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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 10, 2004 Decided July 20, 2004
No. 02-3119
UNITED STATES OF AMERICA,
APPELLEE
v.
SHOLA AYENI,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00009–01)
Peter S. Spivack, appointed by the court, argued the cause
for appellant. With him on the briefs was Keith J. Benes.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher, Roy W.
McLeese III, and Steven J. Durham, Assistant U.S. Attor-
neys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: RANDOLPH, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed PER CURIAM.
Concurring opinion filed by Circuit Judge TATEL.
PER CURIAM: Convicted by a jury of committing and conspir-
ing to commit fraud and theft from the Superior Court of the
District of Columbia, appellant argues that the district court
improperly allowed counsel to offer supplemental arguments
in response to factual questions that the jury asked after
commencing its deliberations. He also contends that the
district court erred by refusing to declare a mistrial when a
juror reported having had a brief contact with the govern-
ment’s star witness. Addressing only the first of these
arguments, we conclude that the district court abused its
discretion by permitting the supplemental arguments, and we
therefore reverse the conviction and remand for a new trial.
I.
Appellant Shola Ayeni, an attorney, served as appointed
counsel for criminal defendants in the Superior Court of the
District of Columbia. In 2002, a grand jury indicted him and
one of his investigators, Troy Robinson, on charges of com-
mitting and conspiring to commit fraud and theft from pro-
grams receiving federal funds. According to the indictment,
Ayeni and Robinson ran a scheme whereby Ayeni obtained
nearly 2,000 of the vouchers that attorneys representing poor
criminal defendants in the Superior Court provide to people
required to testify in their clients’ cases. Ayeni then gave the
vouchers, each worth $40, to Robinson, who had friends and
family members—not one of whom was a witness—redeem
them and give the money (minus a commission) to him. He
in turn gave the money to Ayeni. Robinson received nothing
during these transactions; Ayeni allegedly promised to give
him thousands of dollars worth of other vouchers later.
Ayeni’s first trial ended in a hung jury. Before the re-trial,
the government secured Robinson’s testimony detailing his
scheme with Ayeni, testimony it presented along with that of
six people who cashed vouchers for Ayeni and Robinson,
3
several Superior Court employees who issued vouchers to
Ayeni, and a handwriting expert who compared signatures on
the vouchers with Robinson’s and Ayeni’s signatures. The
government also introduced evidence indicating that Ayeni
experienced financial problems at the time he allegedly ran
his scheme. Ayeni adduced no evidence.
A few hours after the jury began deliberating, it sent a
note to the court stating that it was ‘‘hopelessly deadlocked.’’
Denying Ayeni’s motion for a mistrial, the court invited, but
did not require, the jurors to identify areas of disagreement,
stating that perhaps it or counsel could help them resolve
those disagreements. The jury retired and soon sent in three
questions: ‘‘What is the lesser count Mr. Ayeni is charged
with; why was the handwriting expert called to testify; do[ ]
the defense and prosecution agree that Mr. Ayeni’s signa-
tures in the witness voucher record books are authentic?’’
Tr. 12/13/02 at 10, reprinted in J.A. at 158. With the two
sides’ consent, the court responded to the first question by
informing the jurors that there were no lesser included
offenses. That response is not at issue in this appeal.
As to the second and third questions, the court told counsel
that it was inclined to give each side time to present supple-
mental arguments, partly because it felt it could not provide
the jury with a fair and adequate response. Ayeni objected
to the arguments and again moved for a mistrial, but after
giving each side a day to research the issue and submit a
memorandum, the court stood by its initial plan and permit-
ted each lawyer up to ten minutes to argue, with defense
counsel going first. Both before and after the attorneys
argued, the district court instructed the jury not to ‘‘place
undue emphasis on these supplemental arguments,’’ Tr.
12/16/02 at 7, 18, reprinted in J.A. at 181, 192, but to consider
them together with the evidence, instructions, and other
arguments they had heard.
