                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2006

USA v. Boone
Precedential or Non-Precedential: Precedential

Docket No. 03-1520




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                                                    PRECEDENTIAL


                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                              No. 03-1520



                   UNITED STATES OF AMERICA,


                                    v.

                            KEVIN BOONE,


                               Appellant.



        On Appeal from the United States District Court
                 for the District of New Jersey
                     (D.C. No. 00-cr-00003)
      District Court Judge: Honorable Jerome B. Simandle



                Argued January 18, 2006
  Before: FUENTES, BECKER,* and ROTH,** Circuit Judges.

                         (Filed August 21 , 2006)



          *
          Judge Becker passed away on May 19, 2006, before the
filing of the Opinion. The decision is filed by a quorum of the
panel. See 28 U.S.C. § 46(d).
          **
               Effective May 31, 2006, Judge Roth assumed senior
status.
Peter Goldberger (ARGUED)
Pamela Wilk
Law Office of Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003-2276

ATTORNEYS FOR APPELLANT

Christopher J. Christie
United States Attorney
George S. Leone
Chief, Appeals Division
970 Broad Street
Newark, NJ 07102

Norman J. Gross (ARGUED)
Assistant United States Attorney
Camden Federal Building & Courthouse
401 Market Street, 4th Floor
Camden, NJ 08033

ATTORNEYS FOR APPELLEE




                     OPINION OF THE COURT




FUENTES, Circuit Judge.

       Kevin Boone appeals his conviction and sentence for
distribution of cocaine. Boone asserts that the District Court
improperly influenced the jury’s deliberations when it delivered
certain jury instructions and conducted an examination of a juror
who had been accused by other jurors of refusing to deliberate
properly. We conclude that the District Court did not abuse its
discretion or commit plain error in its interactions with the jury.

                                 2
However, because the District Court sentenced Boone under a
mandatory sentencing guidelines scheme rather than under an
advisory scheme, we vacate his sentence and remand for
resentencing in accordance with the Supreme Court’s opinion in
United States v. Booker, 543 U.S. 220 (2005), and our opinion in
United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc).

                      I. BACKGROUND

       Boone was indicted on five counts of distribution of
cocaine, two counts of distribution of cocaine base, and one
count of being a felon in possession of firearms. At trial, the
government’s case was based largely on the testimony of a
confidential informant named Wendeline Thompson and an
undercover officer name Julie Cash.1 Thompson purchased
cocaine and cocaine base from Boone, and then introduced Cash
to Boone, telling Boone that Cash was a drug dealer named
“Martresse.” Boone sold both cocaine and cocaine base to
“Martresse.” The various conversations between Boone,
Thompson, and Cash were recorded by the police, although
some of the recordings were unintelligible. A search of four
residences associated with Boone revealed drug-trafficking
paraphernalia, cocaine, and two firearms.

       Following a three-week trial and more than three days of
deliberation, the jury convicted Boone as to one charge of
distributing over 62 grams of cocaine, acquitted Boone on the
gun possession charge and on two cocaine distribution charges,
and hung as to the remaining drug charges. In February 2003,
Boone was sentenced to 225 months in prison.


                    A. Jury Deliberations



      1
         Thompson had been arrested along with her husband for
drug-related offenses, but the charges against her were dropped
when her husband claimed ownership of the drugs. In an effort
to obtain a lenient sentence for her husband, Thompson agreed
to make controlled drug purchases from Boone.

                               3
       During the first three days of deliberations, the jury sent
several notes to the District Court that are not relevant here. Just
before lunch on the third day, the jury submitted another note,
which stated:

        Dear Judge Simandle, we have agreement on four
        of the eight counts. However, on the other four
        counts we have one dissenting vote from the same
        juror. We have been informed that this one vote
        will not change no matter how much more
        discussion there is. What should we do? Signed
        [jury foreperson].

