United States v. Evanston

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-10159
Plaintiff-Appellee, D.C. No.
v.  3:09-cr-08018-
CALVIN BRYAN EVANSTON, GMS-1
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding

Argued and Submitted
April 11, 2011—San Francisco, California

Filed July 5, 2011

Before: Alex Kozinski, Chief Judge, Michael Daly Hawkins
and Ronald M. Gould, Circuit Judges.

Opinion by Judge Hawkins

8955
8958 UNITED STATES v. EVANSTON

COUNSEL

Jennifer E. Green, Assistant United States Attorney, Phoenix,
Arizona, for the plaintiff-appellee.

Philip E. Hantel, Phoenix, Arizona, for the defendant-
appellant.

OPINION

HAWKINS, Senior Circuit Judge:

In a case of first impression, we examine whether a district
court may, over defense objection and after the administration
of an unsuccessful Allen1 charge, inquire into the reasons for

1
An Allen charge, the original concept of which was approved by the
Supreme Court in Allen v. United States, 164 U.S. 492, 501-02 (1896), is
 UNITED STATES v. EVANSTON 8959
a trial jury’s deadlock and then permit supplemental argument
focused on those issues, where the issues in dispute are fac-
tual rather than legal. We conclude that allowing such a pro-
cedure in a criminal trial is an abuse of the discretion
accorded district courts in the management of jury delibera-
tions.

I. Facts & Trial Proceedings

Defendant Calvin Bryan Evanston (“Evanston”) was
charged with assault resulting in serious bodily injury under
18 U.S.C. §§ 1153 and 113(a)(6) occurring within the Colo-
rado River Indian Tribes reservation in western Arizona.
There is no dispute that an assault occurred and that the vic-
tim, Evanston’s live-in girlfriend, suffered serious bodily
injury.2 When interviewed, Evanston first claimed he returned
home after being away for most of the day, only to find his
girlfriend lying on the bed covered in blood. He later changed
his story, telling investigators that he came home to see a man
leaving the house and his girlfriend partially undressed.
Believing she was cheating on him, he slapped her, the unex-
pected force of the blow spinning her to the ground. On the
way down, according to Evanston, her face struck the night
stand.3

“a supplemental instruction given by the court to encourage a jury to reach
a verdict after that jury has been unable to agree after some period of
deliberation.” United States v. Nickell, 883 F.2d 824, 828 (9th Cir. 1989).
2
The victim’s injuries—including a nasal fracture, an orbital floor frac-
ture, and a broken jaw—required air evacuation to a level one trauma cen-
ter in Phoenix and extensive surgery to repair and rebuild the victim’s
face, including the placement of several screws and plates. The injuries
affected the victim’s balance and left her with permanent scarring. She
still suffers from nerve damage.
3
The jury heard Evanston’s side of the story through statements given
to law enforcement. The district court held a pre-trial evidentiary hearing
and concluded that Evanston’s various statements to law enforcement
were either preceded by, or did not require, proper Miranda warnings. In
a separate memorandum disposition accompanying this opinion, we affirm
those rulings.
8960 UNITED STATES v. EVANSTON
During a two and one-half day trial, the victim identified
Evanston as her assailant and disputed his version of events.
There was, she testified, no other man in the house before or
during the incident, and her injuries were not the result of a
single slap, but rather of Evanston’s grabbing her throat,
restricting her airways, and hitting her. She remembered
Evanston striking her, though she could not remember how
many times. She remembered feeling a sharp pain in her face,
but could not remember anything that happened between suf-
fering the blow and waking up in the hospital.

After five hours of deliberation over two days, the jury
advised that it could not reach a verdict. The district court
then gave Ninth Circuit Model Jury Instruction 7.7—
commonly referred to as an Allen charge, deadlock instruc-
tion, or “dynamite charge”4—and asked the jury to continue
to deliberate.

After almost three hours of additional deliberation, the jury
again advised that it was deadlocked. At this point, the district
court met with counsel outside the presence of the jury and
stated: “I’m informed that other judges in this courthouse,
when defendants desire it, are perfectly happy to bring in the
members of the jury, ascertain the issue on which they are
deadlocked, and allow ten more minutes to each side to argue
that point and send the jurors back to redeliberate.” While the
government welcomed the opportunity to “get to the heart of
whatever their . . . disagreement is,” Evanston’s counsel
objected to the proposed process, noting that evidence was
closed and that the defense had no desire to reargue or to
allow the government to do so.

Noting a reluctance to do so over the defense objection, the
4
“In their stronger forms, these charges have been referred to as ‘dyna-
mite charges,’ because of their ability to ‘blast’ a verdict out of a dead-
locked jury.” United States v. Mason, 658 F.2d 1263, 1265 n.1 (9th Cir.
1981).
 UNITED STATES v. EVANSTON 8961
district court called the jury back and asked if “the procedure
of, without adding additional evidence, identifying particular
points and rearguing those points might assist them in resolv-
ing the impasse.” The jury agreed and identified two issues:
witness credibility and how the victim’s injuries were caused.
The district court did not permit further elaboration on either
point, allow the jury to identify which witness’s credibility it
questioned, or ask any questions as to the number or nature
of the split, but excused the jury to allow counsel to proffer
additional arguments in favor or against using the reargument
procedure. The defense repeated its earlier objections, arguing
that the evidence adduced by the government simply had not
met its burden of providing the jury with the answers to its
questions.

