United States v. McElhiney

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 26 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 00-3056
MICHAEL P. McELHINEY,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 98-CR-40083-01-RDR)

Stephen W. Kessler, Esq., Topeka, Kansas, for the Defendant-Appellant.

Thomas G. Luedke, Assistant United States Attorney (Jackie N. Williams, United
States Attorney, with him on the briefs), Topeka, Kansas, for the Plaintiff-
Appellee.

Before KELLY , HOLLOWAY , and HENRY , Circuit Judges.

HENRY , Circuit Judge.

Michael P. McElhiney was indicted by a federal grand jury of conspiracy to

distribute and possess heroin with the intent to distribute it, a violation of 21
U.S.C. §§ 846 and 841(b)(1)(C). The conspiracy charge was based on Mr.

McElhiney’s alleged involvement in a drug smuggling operation in the

Leavenworth, Kansas federal penitentiary between January and September 1995.

In July 1999, a jury trial was held, during which Mr. McElhiney represented

himself with the assistance of standby counsel. The result of the trial was a hung

jury: ten to two in favor of conviction. A second jury convicted Mr. McElhiney

several months later. He now appeals on various grounds, and we reverse and

remand.

I. BACKGROUND

The prison drug smuggling operation in which Mr. McElhiney was

allegedly involved first came to light while the government was investigating the

murder of a prisoner, Charles Leger, at the Leavenworth penitentiary. An inmate

by the name of Allen Hawley came forward with information related to the

murder. According to Mr. Hawley, the murder was ordered by the leadership of

the Aryan Brotherhood, a prison gang in which Mr. McElhiney was a ranking

member. Eventually, Gregory Storey, another inmate associated with the Aryan

Brotherhood, was charged with the murder. During the trial of Mr. Storey, Mr.

Hawley provided testimony on behalf of the government. Mr. Hawley discussed

not only the murder but also the prison drug smuggling operation.

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 On September 9, 1998, a federal grand jury indicted Mr. McElhiney for

conspiracy to distribute and possess heroin with the intent to distribute it, a

violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). The result of the subsequent

trial, during which Mr. McElhiney represented himself, was a hung jury. A

second jury trial began on September 28, 1999, with Mr. McElhiney once again

choosing to exercise his right to self-representation. During trial, the government

presented testimony from various witnesses, including several inmates and former

inmates, in support of its case. The inmate witnesses primarily testified as to Mr.

McElhiney’s membership in the Aryan Brotherhood and his involvement in the

prison drug smuggling operation. Notably, many of the inmates admitted to

having participated in the operation themselves.

After each party had presented its evidence, deliberations began. They

continued for the next two-and-a-half days, at which point, just as in the first

trial, the jury informed the district court that it was unable to reach a verdict.

Several hours later, after the district court addressed the jurors and asked, in

effect, for continued deliberations, the jury reached a guilty verdict.

On appeal, Mr. McElhiney argues that: (1) the government twice violated

the rule established in Brady v. Maryland, 373 U.S. 83 (1963); (2) a government

agent interfered with his Sixth Amendment right to counsel; (3) the district

court’s Allen charge was impermissibly coercive; (4) his conviction and sentence

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were improper in light of Apprendi v. New Jersey, 530 U.S. 466 (2000); (5) the

government improperly bolstered witness testimony; and (6) he was denied an

impartial jury.

II. BRADY ARGUMENTS

We begin our analysis with Mr. McElhiney’s two Brady arguments. In

Brady, the Supreme Court held “that the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87.

According to Mr. McElhiney, the government violated Brady first by failing to

turn over to the defense a Bureau of Prisons memorandum and second by failing

to yield to the defense the personnel file of Dennis Conway, a special agent for

the FBI. We address each of these arguments in turn.

A. Bureau of Prisons Memorandum

Mr. McElhiney asserts that the government first violated Brady when it

failed to provide the defense with a particular Bureau of Prisons memorandum.

After the trial was completed, Mr. McElhiney “was inadvertently provided certain

documents” from the Bureau of Prisons. Aplt’s Br. at 9. One of the documents

that came into his possession was a memorandum entitled “Possible Threats to

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Inmates [at the Leavenworth Penitentiary], Re: Aryan Brotherhood

Extortion/Drug Ring.” As noted by the district court, this memorandum

discusse[d] possible threats to various inmates in 1995 which caused
the inmates to request protective custody. Some of the threats were
allegedly made by [inmates] who were witnesses against [Mr.
McElhiney] during the trial. . . . One of the inmates who was
allegedly threatened [also] testified against [Mr. McElhiney] in the
trial . . . .

Rec. supp. vol. I, doc. 378, at 1-2 (district court order, filed Mar. 23, 2000).

Mr. McElhiney subsequently filed a motion for a new trial based on this

newly discovered evidence. The crux of his argument was that, by failing to

provide him with the memorandum, the government acted in violation of Brady.

The district court denied the motion, ruling that the memorandum did not violate

Brady as it was neither exculpatory nor material.

“We review de novo allegations of Brady violations.” Newsted v. Gibson,

158 F.3d 1085, 1094 (10th Cir. 1998). To establish a Brady violation, a

defendant must show “1) that the prosecution suppressed evidence; 2) that the

evidence was favorable to the accused; and 3) that the evidence was material.”

Smith v. Secretary of N.M. Dep’t of Corrections, 50 F.3d 801, 824 (10th Cir.

1995) (internal quotation marks omitted).

Without actually deciding the issue, we will assume for the purposes of

discussion that the memorandum was suppressed and that it contains evidence

favorable to Mr. McElhiney. Even so, Mr. McElhiney still must establish that the

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memorandum was material. “The standard of materiality required to set aside a

criminal conviction on Brady grounds varies with the specificity of the

defendant’s request and the conduct of the prosecutor.” United States v.

Buchanan, 891 F.2d 1436, 1441 (10th Cir. 1989). If the defendant makes a

“request for specific evidence” and the prosecutor fails “to disclose responsive

evidence,” then the evidence is material if it “might have affected the outcome of

the trial.” Id. (internal quotation marks omitted). If the defendant, however,

either makes no request for evidence or simply makes a general request (e.g.,

asking for “all Brady material” or “anything exculpatory”), then the evidence is

material only if it “creates a reasonable doubt that did not otherwise exist.” Id.

(internal quotation marks omitted). We need not decide which standard of

materiality is applicable because, even under the more lenient standard, the

Bureau of Prisons memorandum was not material.

In particular, as to the memorandum’s statement that several inmate

witnesses who testified for the government were involved in the drug smuggling

operation, that involvement was a fact that they had already—and readily—

admitted at trial. Therefore, we agree with the district court that this evidence

“was cumulative . . . and thus would have provided only marginal additional

support for [the] defense.” United States v. Trujillo, 136 F.3d 1388, 1394 (10th

Cir. 1998).

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 As to the materiality of the memorandum in terms of impeaching Mr.

Hawley’s testimony, Mr. McElhiney points to a statement in the memorandum that

a prisoner named Leonard “Dirty Red” Ternes made a statement in which he

denied participation in the prison drug smuggling operation. He notes that, at

trial, Mr. Hawley testified that Mr. Ternes was involved in the operation as a

“mule.”

On this point, we again agree with the district court’s analysis. That is,

even if the information in the memorandum had been available to Mr. McElhiney

before trial, it is not reasonably probable that the outcome would have been

different. See id. at 1393 (“A reasonable probability is a probability sufficient to

undermine confidence in the outcome of the proceeding.”) (internal quotation

marks omitted). In particular, if introduced at trial, that statement by Mr. Ternes

would have contradicted only one part of Mr. Hawley’s testimony (which did not

even bear directly on Mr. McElhiney). Moreover, Mr. Hawley’s testimony was

corroborated at trial by other evidence, and the evidence against Mr. McElhiney,

apart from Mr. Hawley’s testimony, was substantial. To state it simply, the

significance of the favorable information in the memorandum was marginal in

relation to the record as a whole. See Smith, 50 F.3d at 827 (“In making the

materiality determination, we view the suppressed evidence’s significance in

relation to the record as a whole.”) (internal quotation marks omitted). Because

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the memorandum—even if suppressed and favorable—was not material, Mr.

McElhiney has failed to prove a Brady violation.