(A 248; hereinafter “Jury Note A”.) In response to this note,
defense counsel requested that the judge accept the partial
verdict and a hung jury as to the four remaining counts. The
judge denied this request, and instead, called the jurors into the
courtroom and stated: “I’m asking that you continue to
deliberate and that you continue to give your best efforts toward
reaching unanimity.” (A 255.) He then repeated his jury
instruction as to unanimity, including the statement:

        It is your duty as jurors to discuss the case with
        one another in an effort to reach agreement if you
        can do so. Each of you must decide the case for
        yourself but only after full consideration of the
        evidence with the other members of the jury.
        While you are discussing the case, do not hesitate
        to reexamine your own opinion and change your
        mind if you become convinced that you were
        wrong, but do not give up your honest beliefs
        solely because others may think differently or
        merely to get the case over with.

(A 255-56.) Boone did not raise any objection to this instruction
before the District Court, and does not do so here.

        Shortly after lunch on the same day, the jury sent another
note:

        We have some serious concern about one of our

                                 4
       fellow jurors. He has told . . . all of us several
       times that his best friend is a cop, and he has
       several guns, some unregistered and being stored
       at his friend’s house. This leads us to believe that
       he lied on his initial questionnaire for jury
       selection. Also, he refuses to discuss certain
       [counts] because he had his mind made up before
       we started deliberating. He has said he does not
       believe anything the police said and thinks
       everyone is lying. We feel this seriously affects
       our deliberations. Our votes are 11 to [] 1 on four
       [counts] and we have agreed on four. The juror in
       question has stated they will not change their mind
       [sic] and does not want to work at any evidence or
       discuss any testimony. We seem to be at an
       impasse. Please help us. Thank you, [jury
       foreperson].

(A 257-58; hereinafter “Jury Note B”.) The government
suggested that the District Court dismiss the complained-of juror
(hereinafter “Juror X”), while the defense urged a mistrial on all
counts or, alternatively, acceptance of the verdict on the counts
agreed upon by the jury and a mistrial as to the remaining
counts. The District Court declined to take immediate action and
offered time for both parties to research the legal issues
involved. For the interim period, the District Court sent a note to
the jury:

       In reply to your latest note, you should continue
       your deliberations in accordance with the
       instruct[ions] I’ve previously [given] and in
       accordance with the oath you have each taken as
       jurors. In that oath, you each solemnly swore or
       affirmed under penalty of perjury, “that you will
       well and truly try U.S. v. Kevin Boone now on
       trial and render a true verdict according to the law
       and the evidence.” The administration of justice
       depends upon your faithful adherence to the oath.

(A 264-65.) Defense counsel objected to this note, arguing that it
inappropriately singled out Juror X. Judge Simandle overruled

                                 5
the objection. (A 265-67.) About an hour later, the jury sent
another note that included a message from both Juror X and the
foreperson. (Hereinafter “Jury Note C.”) Juror X’s message
stated: “I am unable to agree for two days on my morals and
beliefs [that] there was enough evidence to agree with the other
jurors.” (A 269.) The foreperson’s message stated: “We have
been deadlocked on the four counts for just about two days.
Signed [jury foreperson].” (Id.)

       In response to this note, defense counsel again urged a
mistrial on the four deadlocked counts. Government counsel
suggested that the District Court bring Juror X into the
courtroom and ask him whether he had preconceived biases and
whether he was truthful during voir dire. Defense counsel
strenuously objected to this proposal. After a discussion of
relevant precedent, the District Court determined that asking
Juror X a “narrow set of questions” was justified based on the
foreperson’s allegation that Juror X lied in his voir dire and that
he refused to consider the evidence in the case. (A 306.)