Despite these renewed objections—and reasoning that the
procedure would avoid manifest necessity to declare a mistrial
—the district court decided it would allow both sides an
opportunity to address the jury on the identified issues. The
government presented its supplemental closing argument first,
and the defense followed. After two more hours of delibera-
tion, the jury returned a unanimous guilty verdict.

Evanston appeals that verdict, arguing that the district
court’s actions in questioning the jurors as to the subject of
their deadlock and allowing supplemental argument on those
factual issues invaded the jury’s role as the sole fact-finder.

II. Standard of Review

As an issue of first impression in this circuit, there is no
authority identifying a specific standard for reviewing the
decision to allow supplemental argument. Because matters of
trial management are typically reviewed for abuse of discre-
tion, United States v. Goode, 814 F.2d 1353, 1354 (9th Cir.
1987), including where trial management decisions relate to
jury deadlock, see United States v. Berger, 473 F.3d 1080,
1089 (9th Cir. 2007), and the only other circuit to address the
8962 UNITED STATES v. EVANSTON
issue has employed a similar standard, United States v. Ayeni,
374 F.3d 1313, 1314-15 (D.C. Cir. 2004), we apply the abuse
of discretion standard of review here. Under that standard,
“the district judge’s discretion should be preserved unless its
exercise could deprive the defendant of a constitutional right
or otherwise prejudice defendant’s case.” Goode, 814 F.2d at
1355. However, “[w]hether a judge has improperly coerced a
jury’s verdict is a mixed question of law and fact we review
de novo.” Berger, 473 F.3d at 1089 (citing Jiminez v. Myers,
40 F.3d 976, 979 (9th Cir. 1994)).

III. Discussion

A. Discretion, Coercion, and the Traditional Roles of the
Judge and Jury

[1] District courts are accorded substantial discretion in the
control of jury deliberations. See, e.g., Bollenbach v. United
States, 326 U.S. 607, 612-13 (1946). Nevertheless, because
the right to a trial by jury as fact-finder in serious criminal
cases is “fundamental to the American scheme of justice,”
Sullivan v. Louisiana, 508 U.S. 275, 277 (1993) (citation and
internal quotation marks omitted), it is a “cardinal principle
that the deliberations of the jury shall remain private and
secret” in order to protect the jury from improper outside
influence, United States v. Olano, 507 U.S. 725, 737 (1993)
(citation and internal quotation marks omitted). See generally
Diane E. Courselle, Struggling with Deliberative Secrecy,
Jury Independence, and Jury Reform, 57 S.C. L. Rev. 203
(Autumn 2005). The judge’s traditional role in a jury trial is
thus limited to arbiter of the law and manager of the trial pro-
cess, Quercia v. United States, 289 U.S. 466, 469 (1933); the
jury remains the primary finder of fact and essential check on
arbitrary government, see United States v. Martin Linen Sup-
ply Co., 430 U.S. 564, 572 (1977); see also U.S. Const.
amend. VI; Duncan v. Louisiana, 391 U.S. 145, 151-54
(1968) (discussing historical development of jury trial as fun-
damental right in America). For these reasons, “[t]he trial
 UNITED STATES v. EVANSTON 8963
judge is . . . barred from attempting to override or interfere
with the jurors’ independent judgment in a manner contrary
to the interests of the accused,” Martin Linen Supply Co., 430
U.S. at 573, and “it is the law’s objective to guard jealously
the sanctity of the jury’s right to operate as freely as possible
from outside unauthorized intrusions purposefully made,”
Remmer v. United States, 350 U.S. 377, 382 (1956).5