B. Personnel File

Mr. McElhiney’s second Brady argument is similarly without merit. Even

assuming that the government suppressed Agent Conway’s personnel file, there is

is no evidence in the record—indeed, Mr. McElhiney does not even allege in his

brief—that the file was either favorable or material to his case.

III. ALLEN CHARGE

We direct our attention now to Mr. McElhiney’s argument that the district

court gave to the jury an impermissibly coercive Allen charge. We begin with an

overview of the relevant facts and a general history of the charge, largely

focusing on its use in the federal courts.

A. The Charge in this Case

Mr. McElhiney’s second jury trial began on September 28, 1999. After

nine days of proceedings, deliberations began and then continued for the next

two-and-a-half days. On the morning of October 15, 1999, at approximately

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10:30 a.m, the jury sent the district court a note, stating that it was not able to

reach a verdict.

In response, the district court called the jury to the courtroom. Addressing

the jury, the court said: “[L]adies and gentlemen, I have received a note from the

jury here that is very distressing to me because this has been one of the greatest

major efforts made in time and attention and money that I have noted in my 24

years as being a judge.” Rec. vol. XX, doc. 329, at 2 (trial transcript, dated Oct.

15, 1999) [hereinafter Tr.]. The district court asked if the jury was in fact at an

impasse, to which the foreperson answered “[y]es, Your Honor.” Id. A brief

colloquy then took place, during which the foreperson stressed to the district

court that “added work” or “read backs” would not assist the jury in reaching a

verdict. Id. at 3.

The colloquy was followed by a polling of the individual jurors. In

response to the question “[D]o you feel you cannot reach a verdict?” each juror

said “[y]es.” Id. at 4-5. After the poll was completed, the district court and the

foreperson engaged in another colloquy. The exchange was as follows:

Court: Do you all think that if you deliberated until noon, it
would not make any—there would be no change, is that
your general consensus, is that what you think?

Foreperson: I would be willing to try if that is your wish.

Court: Well, frankly, I’d like to have you do this. Of course, I
do not know what will happen from now on out. I have

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 no control over that. But we may be doing this again
and that’s the reason I’d be very happy to have a verdict
one way or the other. And it’s—but the time and
attention and the danger of this case has been, you
know, a problem. We’ve had security in here that was
just—I said to somebody we could have fought the
Russian Army head on with what we’ve had here in this
case.

Well, I—frankly, the Court would certainly like to have
you try to reach a verdict in this case. And why don’t
you continue your deliberations for a while and see if
there’s any possibility you can reach a verdict in this
case. Are you willing to do that?

Foreperson: I am, yes.

Court: All right. Well, why don’t we recess then and you
continue to try to deliberate. And if you find that you’re
absolutely hopelessly deadlocked, why then I would
have nothing else I can do except dismiss you with the
thanks of the Court. But why don’t you give it another
try. . . .

Id. at 5-6.

After the district court concluded these comments, the jury exited the

courtroom, at which point Mr. McElhiney, acting as his own counsel, objected.

Mr. McElhiney expressed concern that the district court’s use of the word

“danger” “could have coerced the jury into thinking they must reach a verdict.”

Id. at 6-7. The district court replied, “Well, I’m sure the jury understands that

with all the people we’ve had here that this has been a very difficult case to try.

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And so I do not feel that there’s anything there that’s going to turn a verdict one

way or the other.” 1 Id.

At 12:17 p.m., “[j]ust prior to [the jury’s] noon break,” Aple’s Br. at 43,

the jury sent a note to the district court, asking for the identification of certain

individuals in a picture that was an exhibit in the case. According to the note,

“This information would be helpful . . . in overcoming the hung jury.” See Rec.

vol. I, doc. 363, at 8 (district court order, filed Feb. 11, 2000) (quoting jury note).

Neither party objected, and so the information was provided. At 1:50 p.m., the

jury sent the district court a second note, this time seeking to rehear the testimony

of Mr. Hawley. The readback of Mr. Hawley’s testimony was delayed until 3:50

p.m. See id. (“[Mr. Hawley’s] testimony was lengthy and some time was required

to prepare for the readback of this testimony.”). After an hour of the readback,

the foreperson indicated that it could stop. Ten minutes later—i.e., at 5:00 p.m—

the jury informed the district court that it had reached a verdict.

Mr. McElhiney subsequently filed a motion for a new trial, repeating his

contention that the district court’s comments to the jury were improper. More

specifically, he asserted that the district court’s statements constituted an

impermissibly coercive Allen charge. In a written order, the district court denied

the motion.

1
Appendix A is a transcript of the proceedings described above.

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B. An Overview of the Allen Charge

Pursuant to the Sixth Amendment, “[e]very defendant in a federal criminal

case has the right to have his guilt found, if found at all, only by the unanimous

verdict of a jury of his peers.” United States v. Thomas, 449 F.2d 1177, 1181

(D.C. Cir. 1971) (en banc); see also United States v. Haber, 251 F.3d 881, 888

(10th Cir. 2001) (“The Sixth Amendment guarantees a federal criminal defendant

the right to a unanimous verdict.”) (internal quotation marks omitted); Fed. R.

Crim. P. 31(a) (“The verdict shall be unanimous.”). If no unanimous verdict can

be attained, then the jury is considered “hung” and a mistrial is declared. Thus, a

federal criminal case may terminate with the failure to reach a verdict. See

Huffman v. United States, 297 F.2d 754, 758 (5th Cir. 1962) (Brown, J.,

dissenting) (stating that it is “a basic misapprehension[] that a criminal trial must

end with (1) a verdict of guilty or (2) a verdict of not guilty”); see also Paul

Marcus, The Allen Instruction in Criminal Cases: Is the Dynamite Charge About

to Be Permanently Defused?, 43 Mo. L. Rev. 613, 624 (1978) (stating that there

are not two but rather “three possible decisions of the jury”).

An Allen instruction is, in effect, a charge given by a trial court that

encourages the jury to reach a unanimous verdict so as to avoid a mistrial. See

United States v. Rogers, 289 F.2d 433, 435 (4th Cir. 1961) (stating that, through

an Allen charge, a trial court “suggest[s] to jurors the desirability of agreement

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and avoidance of the necessity of a retrial before another jury”), abrogated on

other grounds by Bell v. United States, 462 U.S. 356 (1983); see also United

States v. Smith, 857 F.2d 682, 683-84 (10th Cir. 1988) (stating that purpose of an

Allen instruction “is to encourage unanimity”); Hale v. United States, 435 F.2d

737, 741 (5th Cir. 1970) (stating that “[t]he purpose of the Allen charge is to

obtain a verdict”). Its name is derived from Allen v. United States, 164 U.S. 492

(1896), in which the Supreme Court first approved a supplemental instruction

given to a deadlocked jury. 2 The Court described the instruction as “taken

literally,” id. at 501, from a charge approved in Commonwealth v. Tuey, 62 Mass.

1 (1851). According to the Supreme Court, it provided:

[I]n substance, [the instruction was] that in a large proportion of
cases absolute certainty could not be expected; that, although the
verdict must be the verdict of each individual juror, and not a mere
acquiescence in the conclusion of his fellows, yet they should
examine the question submitted with candor, and with a proper
regard and deference to the opinions of each other; that it was their
duty to decide the case if they could conscientiously do so; that they

2
The trial judge in Allen was Isaac C. Parker, a federal district judge who
sat on the United States District Court for the Western District of Arkansas and
who was popularly known as “Hanging Judge” Parker. The trial in which Judge
Parker gave this instruction was preceded by two other trials. After both of the
previous trials, the Supreme Court reversed the fourteen-year-old defendant’s
conviction, concluding that Judge Parker had erred in explaining principles of self
defense to the jury. See David B. Kopel, The Self-Defense Cases: How the
United States Supreme Court Confronted a Hanging Judge in the Nineteenth
Century and Taught Some Lessons for Jurisprudence in the Twenty-First, 27 Am.
J. Crim. L. 293, 313-316 (2000). The defendant was eventually sentenced to life
imprisonment. See id. at 315.

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 should listen, with a disposition to be convinced, to each other’s
arguments; that, if much the larger number were for conviction, a
dissenting juror should consider whether his doubt was a reasonable
one which made no impression upon the minds of so many men,
equally honest, equally intelligent with himself. If, upon the other
hand, the majority were for acquittal, the minority ought to ask
themselves whether they might not reasonably doubt the correctness
of a judgment which was not concurred in by the majority.

