dissenting:
After supplementary briefing and argument1 I now am persuaded that, on the facts of this case,2 the two anti-deadlock instructions (appended hereto) did not result in prejudicial error requiring reversal.
Basically, the trial court used, first, the ABA or federal instruction3 and, second, the Winters4 charge. The first instruction is sufficiently uncoercive that the court may use it appropriately in the “original charge” to the jury.5 Because of this mild language, I believe that the first instruction was appropriate under the circumstances after the jury had deliberated for two hours,6 and that it did not preclude use of the stronger, Winters charge after the jury had deliberated another hour and a half without reaching unanimous verdicts on the three counts submitted.7
I.
Appellant was charged with two counts of larceny after trust (Ms. Sullivan and Ms. Smithwiek) and one count of larceny by trick (Ms. Daye). After one hour of deliberation, the jury sent a note asking for reinstruction on larceny after trust. The court did so. An hour later, the jury sent a note saying that it “cannot come up with a unanimous decision in the Sullivan case.” Defense counsel asked for a mistrial; the prosecutor asked for continued delibera*1177tions unless the jury was “hopelessly deadlocked.” When the court said it was not inclined to grant a mistrial and asked counsel whether a Winters charge would be appropriate, defense counsel urged the court to give an instruction “short of the Winters charge.” The court accordingly proposed the ABA/federal instruction and defense counsel agreed. The court then recalled the jury and ascertained that it had not reached a verdict on any of the three charges, not just on the Sullivan case. The court reminded the jury that it had been asked to render three verdicts — to cast three separate, unanimous votes — and then gave the ABA/federal instruction. See Appendix.
An hour and a half later, the jury sent another note stating, this time, that it could not reach a unanimous decision “on all three counts.” Defense counsel again asked for a mistrial; the prosecutor suggested a Winters charge. When the court asked defense counsel whether the Winters charge would be inappropriate, counsel replied that it would be too coercive for a “very straightforward misdemeanor” case, and that if the court would not grant a mistrial, it should give the more moderate, “Gallagher instruction,”8 which adds to the ABA/federal instruction a “temperate prod”9 short of the Winters charge. The court instead gave the Winters charge. See Appendix.
Two hours later, the jury returned two guilty verdicts (Sullivan and Smithwick) and one not guilty verdict (Daye).
II.
The issue on appeal is whether the second Winters charge was coercive “in its context and under all the circumstances.” Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965). On this record, I do not perceive such coercion. Although this is not a case in which defense counsel’s acquiescence helped justify a second anti-deadlock instruction,10 I do not believe counsel’s refusal to agree justifies the majority’s vote to reverse, let alone its virtually per se approach.11
The first instruction was very mild, indeed suitable (and recommended) for a court’s original charge to the jury, not just for anti-deadlock purposes.12 As the trial court put it, the instruction was a “light bump,” not a “shove.” Moreover, although the instruction came after the jury had deliberated for two hours, it is important to note that, for the first hour of deliberations, the jury had been confused by the instruction on larceny after trust and, for the next hour, the jury apparently had focused primarily if not exclusively on only one of the three charges. (Sullivan). Contrary to the majority, therefore, I find it *1178hard to characterize the situation as a “genuinely ‘hung jury.’ ” Ante at 1172.
In sum, the first instruction was not a strong charge, if an anti-deadlock charge at all under the circumstances. It was mildly worded; it came relatively soon — within an hour — after the jury’s confusion over the substantive instructions had been resolved; and, at the time the instruction was given, the jury apparently had been considering only one of the three cases submitted. Thus, the first instruction can best be characterized as a supplementary original charge to a jury not long invested in meaningful deliberations, not as an anti-deadlock instruction to a truly hung jury.13
This left room, despite defense objection, for one genuine anti-deadlock charge, the Winters charge, once the jury reported itself deadlocked — for the first time — on all three counts after an hour and a half of additional deliberation. As I see it, therefore, the trial court took a moderate, responsible approach under the circumstances.
III.
