12‐2056‐cr
United States v. McDonald
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2013
(Argued: Dec. 11, 2013 Decided: July 22, 2014)
Docket No. 12‐2056‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT E. MCDONALD,
Defendant–Appellant.
Before: CABRANES, SACK, and LYNCH,
Circuit Judges.
Appeal from a judgment of the United States
District Court for the Southern District of New York
(John G. Koeltl, Judge), convicting the defendant on one
count each of securities fraud, wire fraud, and mail
fraud. The defendant argues that after a jury poll
revealed that the guilty verdict was not unanimous, he
was entitled to a charge reminding minority jurors not
to relinquish their conscientiously held beliefs. Because
the district court did not err in its response to the jury
poll, and because the defendantʹs remaining arguments
are without merit, the judgment of the district court is
AFFIRMED.
ARLO DEVLIN‐BROWN
(Jason H. Cowley, Justin
Anderson, on the brief),
Assistant United States
1
Attorneys for Preet Bharara,
United States Attorney for the
Southern District of New York,
New York, NY, for Appellee.
STEVEN G. BRILL, Sullivan &
Brill, LLP, New York, NY, for
Defendant–Appellant.
SACK, Circuit Judge:
This appeal is from a judgment of the United
States District Court for the Southern District of New
York (John G. Koeltl, Judge), convicting the defendant
on three federal fraud charges. The principal issue
before us is the propriety of the actions taken by a trial
judge, presiding over a criminal trial, after a jury poll
revealed that the guilty verdict rendered was not
unanimous. In this case, upon learning that at least one
juror did not join the verdict, the district court, briefly
and with little elaboration, instructed the jury to
continue its deliberations. The defendant asserts that
this pithy instruction pressured the dissenting juror into
changing her vote and argues that he was entitled
instead to the string of exhortations, caveats, and
qualifications commonly known as a ʺmodified Allen
charge.ʺ Appellantʹs Br. at 13 (referring to Allen v.
United States, 164 U.S. 492 (1896)). We conclude that
there was no such requirement in the context and
circumstances of this case. We therefore affirm the
judgment of conviction.
2
BACKGROUND1
Defendant Robert E. McDonald was convicted
after a ten‐day jury trial on one count each of federal
securities fraud, wire fraud, and mail fraud, all in
connection with a scheme to raise money to buy several
hotels in the Midwest. Throughout the trial, McDonald
represented himself with the assistance of standby
counsel.
At the close of trial, after deliberating for nearly
four hours over a two‐day period, the jury announced
that it had reached a verdict and that the defendant had
been found guilty on all three counts. In a poll ordered
by the district court immediately thereafter, the first ten
jurors confirmed the guilty verdict. But when asked
whether ʺguiltyʺ was her verdict, juror number eleven
responded ʺno.ʺ The trial judge discontinued the
polling, so the twelfth juror was not polled.
The trial judge then held a sidebar conference at
which he told counsel for both sides that he intended to
instruct the jury to continue deliberating. Both parties
agreed. The judge then told the jury that he would
ʺsend you back to continue to deliberate to see whether
you can reach a unanimous verdict, in light of all of the
instructions that I have given you.ʺ Trial Tr. at 1407.
After the jury resumed deliberations, the judge
told both parties that he had identified a model jury
instruction for a situation in which a jury poll reflected
The undisputed facts relevant to this appeal are canvassed
1
in greater detail in the opinion of the district court. See
United States v. McDonald, 825 F. Supp. 2d 472, 475–78
(S.D.N.Y. 2011).
3
a lack of unanimity.2 The judge noted that the first part
of this model instruction tracked what the jury had
already been told: verdicts must be unanimous, and the
jury should continue deliberations. The second part of
the instruction reflected what is commonly referred to
as a ʺmodified Allen charge,ʺ see United States v. Haynes,
729 F.3d 178, 194 (2d Cir. 2013), encouraging the jurors
to consult with one another and to change their minds if
convinced of a new view, while counseling them not to
surrender sincerely held convictions. The judge stated
that he was not inclined to give that instruction, but
asked whether either party had a different view.
McDonald’s standby counsel, after conferring with
2 The model instruction read in full:
It appears from the answers given from the
polling of the jury that your verdict is not
unanimous. As I previously instructed you,
the Court cannot accept a verdict of guilty or
not guilty unless it is unanimous. I must
therefore ask that you return to the jury room
and continue your deliberations. The
instructions which I previously gave still
apply.
