                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3134
                        ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                                     Javier Amaya

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                   for the Northern District of Iowa - Sioux City
                                  ____________

                             Submitted: May 17, 2013
                             Filed: September 23, 2013
                                  ____________

Before SHEPHERD, BEAM, and MELLOY, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

       A jury found Javier Amaya guilty of one count of conspiracy to launder money,
in violation of 18 U.S.C. § 1956(a)(1)(B)(i). The district court1 granted appellee’s



      1
      The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
motion for a new trial. The government now appeals the grant of a new trial. We
affirm.

                                         I.

       A grand jury indicted brothers Angel Amaya and Javier Amaya and two others
for conspiracy to commit money laundering involving proceeds of unlawful drug
activities. The grand jury also charged Angel and four others with a drug conspiracy
offense. All defendants except the Amaya brothers entered guilty pleas. After two
mistrials, the case against the Amayas was finally submitted to a jury.

      During the Amaya brothers’ four-day joint trial, the government presented
evidence showing that on February 8, 2011, Javier opened a bank account with a
Wells Fargo Bank branch in Sioux City, Iowa, using his own name and biographical
information. Angel was with Javier when the account was opened, and Javier
deposited $7800 in cash provided by Angel into the account. When the teller, who
was Angel’s friend, asked Angel where the money came from, Angel replied, “don’t
worry about it, you don’t want to know.” Angel also opened a new account that day,
depositing $8000 into it. Two of Angel’s associates opened new Wells Fargo
accounts on February 8 and either deposited or had deposited into them $8100 and
$8000, respectively. Immediately after opening these accounts, the four traveled to
California. On February 10 and 11, 2011, the four withdrew the money from their
accounts and gave it to Angel who used the money to pay a person known as el Paisa.

      The government also presented evidence to the jury including the testimony of
witnesses that when Angel was not home that Javier distributed drugs to buyers, that
purchasers left payment for Angel with Javier, and that Javier was present when
Angel distributed drugs and discussed obtaining large quantities of drugs for resale.




                                         -2-
      When the jury returned, the foreperson informed the court that the jury had
reached a unanimous verdict. After the verdict form was handed to the judge, the
judge remarked:

      Well, I’ve noticed a problem with the verdict form that wasn’t—it’s our
      fault. Well, let’s go through—okay.

(Trial Tr. 639.) The court then read the verdict pertaining to Angel where it found
him guilty of both the money-laundering conspiracy and the drug conspiracy. The
court polled the jury as to the guilty verdict against Angel.

       On the verdict form, the jury was presented with a two-part question pertaining
to the money-laundering conspiracy charge against Javier. In “Step 1: Verdict” the
jury was instructed “[o]n the ‘money laundering conspiracy’ offense in Count 2 of the
Indictment and explained in Instruction Nos. 5 and 8, [to] please mark your verdict.”
The form, however, did not provide any place for the jury to mark a verdict of guilty
or not guilty. The “Step 1: Verdict” continued with instructions that “[i]f you find the
defendant ‘not guilty’ in this offense, do not answer the question in Step 2.” In “Step
2: ‘Objectives’ of the ‘Money Laundering Conspiracy,’” the jury was instructed “[i]f
you found the defendant ‘guilty’ of the ‘money laundering conspiracy’ offense in
Count 2 of the Indictment, please indicate which one or more money laundering
offenses the conspirators agreed to commit as ‘objectives’ of the ‘money laundering
conspiracy.’” The jury was given two options in “Step 2” and marked on the verdict
form that the “objective” of the offense was “to conceal proceeds of the drug
conspiracy.”

      The district court explained the error as follows:

      Now, with regard to Javier Amaya, the verdict form is inaccurate
      because it doesn’t have a place for you to check guilty or not guilty in
      step 1. But you’ve checked objectives—you checked the second

                                          -3-
      objective, to conceal proceeds of the drug conspiracy. But what I want
      to know is with regard to Javier Amaya, do you find him guilty in step
      1 of the money laundering conspiracy?

(Trial Tr. 640.)

