concurring:
The court adequately distinguishes our decision in United States v. Contreras, 463 F.2d 773 (1972), and I therefore concur.
However, to my mind, the instruction in this case approaches the limits of acceptability under the law of this circuit. A barely acceptable instruction, once sanctioned, tends to become the new norm. By this process an instruction of dubious merit continues to deteriorate.
The paramount problem is the threat of coercion — a threat present even where, as here, the charge is found uncoercive “in its context and under all the circumstances” under Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965). The line between admonishing the jury “simply ... to keep trying,” Walsh v. United States, 371 F.2d 135, 136 (9th Cir. 1967), and encouraging jurors to surrender their beliefs is extremely fine. If the charge is truly effective, it must follow that it is also truly dangerous. As Judge Goldberg has said, “The charge is used precisely because it works, because it can blast a verdict out of a jury otherwise unable to agree that a person is guilty,” United States v. Bailey, 468 F.2d 652, 666 (5th Cir. 1972).
The Allen instruction has been disapproved by three circuits. See United States v. Silvern, 484 F.2d 879 (7th Cir. 1973) (en banc); United States v. Thomas, 146 U.S. App.D.C. 101, 449 F.2d 1177 (D.C.Cir.1971); United States v. Fioravanti, 412 F.2d 407 (3rd Cir. 1969). Many State courts, too, have abolished it or restricted its use. See, e. g., People v. Gainer, 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997 (1977), and cases cited at n. 8. For a recent resurvey of the objections to the charge, see Marcus, The Allen Instruction in Criminal Cases: Is the Dynamite Charge About to be Permanently Defused?, 43 Mo.L.Rev. 613 (1978).
If the charge is to be given, care should be taken that it be stated in the least objectionable form. The American Bar Association has suggested a form, to be given before the jury retires and repeated later if necessary, preferable to that used in this case:
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual *767judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.
American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, Commentary to § 5.4 (1968). This form has been adopted in two Circuits,1 approved in substantially the same form in four others,2 and in my opinion would well be employed in the Ninth.
. United States v. Silvern, 484 F.2d 879, 883 (7th Cir. 1973) (en banc); United States v. Thomas, 449 F.2d 1177 (D.C.Cir.1971).
. United States v. Angiulo, 485 F.2d 37 (1st Cir. 1973); United States v. Skillman, 442 F.2d 542 (8th Cir. 1971); United States v. Fioravanti, 412 F.2d 407 (3d Cir. 1969); Webb v. United States, 398 F.2d 727 (5th Cir. 1968).