[2] Accordingly, and because “[t]he influence of the trial
judge on the jury is necessarily and properly of great weight
and his lightest word or intimation is received [by the jury]
with deference, and may prove controlling[,]” Quercia, 289
U.S. at 470 (internal quotation marks omitted), the court’s
exercise of discretion in managing deliberations is not without
limits. For example, when responding to jury questions or
5
It was in view of the fundamental sanctity of the jury’s deliberative
process and the attendant necessity of deliberative secrecy that we recently
reversed the denial of a habeas corpus petition in Williams v. Cavazos,
2011 U.S. App. LEXIS 10345 (9th Cir. May 23, 2011). There, we found
that a state trial court violated a petitioner’s Sixth Amendment rights by
dismissing a lone holdout juror without good cause, and possibly on the
basis of his views of the merits of the case rather than any permissible
basis. Id. at *72. In deciding to dismiss the juror, the trial court questioned
individual jurors one by one—including the holdout juror himself—about
their views of the holdout juror’s reasons for disagreeing with the jury
majority. Id. at *5-14. We noted that our past precedent had admonished
that such “detailed inquiry into the jurors’ thinking and motivations would
‘compromise the secrecy of jury deliberations’ and ‘jeopardize the integ-
rity of the deliberative process.’ ” Id. at *51 (quoting United States v.
Symington, 195 F.3d 1080, 1086 (9th Cir. 1999)). We further emphasized
that
no one, including the judge, is even supposed to be aware of the
views of individual jurors during deliberations, because a jury’s
independence is best guaranteed by secret deliberations, such that
jurors may ‘return a verdict freely according to their conscience’
and their ‘conduct in the jury room [may be] untrammeled by the
fear of embarrassing publicity.’
Id. at *44 (alterations in original) (quoting Clark v. United States, 289
U.S. 1, 16 (1933)).
8964 UNITED STATES v. EVANSTON
requests during deliberations, every effort must be undertaken
to avoid influencing or coercing a jury to reach one verdict
over another.6 See, e.g., Nickell, 883 F.2d at 829 (“In deciding
whether to allow the jury to review testimony during delibera-
tions, the court should avoid giving undue emphasis to partic-
ular testimony.” (citing United States v. Binder, 769 F.2d 595,
600 (9th Cir. 1985))); United States v. Walker, 575 F.2d 209,
214 (9th Cir. 1978) (“Because the jury may not enlist the
court as its partner in the fact-finding process, the trial judge
must proceed circumspectly in responding to inquiries from
the jury.”). Cf. Starr v. United States, 153 U.S. 614, 626
(1894) (advising that the trial judge must take great care to
avoid commenting upon evidence in one-sided manner).

[3] Extraordinary caution must be exercised when acting to
break jury deadlock. This is particularly true with respect to
the court’s actions in giving an Allen charge, which we have
recognized as already “stand[ing] at the brink of impermissi-
ble coercion.” United States v. Seawell, 550 F.2d 1159, 1163
(9th Cir. 1977).7 Even slight deviations from the language and
procedure approved by this court can result in reversible error
based upon likelihood of coercion. Mason, 658 F.2d at 1267-
68. The charge’s coercive tendencies are so high that we have
recommended that if a court determines it will be necessary
in the course of the deliberations, the court should include the
charge in its initial instructions rather than waiting to adminis-
ter it until after the jury has retired. Id. at 1266. Indeed, the
Supreme Court has held, based on its supervisory powers over
the federal courts, that federal judges may not convey to a
6
Indeed, the government has previously conceded that “the principle
that jurors may not be coerced into surrendering views conscientiously
held is so clear as to require no elaboration.” Jenkins v. United States, 380
U.S. 445, 446 (1965).
7
The use of Allen charges has been so strongly “criticized as constitut-
ing an unwarranted intrusion upon the province of the jury” that several
of our sister circuits have completely barred their use, opting instead for
other forms of instruction. Nickell, 883 F.2d at 828; see id. (collecting
cases).
 UNITED STATES v. EVANSTON 8965
deadlocked jury the mandate that a verdict must be reached at
all, as such a statement might impermissibly coerce a dissent-
ing juror into surrendering a conscientiously held belief about
the facts. See Jenkins, 380 U.S. at 446.8

[4] In keeping with these principles, we have held that it
is per se error to give a second Allen charge where the jury
has not requested one, because it conveys a message that “the
jurors have acted contrary to the earlier instruction as that
instruction was properly to be understood. (‘Apparently you
didn’t listen to what I said before, so I’ll repeat it.’),” and that
message serves no purpose other than impermissible coercion.
Seawell, 550 F.2d at 1163.

Viewing the district court’s procedure against these core
principles, we now turn to the particular factors contributing
to our decision.

B. Factual vs. Legal Argument

In Ayeni, the only reported circuit decision on the practice
of allowing supplemental argument, the defendant was
charged with conspiracy to defraud through the taking of
vouchers meant to compensate trial witnesses. 374 F.3d at
1313-14. Ayeni’s first trial ended in a hung jury mistrial.
After a few hours of deliberation in his second trial, the jury
announced it was “hopelessly deadlocked.” Id. at 1314. After
refusing to enter a mistrial, the district court invited the jury
to identify its areas of disagreement. The jury responded,
naming three areas of concern. The district court answered the
first by informing the jury that there was no lesser included
8
In a similar exercise of its supervisory powers, the Supreme Court also
proscribed inquiry into the numerical division of the jury. Brasfield v.
United States, 272 U.S. 448, 450 (1926) (“Such procedure serves no use-
ful purpose that cannot be attained by questions not requiring the jury to
reveal the nature or extent of its division. . . . [I]n general its tendency is
coercive.”).
8966 UNITED STATES v. EVANSTON
offense to the one charged. With respect to other areas identi-
fied by the jury—why a handwriting expert was not called
and whether both sides agreed Ayeni’s signatures on the
vouchers were authentic—counsel were given ten minutes of
supplemental argument to the jury. As here, after a few addi-
tional hours of deliberation, the jury returned a guilty verdict
on all counts. Id. at 1315.

After determining that the jury’s concerns could have been
addressed with short, neutral answers, the D.C. Circuit held:

[g]iven these other options, it was an abuse of discre-
tion for the district court to adopt an approach that,
in effect, allowed the lawyers to hear the jury’s con-
cerns and then, as if they were sitting in the jury
room themselves, fashion responses targeted pre-
cisely to those concerns.