Shortly after the supplemental arguments, the jury sent
another note, this one stating that one juror had had a brief
contact with Robinson six days earlier, not long after Robin-
son testified, and that the juror had shared the encounter
4
with the other jurors. During the encounter, which occurred
in a courthouse elevator, Robinson asked the juror, ‘‘[d]o you
know where I can get any vouchers around here?’’ to which
the juror responded: ‘‘I don’t know anything about any—I’m
new around here. I don’t know what you are talking about.’’
Id. at 27, reprinted in J.A. at 201. In response to the jury’s
note, the court interviewed the jurors separately, asking
whether they could ignore whatever they had heard about the
contact and decide the case based solely on the evidence
presented. When all said they could, the judge denied Aye-
ni’s motion for a mistrial and allowed the jurors to resume
deliberations. A few hours later, the jury convicted Ayeni on
all counts. The district court subsequently denied his motion
for a new trial. See United States v. Ayeni, 245 F. Supp. 2d
145, 150 (D.D.C. 2003).
On appeal, Ayeni contends that the district court erred
both in allowing the supplemental arguments and in refusing
to grant a mistrial based on Robinson’s contact with the
juror. Because we agree with the first contention, we do not
address the second.
II.
In asserting that the district court improperly allowed
supplemental arguments, Ayeni makes two alternative argu-
ments. First, he contends that supplemental arguments in
response to deliberating juries’ factual questions are never
permitted because they ‘‘subvert[ ] the principle TTT that the
jury’s deliberations must remain inviolate,’’ Appellant’s Br. at
11, and ‘‘intrude[ ] upon the jury’s exclusive role as the fact-
finder,’’ Appellant’s Reply Br. at 3. Second, he claims that
even if such supplemental arguments are sometimes permissi-
ble, in this case the district court abused its discretion by
allowing them. Although the government acknowledges that
the second, narrower argument is properly before us, it
insists that Ayeni forfeited the first, broader argument by
failing to make it in the district court.
We need not resolve the government’s forfeiture argument
because we agree with Ayeni that the district court abused its
5
discretion by allowing supplemental arguments in this case.
Ayeni makes several points in advancing his narrower argu-
ment, but we begin and end with the one we deem most
important: that the jury’s questions necessitated no addition-
al argument. In his opinion denying Ayeni’s motion for a
new trial, the district judge explained his decision to allow the
supplemental arguments:
I could have attempted to fashion an answer that charac-
terized the government’s position concerning the impor-
tance of the handwriting expert’s testimony, and the
parties’ positions about the questioned signatures. The
risk was that such an instruction from the Court, worded
so as to avoid lapsing into advocacy, might not sufficient-
ly or fairly capture the parties’ nuanced positions and
would be unresponsive. Alternatively, I could have sim-
ply instructed the jurors that they had to rely upon their
recollection of the evidence and arguments. That would
have been of no help. Helpful and responsive answers
required advocacy.
Ayeni, 245 F. Supp. 2d at 149. Challenging this reasoning,
Ayeni asserts—and the government agrees—that the jury’s
inquiry as to whether the two sides agreed that certain
signatures were authentic could have been adequately an-
swered with one word: ‘‘no.’’ As to the question about why
the government called the handwriting expert, Ayeni argues
that ‘‘the district court could have collaborated with [the]
attorneys to formulate a neutral TTT response TTT such as
‘The handwriting expert was called to testify because the
Government and the defendant dispute the authenticity of the
signatures on the witness vouchers.’ ’’ Appellant’s Reply Br.
at 11. The government counters that answering this question
‘‘required a partisan slant on the evidence that the judge
could not properly provide.’’ Appellee’s Br. at 27.
