From United States v. Della Porta, 2011 U.S. App. LEXIS 16341 (9th Cir. Aug. 8, 2011):

In [United States v. Evanston, No. 10-10159, 2011 U.S. App. LEXIS 13647, 2011 WL 2619277, at *1 (9th Cir. July 5, 2011)], we addressed, as a matter of first impression in this circuit, the use of supplemental closing arguments to assist a deadlocked jury in a criminal trial. The case involved charges of assault resulting in serious bodily injury occurring on an Indian reservation. 2011 U.S. App. LEXIS 13647, 2011 WL 2619277, at *1. After a two-and-a-half day trial, and after deliberating for five hours over two separate days, the jury advised the district court that it could not reach a verdict. Id. The court then gave Ninth Circuit Model Jury Instruction 7.7 — often referred to as an Allen, or "dynamite," charge — and asked the jury to continue deliberating. Id. After deliberating for almost another three hours, the jury again advised the court that it could not reach a verdict. Id. The court met with the parties and proposed "bring[ing] in the members of the jury, ascertain[ing] the issue on which they are deadlocked, and allow[ing] ten more minutes to each side to argue that point." Id. The government welcomed the opportunity to reargue, but the defense objected to the proposed process. Id. The court then called the jury back into the courtroom. It admonished the jury that "[b]oth parties have a right to make sure that the judge and others do their very best to make sure that the jury empanelled [sic] to hear a case absolutely cannot decide it . . . before they declare a mistrial or release the jury." 2011 U.S. App. LEXIS 13647, [WL] at *9 (first alteration added). It then asked whether "the procedure of, without adding additional evidence, identifying particular points and rearguing those points might assist them in resolving the impasse." 2011 U.S. App. LEXIS 13647, [WL] at *2. The jury responded affirmatively and identified two issues on which it wished to hear further argument: witness credibility and how the victim's injuries were caused. Id. The court then excused the jury and allowed the parties to argue once more whether supplemental arguments should be permitted. The defense repeated its objections, but the court ultimately decided to allow reargument. Id. The government presented its argument first, followed by the defense. After two more hours of deliberation, the jury returned a unanimous guilty verdict. Id.

We reversed and remanded for a new trial. Specifically limiting our holding to the circumstances at issue in the case, we held that the district court's employment of supplemental argument "resulted in impermissible coercion, and consequently an abuse of discretion meriting reversal." 2011 U.S. App. LEXIS 13647, [WL] at *10 n.15. We reasoned that the use of supplemental closing arguments under the circumstances infringed upon the traditional fact-finding role of the jury in two important ways: "(1) the judge's questioning as to the reasons for the deadlock required that the jury divulge the state of its unfinished deliberations, thereby violating the jury's deliberative secrecy," and "(2) the parties' supplemental arguments, coupled with the judge's insistence on continuing after a second deadlock, injected the court and the attorneys into the jury's deliberative process, thereby raising the specter of jury coercion." 2011 U.S. App. LEXIS 13647, [WL] at *5. Furthermore, given the court's decision to order supplemental arguments after an Allen charge and after the jury reported a second impasse, "the lawyers' arguments were of perhaps increased coercive value: the implication was, as with a second Allen charge, that the judge believed the jury had not accorded proper deference to his prior encouragement to reach a verdict." Id. (citing United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977)). In sum, "[t]he compounded coercion resulting from the combined use of the deadlock instruction and supplemental arguments targeted to the jury's exact areas of dispute created a broad, impermissible opportunity for interference with the jury's role as sole fact-finder." 2011 U.S. App. LEXIS 13647, [WL] at *10.

We also noted as influencing our decision the fact that the district court had available several less coercive alternatives to ordering supplemental argument, such as re-reading the original jury instructions relating to the jury's areas of concern, providing supplemental instructions regarding the relevant legal standard for causation, and allowing the jury to review portions of witness testimony. 2011 U.S. App. LEXIS 13647, [WL] at *7-8. In reversing the district court, however, we took pains to note that our decision was limited to the circumstances presented, 2011 U.S. App. LEXIS 13647, [WL] at *10 n.15, and declined to "foreclose the possibility that supplemental argument treating factual matters could ever be used" in a permissible fashion, 2011 U.S. App. LEXIS 13647, [WL] at *6. We also left open "the question of whether the use of supplemental arguments to address factual matters is necessarily or always an error of constitutional dimension, whatever the circumstances." 2011 U.S. App. LEXIS 13647, [WL] at *10 n.15.

Using Evanston as our guidepost, we hold that the district court neither coerced a guilty verdict nor abused its discretion by ordering supplemental arguments under the facts presented in this case. We so hold because the set of key circumstances rendering the use of supplemental arguments coercive in Evanston are simply not present here.