       The courtroom was emptied (apart from the parties and
the judge’s law clerk), and Juror X was seated in the jury box for
questioning, which proceeded as follows:

       Court (Q): Okay, good afternoon.
       Juror (A): Good afternoon.
       Q: Let me ask you to state your name.
       A: [Juror X stated name.]
       Q: I’m sorry, could you say that again?
       A: [Juror X stated name and spelled it.] I’m sorry,
       I’ll speak up.
       Q: Now, [Juror X], I just wanted to ask you a few
       questions about the note that you sent into me
       through your foreperson.
       A: Um-hum.
       Q: Did you write the note?
       A: Yes.
       Q: And is the note true?
       A: Yes.
       Q: Is your participation in the jury’s deliberations
       formed by a preconceived view of evidence such

                                 6
       that you would never accept the testimony of a
       police officer?
       A: No, it was because of too many discrepancies in
       different things.
       Q: Is your view of the evidence, I’m sorry, is your
       participation in the jury’s deliberations based upon
       your examination and consideration of the specific
       evidence in this case?
       A: I’m not sure I still understood that.
       Q: Is your participation in the jury’s deliberations
       based upon your consideration of the specific
       evidence in this case?
       A: Oh, yes, yes.
       Q: And am I correct that you have considered the
       evidence in this case?
       A: Yes.
       Q: Is it true or not that you refused to discuss
       certain counts with the other members of the jury?
       A: No, I told them how I felt two days ago on
       these counts and I explained reasons why.
       Q: All right. And I’m not going into the reasons,
       but are you assuring me that you have discussed
       your views with –
       A: Yes. We’re still in there discussing, and it
       hasn’t changed my mind yet.
       Q: Okay, very well.

(Sealed Appendix 311-13.) The District Court then sent Juror X
back to the jury room. Based on Juror X’s responses to
questioning, the District Court found insufficient evidence that
Juror X had preconceived notions or had disregarded evidence,
and determined that further investigation would be unduly
intrusive. (A 314.) The entire jury was then called back into the
courtroom, and the District Court stated:

       I wanted to bring you into the courtroom so I could
       make a response to the two most recent notes sent
       to me by your foreperson, including the most
       recent note, which also had the writing of one of
       your fellow jurors. The Court has made suitable
       inquiry and encourages the jury to continue its

                                7
       deliberations, unless and until you reach the point
       where the jury believes that no further discussions
       would be fruitful. If you reach that point and
       believe that you have unanimous verdicts on some
       counts and you don’t have unanimous verdicts and
       never will on other counts, then you can so inform
       me in a note. At that point I’ll take up your note
       with counsel and I’ll act accordingly. If continued
       discussions might bear fruit as to your areas of
       disagreement, then, of course, you are permitted to
       continue those discussions, and are encouraged to
       do so if further discussions may lead to agreement.
       And by agreement I also mean agreement either
       way, either by a minority of jurors changing their
       views or by a majority of jurors changing their
       views. And, finally, I’ll request that you return to
       the jury room and I’ll await any further word from
       you about what you would like to do. If I don’t
       hear anything, then I’ll assume that you are
       continuing your deliberations; if I receive a note,
       then I’ll respond as quickly as I can, okay?

(A 316-17.) Soon after, the District Court received a note from
the jury stating: “Judge Simandle, all options are at an impasse.
We are unable to make any new decisions.” The note also stated
that various jurors had scheduling conflicts during upcoming
deliberation days. (A 318.) In response, the District Court sent
the jury the following note: “Dear members of the jury, please
clarify your note. Is the jury hopelessly deadlocked or do you
agree to continue deliberations to see whether your impasse can
be overcome. I await your response.” (A 321.) The jury sent
back: “We reviewed the [counts] again. Despite our attempts to
come to a unanimous decision, we are hopelessly deadlocked.”
(A 323.) Based on this note, the judge ended jury deliberations
and accepted the jury’s guilty verdict as to four counts and a
hung jury as to the other four counts.

                       II. DISCUSSION

           A. Standard of Review and Jurisdiction


                                8
        This Court reviews a trial court’s response to allegations
of juror misconduct for abuse of discretion. See United States v.
Resko, 3 F.3d 684, 690 (3d Cir. 1993). In reviewing jury
instructions, we consider the legal standard stated in the
instructions de novo, but apply an abuse of discretion standard as
to the specific wording of the instructions. United States v.
Yeaman, 194 F.3d 442, 452 (3d Cir. 1999). “This Court reviews
jury instructions to determine whether, ‘taken as a whole, they
properly apprized the jury of the issues and the applicable law.’”
Id. (quoting Dressler v. Busch Entm’t Corp., 143 F.3d 778, 780
(3d Cir. 1998)).