Id. at 1316.

[5] Ayeni did not go so far as to hold that supplemental
argument should never be allowed because such a practice
always invades the jury’s fact-finding prerogative. However,
noting that this jury trial innovation was “almost unheard of”
in the judiciary,9 the D.C. Circuit strongly discouraged its use
where the reason for the jury’s inability to agree is based on
a factual matter, rather than confusion about a legal standard.
Id. at 1317 (noting the parties had cited only a single case in
which supplemental arguments were used).

In a concurring opinion, Judge Tatel expressed a stronger
view of the impropriety of using such a procedure, arguing
that supplemental argument should never be used in response
to a jury’s factual question because the practice allows law-
9
To date, no reported federal court decision has sanctioned the use of
supplemental argument on factual questions in a criminal trial.
 UNITED STATES v. EVANSTON 8967
yers the opportunity to, in effect, participate in the jury’s
deliberations. Id. at 1318-19.

[6] Here, the government argues that the district court had
broad discretion to allow supplemental arguments, consistent
with the Supreme Court’s statement in Bollenbach that
“[w]hen a jury makes explicit its difficulties a trial judge
should clear them away with concrete accuracy.” 326 U.S. at
612-13. While it is certainly true that the district court should
assist the jury in clarifying matters within the judge’s prov-
ince, that responsibility is limited to answering legal, not fac-
tual questions. See Arizona v. Johnson, 351 F.3d 988, 994
(9th Cir. 2003) (“[W]hile a trial court ‘must respond to ques-
tions concerning important legal issues,’ it ‘must be careful
not to invade the jury’s province as fact-finder[.]’ ” (quoting
United States v. Nunez, 889 F.2d 1564, 1569 (6th Cir.
1989))); see also Quercia 289 U.S. at 469-72 (concluding
that, where trial court made a “definite and concrete assertion
of fact . . . likely to remain lodged in the memory of the jury,”
assessing evidence in a manner resembling fact-finding, it
overstepped the bounds of its duty as “governor of the trial for
the purpose of assuring its proper conduct and of determining
questions of law”). Cf. Williams, 2011 U.S. App. LEXIS
10345, at *45 (“The jury is the only actor permitted to deter-
mine guilt—not the judge.”).

Indeed, the sentence immediately preceding the passage
cited by the government for its broad proposition makes clear
that the court there contemplated a trial court’s response to the
jury’s confusion about the relevant legal standards: “Dis-
charge of the jury’s responsibility for drawing appropriate
conclusions from the testimony depended on discharge of the
judge’s responsibility to give the jury the required guidance
by a lucid statement of the relevant legal criteria.” Bollen-
bach, 326 U.S. at 612 (emphasis added); see also id. (noting
that government there contended it was “the judge’s special
business to guide the jury by appropriate legal criteria through
the maze of facts before it”); United States v. Southwell, 432
8968 UNITED STATES v. EVANSTON
F.3d 1050, 1053 (9th Cir. 2005) (“ ‘the district court has the
responsibility to eliminate confusion when a jury asks for
clarification of a particular issue’ ” specifically because a trial
court cannot anticipate, when providing initial jury instruc-
tions, every possible question a jury may have during deliber-
ations (quoting United States v. Hayes, 794 F.2d 1348, 1352
(9th Cir. 1986))).

We have previously cautioned that

[b]ecause the jury may not enlist the court as its part-
ner in the fact-finding process, the trial judge must
proceed circumspectly in responding to inquiries
from the jury. The court may properly attempt to
avoid intrusion on the jury’s deliberations by fram-
ing responses in terms of supplemental instructions
rather than following precisely the form of question
asked by the jury.

Walker, 575 F.2d at 214. In view of Bollenbach and the tradi-
tional roles of the judge and jury, Walker’s admonition is
properly interpreted to mean that, while the court must aid the
jury in clearing away doubts about legal standards, it is not to
employ procedures in the exercise of its discretion that will
place it in the position of being a “partner in the fact-finding
process.” Id.

[7] We think this caution applies with equal force to the
placement of attorneys in such a role. Allowing the attorneys
to argue further on factual matters after the jury retired to
deliberate, over defense objection, was akin to allowing a wit-
ness to provide an opinion as to how to weigh evidence pres-
ented, which is categorically proscribed. Cf. United States v.
Stephens, 73 F.2d 695, 703 (9th Cir. 1934) (“A hypothetical
question which calls upon a witness to determine the credibil-
ity of other witnesses or to pass upon conflicts in the testi-
mony invades the province of the jury, whose duty it is to
 UNITED STATES v. EVANSTON 8969
determine where the truth lay in cases of conflicts in the evi-
dence.” (citing Dexter v. Hall, 82 U.S. (15 Wall.) 9 (1873))).10

