(dissenting):
The majority finds that the verdict of the jury was coerced by the district judge; specifically, it finds coercive influences in the Allen charge given by the judge, together with his remarks after the jury had reported its inability to agree. Having reversed the conviction on this ground the majority then goes further and outlaws the Allen charge, in favor of an instruction recommended by the American Bar Association. I disagree with both conclusions of the majority.
It cannot be said that the giving of the Allen charge, standing alone, was error. That charge was approved by the Supreme Court of the United States in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). It was again approved by the Supreme Court in Lias v. United States, 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505 (1931), aff’g 51 F.2d 215 (4th Cir.), and in Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249 (1952), aff’g 190 F. 2d 506 (9th Cir. 1951), a capital case.
It was approved by this court in an opinion by Circuit Judge Burger in Fulwood v. United States, 125 U.S.App.D.C. 183, 369 F.2d 960 (1966), cert. denied, 387 U.S. 934, 87 S.Ct. 2058, 18 L.Ed.2d *1189996 (1967), and again in an opinion by Circuit Judge Robinson in Post v. United States, 132 U.S.App.D.C. 189, 190 n. 3, 407 F.2d 319, 320 n. 3 (1968), cert. denied, 393 U.S. 1092, 89 S.Ct. 863, 21 L.Ed.2d 784 (1969).
In 1970 we three times declined to hold that use of the charge was error and in two of these cases the Supreme Court denied certiorari. United States v. Orsinger, 138 U.S.App.D.C. 403, 428 F.2d 1105, cert. denied, 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 61 (1970); United States v. Johnson, 139 U.S.App.D.C. 193, 432 F.2d 626, cert. denied, 400 U.S. 949, 91 S.Ct. 257, 27 L.Ed.2d 255 (1970); United States v. Simpson, 144 U.S.App.D.C. 259, 445 F.2d 735, decided November 17, 1970. Moreover, it is agreed by counsel that in the past five years, in more than a score of cases from other circuits, the Supreme Court by denial of certiorari has rejected challenges to the Allen charge.1 Since the Supreme Court has not disavowed the charge it is not for us to do so. See Hodges v. United States, 408 F.2d 543, 552 (8th Cir. 1969) (opinion by Blackmun, Circuit Judge).
As we observed in United States v. Simpson, No. 23,269, 144 U.S.App.D.C. 259, 445 F.2d 735, decided November 17, 1970, objections to the Allen charge are weakened when the charge is given as part of the court’s original instructions, rather than later after a jury has reported disagreement, (at 736, 445 F. 2d 735). See also Burrup v. United States, 371 F.2d 556, 558 (10th Cir.), cert. denied, 386 U.S. 1034, 87 S.Ct. 1485, 18 L.Ed.2d 596 (1967); United States v. Wynn, 415 F.2d 135, 137 (10th Cir. 1969), cert. denied, 397 U.S. 994, 90 S.Ct. 1133, 25 L.Ed.2d 402 (1970). That observation is pertinent here where the language of the Allen charge appeared in the middle of the court’s long general instructions. Furthermore, it was prefaced by the statement that “sometime in reaching a conclusion, this charge is of assistance to a jury” — hardly an intimation of coercion. (Tr. 120) Again, the court concluded its instructions with the statement that “all twelve of you must agree whichever way you find. In short, your verdict must be unanimous.” (Tr. 131) I cannot agree that when given in this context, before there was any hint of disagreement or deadlock among the jurors — before there was any minority — the charge could have a coercive impact on any juror. This view seems to have been shared by counsel for the defendant who at the conclusion of the court’s long charge announced “Satisfied, Your Honor, nothing further.” (Tr. 132)
I turn now to the remarks of the court which are alleged to have exerted a coercive influence after the jury reported inability to agree. In substance the district judge told the jury that he was not going to declare a mistrial and thereby require another day of trial before another jury, a course that in view of the court's substantial backlog of work “just doesn’t make sense to me.” The judge explained that he was excusing the jurors so that they might “come back tomorrow at 9:30 with a fresh mind and a night’s sleep and seek to reach a verdict about the matter one way or the other. * * * See if you can’t decide and come to a verdict, think about it overnight individually.” (Tr. 135) On the following day, after deliberating for about an hour, the jury asked to have the testimony of the complaining witness read. The foreman explained “it seems as though several of us have gotten different opinions, and we would like to have * * * the testimony.” (Tr. 142) The testimony was then read. Before the jury again retired the court *1190stated: “The court reminds you that your verdict must be the verdict of each individual juror and not a mere acquiescence of the opinions of your fellow jurors. The court also reminds you if you can conscientiously decide this case, the court request[s] that you do so.” (Tr. 144)
In my judgment the supplemental remarks of the district court were not coercive but were a legitimate attempt to encourage the jury to agree. Agreement on a verdict ought to be encouraged, for the very purpose and function of a jury is to decide issues of fact, not to engage in inconclusive debate. Certainly the jurors should not be encouraged or invited to disagree. United States v. Bowles, 428 F.2d 592 (2d Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188 (1970). The remark of the court that it made no sense to retry the case on the same evidence before another jury was a statement of a simple truth which must have been as apparent to the jury as it was to the court. The mention of the court’s backlog of work was no more coercive than references to the expense or difficulty of a retrial, remarks which in other cases have been held to be proper.