       The District Court had jurisdiction over this federal
criminal case pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction over Boone’s appeal of his conviction and sentence
pursuant to 28 U.S.C. § 1291.

       B. The District Court’s Response to Jury Note B

       In response to Jury Note B, in which the jury expressed
“some serious concern” about Juror X and stated that he may
have lied on his jury questionnaire and “does not believe
anything the police said,” the District Court instructed the jurors
to continue deliberating, and reminded them of the oath they
took under penalty of perjury to “well and truly try U.S. v. Kevin
Boone now on trial and render a true verdict according to the law
and the evidence.” Boone challenges this note, arguing that it
improperly singled out Juror X and implicitly threatened him
with perjury charges if he did not change his mind.

       It “has long been recognized” that “a judge may not
‘coerce’ the jury into reaching a verdict.” United States v.
Fioravanti, 412 F.2d 407, 416 n.20 (3d Cir. 1969). We will find a
supplemental charge to be unduly coercive, however, only
“where the . . . charge caused the jury to be ‘influenced by
concerns irrelevant to their task’ and [where the jury] ‘reached
its subsequent verdict for reasons other than the evidence
presented to it.’” United States v. Jackson, 443 F.3d 293, 297 (3d
Cir. 2006) (quoting United States v. Eastern Med. Billing, Inc.,
230 F.3d 600, 613 (3d Cir. 2000)).


                                9
        Here, the District Court’s reference to the oath clearly
does not rise to the level of coercion as that term has been
interpreted in the jury context. See, e.g., Jackson, 443 F.3d at
296-98 (finding no coercion where, in response to a note from
the jury stating that one juror could not agree with the others, the
district court reminded the jurors of their oath and stated that the
case would have to be retried if they could not agree); United
States v. Henry, 325 F.3d 93, 107 (2d Cir. 2003) (noting that
“[t]he mere fact that the district court reminded the jurors of their
oaths and responsibility to deliberate and attempt to render a true
verdict does not render the charge coercive”). Instructions held
to be coercive generally involve substantial and explicit pressure
from the court for a verdict or for a particular result. See, e.g.,
Jenkins v. United States, 380 U.S. 445, 446 (1965) (per curiam)
(finding a supplemental jury instruction coercive where, after the
jury had deliberated for slightly over two hours and declared
itself deadlocked, the judge told the jury: “You have got to reach
a decision in this case.”); United States v. Burley, 460 F.2d 998,
999 (3d Cir. 1972) (finding reversible error where, after the jury
reported that it was deadlocked due to one juror, the judge told
the jury that if they did not reach agreement there would have to
be another trial that would lead to “great additional expense”);
Fioravanti, 412 F.2d at 415-17 (finding impermissibly coercive a
supplemental jury instruction telling jurors who held the
minority viewpoint to reconsider their position). Such pressure
was entirely absent here. Thus, based on applicable precedent,
the District Court’s instruction in this case cannot be considered
impermissibly coercive.

                      C. Juror Questioning

       Next, Boone argues that the District Court should not
have conducted an examination of Juror X. This claim is in some
tension with our decisions requiring district courts to conduct
comprehensive investigations in response to serious allegations
of jury impropriety. See Resko, 3 F.3d at 686 (granting new trial
where judge investigated allegations of premature jury
deliberation with written questionnaire, but failed to investigate
further through individual juror questioning); Gov’t of V.I. v.
Dowling, 814 F.2d 134, 141 (3d Cir. 1987) (holding that judge’s
investigation of allegations of jury taint through poll of jury was

                                 10
not thorough enough to allow clear evaluation of potential
prejudice). Juror questioning is a permissible tool where juror
misconduct is alleged, and we have encouraged its use in such
investigations. See United States v. Console, 13 F.3d 641, 667
(3d Cir. 1993) (noting that individual juror questioning is the
“method of inquiry . . . we have preferred ‘[w]here there is a
significant possibility that a juror or potential juror has been
exposed to prejudicial extra-record information’”) (quoting
Dowling, 814 F.2d at 137); Dowling, 814 F.2d at 137 (“an
individualized examination is the most effective manner by
which to discover latent prejudices on the part of a particular
juror”) (citation and quotation marks omitted).