[8] The supplemental arguments here intruded upon the
jury’s fact-finding role in two ways and through two conduits:
(1) the judge’s questioning as to the reasons for the deadlock
required that the jury divulge the state of its unfinished delib-
erations, thereby violating the jury’s deliberative secrecy,
Ayeni, 374 F.3d at 1320-1324; Courselle, supra, at 237-38;
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. Cf. Cour-
selle, supra, at 225 (“Coercive comments do not infringe
upon deliberative secrecy because they do not require revela-
tion of the jurors’ thought processes, but [they] diminish the
jury’s independence . . . . In other words, coercive comments
may not let the jury’s thoughts out of the deliberation room,
but they let the judge’s influence in.”). The district court
ordered, and the parties presented, additional arguments
regarding matters of fact. Because the parties were alerted to
the factual issues dividing the jury, they could tailor their
arguments accordingly. As Judge Tatel observed in Ayeni,
supplemental arguments addressing factual issues “thus per-
mit[ted] the lawyers to effectively participate in the jury’s
deliberations, almost as if they were in the jury room itself.”
374 F.3d at 1320. Additionally, given the judge’s decision to
order such arguments after the jury reported a second dead-
lock, the lawyers’ arguments were of perhaps increased coer-
10
We recognize that this circuit allows for supplemental argument in
some cases where supplemental instructions have been given. United
States v. Fontenot, 14 F.3d 1364, 1368 (9th Cir. 1994). However, in these
cases, the supplemental arguments are meant to cure any prejudice caused
by the introduction of a new theory into the case after the evidence has
closed and the jury has retired to deliberate. United States v. Hannah, 97
F.3d 1267, 1269 (9th Cir. 1996). No such new theory or supplemental
instruction was presented here, so these cases do not provide the authority
the government advocates.
8970 UNITED STATES v. EVANSTON
cive 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 ver-
dict. See Seawell, 550 F.2d at 1163.

[9] Thus, though we do not foreclose the possibility that
supplemental argument treating factual matters could ever be
used, its employment here resulted in an impermissible intru-
sion into the jury’s role as the sole fact-finder.

C. Absence of Formal Adoption

Judge Tatel’s Ayeni concurrence also noted that it would be
particularly inappropriate to allow the practice of supplemen-
tal argument as an ad hoc rule of practice, arguing that any
such jury trial innovation should first be subject to a formal
rulemaking or legislative procedure—such as an amendment
to the rules of criminal procedure—which “would permit the
kind of rigorous and thorough examination of the benefits and
drawbacks of supplemental arguments that so novel and
untested a change in longstanding jury procedures requires.”
374 F.3d at 1325; see also id. (citing Pan Am. World Airways
v. U. S. Dist. Court, 523 F.2d 1073, 1078 (9th Cir. 1975)).

[10] While we do not rest our holding squarely on this
point, we agree that absence of formal adoption throws a fur-
ther shadow upon the practice. In this circuit, the first step of
allowing supplemental argument on factual matters—asking a
jury to identify its concerns—is not only not authorized by
current rule,11 it seems to run contrary to Ninth Circuit Model
11
None of the Federal Rules of Criminal Procedure relating to jury
deliberations, closing arguments, or communications with the court men-
tions, let alone sanctions, the use of supplemental arguments to address a
jury’s factual questions. See, e.g., Fed. R. Crim. P. 26.3 (requiring that
court give each party the opportunity to object to the propriety of declaring
mistrial), 29.1 (mandating the order of closing arguments), 31(d) (allowing
parties to request jury poll before jury is discharged in order to verify una-
nimity). At the very most, Federal Rule of Criminal Procedure 26.3 allows
parties to recommend “alternatives” to the declaration of a mistrial; there
is no language approving the use of supplemental closing arguments
where no new evidence or theory has been introduced.
 UNITED STATES v. EVANSTON 8971
Jury Instruction 7.6, in which the district judge tells the jury:
“Remember that you are not to tell anyone—including me—
how the jury stands, numerically or otherwise, on any ques-
tion submitted to you, including the question of the guilt of
the defendant, until after you have reached a unanimous ver-
dict or have been discharged.”

Further, the Ninth Circuit’s Jury Trial Improvement Com-
mittee has considered and adopted several jury trial innova-
tions focused on streamlining jury service and improving the
efficiency of jury trials within the circuit. See Ninth Circuit
Jury Trial Improvement Committee, First Report on Goals
and Recommendations (2004); Ninth Circuit Jury Trial
Improvement Committee, Second Report: Recommendations
and Suggested Best Practices (2006). Among other recom-
mendations, the committee suggested several best practices
for improving juror comprehension during the trial process,
including: (1) permitting juror note-taking during trial; (2)
permitting written questions from jurors during civil trials; (3)
providing all jurors with both preliminary and final jury
instructions in written form; (4) randomly selecting alternate
jurors after closing arguments and instructions; (5) encourag-
ing attorneys to use technology for the presentation of trial
exhibits; and (6) permitting juror discussion of evidence as
civil trials progress. Ninth Circuit Jury Trial Improvement
Committee, Second Report at 10-13.