Allen, 164 U.S. at 501. The instruction also included a reminder to the jury of the

burden of proof. See 6th Cir. Pattern Criminal Jury Instruction § 8.04 cmt. (1991

ed.) (noting that the trial court in Allen told the jury: “‘In order to make a

decision more practicable, the law imposes the burden of proof on one party or

the other, in all cases. In the present case, the burden of proof is upon the

government.’”); see also Potter v. United States, 691 F.2d 1275, 1278 (8th Cir.

1982) (noting that “[t]he Supreme Court did not set out the full body of the

instruction given in Allen”; then stating that the trial court in Allen “had included

from Tuey” a reminder of the burden of proof).

For purposes of clarity, we label an instruction that tracks the above

description and that includes a reminder on the burden of proof a “pure” Allen

charge. An instruction that departs from the pure charge, whether by omission or

embellishment, we call a “modified” Allen instruction. Cf. People v. Gainer, 19

Cal. 3d 835, 844 (1977) (“[I]t is somewhat imprecise to refer to a single Allen

charge. Decades of judicial improvisation have produced a variety of

permutations . . . .”). Where we do not use the terms “pure” and “modified,” we

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speak of Allen instructions, both pure and modified, in general. Today, most

Allen instructions are given as supplemental charges to deadlocked juries, just as

in Allen itself. The name “Allen charge,” however, has been used to describe not

only supplemental instructions provided to deadlocked juries but also charges

given as part of the original jury instructions.

Interestingly, when the pure Allen charge was first approved by the

Supreme Court in 1896, it engendered little to no controversy, presumably

because the instruction was seen as an extension of a trial court’s power to lend

guidance and assistance to a jury in reaching a verdict. See United States v.

Winn, 411 F.2d 415, 416 (10th Cir. 1969) (taking note of this “right and duty” of

the trial court to guide and assist). As the years passed, the popularity of the

instruction quickly grew, “[u]ndoubtedly . . . from its perceived efficiency as a

means of ‘blasting’ a verdict out of a . . . jury.” Gainer, 19 Cal. 3d at 844. With

the increased use of the charge came an increasing tendency on the part of trial

courts to deviate from the language of the pure instruction, often “in an apparent

attempt to increase the intensity of the ‘blast.’” 3 Id.

3
Because of this “blasting” potential, the Allen charge has commonly been
called the “dynamite” charge. See United States v. Bailey, 468 F.2d 652, 666 (5th
Cir. 1972) (also describing the instruction as the “third-degree,” “shotgun,” or
“nitroglycerin” charge).

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 In the latter part of the twentieth century, courts became concerned that the

Allen charge might have a coercive element—in other words, that a jury might

interpret the instruction encouraging a unanimous verdict as an order to agree.

See Thaggard v. United States, 354 F.2d 735, 740 (5th Cir. 1965) (Coleman, J.,

concurring) (stating that a jury views an Allen charge as “a direct appeal from the

Bench for a verdict”). If a jury was in fact coerced into returning a verdict as a

result of the charge, then the defendant’s due process rights would be violated.

See Hale, 435 F.2d at 741 (“Problems arise when the Allen charge is used to

coerce the jury into reaching a verdict . . . . [A] coercive charge violates due

process . . . .”); Mills v. Tinsley, 314 F.2d 311, 313 (10th Cir. 1963) (“To compel

a jury to agree upon a verdict is a denial of a fair and impartial jury trial, and,

hence is a denial of due process.”). 4

Because of this concern, many federal courts have voiced criticisms of the

Allen instruction, even when given in the form approved by the Supreme Court.

4
Arguably, an impermissibly coercive Allen instruction violates not only a
defendant’s right to due process but also a defendant’s Sixth Amendment rights—
more specifically, the right to an impartial jury trial and the right to a unanimous
verdict. See Thaggard, 354 F.2d at 740 (Coleman, J., concurring) (stating that an
impartial jury means “a jury free of every influence except the law and the
evidence”); United States v. Harris, 391 F.2d 348, 355 (6th Cir. 1968) (stating
that “[t]he possibility of disagreement by the jury and the lack of a unanimous
verdict is a protection conferred upon a defendant . . . by the Constitution”); see
also Marcus, supra, 43 Mo. L. Rev. at 628 (discussing constitutional arguments
against the Allen charge).

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State courts and scholarly commentators have expressed similar opinions. 5 For

example, the use of the following language in the pure instruction has been the

basis of many complaints:

[I]f much the larger number were for conviction, a dissenting juror
should consider whether his doubt was a reasonable one which made
no impression upon the minds of so many men, equally honest,
equally intelligent with himself. If, upon the other hand, the majority
were for acquittal, the minority ought to ask themselves whether they
might not reasonably doubt the correctness of a judgment which was
not concurred in by the majority.

Allen, 164 U.S. at 501. This language has been subject to much disparagement

because it directs only the minority jurors, and not the majority, to reconsider its

views as part of the deliberation process. See United States v. Fioravanti, 412

F.2d 407, 417 (3d Cir. 1969) (“[T]he very real treachery of the [pure] Allen

Charge [is that] [i]t contains no admonition that the majority reexamine its

position.”). According to the critics, if every juror were called upon to rethink his

or her views, and not just the minority, there would be “less intimation that the

dissenters are presumably wrong and should capitulate in favor of the view

5
For state courts, see United States v. Seawell, 550 F.2d 1159, 1163 n.4
(9th Cir. 1977) (listing state courts that “have banned or restricted the use of the
Allen charges on the basis of their supervisory powers”), and Gainer, 19 Cal. 3d
at 847 n.8 (listing “[s]tate court cases which have disapproved Allen-type
instructions, in whole or in part”). For commentators, see 2A Wright, Federal
Practice & Procedure § 502, at 537 n.22 (2000) (listing commentators).

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espoused by the greater number of jurors.” Smith, 857 F.2d at 684 n.4. In other

words, the possibility of coercion would be less likely. 6

In spite of such critiques, federal courts have been reluctant to hold that the

Allen charge—at least in its pure form—is impermissibly coercive and therefore a

violation of due process. See Wright, supra, § 502, at 540. Still, unhappiness

with the instruction has given rise to a variety of new developments. For

example, some circuit courts emphasize that the pure Allen instruction approaches

the “ultimate permissible limits” or the “outermost limit of . . . permissible use”

with respect to a trial court’s prerogative to guide and direct a jury toward a

verdict. Id. § 502, at 533 (internal quotation marks omitted). Departures from the

pure instruction have been thereby discouraged, see United States v. Scott, 547

F.2d 334, 337 (6th Cir. 1977) (“Any variation upon the precise language approved

in Allen imperils the validity of the trial.”), though some variations have still

passed constitutional muster if they do not heighten the coercive element already

existing in the charge. See, e.g., Smith, 857 F.2d at 684 (noting that, in this

6
In Lowenfield v. Phelps, 484 U.S. 231 (1988), the Supreme Court
emphasized that the pure Allen charge, which admonished only the minority, and
not the majority, was still valid. It conceded, however, that a modified
instruction, one that did not single out the minority, was less coercive. See id. at
237-38 (“The continuing validity of this Court’s observations in Allen are beyond
dispute, and they apply with even greater force in a case such as this, where the
charge given, in contrast to the so-called ‘traditional Allen charge,’ does not
speak specifically to the minority jurors.”).

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circuit, “[o]ne common elaboration of the [pure] Allen charge is to admonish the

jury that it is unlikely that any other jury of superior ability, or better equipped

than the jury now in the box . . . can be found”). 7

Other circuit courts have recommended the inclusion of certain cautionary

language within the Allen charge. Some of the recommended cautionary language

already existed in the pure instruction, for example: (1) that no juror should yield

his or her conscientiously held convictions simply to reach an agreement; and (2)

that the burden of proof belonged to the government, not the defendant. See

United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971) (“[T]he court should

be careful to include all those elements of the original charge designed to

ameliorate its coercive effect . . . .”); see also Potter, 691 F.2d at 1280 (same).