The absence of coercion becomes even plainer when the nature of the disagreement among the jurors is considered. From their request for a reading of the testimony it is apparent that they disagreed not so much in their conclusions from the evidence as in their recollections of what the evidence had been. Once that difference was settled by reference to the transcript the disagreement was resolved. In short, the deadlock was broken by the stenographer, not by the court. I perceive no element of coercion in these proceedings.
Many cases have sustained verdicts returned by a jury after remarks by a trial judge similar to those which the majority here finds coercive. I mention a few illustrative cases.
Kawakita v. United States, 190 F.2d 506 (9th Cir. 1951), aff’d, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249 (1952). After the jury had been out for three days and had reported inability to arrive at a verdict the trial judge gave the Allen charge and added:
This is an important case. The trial has been long and expensive. If you should fail to agree on a verdict, the case is left open and undecided. Like all cases, it must be disposed of sometime. There appears no reason to believe that another trial would not be equally long and expensive; nor does there appear any reason to believe that the case can be again tried any more exhaustively than it has been on the part of either side. 190 F.2d at 524.
Fulwood v. United States, 125 U.S.App.D.C. 183, 369 F.2d 960 (1966), cert. denied, 387 U.S. 934, 87 S.Ct. 2058, 18 L.Ed.2d 996 (1967). The court in giving the Allen charge said:
It is your duty to decide the case, if you can conscientiously do so, and you should listen to each other’s arguments with a disposition to be so convinced.
# * # * *
I want you to go back to the jury room and deliberate, and endeavor to arrive at a verdict and consider the case in the light of these particular instructions.
Bear in mind, ladies and gentlemen of the jury, that some jury some time will have the duty to decide this case, and I hope that you, as the jury in this case, will be able to decide the matter. (Tr. 322-323)
Affirming the judgment this court, in an opinion by Circuit Judge Burger, observed :
The statement that some other jury would have to decide the case if this one could not was accurate as a generality and, in any event, could have had no coercive impact on the jury. If they already knew what would likely happen if they deadlocked, it was sur-plusage; if they did not know, this information, far from being coercive, would have had the effect of reducing *1191the pressure on them to reach a verdict. 125 U.S.App.D.C. at 186, 369 F.2d at 963.
Hodges v. United States, 408 F.2d 543 (8th Cir. 1969). The court in its supplemental charge said: »
Gentlemen, I want to talk to you about it a little. You should consider that the case must sometime be decided, and that you are selected in the same manner as other juries. Failure to agree upon a verdict will necessitate another trial equally as long and as expensive.
The Court is of the opinion that the case cannot again be tried in a better or more exhaustive manner. It is therefore very desirable that you should return a verdict. The only manner provided by our Constitution and laws for deciding questions of fact is by a verdict of a jury. 408 F.2d at 553 n. 4.
United States v. Wynn, 415 F.2d 135 (10th Cir. 1969), cert. denied, 397 U.S. 994, 90 S.Ct. 1133, 25 L.Ed.2d 402 (1970). The court’s supplemental charge included these remarks:
The court would like to advise you that if the jury is unable to reach a verdict in the ease it is necessary then for the judge to declare what is known as a mistrial. This means that the case will have to be tried all over again before another jury. As you can easily see, this involves considerable expense and considerable effort. And it is something that we try to avoid, hope that we can avoid in all cases for the purposes of economy. I don’t think we will get any better jury if we tried the ease again than we have in the box now, nor do I feel that the case will be any better presented to you than it is now.
So, it is — it is necessary that we do our utmost to avoid the declaration of a mistrial in the case.
******
As you know, it has taken us considerable time to try this case. There has been a great many witnesses come from long distances to be here. We hope we won’t have to do this again. So, the court will ask you gentlemen if you will please, retire again in the custody of the bailiffs and resume the deliberations again and it is hoped that you can reach a verdict in the ease. 415 F.2d at 136.