Specifically I remind you that you should
discuss and consider the evidence, listen to the
arguments of your fellow jurors, present your
individual views, and consult with one
another. You should not hesitate to change
your views if you are convinced they are
erroneous. However, you should not
surrender a conscientiously held conviction
simply because you are outnumbered or
merely in order to reach a verdict.
App. 788 (quoting 1–9 Leonard B. Sand et al., Modern
Federal Jury Instructions—Criminal ¶ 9.12 (2014)).
4
McDonald, agreed that the instruction was not
necessary.
After about an hour of additional deliberation,
the jury again returned a guilty verdict, which a jury
poll confirmed was unanimous. The judgment of
conviction was entered on May 10, 2012, and McDonald
was sentenced principally to 70 monthsʹ imprisonment.
After trial and before sentencing, McDonald moved for
a new trial under Federal Rule of Criminal Procedure
33, arguing that the district courtʹs instruction that the
jury continue its deliberations was ʺimproper and
coercive.ʺ United States v. McDonald, 825 F. Supp. 2d
472, 474 (S.D.N.Y. 2011). The district court denied this
motion on November 22, 2011. Id. at 484.
McDonald appeals. He renews his argument that
the district courtʹs supplemental instruction to the jury
was unduly coercive. He also challenges aspects of the
courtʹs initial jury instructions, certain evidentiary
rulings, and the basis for the securities fraud charge.
DISCUSSION
If a jury poll reveals that a verdict is not
unanimous, the trial judge ʺmay direct the jury to
deliberate further or may declare a mistrial and
discharge the jury.ʺ Fed. R. Crim. P. 31(d); accord United
States v. Rastelli, 870 F.2d 822, 835 (2d Cir.), cert. denied,
493 U.S. 982 (1989). Because this rule ʺentrusts the trial
judge with a measure of discretion, the reasonable
exercise of this discretion should be accorded proper
deference by a reviewing court.ʺ United States v.
Gambino, 951 F.2d 498, 501 (2d Cir. 1991) (internal
quotation marks omitted), cert. denied, 504 U.S. 918
(1992); see also United States v. Thomas, 303 F.3d 138, 142
(2d Cir. 2002) (stating that denial of motion for a new
trial is reviewed for abuse of discretion).
5
Our review is further limited in cases such as this,
where the defendant failed to raise a timely objection to
the judgeʹs jury instruction. United States v. Nouri, 711
F.3d 129, 138 (2d Cir.) (stating that review in these
circumstances is limited to plain errors affecting
substantial rights and the fairness or integrity of judicial
proceedings), cert. denied, 134 S. Ct. 309 (2013); see also
United States v. Martinez, 446 F.2d 118, 120 (2d Cir.)
(applying plain error review to an Allen charge), cert.
denied, 404 U.S. 944 (1971); Fed. R. Crim. P. 30(d) & 52(b)
(stating that failure to object to a jury instruction
ʺprecludes appellate review,ʺ except in situations
involving plain error). For the following reasons, we
conclude that the district courtʹs instruction was wholly
appropriate and therefore did not constitute error, let
alone plain error.3
When a trial judge issues a supplemental
instruction to a divided jury, its propriety turns, at least
in part, on whether the charge ʺtends to coerce
undecided jurors into reaching a verdict—that is,
whether the charge encourages jurors to abandon,
without any principled reason, doubts that any juror
conscientiously holds as to a defendantʹs guilt.ʺ United
States v. Vargas‐Cordon, 733 F.3d 366, 377 (2d Cir. 2013)
(internal quotation marks omitted). We must ʺconsider
the supplemental charge given by the trial court in its
Indeed, as we noted in United States v. Hertular, 562 F.3d
3
433 (2d Cir. 2009), when a defendant ʺnot only fail[s] to
object to the challenged charge,ʺ but also ʺspecifically
endorse[s]ʺ the instruction, ʺ[s]uch endorsement might well
be deemed a true waiver.ʺ Id. at 444 (citations and internal
quotation marks omitted). We need not decide whether the
defendantʹs express acceptance of the district courtʹs
proposed instruction was a ʺtrue waiver,ʺ however, as we
conclude that, assuming plain error review is appropriate
here, there was no error in the district courtʹs instruction.
6
context and under all the circumstances.ʺ Lowenfield v.
Phelps, 484 U.S. 231, 237 (1988) (internal quotation
marks omitted). In undertaking this assessment, we
adopt the viewpoint of a juror in the minority position.
