no reason to suppose that                    this case would be ever [sic] submitted to 12                    jurors  different  from  you people  who  are                    either more  intelligent or  more capable  or                    more impartial or more competent than  the 12                    of you.  And they  are going to hear the same                    evidence that you have heard.                      The  point that I am trying to make is that                    you, the 12  of you, have to make a conscious                    effort to try to decide  this case if you can                    do   so  without   doing  violence   to  your                    individual judgment.                      I  know  by   experience  in  dealing  with                    collective decisions, because I have sat, for                    example, on the  Court of Appeals many  times                    and then  it is  three judges deciding,  that                    the  three judges or the many judges may have                    different views  on something.  But  when you                    have different views you have to look  calmly                    at the issues  and calmly assess them  to see                    whether  there is any way of bringing about a                    solution.                      You have  to  pay respect  to each  other's                    opinions.   You have  to listen  with a  mind                    open  to  be  convinced   of  other  people's                    arguments.       Thus,    where   there    is                    disagreement,  jurors   that  are   presently                    favoring acquittal should  consider whether a                    doubt in their  own mind is a  reasonable one                    when it makes no impression upon the minds of                    the  other  equally  honest  and  intelligent                    jurors who have heard the same evidence  with                    the  same degree  of attention  and with  the                    same  desire to arrive at the truth under the                    sanction of the same oath.                      On   the   other  hand,   jurors   favoring                    conviction ought to  seriously ask themselves                    whether they  should not distrust  the weight                    or sufficiency of the evidence which fails to                    dispel reasonable doubt in the minds of their                    fellow jurors.                      Not only should jurors in the  minority re-                    examine  their positions,  but jurors  in the                                         -6-                    majority  should also  do so  to  see whether                    they  have  given careful  consideration  and                    sufficient weight  to the  evidence that  has                    favorably    impressed    the    persons   in                    disagreement with them.                      Remember that I gave you a charge on Friday                    and  I gave you  this morning the  charge for                    you to  have in writing.  The burden of proof                    instruction is  a legal  tool that  will help                    you to decide this case.                      The law imposes upon the prosecution a high                    burden  of  proof.   The prosecution  has the                    burden to  establish  with  respect  to  each                    count each  essential element of  the offense                    and  to  establish   that  essential  element                    beyond a reasonable doubt.  And with  respect                    to any element of any count that you are left                    in reasonable  doubt, then  the defendant  is                    entitled  to  the benefit  of such  doubt and                    must be acquitted.                      It is your  duty to decide the  case if you                    can  do so  without  doing violence  to  your                    individual judgment.  But remember, as I said                    before,  that your indecision is not going to                    be the end of this.   Because in the long run                    I have  to take your indecisive verdict, that                    is no verdict, and I will have to  simply try                    this case again, as I said, and get 12 jurors                    that may be worse equipped, they are going to                    hear the same evidence, and they are going to                    go through the same exercise.                      So the  point that I  am trying to  make is                    that if you put all  of your 12 minds to work                    and all of you  make an honest effort  not to                    fight with  each other, for  example, but  to                    honestly listen  to each  other, I  am pretty                    sure  that you  will be  able to  agree  on a                    verdict.                      Remember something that I  said before, and                    if  I did  not, I think  I did say  it in the                    preliminary instructions that I gave you, you                    are not parties  to this  case.   You do  not                    work for the government.  You are not related                    to  the defendant.  You are strangers to this                    controversy  the same  way that  I  am.   Our                    mission  is to try  to resolve this  case, to                    decide  this   case  on  the  basis   of  the                                         -7-                    instructions   and  on   the  basis   of  the                    applicable law.    That is  what  the  system                    requires.   That is  the only system  that we                    have.                      