The majority’s virtually per se reversible error approach to the two instructions given here is unprecedented. First, my colleagues’ heavy reliance on United States v. Seawell, 550 F.2d 1159 (9th Cir.1977), cert. denied, 439 U.S. 991, 99 S.Ct. 591, 58 L.Ed.2d 666 (1978) is misplaced, since that case concerned the use of two, unquestionably coercive “Allen charges.” Indeed, the Ninth Circuit itself has held that two anti-deadlock instructions are not per se reversible error unless both are “Allen charges.” United States v. Foster, 711 F.2d 871, 884 n. 8 (9th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1984). Moreover, at least three other federal circuit courts of appeal have concluded that the use of two anti-deadlock charges is not per se coercive. United States v. Fossler, 597 F.2d 478, 485 (5th Cir.1979) (two Allen charges over defense objection not per se coercive but reversible error under circumstances); United States v. Robinson, 560 F.2d 507, 517 (2d Cir.1977) (en banc) (two Allen-type charges not per se reversible error), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978); United States v. Taliaferro, 558 F.2d 724, 725 (4th Cir.1977) (two ABA instructions not reversible error), cert. denied, 434 U.S. 1016, 98 S.Ct. 734, 54 L.Ed.2d 761 (1978).14
Accordingly, I do not understand why the majority, in concluding that the second instruction was too coercive, has insisted on adopting virtually a per se approach instead of ruling more specifically on the “context” and “circumstances” here. Jenkins, 380 U.S. at 446, 85 S.Ct. at 1060. Routinely, in considering whether a second anti-deadlock instruction was too coercive, the courts consider, for example, the language and length of each instruction, the jury’s deliberation time between instructions and thereafter, and the positions taken by defense counsel. See Fossler, 597 F.2d at 484-85. Perhaps judges reasonably can differ, on the facts of this case, as to whether reversal is warranted on grounds of jury coercion; but I can see no justification whatsoever for the rigid rule the majority announces today, especially given the mildness of the first instruction.
I am concerned that the majority’s virtually per se approach, characterizing both instructions as anti-deadlock charges and holding that only one such instruction is *1179permissible, will provide a disincentive for trial courts to give anything short of a Winters charge when the jury reports a deadlock — and may even encourage a Winters charge too early in the proceedings.
Respectfully, I dissent.
APPENDIX
First Instruction (ABA/Federal)
Now, of course, the verdict must represent the considered judgment of each juror. In order to return a verdict it is necessary that each juror agree on that verdict. Remember you have three verdicts. It takes three separate votes. You have to vote on each count. So that’s three verdicts, not just one, three verdicts. And your verdict must be unanimous as to each of those three. You consider them separately and you vote on the three of them. All right? You have indicated — the reason I’m saying that is because you told me that only about one case, you said the Sullivan case, you cannot reach a unanimous verdict, of course. And I want you to continue your deliberations and vote on the other two as well separately.
Now in connection with your note, it is your duty as jurors to consult with one another and to deliberate with a view toward reaching an agreement, if you cannot do this without violence to your own individual judgment, each of you must decide the case for yourselves. But do so only after an impartial consideration of the evidence in this case with your fellow jurors. In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if you become convinced that your opinion is erroneous, but do not surrender your honest convictions as to the weight or the effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Remember at all times you are not partisans to this case, you are judges, judges of the facts, and your sole interest is to seek the truth from the evidence in this case. And so, ladies and gentlemen, I want to resume your deliberations in connection with the Sullivan case and also in connection with the Smithwick case, as well as the Daye charge, because you have three verdicts to return in this ease for three separate offenses, not just the Sullivan case. I want you to go back and consider all three of those. See if you can reach a verdict on any of them.