See also United States v. Rao, 394 F.2d 354, 355 (2d Cir.), cert. denied, 393 U.S. 845, 89 S.Ct. 129, 21 L.Ed.2d 116 (1968).2
In summary, I cannot agree that the jury was coerced by the Allen charge, or by the court’s other remarks, or by the combination of the two. I would affirm the conviction.
In my judgment also, the Allen charge should not be outlawed in favor of the instruction recommended by the American Bar Association. I must decline to exalt the recommendation of the Bar Association over the decisions of the Su*1192preme Court of the United States. I suggest in this connection that we may be confronted with a problem in the future if some district judge, following the Supreme Court instead of the Bar Association, gives the Allen charge. Will we then overrule the Supreme Court by holding the charge is erroneous ?
We are told that one reason for adopting the Bar Association instruction is that district judges frequently deviate from the approved language of the Allen charge. Yet if in spite of our pleas for conformity district judges have strayed from the litany approved by the Supreme Court I think it reasonable to assume that they may also deviate from the formula prescribed by the Bar Association. If they hear not the Supreme Court and this court neither will they be persuaded by the Bar Association; and, contrary to the hopes of the majority, the “aberrations of the charge” which disturb the majority will still occur.
An assumption by critics of the Allen charge seems to be that it produces only verdicts of guilty. I am not aware of any statistics that support this theory. See United States v. Sawyers, 423 F.2d 1335 (4th Cir. 1970). Certainly scholars can find no support for it in the reported cases, for judgments of acquittal are not appealed and therefore do not appear in the books. We do not know how many defendants have been spared the ordeal and expense of a retrial because a jury was reminded of its duties by the sound counsel of the Allen charge.
On its merits I prefer the Allen charge to the Bar Association language. I adhere to the views expressed in my dissent in United States v. Johnson, 139 U.S.App.D.C. 193, 203-204, 432 F.2d 626, 636-637, cert. denied, 400 U.S. 949, 91 S.Ct. 257, 27 L.Ed.2d 255 (1970) that the Allen charge is sensible advice for any group of men and women sitting around a table to decide a question of fact; and that the diluted version proposed by the Bar Association is an invitation to a stubborn or recalcitrant juror to persist in a blind adherence to his position, thereby producing a hung jury. As Judge Burger put it in Fulwood v. United States, 125 U.S.App.D.C. 183, 185, 369 F.2d 960, 962 (1966), cert. denied, 387 U.S. 934, 87 S.Ct. 2058, 18 L.Ed.2d 996 (1967):
[T]he Allen charge is a carefully balanced method of reminding jurors of their elementary obligations, which they can lose sight of during protracted deliberations. It is perfectly valid to remind them that they should give some thought to the views of others and should reconsider their position in light of those views. The charge as given here did not require the jury to reach a verdict but only reminded them of their duty to attempt an accommodation. While it suggests to the minority that they reconsider their position in light of a majority having a different view, it reminds them that they should not acquiesce in a verdict which does not represent their own convictions. (Emphasis in original.)
I see no reason to abandon or substantially revise the Allen charge. Accordingly, I dissent from the majority’s direction that it not be used in the future.
Circuit Judges TAMM, MacKINNON and WILKEY concur in this dissent.
. One of these cases was United States v. Pioravanti, 412 P.2d 407 (3rd Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969), cited by the majority. Although the Circuit Court of Appeals in that case directed that the Bar Association charge be used in the future, it held that the giving of the Allen charge, including the statement that “It is your duty * * * to agree, if possible”, had not been prejudicial, and the conviction was affirmed. 412 F.2d at 414.
. Similar remarks to deadlocked juries in civil cases have been sustained. Wilson v. Southern Farm Bureau Cas. Co., 275 F.2d 819 (5th Cir.), cert. denied, 364 U.S. 817, 81 S.Ct. 49, 5 L.Ed.2d 48 (1960) ; Silverman v. Travelers Ins. Co., 277 F.2d 257 (5th Cir. 1960). In both cases the court (Wright, District Judge) told the jury :
You must realize that you have heard all of the facts in this particular case. it is a case that must be decided. There is no reason to believe that twelve other jurors will he more successful in reaching a verdict in this matter than you will have been. You must give intelligent and cooperative attention to this consideration in order that there may be a resolution of this conflict which exists between the plaintiff and the defendant in this ease. 275 F.2d at 822 ; 277 F.2d at 264.