See Smalls v. Batista, 191 F.3d 272, 280–81 (2d Cir. 1999).
Applying these standards, we conclude that the
district courtʹs supplemental charge was not coercive.
The instruction did not intimate to the jurors that all
twelve were required to reach an agreement. It asked
only that the jury continue deliberations ʺto see
whetherʺ a unanimous verdict were possible. Trial Tr.
at 1407. In this respect, the instruction is substantially
similar to the supplemental charge that this Court
approved in Spears v. Greiner, 459 F.3d 200 (2d Cir.
2006), cert. denied, 549 U.S. 1124 (2007), in which the
court ʺasked the jurors to consider the facts ʹwith an
attempt to reach a verdict if that be possible.ʹʺ Id. at 206
(emphasis in Spears) (internal quotation marks omitted).
As in Spears, the courtʹs instruction in this case did not
urge dissenting jurors to alter their views or encourage
the jurors to attempt to persuade each other. See id. It
did not give the ʺincorrect and coerciveʺ impression
ʺthat the only just result was a verdict,ʺ United States v.
Haynes, 729 F.3d at 194, or that the dissenting juror ʺhad
no other choice but to convince or surrender,ʺ Smalls,
191 F.3d at 280. Rather, the courtʹs brief instruction, on
its face, left open the possibility that the jurors would
have principled disagreements that would prevent
them from reaching a unanimous verdict.
The context in which the instruction was given
further supports our conclusion that the charge was not
coercive. The district court told the jury to continue its
deliberations ʺin light of all of the instructions that I
have given you.ʺ Trial Tr. at 1407. This instruction
referenced the courtʹs original charge, which both
required the jurors to engage in robust deliberation and
7
urged them to hold fast to their conscientiously held
beliefs. See id. at 1358; Spears, 459 F.3d at 206 (approving
a supplemental instruction where the initial charge
ʺinclude[d] cautionary language telling jurors that they
had a right to stick to their arguments and stand up for
their own strong opinionsʺ). Moreover, the fact that the
defendant and his standby counsel initially approved of
the district courtʹs approach to the non‐unanimous
verdict ʺindicates that the potential for coercion argued
now was not apparent . . . on the spot.ʺ Lowenfield, 484
U.S. at 240; accord Spears, 459 F.3d at 206.
The defendant nonetheless argues that he was
entitled to additional language ʺadmonishing [each]
juror not [to] abandon any conscientiously held beliefs.ʺ
Appellantʹs Br. at 23. This argument invokes more than
a century of jurisprudence dealing with so‐called ʺAllen
charges,ʺ a term that refers to the Supreme Courtʹs
decision in Allen v. United States, 164 U.S. 492, 501–02
(1896). In disposing of this argument, it may be helpful
to disentangle our increasingly complicated
jurisprudence regarding Allen charges from the
principles that govern our assessment of the district
courtʹs straightforward and wholly proper instruction
in this case.
ʺThe Allen or ʹdynamiteʹ charge is designed to
blast loose a deadlocked jury.ʺ Green v. United States,
309 F.2d 852, 854 (5th Cir. 1962) (Wisdom, J.). The
ʺdefining characteristicʺ of this charge ʺis that it asks
jurors to reexamine their own views and the views of
others.ʺ4 Haynes, 729 F.3d at 192 (internal quotation
The Allen charge today comes in two versions: a
4
ʺtraditionalʺ charge that urges minority jurors to reconsider
their views in light of the majority, and a more even‐handed
ʺmodifiedʺ charge that asks all jurors—minority and
majority—to reexamine their own views and consider the
8
marks omitted). ʺIts function is to emphasize that a
verdict is in the best interests of both prosecution and
defense,ʺ and to avoid the hefty costs of retrial when it
is possible for the jury to reach a unanimous verdict
ʺwithout any juror yielding a conscientious conviction.ʺ
United States v. Hynes, 424 F.2d 754, 757 (2d Cir.)
(internal quotation marks omitted), cert. denied, 399 U.S.
933 (1970).