Other cautionary language reflected the federal courts’ worry that the pure charge

unfairly singled out the minority. See Flannery, 451 F.2d at 883 (“Whenever a

7
There is some dispute among the circuits as to whether or not an Allen
charge that omits the provision on the burden of proof is still proper. This court
has, in at least one case, approved an instruction that did not include a reminder
on the burden of proof. See United States v. Rodriguez-Mejia, 20 F.3d 1090,
1091 (10th Cir. 1994) (quoting the Allen instruction given). However, this court
has also said that, when a district court provides an Allen instruction, it should
safeguard against coercion by “again call[ing] the jury’s attention to the
presumption of innocence, the burden of proof, and the requirement that guilt
must be established beyond a reasonable doubt.” Berger v. United States, 62 F.2d
438, 440 (10th Cir. 1932); see also Burrup v. United States, 371 F.2d 556, 558
(10th Cir. 1967) (reiterating the same).

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court instructs jurors to reexamine their positions, it should expressly address its

remarks to the majority as well as the minority.”).

Finally, as an exercise of their supervisory powers, several circuit courts

have ruled that, any time a trial court directly encourages a unanimous verdict, a

substitute charge containing certain cautionary language (in effect, a particular

modified charge) must be given or the defendant’s conviction should generally, if

not automatically, be reversed. See Thomas, 449 F.2d at 1187 (D.C. Circuit);

Fioravanti, 412 F.2d at 420 (Third Circuit); United States v. Brown, 411 F.2d

930, 933-34 (7th Cir. 1969) (Seventh Circuit). 8 Interestingly, these courts were

likely motivated, at least in part, by a concern over the instruction’s potential

8
The Seventh and D.C. Circuits explicitly looked to the instruction
recommended by the American Bar Association (“ABA”) for guidance. See
Brown, 411 F.2d at 933 (“We have concluded that it would serve the interests of
justice to require . . . , in the future, district courts within this Circuit[,] when
faced with deadlocked juries[,] [to] comply with the standards suggested by the
American Bar Association’s Trial By Jury publication.”); Thomas, 449 F.2d at
1187 (“[W]e adopt the ABA standard for the guidelines which future renditions of
Allen-type charges must abide, and the ABA approved instruction as the vehicle
for informing jurors of their responsibilities in situations where judges decide to
do so.”). The ABA instruction is set forth in Appendix B.
The Committee on the Operation of the Jury System of the Judicial
Conference of the United States approved of the ABA instruction with one
addition. See Wright, supra, § 502, at 543 n.32. That addition was as follows:
“[T]hat each juror who finds himself in the minority shall reconsider his views in
the light of the opinions of the majority, and each juror who finds himself in the
majority shall give equal consideration to the views of the minority.” Id. (internal
quotation marks omitted).

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coercive effect, and yet they claimed to be motivated by considerations of judicial

policy only. See Thomas, 449 F.2d at 1186 (“We are persuaded . . . by the

volume and complexity of the litigation generated by the Allen charge, that its

continued unrestricted use is incompatible with sound judicial administration.”);

Fioravanti, 412 F.2d at 420 & n.31 (“[T]he use of the Allen charge is an

invitation for perennial appellate review.”).

Oddly enough, soon after these Third, Seventh, and D.C. Circuit decisions

requiring that cautionary language accompany an Allen instruction, the debate

over the charge’s validity tapered off dramatically, leaving for the federal courts

the framework discussed above: in some courts, the pure charge still persists,

though certain modified forms were recommended instead because of their

inclusion of cautionary language, while, in other courts, the Allen charge has been

formally replaced by a substitute charge, also containing cautionary language to

ward off the potential for coercion. The Supreme Court, surveying the scene in

the late 1980s, commented that, in spite of all the past controversy over the Allen

instruction, “[a]ll of the Federal Courts of Appeals have upheld some form of

[such] a charge.” Lowenfield, 484 U.S. at 238 n.1 (emphasis added). Or, as the

Fourth Circuit put it, “not a single one of the circuit[] [courts] has outlawed . . .

instructions to juries for the purpose of inducing further deliberation and

-21-
agreement upon a verdict.” United States v. Sawyers, 423 F.2d 1335, 1343 (4th

Cir. 1970). This fact remains true today. 9

C. Application of Allen Precedents to this Case

Allen instructions are often challenged on the grounds that: (1) the

instruction should not have been given in the first place; and (2) the instruction

was coercive. See Powell v. United States, 297 F.2d 318, 322 (5th Cir. 1962)

(“Whether in any case the Allen charge should be given rests initially in the sound

discretion of the trial judge. But the correctness of the charge must be determined

by the consideration of the facts of each case and the exact words used by the trial

court.”). Here, Mr. McElhiney does not question the district court’s decision to

give an Allen charge, and we thus proceed to the second inquiry.

9
For a review of the various circuit courts’ positions on the Allen charge,
see Bailey, 468 F.2d at 667-68. Though Bailey was decided almost forty years
ago, the stance of the courts with respect to the instruction has not dramatically
changed.

For pattern jury instructions on Allen charges, see 1st Cir. Pattern Jury
Instruction §§ 6.03, 6.06 (1998 ed.); 5th Cir. Pattern Jury Instruction § 1.43 (1997
ed.); 6th Cir. Pattern Criminal Jury Instruction §§ 8.04, 9.04 (1991 ed.); 7th Cir.
Federal Criminal Jury Instruction § 7.06 (1999 ed.); 8th Cir. Manual of Model
Criminal Jury Instructions § 10.02 (2000 ed.); 9th Cir. Manual of Model Jury
Instructions §§ 7.1, 7.7 (2000 ed.); and 11th Cir. Pattern Jury Instruction § 6
(1997 ed.).

-22-
 With respect to the coerciveness of the charge actually given, this circuit

has adopted a case-by-case approach, see Flannery, 451 F.2d at 883, considering

such factors as “(1) [t]he language of the instruction, (2) its incorporation with

other instructions; and (3) the timing of the instruction.” United States v. Porter,

881 F.2d 878, 888 (10th Cir. 1989). The “colloquy between the judge and the

jury foreman, [the] circumstances surrounding the giving of the instruction, and

consideration of the American Bar Association Standards on Criminal Justice

Relating to Trial by Jury” may also be relevant. United States v. Dyba, 554 F.2d

417, 421 (10th Cir. 1977). The ultimate question, however, is whether the Allen

instruction was “impermissibly coercive in a way that undermined the integrity of

the deliberation process.” 10 Porter, 881 F.2d at 889; see also 75B Am. Jur. 2d §

1581, at 343 (“[T]he test effectively turns on a consideration of whether the

court’s instruction imposed such confusion or pressure on the jury to reach a

verdict that the accuracy and integrity of the verdict returned becomes

uncertain.”); Note, Due Process, Judicial Economy & the Hung Jury: A

Reexamination of the Allen Charge, 53 Va. L. Rev. 123, 136 (1967) (“Traditional

10
Some circuit courts appear to have adopted a slightly different test. See
Harris, 391 F.2d at 354 (“[An] Allen charge should be approved only so long as it
‘avoids creating the impression that there is anything improper, questionable, or
contrary to good conscience for a juror to cause a mistrial.’”) (quoting Thaggard,
354 F.2d at 739).

-23-
analysis of the Allen-type instruction has adopted the language of prejudicial

error.”). 11

As a preliminary matter, we address the government’s contention that we

should reject Mr. McElhiney’s Allen charge argument outright because the district

court’s comments were simply “observations” and not an instruction. Aple’s Br.

at 43. This contention seems calculated so as to sidestep any Allen charge

analysis, and we find it unconvincing.

First, the district court did not simply provide “observations” as the

government asserts; in making its comments, the district court directed the jury to

11
Unfortunately, even with these standards guiding our analysis, any Allen
charge discussion is difficult because there are few consistent patterns in Allen
charge case law, not only within this circuit but also without. See Fioravanti, 412
F.2d at 416 n.19 (“Out of the plethora of cases researched, few consistent patterns
have emerged, although some general condemnations of the Allen Charge have
been proffered.”). Moreover, Allen charge analysis is always plagued by the fact
that “[t]he coercive impact of an Allen-type instruction can almost never be
proved,” especially since the jury deliberation process is shielded from outside
observation. Due Process, 53 Va. L. Rev. at 135. Even if a post-deliberation
inquiry were made, it is highly unlikely that any juror would admit to having been
coerced.
These difficulties alone might suggest that the Third, Seventh, and D.C.
Circuits had the right of it in banning “pure”Allen charges and requiring, for the
most part, strict adherence to a substitute charge containing certain cautionary
language. But as the Fifth Circuit lamented while attempting to address the
problem of the Allen charge, “As a panel, . . . we are not free to [‘reform’ the
Allen charge], for we can overrule [prior] Circuit cases only when we sit en
banc.” Bailey, 468 F.2d at 668.