       The district court then proceeded, without first consulting the parties, to poll
the jurors to confirm that they had reached a unanimous verdict as to Javier. Each
juror answered affirmatively. The court later performed a second polling “to make
sure everybody’s unanimous intent was to find Javier Amaya guilty of money
laundering.” The court asked the jury, “Is that your intent?” (Trial Tr. 641.) Again,
each juror answered affirmatively. Neither the government nor the defense counsel
objected to the procedure and neither sought to make a record of the error in the
verdict form.

       Both Amaya brothers filed post-trial motions for acquittal or alternatively for
a new trial, raising several issues. As relevant to this appeal, Javier argued that the
absence of a place to indicate the verdict on the verdict form in combination with the
polling of the jury warranted a grant of a mistrial or a new trial. The district court
agreed, noting it “remain[ed] concerned that the jurors may have felt coerced by the
error in the verdict form and, just as importantly, by my immediate attempt to correct
that error by polling the jury to obtain their individual verdicts in open court.” The
court granted Javier’s motion for a new trial, holding that there was a plain error in
the verdict form, that the error had an improper influence on the jury and thus affected
Javier’s substantial rights, and that the error of improper procedure affected the
fairness, integrity, and public reputation of the judicial proceedings.

       The government now appeals, arguing that the district court abused its
discretion in granting the motion for a new trial.



                                          -4-
                                           II.

        “Upon the defendant’s motion, the court may vacate any judgment and grant
a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “The
decision to grant a Rule 33 motion is within the sound discretion of the District Court,
and we will reverse only for an abuse of that discretion.” United States v. Dodd, 391
F.3d 930, 934 (8th Cir. 2004).2 When considering a motion for a new trial, a district
court may “weigh the evidence, disbelieve witnesses, and grant a new trial even
where there is substantial evidence to sustain the verdict.” United States v. Campos,
306 F.3d 577, 579 (8th Cir. 2002) (quotation omitted). Despite the broad discretion
district courts enjoy under this rule, we have endeavored to remind courts that the
discretion has limits and the courts “must exercise the Rule 33 authority ‘sparingly
and with caution.’” Id. (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th
Cir. 1980)). “Corresponding to the district court’s broad discretion is the limited
scope of our review: we will reverse the district court’s ruling on the motion for new
trial only if we find that ruling to be a clear and manifest abuse of discretion.” United
States v. Malloy, 614 F.3d 852, 862 (8th Cir. 2010) (quoting Lincoln, 630 F.2d at
1319), cert. denied, 131 S. Ct. 3023 (2011). We will find a district court abused its
discretion if it “fails to consider a factor that should have been given significant
weight, considers and gives significant weight to an improper or irrelevant factor, or
commits a clear error of judgment in considering and weighing only proper factors.”
Dodd, 391 F.3d at 934.

       Because neither party objected to either the verdict form or the polling of the
jury, the district court applied the plain error standard in deciding to grant Javier’s
motion for a new trial. See Fed. R. Crim. P. 30(d); Fed. R. Crim. P. 52(b); United
States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988) (holding that it is appropriate


      2
       Both parties agree that abuse of discretion is the appropriate standard of
review in this case despite the district court’s application of a plain error standard.

                                          -5-
for district court to apply plain error review to a defendant’s motion for new trial
where issues were not objected to during trial). The district court found it committed
two specific plain errors. First, it determined that the verdict form for Javier was
plainly erroneous because it was obvious that the form should have contained a place
for the jury to indicate its verdict but that place was missing on the form. Second, the
court decided that it committed error when it “substitut[ed] polling of the jury for the
rendering of a verdict on a properly composed verdict form after private
deliberations.” The district court held that these combined errors “potentially ha[d]
the same effect as polling deadlocked jurors” which the court found may have had a
coercive effect on the jury, that being the jury may have rendered a premature verdict
without the ordinary safeguards of private deliberations with a proper verdict form.
Finally, the district court held that the errors were such a departure from the normal
procedure for returning and recording a jury verdict that it seriously affected the
fairness, integrity, or public reputation of the judicial proceedings. United States v.
Poitra, 648 F.3d 884, 887 (8th Cir. 2011) (“To obtain relief under a plain-error
standard of review, the party seeking relief must show that there was an error, the
error is clear or obvious under current law, the error affected the party’s substantial
rights, and the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.”).

