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