So with that in mind, I am going to beg you                    to go  back and  give it a  try because  I am                    pretty sure that you can.                    No objections  to the charge were made after the charge          was given and before the jury retired to deliberate.  See Fed. R.                                                                ___          Crim. P.  30.3  No copies of the  pattern charge were provided to          counsel  at  the   time  the  charge  was  given   to  the  jury.          Immediately  after  instructing  the  jury,  the  court  informed          counsel that  the charge given  was the proposed  pattern charge.          At approximately  6:40 p.m. the  jury returned a  verdict finding          the defendant guilty  on the conspiracy charge and  not guilty on          the substantive charge of aiding and abetting.                    On December  13, 1996, the defendant received a copy of          the  proposed pattern jury  instruction pursuant to  his request.          On  December 16,  1996, after  contrasting  the proposed  pattern          instruction with the instruction as  given by the district court,          the defendant filed a  timely request for a new trial.   See Fed.                                                                   ___                                        ____________________          3  Fed. R. Crim. P. 30 states in relevant part:                    No party may  assign as error any  portion of                    the charge or omission therefrom unless  that                    party objects thereto before the jury retires                    to consider  its verdict,  stating distinctly                    the matter  to which  that party  objects and                    the grounds of the objection.          Pursuant to Fed. R. Crim. P. 30, a party waives an objection to a          jury instruction if  the party fails to enter  the objection into          the record after the judge has instructed the jury but before the          jury   retires  to  deliberate.    See  Kerr-Selgas  v.  American                                             ___  ___________      ________          Airlines, Inc., 69 F.3d 1205, 1212-13 (1st Cir. 1993).             ______________                                         -8-          R. Crim.  P. 33.   The  defendant argued that  the court's  Allen                                                                      _____          charge  was  defective  and  coerced  the  jury  into reaching  a          verdict.   Since  the defendant  failed to  object to  the charge          before  the  jury  retired  to  deliberate,  the  district  court          reviewed  the charge  for plain  error.   The court  rejected the          government's arguments opposing  a new  trial and  ordered a  new          trial.   The government  appeals this decision,  arguing that the          court abused its discretion in ordering a new  trial on the basis          that the Allen charge constituted plain error.                   _____                                      Discussion                                      Discussion                                      __________                    It is  within the discretion  of the district  court to          set aside a jury  verdict and order a new trial,  but this remedy          must be  "sparingly used, and  then only  where there would  be a          miscarriage of justice."   United States v. Indelicato, 611  F.2d                                     _____________    __________          376, 387 (1st Cir.  1978) (quotations omitted).   "[A]n appellate          court must sustain the  granting of a new trial unless  there was          an abuse of  discretion."  Borr s v. Sea-Land  Service, Inc., 586                                     ______    _______________________          F.2d 881, 887 (1st Cir. 1978).   A review for abuse of discretion          is deferential to the district court, as the court was present at          the  trial and  had the  opportunity  first hand  to observe  the          evidence, the  witnesses,  and  the jury.    However,  there  are          several components  to  the abuse  of discretion  standard.   See                                                                        ___          United States  v. Castro, No. 97-1684, 1997 WL 705863, at *2 (1st          _____________     ______          Cir. Nov. 18, 1997).  While a court of appeals need not defer  to          the district  court in  reviewing questions of  law, see  Koon v.                                                               ___  ____          United States, 116 S. Ct. 2035, 2047 (1996), findings of fact are          _____________                                         -9-          often  subjected  to clear  error  review,  see Castro,  1997  WL                                                      ___ ______          705863, at *2.                    Because the defendants in this case failed to object to          the Allen charge in a timely  fashion, a reviewing court may  not              _____          take notice of the error  unless the error meets the requirements          of Fed.  R. Crim.  P. 52(b).4   In  United States  v. Olano,  the                                              _____________     _____          Supreme Court articulated  the proper analysis to be  employed in          reviewing for  plain error.   See 507  U.S. 725,  731-737 (1993).                                        ___          First,  an error must have  been committed.   See id. at 732-733.                                                        ___ ___          Second, the error must be  "plain," which has been interpreted as          "obvious" or "clear  under current law."  Id. at 734.  