(concurring):
My concurrence is in'the result only, for the reasons I shall undertake to state.
The majority opinion contains expressions to the effect that an instruction phrased substantially like the so-called Allen instruction, given either before the case is submitted to the jury, or before the jury has indicated its inability to agree on a verdict, is less coercive than such an instruction would be if given after the jury, has so indicated. I accept that statement as settled law in this circuit.
However, it is my opinion that the so-called Allen instruction should not be given, except and until there has been an indication that the jury is finding it difficult to agree on a verdict, and then only when the court believes the existing circumstances warrant the giving of such instruction.
I know from trial court experience that the Allen instruction, when given, usually induces quick agreement on a verdict by the jury. However its language may be safeguarded to leave each juror free to exercise his independent judgment, there will be instances when it will cause a juror to surrender unwillingly his sincere and deliberately arrived at convictions of what the verdict should be, and thus defeat the purpose of the constitutional requirement of a unanimous verdict in federal trial courts. Therein lies its danger.
Hence it is my opinion that the instruction should be used sparingly by the trial judge and only after there has been an indication that the jury is finding it difficult to agree, and where the judge in the exercise of a sound discretion believes the circumstances warrant the giving of such an instruction.
Accordingly, it is my view that such an instruction should not be given, either before the ease has been submitted to the jury or before there has been an indication that the jury is finding it difficult to agree, in contemplation that a situation may develop where it would be appropriate to give it.
But, on the record here presented, while to me the case seems to be close to the border line, I cannot say the trial court could not have concluded the jury was having difficulty in agreeing on a verdict and that the circumstances were such as to warrant the giving of the challenged instruction in the carefully guarded language in which it was couched.