       Boone notes that these decisions generally involved
allegations of mid-trial jury misconduct rather than of a juror’s
refusal to deliberate properly. According to Boone,
investigations that implicate the content of jury deliberations are
by their nature much more intrusive than investigations of jury
misconduct during trial, and the former should be severely
limited. Boone points to United States v. Thomas, 116 F.3d 606
(2d Cir. 1997), in which the Second Circuit suggested that a
judge should be particularly cautious in conducting
investigations of juror misconduct during deliberations. In
Thomas, jurors complained during trial that one juror was
behaving disruptively, and the judge conducted an examination
of each juror individually to investigate the issue. Id. at 609-10.
The judge determined that the trial should continue. Id. at 611.
Once deliberations began, however, jurors again complained
about the juror, alleging that he was bent on acquittal for reasons
unrelated to the evidence in the case. Id. The judge again
conducted individual juror questioning, and concluded that the
disruptive juror should be dismissed because he intended to
commit jury nullification.2 Id. at 612. The Second Circuit


       2
         Jury nullification is “a jury’s knowing and deliberate
rejection of the evidence or refusal to apply the law either
because the jury wants to send a message about some social
issue that is larger than the case itself or because the result
dictated by law is contrary to the jury’s sense of justice,
morality, or fairness.”Black’s Law Dictionary 875 (8th ed.

                                11
reversed. Although the court agreed that a juror’s intent to
nullify would justify dismissal in principle, it found that the
evidence was not “beyond doubt” that the juror in this case had
an intent to nullify rather than simply having permissible
reservations about the sufficiency of the evidence. Id. at 614,
624. The court held that where an allegation of jury nullification
arises, “‘if the record evidence discloses any possibility that the
request to discharge stems from the juror’s view of the
sufficiency of the government’s evidence, the court must deny
the request.’” Id. at 622-23 (quoting United States v. Brown, 823
F.2d 591, 596 (D.C. Cir. 1987)).

        The Thomas Court noted that an accusation that a juror
intends to nullify is difficult to prove, and that obtaining
definitive evidence could require significant intrusion into a
juror’s thought process. Id. at 621. Emphasizing the importance
of secret deliberations to the effective operation of the jury
system, the court concluded that a trial judge generally should
not conduct extensive investigation of jury nullification claims,
even if some juror misbehavior might be go unaddressed. Id. at
622-23. Choosing “to protect deliberative secrecy at the risk of
leaving some juror misconduct beyond the court’s power to
remedy,” id. at 623, the court adopted the rule that a “presiding
judge faced with anything but unambiguous evidence that a juror
refuses to apply the law as instructed need go no further in his
investigation of the alleged nullification,” id. at 622. Under this
rule, juror questioning presumably would be impermissible
absent clear evidence of juror nullification.3



2004).
         3
         In United States v. Symington, 195 F.3d 1080, 1087 (9th
Cir. 1999), the Ninth Circuit adopted much of the Thomas
Court’s reasoning but did not elaborate on the Thomas opinion
regarding the circumstances in which juror questioning during
deliberations is appropriate. See id. at 1086. Similarly, in United
States v. Brown, 823 F.2d 591 (D.C. Cir. 1987), a case on which
Thomas relied and which Boone cites as support, the D.C.
Circuit addressed the dismissal of a juror during deliberations
but did not discuss the appropriate use of juror questioning