       We find no abuse of discretion in the district court’s determination that the
verdict form error and the substitution of a polling procedure for a return of the
verdict constituted plain error. First, although Federal Rule of Criminal Procedure
31(a) provides only that “[t]he jury must return its verdict to a judge in open court,”
the clear intent of the district court in this case for the jury to indicate the verdict on
a properly completed verdict form is obvious. By comparison, for both counts against
Javier’s brother Angel the jury was provided a place to indicate its verdict.3 Next, the


      3
        The dissent emphasizes that “district courts have wide latitude in constructing
either written or oral jury instructions, including written or oral verdict information.”

                                           -6-
Rules dictate that the court may poll the jury “[a]fter a verdict is returned.” Fed. R.
Crim. P. 31(d). There is simply no procedure in place for the jury to return a verdict
through polling by the court. “The purpose of a jury poll ‘is to give each juror an
opportunity, before the verdict is recorded, to declare in open court his assent to the
verdict which the foreman has returned,’ to ensure that ‘a unanimous verdict has in
fact been reached and that no juror has been coerced or induced to agree to a verdict
to which he has not fully assented.’” United States v. Cherry, 720 F.3d 161, 167 (4th
Cir. 2013) (quoting United States v. Carter, 772 F.2d 66, 68 (4th Cir. 1985)). Thus,
the district court’s finding of plain error was not an abuse of discretion.4


See infra at 15. Assuming the district court could have made a conscious decision to
permit the return of verdict by oral pronouncement, that is not the procedure the
district court elected to utilize in this case. Rather, the district court’s instructions
demonstrated a clear intent for the jury to return its verdict on a written verdict form.
The critical component of the form—a place for the jury to indicate the verdict—was
missing. We reject the dissent’s characterization of this significant error as “a minor
ambiguity” or a “slight imperfection.” See infra at 10, 16. The dissent cannot dispute
that the district court had the discretion to require the jury to return the verdict
through a completed verdict form, and the district court clearly instructed the jury in
this case to do so, but then provided a fatally flawed form to the jury. Compounding
this significant error, the district court, without taking time to properly consider how
best to proceed when the intended procedure was disrupted, polled the jury with the
presumptive question “do you find him guilty in step 1 of the money laundering
conspiracy?” (Trial Tr. 640.)
      4
        The dissent characterizes our decision in Cundiff v. United States, 501 F.2d
188 (8th Cir. 1974) (per curiam), as “a substantially similar context” to the
circumstances presented here. See infra at 17. Cundiff is easily distinguishable from
this case. The defendant in Cundiff recognized the potential error before the jury
returned the verdict, and the district court called the jury back into the courtroom
before completion of deliberations to explain the proper use of the forms and to
clarify that the jury was not required to find the defendant guilty of the lesser-
included offense. Cundiff, 501 F.2d at 190. The dissent also attempts to draw a
comparison to the use of a jury poll in the two cases, claiming that the district court
in Cundiff “also conducted a jury poll . . . as was also done in this case.” See infra

                                          -7-
       Nor do we find that the court abused its discretion when it determined that the
errors affected Javier’s substantial rights. See United States v. Olano, 507 U.S. 725,
734 (1993) (holding that in most cases, for an error to affect a defendant’s substantial
rights, the error must be prejudicial). In the circumstance of polling a deadlocked
jury, the Supreme Court explained:

      Its effect upon a divided jury will often depend upon circumstances
      which cannot properly be known to the trial judge or to the appellate
      courts and may vary widely in different situations, but in general its
      tendency is coercive. It can rarely be resorted to without bringing to
      bear in some degree, serious although not measurable, an improper
      influence upon the jury, from whose deliberations every consideration
      other than that of the evidence and the law as expounded in a proper
      charge, should be excluded. Such a practice, which is never useful and
      is generally harmful, is not to be sanctioned.