First, unlike in Evanston, the district court in this case never gave an Allen charge. Nor did it indicate to the jurors that it had to satisfy itself that they "absolutely" could not reach a verdict before declaring a mistrial. 2011 U.S. App. LEXIS 13647, [WL] at *9. These distinctions are crucial. As we alluded to in Evanston, see 2011 U.S. App. LEXIS 13647, [WL] at *3, "[a] single Allen charge, without more, stands at the brink of impermissible coercion." Seawell, 550 F.2d at 1163. Although we have upheld the use of the Allen charge under certain circumstances, "[e]ven slight deviations from the language and procedure approved by this court can result in reversible error based upon likelihood of coercion." Evanston, 2011 U.S. App. LEXIS 13647, 2011 WL 2619277, at *3 (citing United States v. Mason, 658 F.2d 1263, 1267-68 (9th Cir. 1981)). It is per se error, for example, to give a second Allen charge where the jury has not asked for one, because doing so "conveys a message that 'the jurors have acted contrary to the earlier instruction as that instruction was properly to be understood . . .' and that message serves no purpose other than impermissible coercion." Id. (quoting Seawell, 550 F.2d at 1163). It was against these background "core principles" that we viewed the district court's procedure in Evanston. Id. By ordering supplemental arguments after giving an Allen charge, "the implication was, as with a second Allen charge, that the judge believed the jury had not accorded proper deference to his prior encouragement to reach a verdict." 2011 U.S. App. LEXIS 13647, [WL] at *5.

Moreover, the likelihood of coercion occasioned by the Allen charge in Evanston was exacerbated by the district court's later admonition to the jury after it reported it was deadlocked for a second time. Such commentary, coupled with the supplemental closing arguments, "risked the same type of coercion and prejudice contemplated by Seawall." 2011 U.S. App. LEXIS 13647, [WL] at *9 (citing 550 F.2d at 1163). It was very likely that, "having been admonished once with the Allen charge, and then admonished that the district court had to make sure the jury 'absolutely' could not reach a verdict before declaring a mistrial, the jurors in the minority might have been swayed to reach a verdict more readily, and against their honest beliefs, than if the supplemental arguments had not been given." Id.

Here, none of the above concerns was implicated when the district court ordered supplemental closing arguments. Because an Allen charge was never given, there was no suggestion that "the judge believed the jury had not accorded proper deference to his prior encouragement to reach a verdict." 2011 U.S. App. LEXIS 13647, [WL] at *5. And because the court never made any additional statements to the jury encouraging it to reach a unanimous verdict, there was no risk that "the jurors in the minority might have been swayed to reach a verdict more readily," as was the case in Evanston. 2011 U.S. App. LEXIS 13647, [WL] at *9. The district court in no way pressured the jurors to surrender their conscientiously-held beliefs for the sake of securing a unanimous verdict, in stark contrast with the court's actions in Evanston.

A second key distinguishing feature of this case is that the district court never asked the jury to identify areas or issues of disagreement before ordering supplemental arguments. To the contrary, after the jury indicated it was deadlocked, the court scrupulously instructed the foreperson to only answer the questions asked and to not volunteer any additional information, and none was. The court then merely asked the foreperson if anything would further assist the jury in its deliberations, such as reading back witness testimony or hearing further argument. After the jury elected to hear further argument, the court permitted the parties to readdress the jury without any specific guidance on the content of the argument. Siding with the defense on the issue, the court expressly rejected the government's suggestion to invite the jury to identify areas of factual disagreement.

All of these facts distance this case from Evanston and United States v. Ayeni, 374 F.3d 1313, 362 U.S. App. D.C. 488 (D.C. Cir. 2004), the only other reported circuit decision discussing the practice of supplemental closing argument. In both Evanston and Ayeni, the district court asked the deadlocked jury to identify areas of disagreement, the jury identified specific factual matters on which it disagreed, and the parties were permitted to tailor their supplemental arguments to the jury's specific concerns. See Evanston, 2011 U.S. App. LEXIS 13647, 2011 WL 2619277, at *2; Ayeni, 374 F.3d at 1314. This, in turn, "permit[ted] the lawyers to effectively participate in the jury's deliberations, almost as if they were in the jury room itself." Evanston, 2011 U.S. App. LEXIS 13647, 2011 WL 2619277, at *5 (alteration in original) (quoting Ayeni, 374 F.3d at 1320 (Tatel, J., concurring)). Here, there was no such issue. The district court did not extract from the jury information about its fact-finding process. Instead, it carefully framed its questions to the foreperson as suggestions of possible forms of assistance, rather than any requirement that the jury reveal the nature of the issues impeding deliberations. Although the parties may have speculated about the issue hanging up the jury based on its earlier notes to the court, the same specter of coercion present in Evanston is simply not present here because the court never asked the jury to reveal the nature of its deadlock in the first instance.