We agree with Ayeni that supplemental arguments were an
inappropriate response to the jury’s questions. The question
about whether the parties agreed on the signatures’ authen-
ticity was straightforward, and the one-word answer that both
sides suggest here would have provided a direct and complete
6
response. The other question, which sought information
about the government’s trial strategy, similarly called for no
supplemental arguments, for the district court could have
fashioned a response along the lines Ayeni suggests, or it
could have told the jurors that the question was not one it
could answer because trial strategy was not a proper concern
of theirs. In fact, the court took just such an approach when
it answered the jury’s question about lesser-included offenses,
telling the jurors that if they were asking which of the
charges involved a shorter sentence, the court could not
respond substantively because ‘‘[t]he question of possible
punishment of the defendant in the event of conviction is TTT
no concern of yours and should not enter or influence your
deliberations in any way.’’ Tr. 12/16/02 at 6, reprinted in J.A.
at 180. Given these other options, it was an abuse of discre-
tion for the district court to adopt an approach that, in effect,
allowed the lawyers to hear the jury’s concerns and then, as if
they were sitting in the jury room themselves, fashion re-
sponses targeted precisely to those concerns. Indeed, in his
supplemental argument the prosecutor made one argument to
the jury that he had not made in his closing: that there was a
reason why the handwriting expert had been unable to say
for certain that any of the signatures on the vouchers or in
the voucher sign-out book were Ayeni’s, namely that the
signatures were sometimes made in an automobile. The
prosecutor offered this reason even though the expert herself
never gave it as an explanation for her inability to match any
signatures.
It is true, as the government says, that a ‘‘district court
enjoys broad discretion in controlling the jury during deliber-
ations,’’ Appellee’s Br. at 23, and that ‘‘[t]his discretion in-
cludes the authority to decide what to do when the jury
encounters stumbling blocks in its deliberations,’’ id. at 24.
Yet this discretion has limits. For example, district courts
may not ask a deliberating jury how it is numerically divided,
see Brasfield v. United States, 272 U.S. 448, 449–50 (1926),
nor (at least in this circuit) give the so-called ‘‘dynamite’’ or
Allen charge used to break deadlocks, see United States v.
Thomas, 449 F.2d 1177, 1186 (D.C. Cir. 1971) (en banc). The
7
issue, then, is not whether district courts have the discretion
the government describes—they unquestionably do—but
whether the court’s action here fell within the scope of that
discretion. For the reasons already discussed, we conclude
that it did not.
As mentioned, Ayeni argues not only that the supplemental
arguments were an abuse of discretion in this case, but also
that such arguments are never permissible because they
invade the jury’s deliberations and intrude into its role as the
sole trier of fact. Though we need not address this conten-
tion given our resolution of Ayeni’s narrower claim that the
supplemental arguments were an abuse of discretion under
the circumstances of this case, we note our uneasiness with
any use of supplemental arguments in response to a jury’s
factual questions. In addition to being almost unheard of—
the parties cite but one case in which they were employed—
the use of such arguments is, for the reasons Ayeni suggests,
troubling. Accordingly, we strongly discourage the use of
this innovation by the trial judges of this circuit.
Of course, the district court’s error in allowing supplemen-
tal arguments would not require us to vacate Ayeni’s convic-
tion had that error been harmless. See Fed. R. Crim. P.
52(a) (‘‘Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.’’). But the
government bears the burden of proving harmless error, see,
e.g., United States v. Whitmore, 359 F.3d 609, 622 (D.C. Cir.
2004) (citing United States v. Olano, 507 U.S. 725, 734 (1993)),
and here it does not even venture to make a harmless error
argument. This is unsurprising, since there is no way to
know whether the supplemental arguments produced the
jury’s verdict. We thus reverse Ayeni’s conviction and re-
mand for a new trial.
So ordered.