Brasfield v. United States, 272 U.S. 448, 450 (1926). We have previously indicated
that concerns about errors in polling depend on “whether it is likely that the
proceedings conducted by the trial court coerced the juror in arriving at his final
verdict.” Amos v. United States, 496 F.2d 1269, 1272 (8th Cir. 1974). As Brasfield
cautions, the conducting of a poll of the jury before a verdict has been properly
returned “can rarely be resorted to without bringing to bear in some degree, serious
although not measurable, an improper influence upon the jury.” Brasfield, 272 U.S.
at 450. The district court expressed concerns that when it substituted the polling
procedure for a return of verdict through a properly completed verdict form it fell
within Brasfield’s warning that the action “can rarely be resorted to without bringing
to bear in some degree . . . an improper influence upon the jury.” Id.



at 17. Such claim by the dissent fails to draw an important distinction. The polling
in this case was done in substitution for the return of the verdict whereas the polling
in Cundiff was conducted “[a]fter the jury returned its verdict.” Cundiff, 501 F.2d at
190.

                                          -8-
       Finally, the district court noted that the error in the verdict form and the polling
procedure was a significant departure from regular procedure “as to seriously affect
the fairness, integrity, or public reputation of judicial proceedings.” Indeed this
procedure is so irregular that the district court could “find no opinions of the federal
Circuit Courts of Appeals or the Supreme Court squarely on point with the
circumstances presented here.” We have also been unable to find cases which are “on
point” or more analogous to those considered by the district court or presented by the
parties in their briefs. This suggests that the procedure employed by the district court
to return and record the verdict in this case was a significant departure from
traditional practice. While nothing in the criminal rules specify the manner in which
the verdict must be returned, the facts of this case make it obvious that the court
intended the jury to indicate its verdict on the verdict form. In light of this, we cannot
say the district court’s determination that the procedure seriously affected the
“fairness, integrity, or public reputation of judicial proceedings” was an abuse of
discretion.

       We note that the government’s brief presents strong arguments, does a
commendable job of attempting to distinguish adverse cases, and cites to cases that,
while not binding or squarely on point, generally support its argument. Indeed, the
dissent finds the government’s argument to be persuasive, and we recognize that the
dissent’s opinion makes a case for why the district court could have been affirmed
had the court denied the motion for a new trial. However, the district court granted
the motion for a new trial, and in so doing, also presented persuasive and
introspective reasoning for why its missteps justified the grant of a new trial. Under
the confines of the abuse of discretion review, “we defer to the ruling of a respected,
able trial judge” because “the trial judge, not an appellate court reading a cold record,
can best weigh the errors against the record as a whole to determine whether those
errors in the conduct of the trial justify a new trial.” McBride, 862 F.2d at 1320.




                                           -9-
                                          III.

      Accordingly, we affirm.

BEAM, Circuit Judge, dissenting.

       A federal trial court may not order the "do over" of a substantially error-free
criminal trial simply because the court wants to try to do a slightly better job the next
time around or because the court believes the jury may produce a more acceptable
result. As I explain in more detail below, a minor ambiguity in one sentence of one
jury instruction does not support a new trial that will unreasonably waste tax dollars,
unnecessarily exhaust prosecutorial resources of the Northern District of Iowa and
thoughtlessly burden under-compensated members of the District's jury pool. This
particular jury, being a typically perceptive, intellectually astute and self-reliant
American federal court deliberative body, faultlessly worked its way through a
marginal instructional imperfection to reach a well-reasoned and evidentiarily
supported verdict. Thus, the district court's faulty discernment and errant application
of plain trial error, coupled with its capricious overturning of the jury's work product,
constituted a fundamental abuse of judicial discretion. From this untoward result, I
dissent.

      Notwithstanding the district court's seventy-two page explication on multiple
aspects of the Amaya brothers post-trial motions, the factual and legal issues in this
appeal are relatively simple. The dispute bottoms on whether Javier Amaya was
guilty of being part of an 18 U.S.C. § 1956 money laundering conspiracy as
affirmatively and unanimously determined by a jury of his peers. And, there can be
no doubt that Javier was indeed guilty as charged.




                                          -10-
       To begin, I adopt the court majority's factual recitation as set forth in the first
three paragraphs of Section I. For purposes of this dissent, I further emphasize the
following facts.