Third, the                                                    ___          error  must  affect substantial  rights.    See  id.  at  734-35.                                                      ___  ___          Finally, once these three elements  are satisfied, the court  may          in  its  discretion take  notice  of the  plain  error  if it  is          appropriate to do so.  See id. at 735-737.  We will address these                                 ___ ___          elements seriatim.                   ________                    A.  The Error                    _____________                    In the  past, we have  referred to the Allen  charge as                                                           _____          the  "dynamite charge"  and noted  that  it should  be used  with          "great  caution, and  only when  absolutely  necessary."   United                                                                     ______          States  v. Flannery,  451  F.2d  880, 883  (1st  Cir.  1971).   A          ______     ________          defendant may  be prejudiced by  an Allen charge  in a  number of                                              _____          ways.  See  United States v. Angiulo,  485 F.2d 37, 39  (1st Cir.                 ___  _____________    _______                                        ____________________          4  Fed. R. Crim. P. 52(b) provides:                    Plain errors or defects affecting substantial                    rights may be noticed although they  were not                    brought to the attention of the court.                                          -10-          1973).  Therefore, we have  instructed district courts to include          three elements in the substance  of an Allen charge to ameliorate                                                 _____          its  potentially  prejudicial  effect.    See  United  States  v.                                                    ___  ______________          Manning, 79  F.3d 212,  222 (1st Cir.  1996).  "A  district court          _______          should instruct jurors in substance  that (1) members of both the          majority and the minority should reexamine their positions, (2) a          jury  has the  right to  fail  to agree,  and (3)  the  burden of          proving   guilt  beyond  a  reasonable  doubt  remains  with  the          government."   Id.   We have further  instructed trial  courts to                         __          avoid substantive  departures from  approved formulations  of the          Allen charge, and to avoid using language that might heighten its          _____          coercive  effect.   See Angiulo, 485  F.2d at 39.   In situations                              ___ _______          where the substance of these elements was not communicated to the          jury,  this  court  has found  reversible  error  without further          inquiry.   See Angiulo, 485 F.2d at 39-40.  At issue in this case                     ___ _______          is the second element.                    The trial court  stated that agreement should  not come          at the cost of doing  violence to a juror's independent judgment,          and that an indecisive verdict  will require a new trial.   While          the court determined that  it had failed to include  in its Allen                                                                      _____          charge the  substance of the  jury's right  to fail to  agree, it          indicated that implicit in the  charge given was the jury's right          to  fail  to agree.    This  court  has refrained  from  offering          definite wording for an Allen charge,  and in Vachon we held that                                  _____                 ______          a court's  failure to include  the specific language "a  jury has                                         -11-          the right  to disagree"  did not  necessitate a new  trial.   See                                                                        ___          United States v. Vachon, 869 F.2d 653, 659 (1st Cir. 1989).           _____________    ______                    However, the case at hand is readily distinguished from          Vachon.   Here, the  language the court  used to  communicate the          ______          jury's right to fail to agree was insufficient when considered in          the coercive context in  which it was  given, i.e., the jury  had          already informed the  court on three occasions that  it could not          reach  a  unanimous verdict.    Moreover,  any force  behind  the          implicitly communicated right to fail to agree was negated by the          court's other  statements in  which it was  embedded.   The court          summarized the "point"  of the Allen charge given  by stating "if                                         _____          you  put all of  your 12  minds to  work and all  of you  make an          honest effort not  to fight with each other, for  example, but to          honestly listen to  each other, I am pretty sure that you will be          able to agree  on a verdict."  This  statement inevitably created          an  atmosphere of coercion that minimized the significance of the          positions held by  the individual jurors and  in effect compelled          unanimity.   Referring to a  juror's attempts to maintain  his or          her  individual judgment as  a "fight" undermined  the admonition          that jurors should not do violence to their  individual judgment.          The coercive nature of this  language was enhanced by the court's          statement that the "mission" was to "try to resolve this case, to          decide this case . . . .  That is what the system requires.  That          is the only system that we have . . . .  