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deliberate further, thus providing an instruction. Second, the instruction given by

the district court was “Allen” in nature: though “not like any Allen charge which

we have faced before, it serve[d] the same purpose” (i.e., to encourage a

unanimous verdict), “was given in an Allen situation” (i.e., a deadlocked jury),

and was “fraught with the same . . . potential for coercion.” United States v.

Bass, 490 F.2d 846, 854 (5th Cir. 1974) (rejecting the government’s argument that

the following was not an Allen charge: “If you have reached a verdict as to some

Counts of the indictment, but not as to others, you may return a verdict as to those

Counts. On any count as to which you are not yet in unanimous agreement, I will

ask you to return to the jury room and continue your deliberations.”), overruled on

other grounds by United States v. Lyon, 731 F.2d 243 (5th Cir. 1984). Finally,

even if the district court’s comments did not constitute an instruction (Allen or

otherwise), its remarks still had the potential to coerce the jury, and, as coercion

is the primary concern with the giving of an Allen instruction, the overall Allen

analysis would still be applicable. In other words, the district court’s comments

would be examined under all the circumstances to determine whether the verdict

reached by the jury was a product of impermissible coercion. See 75B Am. Jur. §

1580, at 342 (“The propriety of particular remarks made by a judge to a jury after

retirement for deliberation must be measured by the language employed, . . . and

from the language used, a fair and reasonable conclusion must be deduced as to

-25-
the tendency to interfere with the exercise of the free and unbiased judgment of

the jurors.”) (emphasis added).

To summarize, the fact that district court’s comments constituted a

departure from the “typical” Allen charge does not mean that they are subject to

no critical inquiry whatsoever. In our view, the Fifth Circuit took the proper

approach in United States v. Cheramie, 520 F.2d 325 (5th Cir. 1975), explaining

that:

[i]t might be argued that the terse charge objected to here is so
lacking in the elements composing either the . . . approved version or
the original “Allen” cases that this Court should not subsume its
analysis under the banner of the traditional “Allen” cases . . . . While
this view presents an interesting definitional question, the
denomination of the charge is of only tangential importance.
Instead, we look to the language employed, and that language’s
impact, under the circumstances, on the finders of fact.

Id. at 330 n.3 (emphasis added).

We proceed then to the heart of the matter—whether the Allen instruction

given by the district court was, as Mr. McElhiney argues, impermissibly coercive.

For purposes of clarity, we note that technically two Allen instructions were

provided to the jury: the first was given as part of the original jury instructions,

see Rec. vol. II, doc. 312 (Instruction No. 36), 12 the second as a supplemental

12
The first instruction stated:

It is the duty of the jury to reach a verdict if that can be done
(continued...)

-26-
charge after the jury had reached an impasse. On appeal, Mr. McElhiney only

challenges the latter instruction. We conclude that, although the first instruction

was proper, the supplemental Allen charge, which neither incorporated the

language of the first instruction nor referred to it, was “impermissibly coercive in

a way that undermined the integrity of the deliberation process.” Porter, 881 F.2d

at 889.

12
(...continued)
without violence to individual conscience. The verdict must be the
verdict of each juror and not a mere acquiescence in the conclusion
of others.
If you fail to reach a verdict, the parties may be put to the
expense of another trial, and may once again have to endure the
mental and emotional strain of a trial. If the case is retried, a future
jury must be selected in the same manner and from the same source
as you have been chosen, and there is no reason to believe that the
case would ever be submitted to twelve men and women more
competent to decide this case than those of you who compose the
present jury. There is no reason to believe that there will be more or
clearer evidence produced at a future trial.
I urge each and every one of you to listen to the opinions of
your fellow jurors as you review the evidence presented.
However, I once again admonish you not to surrender your
honest conviction as to the weight of the evidence solely because of
the opinion of your fellow jurors, or for the mere purpose of
returning a verdict.

Rec. vol. II, doc. 312 (Instruction No. 36).

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1. Incorporation of the Allen Charge with Other Jury Instructions

In order to temper the potential coercive effect of an Allen charge, this

court has recommended that the instruction be incorporated with the other jury

instructions – in other words, that it be given as part of the original jury

instructions. See Smith, 857 F.2d at 684 (“The Tenth Circuit law permits the

Allen charge in toto to be given, though with caution, and preferably . . . before

the jury has reached an impasse or deadlock.”); Potter, 691 F.2d at 1277 (“We

have cautioned that the Allen instruction is preferred as part of the regular jury

instruction before deadlock has occurred.”). In this position, the Allen instruction

is less likely to be coercive because (1) it does not stand out or receive particular

emphasis and (2) it is given before the jury has reached a deadlock.

In Mr. McElhiney’s case, the Allen charge at issue was not incorporated

with the other jury instructions, having been issued as a supplemental charge after

the jury reached an impasse. Consequently, the possibility of coercion becomes

more likely. We hasten to note that this positioning of the instruction does not by

itself establish coercion. See United States v. McKinney, 822 F.2d 946, 951 (10th

Cir. 1987) (“[A]lthough it is a preferred rule of procedure that an Allen

instruction be given the jury at the same time as other instructions, it is not a per

se rule.”). But when this positioning is taken in conjunction with the flawed

-28-
language of the instruction, as discussed below, we conclude that there was

impermissible coercion.

2. Language of the Allen Charge

This court has emphasized that the language of a pure Allen charge

“approaches the ultimate permissible limits of a [trial court’s] prerogative to

guide and direct a jury toward a righteous verdict.” Benscoter v. United States,

376 F.2d 49, 50 (10th Cir. 1967) (internal quotation marks omitted). In the

instant case, we do not have a pure instruction but rather a substantial deviation

from it, an instruction that varies from the pure not only in terms of omission but

also in terms of embellishment. That the instruction here is a dramatic departure

from the pure charge causes us much concern. As noted by the First Circuit, a

proper Allen instruction should “include all those elements of the original charge

designed to ameliorate its coercive effect” and “avoid language which might

heighten it.” Flannery, 451 F.2d at 883 (emphasis added); see also Potter, 691

F.3d at 1277 (same).

a. Omissions

We turn first to the omissions. Notably, the Allen instruction in the

supplemental charge lacked any of the cautionary language employed in the pure

charge: that no juror should surrender his or her conscientiously held convictions

-29-
and that the burden of proof belonged to the government, not the defendant.

While we are troubled by the omission of the latter, we recognize that this court

has, in at least one prior case, approved of an Allen instruction that did not

include a reminder as to the burden of proof. See Winn, 411 F.2d at 417 (noting

the trial court’s “failure to remind the jury that the defendants were presumptively

innocent and the Government had the burden of proving them guilty beyond a

reasonable doubt” but concluding, upon reviewing the instruction as a whole, that

“[w]e cannot say the words used were reversibly coercive”). The same, however,

cannot be said with respect to the other cautionary language employed in a pure

Allen charge.

This court has never, at least not to our knowledge nor in any of the cases

supplied by the government, approved of an Allen charge that failed to

incorporate an admonition regarding the juror’s conscientiously held

convictions. 13 A review of Tenth Circuit case law explains why. Repeatedly, this

13
Our research reveals that the closest case to an exception is United
States v. Winn, 411 F.2d at 416. But significantly, in Winn, although the court
did not provide the cautionary language in the written instruction, it orally
presented other cautionary language that served to temper the coercive effect of
the Allen charge. Chief Judge Murrah noted that “we have said more than once
that an instruction of this kind would be more appropriately influential and far
less vulnerable to the charge of coercion if given before the jury initially retires.”
Id. (internal quotation marks omitted). However, he added that the charge could
be supplementally given “provided the jury is given to understand they are not
required to give up conscientiously held convictions.” Id. (internal quotation
(continued...)