The committee even recommended that interim statements
be made during the course of civil trials to help jurors better
comprehend and remember facts. Id. at 13-14. Notably absent
from the committee’s reports and recommendations, however,
is the procedure of allowing supplemental argument address-
ing factual issues, either alone or in conjunction with a dead-
lock instruction. Such procedure simply has not been vetted
through any formal process in our circuit—or, to our knowl-
edge, in any sister circuit.

We are aware that at least three states have adopted rules
specifically allowing for additional or supplemental closing
8972 UNITED STATES v. EVANSTON
argument in criminal cases where juries indicate that they
have reached an impasse in their deliberations. See Ariz. R.
Crim. P. 22.4 (Arizona); Cal. R. Ct. 2.1036 (California); N.D.
R. Ct. 6.9 (North Dakota). Arizona’s rule—the first to explic-
itly allow for supplemental closing arguments of this nature—
was adopted as an alternative means of addressing jury ques-
tions and impasse, see Ariz. R. Crim. P. 22.4 cmt. to 1995
Amendments; State v. Fernandez, 169 P.3d 641, 647 (Ariz.
Ct. App. 2007), after the state’s high court banned the use of
Allen charges to break jury deadlock on the basis that the evils
associated with such charges far outweighed the benefits they
presented in avoiding mistrials, State v. Thomas, 342 P.2d
197, 200 (Ariz. 1959).

[11] But each of these states has had the benefit of the for-
mal rulemaking process to weigh the benefits and risks of
allowing supplemental argument. The federal courts have not.
While we recognize that the implementation of jury trial inno-
vations may provide for increased judicial economy—a bene-
fit our circuit in particular appreciates—we do not believe that
any such radical innovation should be sanctioned without the
formal vetting normally attendant to the adoption of an offi-
cial rule or legislative enactment. See Pan Am. World Air-
ways, 523 F.2d at 1078 (“[A] procedure that deviates so
sharply from the traditional role of the judiciary cannot be jus-
tified as an ad hoc role of practice[.]”). Because “[t]he sacri-
fice of efficiency for the preservation of liberty is central . . .
to the safeguards the Constitution affords criminal defen-
dants[,] . . . the government, including the courts, may not cut
corners when dealing with man’s freedom.” Williams, 2011
U.S. App. LEXIS 10345, at *71-72. Efficiency and economy
gains simply should not come at the expense of the quality or
validity of jury verdicts. Cf. Samantha P. Bateman, Comment,
Blast It All: Allen Charges and the Dangers of Playing With
Dynamite, 32 Haw. L. Rev. 323, 338 (2010) (noting that
while “dynamite instructions may avoid hung juries and
increase the quantity of verdicts, they do so at the cost of
decreasing the quality of jury deliberations” and result in ver-
 UNITED STATES v. EVANSTON 8973
dicts based upon peer pressure rather than actual juror beliefs
about the facts) (citations omitted).

D. Alternatives to Supplemental Argument

[12] Further influencing our finding that ordering supple-
mental argument resulted in an abuse of discretion here is the
fact that—as in Ayeni—the district court had in its arsenal of
permissible actions numerous less coercive alternatives,
including doing nothing at all.

[13] Here, the district court could merely have reread the
original jury instructions relating to each area of concern. See
Johnson, 351 F.3d at 994-95 (holding that the court acted
within its discretion when it refused to answer directly the
jury’s question but reread original, legally correct instruc-
tions, as the court was concerned that a direct answer might
mislead or improperly influence the jury); United States v.
Collom, 614 F.2d 624, 631 (9th Cir. 1979) (“The judge . . .
acted appropriately in merely rereading the previously given
. . . instructions and inviting further questions should the con-
fusion persist.”). The court’s initial jury charges included
three instructions clearly detailing how jurors should assess
witness credibility and the testimony of impeached witnesses.
We see no reason why the jury’s concerns on that issue could
not have been addressed with the simple measure of repeated
instruction. Indeed, the government suggested in conference
that the court simply “remind the jury of . . . their duty to
determine the credibility of witnesses generally,” rather than
allowing supplemental argument on that issue.

The original jury instructions relating to causation were less
extensive; they included only a statement that, in order to find
Evanston guilty, the jury must have found that he “intention-
ally struck or wounded [the victim,]” and, “as a result, [the
victim] suffered serious bodily injury[.]” The plain language
of this instruction appears clear enough that repetition could
have resolved the jury’s concern, but if the jury required fur-
8974 UNITED STATES v. EVANSTON
ther direction as to what constituted causation, the court could
have responded by providing supplemental instruction further
illuminating the relevant legal standard.12 Walker, 575 F.2d at
214.

If repetition or supplemental instruction did not suffice to
address the jury’s concerns, the court could also have offered
to allow the jury to review portions of witness testimony, a
procedure typically used where the jury requests review of a
particular witness’s statements. Cf. United States v. Sandoval,
990 F.2d 481, 486-87 (9th Cir. 1993) (readback of witness
testimony was an appropriate response to jury request and
within the discretion of the trial court). It might even have
been appropriate to reread the parties’ original closing argu-
ments, assuming adequate measures were taken to avoid
undue emphasis or coercion. See United States v. Arboleda,
20 F.3d 58, 62 (2d Cir. 1994) (abuse of discretion to read
back only one side’s summation, rather than both). But see
United States v. Guanti, 421 F.2d 792, 801 (2d Cir. 1970) (not
an abuse of discretion to deny the jury’s request for readback
of defense counsel’s summation because summations are not
evidence).