                                12
        The Second Circuit moderated somewhat its disapproving
view of trial court investigation into allegations of jury
misconduct during deliberations in United States v. Baker, 262
F.3d 124 (2d Cir. 2001). In Baker, the jury sent several notes to
the judge during deliberations complaining that one of the jurors
refused to consider the evidence and refused to deliberate. Id. at
128. The judge questioned the juror and concluded that dismissal
was appropriate. Id. at 129. On appeal, the court declined to
remand, holding that whether to question a juror is within the
trial judge’s “sound discretion,” and that the District Court acted
within its discretion in carefully interviewing the juror and then
dismissing her. Id. at 129-30. The court also concluded that the
Thomas rule did not apply because while the juror in Thomas
was allegedly refusing to base his vote on the evidence – “a
reason that is dangerously difficult to distinguish from a refusal
to view the evidence as viewed by the other jurors” – the
Baker juror had allegedly refused to engage in jury deliberations
entirely. Id. at 132. Where there are allegations of a refusal to
deliberate rather than allegations of nullification, the Baker
Court held, questioning of the jury is within the sound discretion
of the judge. Id.

        We recognize the important competing interests that are
implicated in a judge’s intrusion into jury deliberations to
investigate allegations of jury misconduct. It is beyond question
that the secrecy of deliberations is critical to the success of the
jury system. See United States v. Antar, 38 F.3d 1348, 1367 (3d
Cir. 1994) (Rosenn, J., concurring) (“We must bear in mind that
the confidentiality of the thought processes of jurors, their
privileged exchange of views, and the freedom to be candid in
their deliberations are the soul of the jury system.”); Symington,
195 F.3d at 1086 (“‘Juror privacy is a prerequisite of free debate,
without which the decisionmaking process would be crippled.’”)


during deliberations. See id. at 596. In both Symington and
Brown, the district courts conducted juror questioning in
response to indications that a juror was not deliberating properly,
and neither appellate court discussed whether this use of
questioning was error. See Symington, 195 F.3d at 1083-84;
Brown, 823 F.2d at 594.

                                13
(quoting Note, Public Disclosures of Jury Deliberations, 96
Harv. L. Rev. 886, 889-90 (1983)).

        For this reason, a district court should be more cautious in
investigating juror misconduct during deliberations than during
trial, and should be exceedingly careful to avoid any disclosure
of the content of deliberations. See Thomas, 116 F.3d at 618
(“[A] district court’s authority to investigate allegations of juror
impropriety necessarily becomes more limited once the jury has
begun to deliberate.”). It is also manifest, however, that a juror
who refuses to deliberate or who commits jury nullification
violates the sworn jury oath and prevents the jury from fulfilling
its constitutional role. See id. at 608 (holding that a juror’s
refusal to apply the law as stated by the court is “an obvious
violation of a juror’s oath and duty” and is grounds for
dismissal); Baker, 262 F.3d at 130 (“It is well-settled that jurors
have a duty to deliberate.”).

        In light of these competing interests, we hold that where
substantial evidence of jury misconduct – including credible
allegations of jury nullification or of a refusal to deliberate –
arises during deliberations, a district court may, within its sound
discretion, investigate the allegations through juror questioning
or other appropriate means. In adopting this standard, we
emphasize that a district court, based on its unique perspective at
the scene, is in a far superior position than this Court to
appropriately consider allegations of juror misconduct, both
during trial and during deliberations. See, e.g., Dowling, 814
F.2d at 137 (“[T]he trial judge develops a relationship with the
jury during the course of a trial that places him or her in a far
better position than an appellate court to measure what a given
situation requires.”); United States v. Ruggiero, 928 F.2d 1289,
1300 (2d Cir. 1991) (declining to “second guess the conclusion
of the experienced trial judge, based in large measure upon
personal observations that cannot be captured on a paper record”
where a juror was dismissed during deliberations following
questioning by the judge). Thus, keeping in mind the importance
of maintaining deliberative secrecy, we apply explicitly to the
context of jury deliberations our previous holding that a district
court has broad discretion in addressing claims of juror