I am going to beg you to          go back and give it a try because I am pretty sure that you can."          These statements infer that it  would be reasonable, perhaps even                                         -12-          expected, for  the jurors to come  to a decision  on the evidence          submitted,  and that our system of  justice required and depended          on their  arriving at  such  a decision.   Finally,  the aura  of          compulsion    was   intensified    by   the    court's   implicit          dissatisfaction with an indecisive verdict.  The court emphasized          that the jury's  indecision "is no verdict" and  "is not going to          be the end of  this" and that "in the  long run" "I will have  to          simply try this case again."                    These  statements in the  context in which  they appear          run counter  to our  instruction that "in  all events,  the court          should  be careful to . . . avoid  language which might heighten"          the coercive effect of an Allen charge.  Angiulo, 485 F.2d at 39.                                    _____          _______          This court has expressly disapproved of statements that "directly          imply[] that  it would  be  reasonable for  the jury  to reach  a          decision on the evidence before them."  Id. (disapproving court's                                                  ___          statements to jury (1) about expense of trial, (2) that court did          not want  to  try case  again, and  (3) that  case  was not  very          difficult);  see also  Flannery, 451  F.2d  at 883  (disapproving                       ________  ________          court's statement "the case must at some time be decided.")                    Moreover, because the jury's weakly enunciated right to          deliver  an  indecisive  verdict  was  closely  intertwined  with          language that  strongly compelled  a jury  agreement, the  charge          failed  to communicate  adequately the  substance  of the  jury's          right to fail to agree.  We therefore find that the lower court's          determination that its  instruction was legally insufficient  was          correct under the circumstances.                                         -13-                    The government fails in its attempt to characterize the          trial court's order for a new trial as being premised solely upon          the court's failure to state expressly that the jury had a "right          to fail to agree."  The trial court's order focused on  the First          Circuit's requirement that "the substance of the jury's right" be                                          _________          communicated.  The court found that it had "failed to communicate          the notion that the jury has a 'right' to deliver an inconclusive          verdict,"  and that  the  charge  lacked  "complete  accuracy  in          communicating the extent  of the jury's obligations  and rights."          Second,  given the  facts  of  this case,  we  disagree with  the          government's contention that the defendant's failure to object in          a  timely manner  indicates the  charge was  not  in error.   The          parties  were not  provided  with  a copy  of  the draft  pattern          charge.  Immediately  after the jury was excused,  the court said          to the parties "[b]efore you say anything, let me say this . . ."          and informed  the  parties  that  the  instruction  given  was  a          proposed   pattern  Allen  charge  that  the  First  Circuit  was                              _____          considering for publication.   We agree  with the district  court          that the failure  of the parties to object  was understandable in          these circumstances.                    B.  The Clarity of the Error                    ____________________________                    The second requirement of Rule 52(b) is  that the error          be plain  or clear.  Here,  the court's error  in its instruction          constituted clear error  under current  law.   We established  as          early  as  1973 that  the  failure to  instruct  the jury  on the          substance of  the three  elements was  reversible error,  without                                         -14-          further  inquiry as  to  the  coerciveness of  the  charge.   See                                                                        ___          Angiulo, 485  F.2d at 39-40.   The  error committed by  the trial          _______          court is therefore "plain error" under Rule 52(b).                    C.  Substantial Rights Affected                    _______________________________                    Finally,  we must address the third requirement of Rule          52(b), whether the plain  error affected substantial rights.   In          most instances, this requires that the error be prejudicial.  See                                                                        ___          Olano, 507 U.S. at 734-735.   Here, the jury sent three notes  to          _____          the court  over a six  hour period indicating  that the jury  was          deadlocked, and ultimately suggested that  the jury be allowed to          "retire."  A reasonable inference is that the jurors were divided          and  deeply  entrenched  in  their  opinions.    The  court  then          instructed  the  jury  with  the  Allen  charge at  issue,  using                                            _____          language  that we  have found to  be coercive  in the  context in          which it was given.   The jury returned its verdict approximately          an hour  and forty  minutes later.   Its verdict  was split.   It          acquitted  the defendant of the substantive charge, but convicted          the defendant of the conspiracy charge.  