       At the beginning of the trial, the district court orally instructed the jury on juror
responsibilities, trial procedure, the substantive law applicable to the criminal charges
against each defendant and the requirements for formalizing and returning a verdict.
Each juror was also provided a written copy of these oral instructions for use during
the trial. Both the written and oral instructions contained verdict formulation
language which included words and marks to be used by the jury in returning a
verdict specific to each defendant. The district court read from the written
instructions pertaining to the money laundering conspiracy charges against the
Amayas as follows:

       Then Count 2, money laundering, step 1 is the verdict. On the money
       laundering conspiracy offense in Count 2 of the indictment and
       explained in instructions numbers 5 and 8, please mark your verdict. If
       you find the defendant [Angel Amaya] not guilty of this offense, do not
       answer the question in step 2. Instead go on to consider your verdict on
       the charge against Defendant Javier Amaya. There's a place for not
       guilty and guilty.


       And then step 2, objectives of the money laundering conspiracy, if you
       found the defendant [Angel Amaya] guilty of the money laundering
       conspiracy offense in Count 2 of the indictment, please indicate which
       one or more money laundering offenses the conspirators agreed to
       commit as objectives of the money laundering conspiracy. Objectives
       of the money laundering conspiracy were explained in instruction
       number 8. To promote the carrying on of the drug conspiracy, to
       conceal proceeds of drug conspiracy, or to avoid transaction reporting
       requirements under federal law.

       ...

                                           -11-
      [T]hen Roman numeral two on page four of the verdict form involves
      Javier Amaya. As to Defendant Javier Amaya, we, the jury,
      unanimously find as follows. Notice it's only Count 2 because Javier
      Amaya's only charged in the money laundering count. Step 1, verdict,
      and then I'm not going to repeat it because it's the identical money
      laundering with regard to the other – the first defendant.

Following is a copy of the verdict reached for each defendant as completed by the
jury.




                                      -12-
-13-
       Federal Rule of Criminal Procedure 33(a) provides that, upon defendant's
motion, a district court "may vacate any judgment and grant a new trial if the interest
of justice so requires." "The Rule does not define 'interests of justice' and the courts
have had little success in trying to generalize its meaning." United States v. Kuzniar,
881 F.2d 466, 470 (7th Cir. 1989); see also Morales-Fernandez v. I.N.S., 418 F.3d
1116, 1119-20 (10th Cir. 2005) ("'interests of justice' is a rather elusive concept");
United States v. Roberts, 978 F.2d 17, 21 (1st Cir. 1992) ("Justice is an ideal that
defies precise definition."). For this reason, in order to understand what "interest of
justice" means, the phrase must be placed in specific context. Rule 33 allows a
defendant to file a motion for a new trial "based on newly discovered evidence" (Rule
33(b)(1)) or "grounded on any reason other than newly discovered evidence" (Rule
33(b)(2). This latter basis is referred to as "other grounds."

       One of the most common "other grounds" basis for a new trial motion is that
the verdict is against the weight of the evidence. 3 Charles Alan Wright, et al.,
Federal Practice & Procedure Criminal § 582 (4th ed.). When this is the basis for the
motion, "[a] district court may grant a new trial under Rule 33 only if the evidence
weighs so heavily against the verdict that a miscarriage of justice may have
occurred." United States v. McClellon, 578 F.3d 846, 857 (8th Cir. 2009) (quotation
omitted). Here, however, the district court did not grant the Rule 33 motion for
evidentiary reasons but rather grounded the ruling in a perception that legal error had
occurred. Indeed, and even though the court majority fails to mention this important
point, the district court correctly and specifically determined in its new trial analysis
that Javier Amaya is "not entitled to . . . [a] new trial[] on the money laundering
conspiracy on the basis of insufficiency of the evidence."

       Rather, proceeding under the "other grounds" rubric of Rule 33(b)(2), the
district court employed a plain error test as formulated in Federal Rule of Criminal
Procedure 52(b). This Rule 52(b) analysis involved, of course, the adequacy of the

                                          -14-
jury instructions, more specifically the instructions dealing with the return of a verdict
against Javier.