                                14
misconduct.4

        Boone’s citation to other circuit precedent does not
convince us to adopt a different standard. Boone points to no
decision remanding for a new trial based solely on a district
court’s use of juror examination during deliberations, as opposed
to a district court’s dismissal of a juror. Although the
Thomas Court discouraged investigation of nullification claims
during jury deliberations, it explicitly declined to consider
whether the District Court went too far in conducting juror
questioning in that case. Thomas, 116 F.3d at 624 (“We need not
reach the question of whether the [district] court’s inquiries were
themselves sufficiently intrusive to constitute reversible error.”).
The court in Thomas also affirmed a trial court’s “inherent
authority to conduct inquiries in response to reports of improper
juror conduct and to determine whether a juror is unwilling to
carry out his duties faithfully and impartially.” Id. at 617. To the
extent that the Thomas Court prohibited a district court from
investigating allegations of nullification or refusal to deliberate
in the absence of entirely unambiguous evidence of juror
misconduct, we hold otherwise.5

       Applying the standard set forth above, the District Court
did not abuse its discretion here. The foreperson’s claims in Jury
Note B that Juror X “refuses to discuss certain [counts] because
he had his mind made up before we started deliberating” and that
Juror X stated that he “will not change [his] mind and does not
want to work at any evidence or discuss any testimony” provided


       4
         Our focus here is solely on a district court’s authority to
investigate allegations of jury misconduct. Thus, we do not
consider the question directly at issue in Brown, Thomas, Baker,
and Symington – the quantum of evidence required for the
dismissal of a juror based on jury nullification or refusal to
deliberate.
       5
         Under the reasoning in Baker, the Thomas standard
applies only to allegations of jury nullification, not to allegations
that a juror refuses to deliberate. See Baker, 262 F.3d at 132. Our
holding here applies to both types of allegations.

                                 15
substantial evidence that Juror X was refusing to deliberate as
instructed. Although this evidence was far from unambiguous,
there was a sufficient indication that Juror X was violating his
oath to provide discretion to the trial judge to investigate further.
The fact that a different judge may have chosen not to conduct a
investigation is irrelevant; regardless, the District Court’s
decision to do so here was not an abuse of discretion.

       Moreover, the manner in which the District Court
questioned Juror X was thoughtful, careful, and fair. Prior to the
questioning, the judge emptied the courtroom of all spectators
aside from his law clerk, lessening any intimidation Juror X
might experience. Boone argues that the District Court should
not have asked the juror his name. This inquiry was unlikely to
be interpreted as coercive by Juror X, however, since he had
watched as each witness at trial was asked to state his or her
name immediately after being sworn in. After the juror stated his
name, the judge asked him (1) whether he had written Jury Note
C and whether it was true; (2) whether he had a preconceived
view of the evidence such that he would not accept the testimony
of a police officer; (3) whether his participation in the
deliberations was based on a consideration of the specific
evidence in the case; and (4) whether he had refused to discuss
certain counts with other members of the jury. The concise and
carefully-worded examination avoided inquiry into the content
of the deliberations or the views of the juror. We find no abuse
of discretion in the content of the examination.

    D. The District Court’s Instructions Following Juror
                        Questioning

        After questioning Juror X, the District Court concluded
that Juror X was fulfilling his role properly, and gave a brief
instruction to the full jury before sending it back to deliberate.
Boone argues that this instruction was improper. As Boone did
not object at the time, this Court reviews the instruction for plain
error. See United States v. Vazquez, 271 F.3d 93, 99 (3d Cir.
2001). Under this standard, “we will reverse the trial court only
where a plain error was ‘fundamental and highly prejudicial,
such that the instructions failed to provide the jury with adequate
guidance and our refusal to consider the issue would result in a

                                 16
miscarriage of justice.’” Franklin Prescriptions, Inc. v. New
York Times Co., 424 F.3d 336, 339 (3d Cir. 2005) (citation
omitted).6

       First, Boone objects to the following statement in the
District Court’s supplemental instruction:

       If continued discussions might bear fruit as to your
       areas of disagreement, then, of course, you are
       permitted to continue those discussions, and are
       encouraged to do so if further discussions may lead
       to agreement. And by agreement I also mean
       agreement either way, either by a minority of
       jurors changing their views or by a majority of
       jurors changing their views.