These available trial procedures have benefited from thor-
ough vetting and approval in federal courts, greatly reducing
the risk of jury coercion. Yet rather than choosing one of
these alternatives or declaring a mistrial in the face of the
jury’s indication of a second deadlock, the trial court here
struck a path through the uncharted territory of supplemental
12
As we noted above, had the court provided a supplemental instruction
which introduced a new legal theory, supplemental argument on that the-
ory might have been permissible or even required in order to avoid preju-
dice. Fontenot, 14 F.3d at 1368; Hannah, 97 F.3d at 1269. Further, while
these particular procedures may be more helpful at dispelling legal rather
than factual confusion, they nonetheless could have provided the jurors
with useful guidance regarding their fact-finding responsibilities and how
to apply the proper legal standards to the facts they found in the course
of their deliberations.
 UNITED STATES v. EVANSTON 8975
factual argument. We recently clarified that a trial judge is not
required to consider or employ any alternatives to declaring
a mistrial when a jury reports it is at an impasse, because
“conceivable ‘alternatives’ present a serious risk of coercing
jurors[.]” Harrison v. Gillespie, 2011 U.S. App. LEXIS 9624,
at *37-38 (9th Cir. May 10, 2011) (en banc) (as amended)
(trial judge was not required, before declaring a mistrial, to
poll jury as to whether it had reached a consensus on imposi-
tion of the death penalty, where the jury reported it was at an
impasse in its sentencing deliberations) (citing Renico v. Lett,
130 S. Ct. 1855, 1864 (2010)). In fact, we noted in Harrison
that “[s]uch judicial coercion, even if it is subtle and uninten-
tional, creates an impermissible risk of interference with the
dynamics of the jury process, and studies have shown that a
judge’s response to deadlocked juries can have a significant
distorting effect on the course of the jury’s deliberations.” Id.
at *32 (internal citations omitted).

Thus, it is clear that the district court was not required to
avoid mistrial at all costs, particularly where the novel proce-
dure employed ran a significant risk of undermining the
defendant’s due process rights to a fair trial and impartial
jury. Yet when the district court brought the jury in to deter-
mine whether additional argument might aid them in reaching
a verdict, it made the following statement: “Both 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.”

Because the jury had already been sent back to deliberate
after receiving the deadlock instruction, and because the dis-
trict court told the jury it was required to do all it could before
declaring a mistrial, it seems clear that this commentary and
the supplemental closing arguments risked the same type of
coercion and prejudice contemplated by Seawell. See 550
F.2d at 1163. It is very probable that, having been admon-
ished once with the Allen charge, and then admonished that
8976 UNITED STATES v. EVANSTON
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 supple-
mental arguments had not been given.

E. Additional Considerations

In addition to doubting that supplemental arguments on fac-
tual matters, post-Allen charge, could ever escape an undue
risk of coercion, we note that a court’s actions in employing
multiple means of overcoming jury deadlock pose a signifi-
cant risk of impermissibly shifting the government’s burden
of proof in violation of the defendant’s due process rights. It
is beyond comment that the government bears the burden of
proving the defendant’s guilt beyond a reasonable doubt at
trial. Sullivan, 508 U.S. at 277-78. Where the evidence has
closed, the government has rested its case, and the jury has
concluded that it cannot reach a verdict despite its earnest
efforts, allowing supplemental arguments effectively allows
the government a second bite at the guilty verdict apple.13 As
one scholar has noted, procedures for breaking jury deadlock
“not only give the government a second chance but also pro-
vide the government specific input from the jury about what
doubts it needs to overcome.” Courselle, supra, at 254 n.168.
13
A similar situation arises when a court dismisses a holdout juror for
believing the evidence presented is insufficient to support the charged
offense; allowing another juror to take his place eviscerates the constitu-
tional balance struck by the parties’ allocated burdens of proof. Cf. Wil-
liams, 2011 U.S. App. LEXIS 10345, at *48, 55 (citing United States v.
Brown, 823 F.2d 591, 596 (D.C. Cir. 1987)). “A discharge of this kind
would enable the government to obtain a conviction even though a mem-
ber of the jury that began deliberations thought that the government had
failed to prove its case. Such a result is unacceptable under the Constitu-
tion.” Brown, 823 F.2d at 596.
 UNITED STATES v. EVANSTON 8977
F. Prejudice

It would be inappropriate to find harmless error here, as
there is no way to know whether supplemental argument pro-
duced the jury’s verdict. See Ayeni, 374 F.3d at 1317. We sus-
pect, as did the court in Ayeni, that this is the reason the
government did not even proffer an argument that any error
here was harmless. Id. Even were we to engage in a harmless
error analysis, the fact that the jury came to a unanimous deci-
sion in a relatively short period following the supplemental
arguments raises at least the possibility of coercion and result-
ing prejudice, which we have found dispositive. See Lowen-
field v. Phelps, 484 U.S. 231, 240 (1988) (citing United States
v. U.S. Gypsum Co., 438 U.S. 422, 462 (1978)); cf. United
States v. Ajiboye, 961 F.2d 892, 894 (9th Cir. 1992) (that the
jury deliberated for two additional days after Allen charge was
given weighed against finding coercion). But see United
States v. Bonam, 772 F.2d 1449, 1451 (9th Cir. 1985) (verdict
reached one and a half hours after Allen charge did not dem-
onstrate coercion, viewing total length of deliberations and
simplicity of question presented to jury).

