             Case: 14-10439   Date Filed: 07/23/2014   Page: 1 of 5


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-10439
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 5:13-cr-00101-AKK-HGD-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

CRYSTAL S. DOUGLAS,

                                                           Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                        ________________________

                               (July 23, 2014)

Before MARCUS, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

     Crystal Douglas appeals her conviction for knowingly making a false

statement on a loan application, in violation of 18 U.S.C. § 1014. On appeal,
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Douglas argues that the district court plainly erred by delivering an Allen 1 charge,

which she contends unduly coerced the jury into returning a split verdict finding

her guilty on one of the two charged counts. After careful review, we affirm.

       Generally, we review the district court’s use of an Allen charge for abuse of

discretion, and will hold that a court abused its discretion only if the charge was

inherently coercive. See United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir.

2008). Where a party does not object to the district court’s use of an Allen charge,

however, we will review a challenge to the charge on appeal only for plain error.

United States v. Taylor, 530 F.2d 49, 51 (5th Cir. 1976). 2 Under plain error

review, the defendant must show: (1) error; (2) that is plain; and (3) that affects

substantial rights. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005). We may then exercise our discretion to notice a forfeited error, but only if

“‘the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” Id. (citation omitted). “To determine whether an Allen charge is

plain error, we must evaluate whether the particular charge is coercive in light of

the facts and circumstances of the case and whether further instructions following

timely objection could correct the problem.” Taylor, 530 F.2d at 51. We have

held that, even if factors lead to the conclusion that the district court erred in giving


1
 Allen v. United States, 164 U.S. 492 (1896).
2
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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an Allen charge, the error does not constitute plain error if further instructions by

the court could have cured the error. See id. at 52.

      In giving an Allen charge, the district court “instructs a deadlocked jury to

undertake further efforts to reach a verdict.” United States v. Bush, 727 F.3d 1308,

1311 n.1 (11th Cir. 2013), cert. denied, 134 S.Ct. 967 (2014) (quotations omitted).

In considering whether an Allen charge was inherently coercive, we consider both

the language of the charge and the totality of the circumstances under which it was

delivered. Woodard, 531 F.3d at 1364.

      We have noted our approval of the current pattern jury instruction for an

Allen charge, concluding that it is not, based on its language alone, inherently

coercive. Bush, 727 F.3d at 1320. However, because of the potential for coercion

inherent to an Allen charge, “close scrutiny is demanded of any modification of the

accepted language.” United States v. Alonso, 740 F.2d 862, 878 (11th Cir. 1984).

In assessing the propriety of a particular Allen charge, we look to whether “partial

or one-sided comments were engrafted” upon the instructions.             See Posey v.

United States, 416 F.2d 545, 552 (5th Cir. 1969). Moreover, “[a]n instruction

which appears to give a jury no choice but to return a verdict is impermissibly

coercive.” United States v. Jones, 504 F.3d 1218, 1219 (11th Cir. 2007). On the

other hand, we have held that an Allen charge is not coercive where the district

court specifically states to the jury that no juror is expected to give up his or her


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honest belief regarding the evidence. United States v. Trujillo, 146 F.3d 838, 846-

47 (11th Cir. 1998).

      In considering the totality of the circumstances, we consider, inter alia, the

amount of time between the delivery of the Allen charge and the return of the

jury’s verdict. Woodard, 531 F.3d at 1364. We have held that, even where the

window of time between the giving of the Allen charge and the return of the

verdict is relatively brief, such an occurrence does not necessarily render the

charge coercive. See, e.g., United States v. Chigbo, 38 F.3d 543, 545-46 (11th Cir.

1994) (holding that a 15-minute window between the Allen charge and the return

of the jury’s verdict did not demonstrate that the charge was coercive); United

States v. Scruggs, 583 F.2d 238, 241 (5th Cir. 1978) (48 minutes). We’ve also

held that the fact that the jury returned a split verdict does not establish that the

given Allen charge was coercive. United States v. Demarest, 570 F.3d 1232, 1243

(11th Cir. 2009).

      Here, the district court did not commit any error, much less plain error, in

giving the Allen charge. As the record shows, the district court’s Allen charge was

nearly identical to the approved Eleventh Circuit pattern instruction, and it clearly

instructed the jurors that they were not to give up their honest beliefs as to the

evidence. See Trujillo, 146 F.3d at 846-47. Additionally, neither of the court’s

non-pattern comments that Douglas challenges on appeal demonstrate that the


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charge was unduly coercive. Specifically, Douglas challenges two of the court’s

given statements as coercive: (1) the court’s statement, made at the beginning of

the charge, that “I have read your latest note, and I’ve read all of your notes from

yesterday that gave me the same message as you gave me today with your last

note”; and (2) the court’s later statement, given at the end of the charge, providing

that “we will wait to hear from you before we call it a day.” Contrary to Douglas’s

attempts to label these comments by the district court as coercive, neither comment

was partial or one-sided, as neither would lead a reasonable juror to believe that

either the majority’s or minority’s views on the evidence were correct. See Posey,

416 F.2d at 552. Further, neither of the challenged comments expressed to the

jurors that they had no choice but to return a verdict. See Jones, 504 F.3d at 1219.

Finally, there is nothing in the record that indicates that the district court’s Allen

charge was unduly coercive under the totality of the circumstances.

      AFFIRMED.




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