-30-
court has stated that its approval of the Allen charge’s use was predicated on the

inclusion of that admonition. As Chief Judge Murrah stated in Elbel v. United

States, 364 F.2d 127 (10th Cir. 1966): “We have cautiously approved the so-

called Allen instruction even when made to an apparently deadlocked jury,

provided the jury is made to understand that [it is] free to follow [its]

conscientiously held convictions.” Id. at 135-36 (emphasis added).

Notably, this court’s most recent Allen charge cases have adhered to Chief

Judge Murrah’s words – upholding the Allen instructions given largely because

they contained the proper cautionary language. See United States v. Arney, 248

F.3d 984, 988 (10th Cir. 2001) (“Although the district court emphasized that a

verdict was ‘very desirable’ and expressed an opinion that the case could not be

tried better by either side, the remainder of the instruction properly and clearly

emphasized that no ‘juror should surrender his or her conscientious convictions’

and that each juror should consider his or her opinion ‘with a proper regard and

deference to the opinion of [the others].’”); Rodriguez-Mejia, 20 F.3d at 1092

(“[T]he court emphasized in this case that the jurors should not surrender their

honest convictions.”); Porter, 881 F.2d at 889 (“Here, although the judge did state

13
(...continued)
marks omitted). He observed that the trial judge had explained that principle to
the jury. See id. at 417 (noting that the trial court informed the jury that “‘the
Court never wants to force a verdict of any kind under any circumstances and that
would be wrong’”).

-31-
his opinion that the case could not have been ‘tried better or more exhaustively

than it has been on either side,’ the remainder of the instruction properly and

clearly emphasized that no ‘juror should surrender his or her conscientious

convictions’ . . . .”).

This court is not alone in finding the admonition on conscientiously held

convictions to be of great import. See Due Process, 53 Va. L. Rev. at 28

(“Almost without exception the courts have required that the charge contain the

statement that ‘no juror should yield his conscientious conviction’ or words to

that effect.”). According to the Second Circuit, “[A] necessary component of any

Allen-type charge requires the trial judge to admonish the jurors not to surrender

their own conscientiously held beliefs.” Smalls v. Batista, 191 F.3d 272, 279 (2d

Cir. 1999). Similarly, the Fourth Circuit has commented that an Allen instruction

“stripped of its complementary reminder that jurors were not to acquiesce in the

views of the majority or to surrender their well-founded convictions

conscientiously held . . . might readily be construed by the minority of the jurors

as coercive,” Rogers, 289 F.2d at 435; the Sixth Circuit has said that the

admonition is “one of the most important parts of the Allen charge,” Scott, 547

F.2d at 337; and the Ninth Circuit has stated that “[i]t is essential in almost all

cases to remind jurors of their duty and obligation not to surrender

-32-
conscientiously held beliefs simply to secure a verdict for either party.” United

States v. Mason, 658 F.2d 1263, 1268 (9th Cir. 1981).

Given the significance of the admonition on conscientiously held

convictions, its omission cannot be condoned. See Rogers, 289 F.2d at 436

(noting that, if slight additions can convert a proper charge into a prejudicial and

erroneous one, “how much more objectionable it is if the reminder that makes the

Allen charge tolerable in the first place is omitted altogether”). Because of the

omission in this case, the coercive effect of the Allen instruction was substantially

heightened.

b. Embellishments

Were we confronted by the omission of cautionary language only, we would

have before us a closer case. But here the instruction was not only problematic

because of its omissions but also because of its embellishments. There are two

embellishments deserving of special attention in the case at hand.

First, the district court repeatedly emphasized the desirability of a verdict

and the court’s desire to have a verdict reached. It noted at various points that

“we’d like to have a verdict in this case, that’s the situation,” Tr. at 2-3; “[w]e

may be doing this again and that’s the reason I’d be very happy to have a verdict

-33-
one way or the other,” id. at 5; and “[w]ell I—frankly, the Court would certainly

like to have you try to reach a verdict in this case.” Id. at 6 (emphasis added).

These statements by the district court that it wanted a verdict might all too

easily have led the jury to think it more important to achieve unanimity to please

the district court rather to remain true to its honest beliefs—especially in the

absence of the admonition on conscientiously held convictions. That the district

court did not express a desire for a particular verdict does not affect our analysis.

Simply because the district court did not favor one verdict over another does not

mean the jury was not pressured, even if only inadvertently, into reaching a

verdict instead of remaining deadlocked.

The district court’s second embellishment—its statement about expense and

danger—is also troubling. As noted above, the district court stated to the jury, “I

have received a note from the jury here that is very distressing to me because this

has been one of the greatest major efforts made in time and attention and money

that I have noted in my 24 years as being a judge.” Tr. at 2. Subsequently, it

pointed out to the jury, “[T]he time and attention and the danger of this case has

been, you know, a problem. We’ve had security here that was just – I said to

somebody we could have fought the Russian Army head on with what we’ve had

here in this case.” Id. at 6.

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 While this court has in prior cases approved of Allen instructions that

discuss expense, see Rodriguez-Mejia, 20 F.3d at 1091 (holding that an Allen

charge, which included the statement that “[t]he trial has been expensive in time,

effort[,] and money to both the defense and the prosecution,” was not coercive),

we do not accept the proposition that a comment on expense is always

noncoercive. Instead, we agree with the Ninth Circuit’s conclusion that the

addition of a comment on expense does not “necessarily” make a charge more

coercive but that it can. Mason, 658 F.2d at 1267 (emphasis added); see also id.

(“This court has long recognized that injection of fiscal concerns into jury

deliberations has potential for abuse.”). In Mr. McElhiney’s case, we note that

the district court did not make a simple reference to the expense of another trial

(as, for example, in Rodriguez-Mejia); rather, the issue of expense was

underscored, the district court stating, “[T]his has been one of the greatest major

efforts ever made in time and attention and money that I have noted in my 24

years as being a judge.” Tr. at 2. Furthermore, the district court characterized

this situation as being “very distressing to me.” Id.; see also Harris, 391 F.2d at

354 (noting that “the judge’s statement in regard to the expense and burden of

conducting a trial” is a “questionable extension” of the Allen charge, “especially

where this factor is unduly emphasized”).

-35-
 The district court’s elaboration on expense, however, was not as

problematic as its comment on danger. While a comment on expense has at least

the potential to be innocuous, the same cannot be said of a comment on danger.

Danger, unlike expense, is a loaded term, one more likely to catch a jury’s

attention and one more likely to prod the jury to action (i.e., unanimous

agreement).

In denying Mr. McElhiney’s motion for a new trial, the district court

discounted the effect of its remark by noting that the danger was obvious to the

jury:

[T]hese facts were well-known to the jury . . . . There were nineteen
inmate witnesses. Every inmate witness . . . wore ankle chains in
court. These were inmates who had served or were serving time in
maximum or super-maximum security institutions. The serious
criminal histories of some of these inmates were discussed. A
violent prison murder . . . was a matter frequently discussed. Fear
and retribution were common topics. Several times there was a tense
atmosphere in the courtroom during cross-examination of adverse
witnesses. There were numerous security personnel inside and
outside the courtroom. None of this could have gone unnoticed by
the jury.

Order at 10. In all likelihood, the district court was correct in stating that the

danger could not have gone unnoticed by the jury. However, it is one thing for a

jury to be cognizant of a fact and another for a court to draw attention to that fact,

especially when the subject matter is so sensitive and the characterization so

negative.

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 3. Timing of the Allen Instruction

Because of the failure to incorporate the Allen charge with the other jury

instructions and the flawed language employed in the instruction (the omission

plus the embellishments), our confidence in the integrity of the deliberation

process has been substantially undermined. In spite of these considerations, the

government still argues that the jury’s verdict was not a product of coercion

because of the timing of the instruction, that is, the length of deliberations after

the Allen charge was issued. We cannot agree.