Additionally, before proceeding with the presentation of
supplemental arguments, the district court here neither
reminded the jurors that they should not surrender their hon-
estly held convictions in order to reach a unanimous verdict14
nor admonished them that they should give full consideration
to the entirety of the evidence presented, rather than focusing
unduly on the evidence referenced in the supplemental argu-
ments. We have found uncured prejudice requiring reversal
where courts failed to use these types of remedial procedures
14
The district court did instruct the jurors not to “change an honest
belief as to the weight or effect of the evidence solely because of the opin-
ions of your fellow jurors, or for the mere purpose of returning your ver-
dict” during the course of administering the deadlock instruction. It did
not, however, repeat this cautionary instruction before, during, or after the
supplemental arguments.
8978 UNITED STATES v. EVANSTON
in parallel contexts. See Mason, 658 F.2d at 1267-68 (con-
cluding that impermissible coercion resulted where “the
judge, after deviating from the charge approved in Allen,
made no attempt to counterbalance his excesses by further
instructing the minority not to abandon their conscientiously
held views merely to secure a verdict”). Absent these amelio-
rative instructions, the coercive force of the arguments, given
after the Allen charge, can hardly be questioned. See id.

IV. Conclusion

[14] “Any criminal defendant . . . being tried by a jury is
entitled to the uncoerced verdict of that body.” Lowenfield,
484 U.S. at 241. It is thus of paramount importance that “the
integrity of individual conscience in the jury deliberation pro-
cess must not be compromised.” Mason, 658 F.2d at 1268.
Because allowing supplemental argument addressing factual
matters permitted counsel to look inside the jury’s delibera-
tions and focus arguments to those factual concerns the court
had asked the jury to reveal, the process, in form and sub-
stance, invaded the jury’s deliberations, resulting in imper-
missible coercion. Given that an Allen charge alone, “even in
the most acceptable form, approaches the ultimate permissible
limits to which a court may go in guiding a jury towards a
verdict[,]” Sullivan v. United States, 414 F.2d 714, 716 (9th
Cir. 1969), the district court’s abuse of discretion in subse-
quently ordering supplemental arguments—over the objection
of the defendant—was particularly egregious here, where the
jury reported it remained deadlocked even after it received the
dynamite charge, cf. Seawell, 550 F.2d at 1163. The com-
pounded 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, impermissi-
ble opportunity for interference with the jury’s role as sole
fact-finder. For this reason, a new trial is necessary.15
15
Although we have serious doubts as to whether inquiry into the rea-
sons for a deadlocked jury’s division, and allowance of additional argu-
 UNITED STATES v. EVANSTON 8979
VACATED and REMANDED.16

ment on factual issues tailored to those concerns over the objection of the
defendant, could ever be conducted in such a manner as to avoid imper-
missible coercion, we do not reach today 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.
Rather, we hold that, under the circumstances presented here, the district
court’s actions resulted in impermissible coercion, and consequently an
abuse of discretion meriting reversal. We so limit our holding because the
Supreme Court’s precedent on similar jury coercion issues has generally
emanated from its supervisory powers over the federal courts, rather than
any mandate from the federal Constitution. See Lowenfield, 484 U.S. at
239 n.2, 240 n.3 (noting that neither the per se Brasfield rule proscribing
inquiry into numerical division of jury nor the per se Jenkins rule proscrib-
ing insistence upon a verdict was based on the constitution). We and other
circuits have explained that this appears to be because the presence of
coercion produced by the trial court’s actions depends on the circum-
stances of each case, rather than any inherent coercive feature of the pro-
cedure itself, and due process would not be violated where no actual or
likely coercion occurs. See, e.g., Locks v. Sumner, 703 F.2d 403, 406 (9th
Cir. 1983) (“[W]e do not wish to imply that an inquiry into the jury’s bal-
loting will never infringe on a defendant’s right to an impartial jury and
fair trial. This would occur if the trial judge’s inquiry would be likely to
coerce certain jurors into relinquishing their views in favor of reaching a
unanimous decision.”), cert. denied, 464 U.S. 933 (1983); United States
ex rel. Kirk v. Dir., Dep’t of Corrs., 678 F.2d 723, 727 (7th Cir. 1982) (“It
was only because the effects of such an inquiry are often difficult to deter-
mine that the Court adopted a per se rule in Brasfield . . . . But while this
difficulty in determining actual prejudice may make an outright ban . . .
entirely reasonable, it does not make such a rule constitutionally mandat-
ed.”).
16
Evanston’s challenge to his sentence is rendered moot by this opinion.