Second Instruction (Winters)
In a large proportion of cases, absolute certainty cannot be attained or expected[.] [Although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of the other jurors[,] [y]et you should examine the question submitted to you with candor and with proper regard in deference to the opinions of each other. You should consider that it is desirable that this case be decided[;] [tjhat you are selected in the same manner, and from the same source[,] from which any future jury must be selected and there is no reason to suppose that the case will ever be submitted to twelve persons more intelligent, more impartial, or more competent to decide the case, or that more or clearer evidence will be produced on one side or the other.... And with this view[,] it is your duty to decide the case if you can conscientiously do so. You should listen to each other’s arguments with a disposition to be convinced. Thus[,] where there is disagreement, jurors for acquittal should consider whether their doubt is a reasonable one which makes no impression upon the minds of others, equally honest, equally intelligent with themselves, and who have heard the same evidence^] with the same attention, with an equal desire to arrive at the truth[,] and under the sanction of the same oath. And on the other hand, jurors for conviction ought seriously to ask themselves whether they might not reasonably doubt the correctness of a judgment which is not concurred in by others with whom they are associated[,] and distrust the weight or sufficiency of that evidence which fails to carry conviction in the minds of their fellow jurors.
. This case originally was submitted on the summary calendar without argument.
. Epperson v. United States, 471 A.2d 1016, 1017 (1984).
. See ABA, Trial By Jury, Commentary § 5.4 (a), at 146-47 (Approved Draft, 1968); Jury Instructions and Forms for Federal Criminal Cases, Instruction 8.11, 27 F.R.D. 39, 97-98 (1961); 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 18.01 (3d ed. 1977); Criminal Jury Instructions for the District of Columbia, No. 2.91, Alternative A (1972 & 1978 eds.); Winters v. United States, 317 A.2d 530, 531 n. 2 (D.C.1974) (en banc).
. Winters, 317 A.2d at 534; United States v. Silvern, 484 F.2d 879, 883 (7th Cir.1973) (en banc).
. Winters, 317 A.2d at 534.
. Epperson, 471 A.2d at 1017.
. Id.
. Winters, 317 A.2d at 539 (Gallagher, J., concurring).
. Id. p. 14.
. Compare Nelson v. United States, 378 A.2d 657, 660-61 (D.C.1977) (no plain error when court, having given modified "Allen charge," later gave anti-deadlock instruction, stronger than Winters charge, with concurrence of defense counsel).
. The majority states: "we conclude that a jury believed by the trial judge to be 'hung,' as we related earlier in this opinion, should ordinarily be given an ‘anti-deadlock’ instruction only once.” Ante at 1174. The only exceptions justifying the limiting word “ordinarily" are a jury's indication that^ "it did not understand the first ‘hung jury’ instruction,” ante at 1173 or a "request for guidance by a jury,” ante at 1173, or "some exceptional circumstance which makes [it] evident it is not likely to be coercive to reinstruct the ‘hung jury’ with another ‘anti-deadlock’ instruction (because of the exceptional circumstance).” Ante at 1175-1176; see ante at 1174 n. 7. As a practical matter, therefore, the majority adopts a per se rule — only one anti-deadlock instruction — since the proffered exceptions do not authorize trial court discretion to give more than one instruction absent manifest jury confusion about the first instruction or some other undefined, "exceptional circumstance.”
. Winters, 317 A.2d at 534; Silvern, 484 F.2d at 883.
. The majority, too, appears to question whether the jury here was deadlocked at the time of the court’s initial (ABA/federal) instruction. Ante at 1172 n. 3. Thus, it is not clear why the majority is so ready to characterize it as an anti-deadlock instruction.
. See also Silvern, 484 F.2d at 883 (Seventh Circuit requires inclusion of ABA/federal instruction in original charge to jury as prerequisite for giving same charge later as anti-deadlock instruction). The Seventh Circuit has consistently followed the Silvern rule. See United States v. Hamann, 688 F.2d 507 (7th Cir.1982), cert. denied, 460 U.S. 1013, 103 S.Ct. 1255, 75 L.Ed.2d 483 (1983); United States v. Brown, 634 F.2d 1069 (7th Cir.1980); United States v. Gabriel, 597 F.2d 95 (7th Cir.), cert. denied, 444 U.S. 858, 100 S.Ct. 120, 62 L.Ed.2d 78 (1979).