The district court found          it likely  that the modified  Allen charge "intimated  [the jury]                                        _____          into a  decision" and "tainted  this jury's  deliberation."   The          trial court's findings on the prejudicial effect of the Allen are                                                                  _____          entitled to  deference, and we  find them to be  reasonable under          the circumstances.                      The government  argues, however,  that the  verdict was          free from undue  influence, and that  the charge did  not have  a          prejudicial effect on the defendant.  It asserts that the verdict                                         -15-          was not inconsistent, and that the court erred when it considered          the  inconsistency  of  the  verdict  as  evidence  of  coercion.          Although  an inconsistent  verdict in  itself is  not  grounds to          vacate  a conviction,  see Dunn  v. United  States, 284  U.S. 390                                 ___ ____     ______________          (1932),  an inconsistent  verdict can  be probative of  whether a          jury was confused or coerced into rendering a compromise verdict,          see United States v. Washington,  No. 96-5196, 1997 WL 614568, at          ___ _____________    __________          *3  (6th Cir.  Oct. 8,  1997)  (considering alleged  inconsistent          verdict as evidence of jury confusion); Hafner v. Brown, 983 F.2d                                                  ______    _____          570, 575 (4th  Cir. 1992) ("If the district  judge concludes that          an inconsistent verdict  reflects jury confusion or  uncertainty,          he or she has the duty to clarify the law  governing the case and          resubmit the verdict  for a jury decision.")   Furthermore, we do          not disagree  with the district  court that "given the  nature of          the evidence in  this case, the logical verdicts  would have been          that  [the defendant] was  guilty of both  the substantive charge          and  the  conspiracy charge  or  that  he  was innocent  of  both          charges."    To  bolster its  contentions,  the  government again          argues that  neither party  objected to the  charge, an  issue we          have already addressed supra, and need not revisit.  Finally, the                                 _____          government  urges  that the  polling  of  the  jurors  failed  to          indicate  any  coercion.    Polling  is  useful  to  indicate  an          irregularity in  a verdict.   See Siverson  v. O'Leary,  764 F.2d                                        ___ ________     _______          1208, 1219-1220 (7th Cir. 1985).   However, the failure of a poll          to indicate  coercion is  not conclusive as  to whether  coercion          actually existed.   See Manning, 79 F.3d  at 223 (in  open court,                              ___ _______                                         -16-          after jury had reached verdict, asking "juror to admit before his          fellow jurors that  he had voted against his will  was asking too          much.").                    D.  Miscarriage of Justice                     __________________________                    We find  that the three elements required by Rule 52(b)          are therefore  satisfied in  this case.   However, Rule  52(b) is          discretionary.   Even  when plain  error  is found  that  affects          substantial  rights, a reviewing court must determine whether the          error  "'seriously affect[s]  the fairness,  integrity or  public          reputation of the  judicial proceedings'" before exercise  of its          discretion  is appropriate.    Olano, 507  U.S.  at 736  (quoting                                         _____          United States v. Atkinson, 297 U.S. 157, 160 (1936)); see Johnson          _________________________                             ___ _______          v.  United States,  117 S.  Ct. 1544,  1550 (1997).   Under  this              _____________          standard, a reviewing  court should exercise its  discretion when          failure to take notice of the error would result in a miscarriage          of justice.  See Olano, 507 U.S. at 736.                        ___ _____                    Here, the  government's case relied upon  the testimony          of a cooperating witness.   The trial court found the credibility          of this witness  to be "substantially compromised  by impeachment          through cross  examination and by  the testimony  of a  probation          officer."   The court determined that  it was likely this  led to          the "severe  deadlock  broken only  by  the Allen  charge"  which                                                      _____          "intimidated [the  jury] into a decision."  This court forewarned          against this precise situation  in Angiulo when we  expressed our                                             _______          concern that  an  Allen  charge  may  prejudice  a  defendant  by                            _____          depriving the defendant of "whatever  safeguard he might have had                                         -17-          in a hung jury  [or] a declaration of mistrial."  485 F.2d at 39.          In this case  the jury verdict may be attributed at least in part          to coercion by  the court.   We agree with  the district  court's          implicit determination that a failure  to order a new trial would          result  in  a  miscarriage of  justice.    We  find  no abuse  of          discretion.                    Affirmed.                      Affirmed.                    ________                                         -18-