       Although many trial judges find it good practice to provide juries with written
copies of instructions on the law applicable in a particular case, including verdict
formulation instructions, others do not follow that practice, relying upon the official
record of the trial to provide a description of such information when needed. Both
approaches are acceptable because written instructions including verdict-related
instructions are not required in federal trial courts. United States v. Eberhardt, 657
F.2d 221, 222 (8th Cir. 1981); United States v. Johnson, 466 F.2d 537, 538 (8th Cir.
1972) (per curiam).

       In any event, district courts have wide latitude in constructing either written or
oral jury instructions, including written or oral verdict information. See United States
v. White Calf, 634 F.3d 453, 456 (8th Cir. 2011) (reviewing formulation of jury
instructions for an abuse of discretion); United States v. Martison, 419 F.3d 749, 753
(8th Cir. 2005) (reviewing verdict form for an abuse of discretion). Jury instructions
of either kind are sufficient "if they fairly and adequately submitted the issues to the
jury." United States v. Espinoza, 684 F.3d 766, 783 (8th Cir.) (quotations omitted),
cert. denied, 133 S. Ct. 589 (2012). And, we have never required jury instructions,
including verdict forms contained therein, to be faultless or to fit the individualized
or idiosyncratic preferences of a particular judge.

       In both civil and criminal cases, this court has recognized that any alleged error
in a verdict instruction must be viewed within the broader context of the jury
instructions as a whole. United States v. Brown, 330 F.3d 1073, 1077-78 (8th Cir.
2003) ("the jury instructions and verdict form viewed as a whole did not allow the
jury to convict [the defendant] of a different offense than . . . charged"); Gander v.
FMC Corp., 892 F.2d 1373, 1378 (8th Cir. 1990) ("We must . . . consider whether
the form, taken together with the instructions to the jury, is so misleading or

                                          -15-
confusing that the jury verdict cannot stand. In determining whether the verdict form
is confusing, we must consider it in light of the instructions given.") And, within this
expansive context, where the jury instructions as a whole properly charge the jury,
use of an instruction that is marginally imperfect or lacks some clarity does not render
the instruction illusory, coercive or constitute reversible error. United States v Hall,
325 F.3d 980, 982 (8th Cir. 2003) (citing Crimm v. Mo. Pac. R.R., 750 F.2d 703, 711
(8th Cir.1984)). This is especially true, where, as here, the most that can be said in
support of the trial judge's Rule 33 new trial order is that there might conceivably
have been a small measure of ambiguity in one phrase pertaining to one instruction,
and even more, as here, when the purported ambiguity presents no hint whatever of
having confused the jury.

        As earlier noted, the district court informed the jury that the money laundering
verdict instructions initially given for Angel Amaya and those given immediately
thereafter for Javier Amaya were identical. And this was true, except that the words
"not guilty" and "guilty" with a line behind each word or words, although included
in Angel's instruction, were omitted from Step 1 of Javier's instruction. There can be
little doubt, however, that the jury fully understood it could and should find Javier
either "not guilty" or "guilty." First, the jury instructions as a whole informed the jury
of the charge and explained that each charge against each defendant needed to be
considered separately, that each charge required a unanimous verdict, and that the
jury had the option to find Javier either "not guilty" or "guilty." Second, on Javier's
verdict form, like that of Angel, the jury was instructed that it should only move to
"Step 2" if it found that Javier was guilty under "Step 1." The jury moved to "Step 2,"
in both instances, specifically finding, as relevant here, that Javier committed an
objective in the money laundering conspiracy, namely concealing proceeds of the
drug conspiracy. Finally, after the district court mentioned the verdict form issue it
perceived to the jury, it then conducted a poll in which each individual juror in open
court confirmed the earlier announced unanimous guilty verdict. Thus, there is no
indication whatever in the trial record, that the slight imperfection in the verdict form

                                          -16-
imagined by the trial court–arising from the words in Step 1 saying "please mark your
verdict" when there was no specific place to make such a mark except in the
"Objectives" findings portion–constituted error of any hue let alone plain error.
Indeed, since the record (including evidence of yet a second poll of the jurors)
provides ample assurance that the jury intended to find Javier guilty, the verdict
instruction had no adverse affect upon his substantial rights. And, with these
assurances of a proper guilty verdict, nothing suggests that the verdict form's alleged
minor imperfection could have affected the fairness, integrity, or public reputation of
Javier's trial. Accordingly, these assurances viewed in the alternative context of a
trial court's supervisory discretion, clearly establish wholly abusive conduct on the
part of the trial judge in its overturning of the jury's fully supportable guilty verdict.