According to Boone, this instruction constituted a so-called
Allen charge, which this Court has defined as an instruction in
which “the court direct[s] the minority jurors to reconsider their
views in light of their disagreement with the majority.” Eastern
Med. Billing, Inc., 230 F.3d at 602 n.1. The Supreme Court
upheld such a charge in Allen v. United States, 164 U.S. 492,
501-02 (1896). In Fioravanti, however, this Court, exercising its
supervisory power over the district courts, held that the use of an
Allen charge in this Circuit would, from that point on, constitute
reversible error except in “very extraordinary circumstances.”
Fioravanti, 412 F.2d at 420; see also Eastern Med. Billing, 230
F.3d at 607-08. In Eastern Medical Billing, we held that the trial
court had given an impermissible Allen charge where it
instructed, in part, as follows:


       6
         Boone suggests that the abuse of discretion standard
rather than the plain error standard should apply because the
judge’s instruction was more expansive than the instruction that
he told counsel he would give, and Boone’s counsel did not
object before the instruction for that reason. Counsel for Boone
could have objected during or after the instruction, however, and
his failure to do so leads to plain error review. Regardless, we
would find no error here even under the abuse of discretion
standard.

                                17
       If the greater number of you are for one side, each
       dissenting juror ought to consider whether his or
       her view is a reasonable one since it makes no
       effective impression on the minds of so intelligent
       fellow jurors who bear the same responsibility . . .
       Also, the jurors who constitute the greater number
       should consider the reasons of those who take a
       different position to see whether there may be
       persuasive merit in that position.

230 F.3d at 605, 613.

        The District Court’s instruction in this case is clearly
distinguishable from those we have previously found
impermissible. The Court here did not encourage either the
minority or the majority jurors to change their view, but simply
stated that unanimous agreement could be reached through a
change in viewpoint by either group. Cf. Eastern Medical
Billing, 230 F.3d at 613 (noting that “although the Court
mentioned both the majority and minority jurors, the instruction
clearly portrayed the minority jurors as holding less intelligent or
reasonable views than the majority jurors”). The District Court’s
mere reference here to the minority of jurors did not constitute
plain error.

        Boone also argues that the District Court in its
supplemental instruction should not have encouraged further
deliberation without asking the jurors if they wished to continue.
In fact, the Court encouraged the jury to deliberate only “until
you reach the point where the jury believes that no further
discussions would be fruitful.” Thus, the Court clearly informed
the jurors that they could stop deliberating when they were at an
impasse, and the instruction was not coercive. See United States
v. Graham, 758 F.2d 879, 884 (3d Cir. 1985) (noting that a
judge’s “‘action in requiring further deliberation after the jury
has reported a disagreement does not, without more, constitute
coercion’”) (citation omitted).7


       7
       Boone’s additional challenges to the District Court’s
supplemental instruction are without merit. He provides no

                                18
                        E. Booker Claim

       The District Court sentenced Boone on February 20,
2003, prior to the Supreme Court’s decision in Booker. Boone
was sentenced under a mandatory guideline system, and as the
government concedes, we therefore must remand for
resentencing in accordance with Booker. See Davis, 407 F.3d at
164-65.8

                      III. CONCLUSION

      For the reasons stated above, we affirm Boone’s
conviction but vacate his sentence and remand for resentencing
pursuant to Booker.




support for his assertion that the Court’s references to Jury Note
B and to the dissenting juror were coercive. Moreover, his claim
that the District Court presumed a unanimous verdict as to
certain counts is not supported by the record. None of these
challenged elements of the instruction constituted plain error.
       8
        Because we remand for resentencing, we decline to
consider Boone’s additional claims of error as to sentencing.

                                19