As a preliminary matter, we note that the record does not support the

government’s contention that the jury deliberated for six hours after having

received the supplemental Allen charge. All that is known is the following: (1)

The jury first informed the district court of the deadlock at approximately 10:30

a.m.; (2) at some point, the jury was called into the courtroom during which the

district court asked it to deliberate until noon; (3) at 12:17 p.m., the jury sent a

second note to the district court, asking to review some evidence; (4) the jury

shortly thereafter had its lunch break; (5) at 1:50 p.m., the jury sent yet another

note to the district court, again asking to reconsider more evidence (i.e., a

readback of Mr. Hawley’s testimony); (6) the readback did not take place for

another two hours; (7) the readback lasted for an hour; and (8) ten minutes after

the readback – i.e., at 5:00 p.m. – a verdict was returned.

-37-
 The record does not reveal such facts as (1) precisely when the jury began

its deliberations after receiving the Allen charge; (2) how long the lunch break

lasted; and (3) whether the jury deliberated during the time the readback was

being prepared for their reconsideration (i.e., from 1:50 p.m. to 3:50 p.m.). Given

these missing facts, we estimate that, in the very best case scenario – itself

unlikely – the jurors could only have deliberated for four hours (from 10:30 a.m.

to 12:17 p.m., from 1:50 p.m. to 3:50 p.m., and from 4:50 p.m. to 5:00 p.m.), and,

in the worst case, for one-and-a-half hours (from 10:30 a.m. to 12:17 p.m. and

from 4:50 p.m. to 5:00 p.m.).

The government points out, however, that in prior cases this court has

approved Allen charges in which the timing was as short as an hour and twenty

minutes. See, e.g., McKinney, 822 F.2d at 950 (noting that “the district court

gave the jury a full-fledged Allen instruction” after which “[t]he jury again

resumed its deliberation, and an hour and twenty minutes later returned a

unanimous verdict”); see also United States v. Butler, 904 F.2d 1482, 1488 (10th

Cir. 1990) (stating that two hours after the Allen charge was given the jury

returned a verdict of guilty). But see Due Process, 53 Va. L. Rev. at 133 (noting

that there are no consistent standards when it comes to timing – i.e., some courts

have affirmed a verdict in instances in which the jury deliberated for only a short

time after receiving an Allen instruction while other courts have reversed).

-38-
 The government is correct in noting the timing of these cases. But what the

government fails to recognize is that, in these cases, the trial court did not employ

any faulty language, certainly none comparable to the case at hand. Most

importantly, in these cases, the trial court did not omit the all-important

cautionary language that the jurors should not yield any convictions

conscientiously held simply to reach a verdict. See McKinney, 822 F.2d at 950

(noting that the Allen charge “admonished the jurors not to yield any

conscientious convictions they may have as to the weight or the effect of the

evidence”; also stating that the charge contained cautionary language

“remind[ing] the jurors that they must acquit the defendant if the evidence failed

to establish guilt beyond a reasonable doubt”); Butler, 904 F.2d at 1488 (noting

that Allen charge instructed jury that “no juror is expected to yield a

conscientious conviction he or she may have as to the weight or effect of the

evidence” and that “it is your duty to agree on a verdict if you can do so without

surrendering your conscientious conviction”; also noting that instruction

contained cautionary language reminding jury of the burden of proof).

Given this distinction, we cannot place much stock in the cases on which

the government relies. Instead, we look to cases such as Smalls and Mason. In

both of these decisions, the timing of the instruction did not overcome the

coerciveness arising from the flawed language of the charge. See Smalls, 191

-39-
F.3d at 281 (“[T]he jury charge . . . lacked any such cautionary language and

failed to inform the jurors of the possibility that they could remain deadlocked

rather than surrender their conscientiously held beliefs. The length of

deliberations in this case did not diminish the coerciveness of the supplemental

jury charge.”); Mason, 658 F.2d at 1265 (noting that the jury did not return a

verdict until an hour and a half after the Allen instruction but ultimately

concluding that the instruction was impermissibly coercive).

Finally, we are not convinced by the government’s argument that, because

the jury deliberated beyond noon in response to the district court’s suggestion of

an additional deliberation period until noon, the Allen charge had no coercive

effect. We agree with the government to the extent that, if the jury had rendered

its verdict by noon in these circumstances, there would be a strong argument that

the jury was coerced.

In fact, cases such as Burroughs v. United States, 365 F.2d 431 (10th Cir.

1966), and Goff v. United States, 446 F.2d 623 (10th Cir. 1971), suggest that

setting a time deadline exacerbated the coercive effect of the Allen charge. We

point to this court’s comments in Burroughs:

[I]t is one thing to recall the jury to beseech them to reason together,
and it is quite another to entreat them to strive toward a verdict by a
certain time. When these admonitions are considered in their
context, they are subject to the clear inference that the judge was
unduly anxious to conclude the lawsuit, and we think it entirely
reasonable to infer that the jury was aware of his anxiety. This type

-40-
 of verdict-urging on the part of the court tends to undermine the
proper function of the common law jury system . . . .

365 F.2d at 434. To put the matter more succinctly, “[a] court’s attempt to secure

[a] quick verdict prevents fair and thoughtful deliberation by [a] jury.” 75B Am.

Jur. 2d § 1601, at 367-68; see also Flannery, 451 F.2d at 883 (criticizing the trial

court for suggesting to the jury that “it was more important to be quick than to be

thoughtful”); Goff, 446 F.2d at 626 (concluding that “[i]t was impermissibly

suggestive and coercive for the Court to place a time fuse [i.e., a deadline] on the

period of jury deliberation”).

4. Other Considerations

These factors indicate that the Allen instruction in the instant case was

impermissibly coercive. A few final considerations support that conclusion.

First, this court has endorsed the ABA version of the Allen charge, see note 8,

supra, and suggested that, in determining the coercive effect of a particular

instruction, we compare that instruction to the ABA version. See Dyba, 554 F.2d

at 421. A comparison with the ABA version highlights that the charge in the

instant case was plagued by problematic language – not only the omission of all

cautionary language, particularly that dealing with conscientiously held

convictions, but also embellishments on expense and danger.

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 Second, at least one circuit court has noted that the fact of a prior hung jury

may under certain circumstances strengthen the inference of coercion. See

Bailey, 468 F.2d at 665 (observing that “[t]he special concurrence in Thaggard v.

United States[,] [354 F.2d at 735,] thought it ‘significant that there had already

been one hung jury in a previous trial’”). We agree. The fact that the jury in Mr.

McElhiney’s first trial could not reach a verdict contributes to the coercion

calculus.

Finally, and perhaps most importantly, we take note of the colloquy

between the foreperson and the district court. As the Appendix reflects, the

foreperson repeatedly told the district court – at least three times – that the jury

was at an impasse, see, e.g., Tr. at 3 (“[W]e have exhausted all possibilities that

would help us reach a verdict.”), and all the jurors, when individually polled,

agreed. Deliberations resumed only after strong pressing by the district court,

with the foreperson finally acquiescing by saying, “I would be willing to try

[more deliberations] if that is your wish.” Id. at 5 (emphasis added).

All this is not to say that the evidence of coercion is entirely clear-cut in

this case. Indeed, there is one fact that does give us some pause: that, before

reaching a verdict, the jury reconsidered two pieces of evidence. The government

argues that this fact demonstrates that the verdict was not a product of coercion

but rather a result of the jury’s reexamination of evidence. See United States v.

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Ajiboye, 961 F.2d 892, 894 (9th Cir. 1992) (“Indeed, the jury asked for some of

the trial testimony to be re-read before reaching its verdict – another pretty good

indication that the Allen charge did not coerce the guilty verdicts.”). While we

believe that this fact does weigh in the favor of the government, we cannot say

that, given all of the factors above, we do not have substantial doubts as to the

integrity of the deliberation process, see Porter, 881 F.2d at 889 (asking whether

the Allen charge was “impermissibly coercive in a way that undermined the

integrity of the deliberation process”); Thomas, 449 F.2d at 1184 (asking if there

was “a substantial probability of prejudice to the accused”), especially since the

foreperson insisted during the colloquy with the district court that “added work”

and “read backs” would not assist the jury in reaching a verdict. Tr. at 3; see also

Smalls, 191 F.3d at 281-82 (noting that the jury reexamined evidence before

reaching a verdict but ultimately concluding that the Allen charge was still

impermissibly coercive). Taking into account the totality of the circumstances,

and, cognizant of this circuit’s guideline that even a pure charge borders on the

impermissible – a corollary of which is that a substantial deviation is highly

questionable – we cannot but say that the instruction given in the instant case

managed to cross that boundary.