      In Cundiff v. United States, this court determined that no error occurred in a
substantially similar context. 501 F.2d 188 (8th Cir. 1974) (per curiam). Cundiff
highlighted that the district court verbally explained the verdict instructions, as was
done in this case, and also conducted a jury poll where "each juror agreed that the
verdict was his separate and individual verdict," id. at 190, as was also done in this
case.

       Further, and perhaps more importantly, the trial court's supposed concern about
the instructional ambiguity is much adieu about nothing. Every required facet of the
return of a verdict in a federal criminal trial was fully complied with in this case.
Federal Rule of Criminal Procedure 31 states, in relevant part, as follows:

      (a) Return. The jury must return its verdict to a judge in open court.
      The verdict must be unanimous.

      ...

      (d) Jury Poll. After a verdict is returned but before the jury is
      discharged, the court must on a party's request, or may on its own, poll

                                          -17-
      the jurors individually. If the poll reveals a lack of unanimity, the court
      may direct the jury to deliberate further or may declare a mistrial and
      discharge the jury.

So, without regard to the so-called instructional omission and resulting ambiguity,
Rule 31's requirements were followed to the letter in this case. The trial record
reports that the following occurred in open court:

      (The jury entered the courtroom.)

      THE COURT:         Thank you. Please be seated.
      And who is the foreperson? Okay. Mr. Knaack, did I pronounce that
      correctly? Has the jury reached a unanimous verdict?

      JUROR KNAACK: Yes, sir.

      THE COURT: Okay. Would you hand the verdict form to Melissa, and
      then she'll hand it to me, and I'll review it. And then once I've reviewed
      it, I'll announce the verdict.

      She never peeks. I just can't believe that.

      Well, I've noticed a problem with the verdict form that wasn't – it's our
      fault. Well, let's go through – okay.

      With regard to Defendant Angel Amaya, you found the defendant guilty
      of the drug conspiracy, checked methamphetamine, cocaine, and
      marijuana, found on the methamphetamine 500 grams or more, found on
      the cocaine 500 grams or more, and on the money laundering count
      found the defendant guilty and then checked all three objectives.

      So, with regard to Defendant Angel Amaya, is that your true and correct
      verdict? And we'll just start in the back row, and we'll go down the row.

      JUROR SCHROEDER: Yes.


                                         -18-
JUROR LIEN: Yes.

JUROR KNAACK: Yes, sir.

JUROR TONNER-COLVERT: Yes.

JUROR MULDER: Yes, sir.

JUROR BARGE: Yes.

JUROR MILLER: Yes, sir.

JUROR PLATHE: Yes, sir.

JUROR HOEKSTRA: Yes, sir.

JUROR SUHR: Yes, sir.

JUROR MOLGAARD: Yes, sir.

JUROR GAGNON: Yes, sir.

...

THE COURT: Now, with regard to Javier Amaya, the verdict form is
inaccurate because it doesn't have a place for you to check guilty or not
guilty in step l. But you've checked objectives – you checked the second
objective, to conceal proceeds of the drug conspiracy. But what I want
to know is with regard to Javier Amaya, do you find him guilty in step
1 of the money laundering conspiracy?

JUROR KNAACK: Yes, sir.

THE COURT: And we'll just start in the back row again.

JUROR SCHROEDER: Yes, sir.



                                  -19-
JUROR LIEN: Yes, Your Honor.

JUROR KNAACK: Yes.

JUROR TONNER-COLVERT: Yes.

JUROR MULDER: Yes, sir.

JUROR BARGE: Yes, sir.

JUROR MILLER: Yes, sir.

THE COURT: Front row?

JUROR HOEKSTRA: Yes, sir.

JUROR SUHR: Yes, sir.

JUROR MOLGAARD: Yes, sir.

JUROR GAGNON: Yes, sir.