We generally require that judges muffle the
explosive effects of the Allen charge by adding
mitigating language. A ʺnecessary componentʺ of any
charge encouraging jurors to reconsider their views,
therefore, is a further instruction ʺadmonish[ing] the
jurors not to surrender their own conscientiously held
beliefs.ʺ Smalls, 191 F.3d at 279. In other words, we
generally expect that a trial judge using an Allen‐type
supplemental charge will employ both components: He
or she will both urge jurors to try to convince each other
and remind jurors to adhere to their conscientiously
held views. See Spears, 459 F.3d at 206; Smalls, 191 F.3d
at 278 (stressing that the charge in that case ʺwas
unconstitutionally coercive because it both (1) obligated
jurors to convince one another that one view was
superior to another, and (2) failed to remind those jurors
not to relinquish their own conscientiously held beliefsʺ
(emphasis in original)).
In light of these characteristics, it should be clear
that the district courtʹs instruction was not an Allen
charge at all. See McDonald, 825 F. Supp. 2d at 479–80
views of others. See, e.g., Allen, 164 U.S. at 501–02 (reflecting
the traditional charge); Vargas‐Cordon, 733 F.3d at 377–78
(upholding a traditional charge, though emphasizing that it
ʺshould be used sparingly, and with cautionʺ); Haynes, 729
F.3d at 193 (discussing the distinction). This distinction is
not important here, and the principles discussed above
apply to both variants.
9
(explaining the difference between an Allen charge and
the kind of instruction at issue here). The instruction
contained no language ʺobligat[ing] jurors to convince
one another that one view was superior,ʺ which
ordinarily would require the inclusion of further
cautionary language. Smalls, 191 F.3d at 278. And we
find nothing in the context and circumstances of this
case that would require the cautionary language despite
the absence of any Allen‐type instruction to reconsider
oneʹs views. See, e.g., Spears, 459 F.3d at 204 n.3, 206–07
(noting that a supplemental charge must be evaluated
in context regardless of how it is characterized, and
finding no undue coercion); cf. Jimenez v. Myers, 40 F.3d
976, 981 (9th Cir. 1993) (per curiam) (finding that, even
without explicitly using the language of an Allen charge,
ʺthe trial courtʹs comments and conduct amounted
to . . . a de facto Allen chargeʺ requiring the mitigating
language).
In the circumstances presented by this case, we
think that the district courtʹs approach was a prudent
one.5 The courtʹs instruction correctly carried no
Judge Sand, commenting on the model instruction
5
proposed in his treatise, suggests to the contrary that a
modified Allen charge ʺshould be given whenever the poll of
the jury reveals that the verdict was not unanimous.ʺ Sand
et al., supra note 2, ¶ 9.12 (emphasis added) (stressing that
jurors should be reminded of their duty to deliberate
ʺbecause it seems unlikely that a juror would express a
negative answer during a poll unless there had been a
failure of communication among the jurorsʺ). We think that
the district courtʹs brief request in this case that the jurors
continue their deliberations will provide, in many situations,
a sensible and manageable alternative to the often unwieldy
instructions of a full modern Allen charge. At least one other
circuit takes a similar approach, instructing jurors only to
ʺreturn to the jury room and continue deliberations.ʺ Id.
(quoting Eighth Circuit pattern jury instructions).
10
implication that any juror opposing conviction was
obligated to reconsider her views. We need not address
whether any type of Allen charge would have been
permissible here, because that issue is not before us.
But we do note that modern Allen charges have become
increasingly lengthy and complex, and therefore district
judges should be mindful of presenting them in a way
that aids, rather than confuses, the jury. See George C.
Thomas III & Mark Greenbaum, Justice Story Cuts the
Gordian Knot of Hung Jury Instructions, 15 Wm. & Mary
Bill Rts. J. 893, 923–24 (2007) (reprinting, ʺat the risk of
boring the reader to death . . . a typical modern Allen
chargeʺ). This applies with even greater force in
circumstances where the ʺdynamiteʺ language of an
Allen charge, even with the mitigating language, is
given immediately after a jury poll reveals a lone
dissenter. See Lowenfield, 484 U.S. at 253–54 (Marshall,
J., dissenting) (noting that ʺan Allen charge given on the
heels of a jury poll poses special risks of coercionʺ).
Such a circumspect approach avoids the implication
that the trial court is exerting pressure on the jury to
reach a decision.
CONCLUSION
We conclude that the challenged jury instruction
in this case, considered in its context and circumstances,
did not tend to coerce jurors into reaching a verdict.
The instruction did not urge jurors to reconsider their
views, and the defendant was not entitled, in this
context, to a further charge counseling jurors to hold
fast to their conscientiously held beliefs. We have
considered the defendantʹs remaining arguments on
appeal, and we find them to be without merit. The
judgment of the district court is therefore AFFIRMED.
11