To conclude, we hold that Mr. McElhiney’s conviction must be reversed

because, given the specific facts confronting us, and in particular, the faulty

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language employed, the Allen instruction provided was impermissibly coercive.

We emphasize that our holding here is dictated by the unique circumstances in the

case at hand. Cf. Mason, 658 F.2d at 1266 (stating that “we must give close

scrutiny to the actual charge and the circumstances in which it was given,”

particularly because “an Allen error calls into question the validity of a jury’s

verdict, upon which substantial appellate presumptions rely”).

Undoubtedly, this was a difficult case, made more so by the problem of a

pro se defense. It may be that, because of these difficulties, the district court did

not realize that it was in an Allen situation. Further, we are not without sympathy

for the concerns of the district court, namely, the possibility of a third trial

involving considerable expense. However, we must caution that exhorting a

deadlocked jury to further deliberation—the classic Allen scenario—must be

undertaken with great care. See Rodriguez-Mejia, 20 F.3d at 1091 (stating that

“[w]e have traditionally urged caution in the use of the Allen instruction”) (citing

Butler, 904 F.2d at 1488); Smith, 857 F.2d at 684 (noting that the Allen charge

must be given “with caution”); see also Flannery, 451 F.2d at 883 (“Like

dynamite, [the Allen instruction] should be used with great caution, and only

when absolutely necessary.”). When a district court issues an instruction

encouraging a unanimous verdict, the following cautionary language should be

incorporated to balance the potential coercive effect of the charge: (1) that no

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juror should relinquish his or her conscientiously held convictions simply to

secure a verdict and (2) that every individual juror should reconsider his or her

views, whether in the majority or in the minority. Cf. United States v. Munroe,

424 F.2d 243, 246 (10th Cir. 1970) (“[W]e believe that . . . the [ABA] Jury Trial

Standards discussed above [see note 8, supra] provide proper safeguards against

the possible taint of coercion from the giving of supplemental jury instructions.”).

As a final note, and recognizing that we have upheld an Allen instruction not

containing the burden of proof, Winn, 411 F.2d at 417, this cautionary language

should be supplemented with a reminder to the jury of the burden of proof, once

again to avoid the possibility of coercion. See Burrup, 371 F.2d at 558 (Chief

Judge Murrah stating that “the judge cannot be too careful to remind the jury of

these prerequisites to full and fair consideration of the guilt or innocence of an

accused,” including “the requirement that guilt must be established beyond a

reasonable doubt”) (internal quotation marks omitted).

IV. CONCLUSION

Having reviewed the briefs and the record submitted by the parties, we

conclude that no Brady violations occurred but that the supplemental Allen charge

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was impermissibly coercive. Accordingly, we REVERSE and REMAND to the

district court for proceedings consistent with this opinion. 14

14
In light of our disposition of Mr. McElhiney’s challenge to the Allen
charge, we do not address the other issues he raises in this appeal.

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 APPENDIX A (The District Court’s Allen Charge)

Court: Let the record disclose we’re all present. And ladies and gentlemen,
I have received a note from the jury here that is very distressing to
me because this has been one of the greatest major efforts ever made
in time and attention and money that I have noted in my 24 years as
being a judge. And I need to find out whether this jury is – feels like
you cannot continue. Your note says, “The jury is unable to reach a
verdict.” My question needs to be, I cannot dismiss a jury unless I
am – and declare a mistrial, unless I can be assured that the jury is
hopelessly deadlocked. It’s not sufficient that you’re currently
deadlocked under the law. And let me first talk to the foreperson.
And is it your position that the jury cannot reach a verdict?

Foreperson: Yes, Your Honor.

Court: And has there been any change in the last hour or two or where are
we here?

Foreperson: There has been no change in the last hour or two.

Court: Has there been a change since yesterday?

Foreperson: Yes.

Court: Well, it is your position that added work would not bring about a
verdict? Regardless of which way the verdict goes, we’d like to have
a verdict in this case, that’s the situation.

Foreperson: We understand that. It is my position that we aren’t able to come up
with a verdict.

Court: And do you think you’ve exhausted all possibilities of any read backs
that would help you reach a verdict or anything like that?

Foreperson: Yes.

Court: What does that mean?

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Foreperson: Yes, we have exhausted all possibilities that would help us reach a
verdict.

Court: Well, let me – let’s poll the jury here and would you simply ask them
a general question of each one of them of whether they think there’s
any possibility of any change. I think you have a question there,
perhaps that you can ask.

Clerk: Lisa McClendon, is it your decision that you cannot reach a verdict?

Juror: Yes, it is.

Clerk: Katherine Priest, do you feel you cannot reach a verdict?

Juror: Yes, it is.

Clerk: Derron Dean, do you feel you cannot reach a verdict?

Juror: Yes.

Clerk: Steven Booth, do you feel you cannot reach a verdict?

Juror: Yes.

Clerk: Frances Oliva, do you feel you cannot reach a verdict?

Juror: Yes.

Clerk: Beth Blackwell, do you feel you cannot reach a verdict?

Juror: Yes.

Clerk: Diana Dittman, do you feel you cannot reach a verdict?

Juror: Yes.

Clerk: Billy Hagen, do you feel you cannot reach a verdict?

Juror: Yes.

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Clerk: Janice Stone, do you feel that you cannot reach a verdict?

Juror: Yes.

Clerk: Rebecca Frye, do you feel you cannot reach a verdict?

Juror: Yes.

Clerk: Christie Appelhanz, do you feel you cannot reach a verdict?

Foreperson: Yes.

Clerk: And, Mark Jones, do you feel you cannot reach a verdict?

Juror: Yes.

Court: Do you all think that if you deliberated until noon, it would not make
any – there would be no change, is that your general consensus, is
that what you think?

Foreperson: I would be willing to try if that is your wish.

Court: Well, frankly, I’d like to have you do this. Of course, I do not know
what will happen from now on out. I have no control over that. But
we may be doing this again and that’s the reason I’d be very happy to
have a verdict one way or the other. And it’s – but the time and
attention and the danger of this case has been, you know, a problem.
We’ve had security in here that was just – I said to somebody we
could have fought the Russian Army head on with what we’ve had
here in this case.

Well, I – frankly, the Court would certainly like to have you try to
reach a verdict in this case. And why don’t you continue your
deliberations for a while and see if there’s any possibility you can
reach a verdict in this case. Are you willing to do that?

Foreperson: I am, yes.

Court: All right. Well, why don’t we recess then and you continue to try to
deliberate. And if you find that you’re absolutely hopelessly

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 deadlocked, why then I would have nothing else I can do except
dismiss you with the thanks of the Court. But why don’t you give it
another try. Mr. Bailiff.

(Thereupon, the following proceedings were had out of the hearing of the jury
panel.)

Court: Mr. McElhiney.

McElhiney: Your Honor, I’m concerned about the use of the word “danger” just
now. That might be interpreted – it could have coerced the jury into
thinking they must reach a verdict without explanation of that. This
is a prison case, there’s been a lot of newspaper publicity and using
the word “danger” like that, I didn’t understand the context.

Court: Well, I’m sure the jury understands that with all the people we’ve
had here that this has been a very difficult case to try. And so I do
not feel that there’s anything there that’s going to turn a verdict one
way or the other.

McElhiney: For the record, I would request a mistrial based on what the jury has
said.

Court: Your motion will be overruled and denied. Mr. Bailiff, let’s recess
the Court.

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 APPENDIX B (ABA’s Recommended Allen Charge)

(i) [T]hat in order to return a verdict, each juror must agree thereto;

(ii) [T]hat jurors have a duty to consult with one another and to
deliberate with a view to reaching an agreement, if it can be done
without violence to individual judgment;

(iii) [T]hat each juror must decide the case for himself or herself but
only after an impartial consideration of the evidence with the other
jurors;

(iv) [T]hat in the course of deliberations, a juror should not hesitate to
reexamine his or her own views and change an opinion if the juror
is convinced it is erroneous.

(v) [T]hat no juror should surrender his or her honest conviction as to
the weight or effect of the evidence solely because of the opinion of
the other jurors, or for the mere purpose of returning a verdict.

ABA Standards for Criminal Justice § 15-5.4 (3d ed. 1996).

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