JUROR PLATHE: Yes, sir.

THE COURT: And then with regard to step 2, the objectives, you have
crossed out the third objective which I had asked you to do before
closing arguments. And then there's an X next to the second objective
which is to conceal the proceeds of the drug conspiracy. There's a
checkmark next to X.

So I just want to make sure that everybody's unanimous intent was to
find Javier Amaya guilty of money laundering because that's the only
charge he's charged with and to find that it was to conceal the proceeds
of the drug conspiracy. And just to be sure, because it's our screw-up on
the verdict form, we'll start in the back row again. Is that your intent?

JUROR SCHROEDER: Yes.

                                  -20-
      JUROR LIEN: Yes.

      JUROR KNAACK: Yes, sir.

      JUROR TONNER-COLVERT: Yes.

      JUROR MULDER: Yes, sir.

      JUROR BARGE: Yes, sir.

      JUROR MILLER: Yes.

      THE COURT: Front row?

      JUROR HOEKSTRA: Yes, sir.

      JUROR SUHR: Yes, sir.

      JUROR MOLGAARD: Yes, sir.

      JUROR GAGNON: Yes.

      JUROR PLATHE: Yes, sir.

      ...

      (The jury exited the courtroom.)

Thus, it is abundantly clear that notwithstanding the minor ambiguity in the jury
instruction arising from the words "please mark your verdict" with no obvious place
to make a mark–but telling the jury to next move on to the "objectives" inquiry unless
it found Javier not guilty–all requirements of Rule 31 were more than adequately met.

       Accordingly, even if one could give any measure of credence to the district
court's purported concerns about polling the jurors in open court instead of returning

                                         -21-
them for more deliberation, such concerns were more than belied by the jury polling
that occurred not just once, but twice. Indeed, impugning the credibility of the juror's
polling responses on this record constitutes unsupportable diminution of the jury
room independence, intellectual acuity and ethical integrity of this jury. Under the
circumstances presented in this case, United States v. Howard, establishes the
absolute propriety of polling the jury as a proper mechanism to clear up any
ambiguity in the finality of a jury verdict. 507 F.2d 559, 561 (8th Cir. 1974); accord
United States v. Poole, 545 F.3d 916, 918 (10th Cir. 2008). And, Howard does not
even remotely support the idea that polling a unanimous jury in open court may be
a coercive action.5

       As a final act of inconsistency, the district court found sufficient evidence to
convict Javier of the conspiracy but seems to, in part, base its new trial ruling on a
latent observation that the evidence against Javier was "underwhelming." Of course,
even a cursory review of the trial record refutes this idea.


      5
        The court majority finds that the district court did not abuse "its discretion
when it determined that the errors affected Javier's substantial rights." Relying on
Brasfield v. United States, 272 U.S. 448 (1926), and Amos v United States, 496 F.2d
1269 (8th Cir. 1974), the court majority seems to indicate that the district court's
polling procedure may have coerced the jury. Brasfield is, of course, inapposite as
it involved a situation where the trial judge polled a deadlocked jury, a practice that
"is never useful and is generally harmful, [and] not to be sanctioned." 272 U.S. at
449. Here, however, we are not dealing with a deadlocked jury as the jury foreperson
announced to the district court that the jury had reached a unanimous verdict, the
verdict form showed that the jurors had unanimously found Javier committed an
objective of the money laundering conspiracy, and subsequent polling revealed
unanimity. And, far from coercive conduct, in Amos, we actually sanctioned the trial
court's conduct of polling and engaging a single juror "to dispel any confusion" in the
verdict. 496 F.2d at 1273. In sum, Brasfield and Amos do not establish coercion in
this case and certainly do not establish that the procedure utilized affected Javier's
substantial rights.


                                         -22-
       The de minimis nature of any substantive issue of lack of clarity in the jury
instructions as a whole, the strength of the evidence of Javier Amaya's guilt, the total
lack of any indication of the trial judge's ability to sway the jury's decision-making
capabilities by polling a wholly unanimous jury in open court, and the obvious
strength of the twice repeated jury polls makes judicial abuse of discretion a palpable
reality in this case. I dissent.
                         ______________________________




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