[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 22, 2007
No. 06-15203 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00038-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEON MONROE JONES,
a.k.a. Johnny Lee Jones,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 22, 2007)
Before BIRCH, BARKETT and COX, Circuit Judges.
PER CURIAM:
Defendant-appellant, Deon Monroe Jones, appeals his conviction for
possession of ammunition by a convicted felon and possession of ammunition by a
controlled substance user under 18 U.S.C. §§ 922(g)(1) and 922(g)(3). Jones
argues, inter alia, that the instructions given by the district court in response to the
jury’s announcement of deadlock were sufficiently coercive to deprive him of
fundamental fairness, and that there was insufficient evidence to support a guilty
verdict. We reverse and remand for a new trial.
I. BACKGROUND
After nearly two hours of deliberation, the jury in Jones’s case sent a second
note to the district court announcing deadlock. R2 at 70. The district judge called
them into the courtroom and instructed them to come back the next day to continue
deliberations, adding “[w]e will do this until you reach a verdict. ” R5 at 251. The
next morning, when one of the jurors called in sick, an alternate was put in her
place and the court told the jury to begin deliberating anew for the benefit of the
alternate juror. He added that “there [wa]s no need of sending [the court] any notes
that [the jury] can’t agree, because you are going to stay here for a long time.” R7
at 3. At no point, from the time the first deadlock note was sent, did the court
reemphasize that, in reaching a verdict, no juror should abandon an honestly held
belief. The jury returned a verdict against Jones within the hour.
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II. DISCUSSION
Because Jones made no objection to the instructions at the time they were
given, “we review for plain error.” United States v. Prather, 205 F.3d 1265, 1271
(11th Cir. 2000). To satisfy the plain error standard, the challenged instruction
must constitute “‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’”
United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993). Finally,
we will correct such a forfeited error only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.
An instruction which appears to give a jury no choice but to return a verdict
is impermissibly coercive. See Jenkins v. United States, 380 U.S. 445, 446, 85 S.
Ct. 1059, 1060 (1965). In Jenkins, after about two hours of deliberation, the jury
sent a note informing the district judge that it was deadlocked. Id. The district
judge called the jury into the courtroom and “in the course of his response stated
that ‘You have got to reach a decision in this case.’” Id. The Supreme Court found
the instruction to constitute plain error and reversed and remanded the case for a
new trial. Id.
We observe that the court’s instructions here and the context in which they
were given are effectively indistinguishable from those found to be impermissibly
coercive in Jenkins. The only real distinction in Jones’s case – the replacement of
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one juror by an alternate the following morning – makes no difference because (1)
the alternate juror heard the court’s admonition on the previous day and (2) the
judge reiterated that morning that there was “no need” to send him any notes
announcing deadlock. R7 at 3. Accordingly, we find that these instructions, in this
context, constituted a plainly incorrect statement of law to the jury, that this error
affected Jones’s substantial rights, and that such an error seriously affects the
fairness, integrity, and public reputation of judicial proceedings. We find the
instructions to have been plain error.
Because this finding requires remand for a new trial, the only other issue we
must address here is Jones’s argument that the evidence presented at trial was
insufficient to support his conviction. “We review a verdict challenged for
sufficiency of the evidence de novo, resolving all reasonable inferences in favor of
the verdict.” United States v. Yost, 479 F.3d 815, 818 (11th Cir. 2007) (per
curiam). Upon thorough review of the record, we find sufficient evidence existed
to support a guilty verdict.
III. CONCLUSION
Jones appeals his conviction for possession of ammunition by a convicted
felon and controlled substance user on the grounds, inter alia, of coercive jury
instructions and insufficiency of evidence. Although we find there was sufficient
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evidence to support a guilty verdict, because we also find the verdict in this trial to
have been infected by the coercive instruction, we REVERSE Jones’s convictions
and REMAND for a new trial.
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