1
TATEL, Circuit Judge, concurring: ‘‘It goes without saying
that few institutions are as venerable as that of trial by jury,
enshrined at the Founding in the Bill of Rights and hallowed
by an enormous body of English and American law that
commands judges TTT not to invade the province of judgment
by the people.’’ Stacey v. Allied Stores Corp., 768 F.2d 402,
406 (D.C. Cir. 1985). Implicating both that venerable institu-
tion and that command, this case presents the question
whether supplemental arguments in response to juries’ factu-
al questions—a procedure so unusual that its use in a federal
criminal case has apparently never been the subject of a
judicial opinion—always invade the sanctity of the jury’s
deliberations and intrude into its acknowledged role as the
exclusive trier of fact. I believe that they do, and although
we need not so rule to resolve this case, see Op. at 7, I write
separately to explain my views because jury questions more
difficult to answer than those at issue here may lead other
district judges to consider allowing supplemental arguments.
I.
At the outset, I disagree with the government that Ayeni’s
broader argument—that supplemental arguments in response
to juries’ factual questions are never permissible—is not
properly before us. To support its position, the government
picks out and focuses on individual statements in the memo-
randum that Ayeni submitted to the district judge after the
judge proposed allowing supplemental arguments. But the
judge had Ayeni’s entire memo, not just the sentences the
government selects, so in determining whether the memoran-
dum alerted him to Ayeni’s objection and thus gave him an
‘‘opportunity to correct any mistake before an appeal is
taken,’’ United States v. Edelin, 996 F.2d 1238, 1245 (D.C.
Cir. 1993) (per curiam), we too must examine the whole
memo, cf. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (‘‘It is
well established that [a challenged jury] instruction may not
be judged in artificial isolation, but must be considered in the
context of the instructions as a wholeTTTT’’ (internal quotation
marks omitted)); United States v. Whoie, 925 F.2d 1481, 1485
(D.C. Cir. 1991) (‘‘In deciding whether jury instructions are
erroneous, we always consider the whole instruction—not just
the supposedly erroneous snippet.’’).
2
Once Ayeni’s memo is read in its entirety, it becomes clear
that he made the argument that the government says he
forfeited. The memo is replete with general attacks on the
propriety of allowing supplemental arguments in response to
juries’ factual questions. For example, noting that ‘‘the last
two questions posed by the jury ask the Court and both
counsel to make factual conclusions for the jurors,’’ Ayeni
stated flatly that ‘‘[t]his is clearly improper.’’ Def.’s Resp. to
the Gov’t’s Mem. of Law Concerning (I) Propriety of Provid-
ing Supplemental Jury Instruction for Second Degree Fraud
and (II) Propriety of Providing Supplemental Closing Argu-
ment in Resp. to Specific Jury Request at 2, United States v.
Ayeni (No. 02–009–01) [hereinafter Def.’s Memo]. Expand-
ing on this point, Ayeni asserted that ‘‘[t]o impose upon
counsel TTT the requirement that we explain the meaning of
the expert’s testimony to the jury is in essence telling the
jurors how to deliberate. It is their duty to weigh the
evidence and give each piece of evidence the weight they
think it deserves.’’ Id. And still later, Ayeni added that
‘‘[t]he Court, via supplemental arguments after closing, is now
specifically delegating this [fact-finding] task to counsel TTT
The Court’s attempts to force counsel to ‘do the juror[s’]
thinking for them’ and tell them what the facts are after they
are unable to agree on the facts after careful deliberations is
clearly inappropriate.’’ Id. at 3. Demonstrating that Ayeni
was advancing a generic objection to the use of supplemental
arguments in response to juries’ factual questions, these
statements broadly condemn such arguments in terms (and
for reasons) that would apply in almost any case.
The language that the government’s forfeiture argument
relies on—all of which appears in the memo’s first para-
graph—does nothing to alter this overall message. True, the
memo ‘‘concedes that the Court has broad discretion to
permit supplemental closing argument in response to notes
from the jury.’’ Def’s Memo at 1. Read in light of the
sentences that follow, however, that ‘‘concession’’ merely ac-
knowledges that appellate courts have sanctioned (or even
required) supplemental arguments when a jury note leads the
judge to give supplemental instructions. See, e.g., United
States v. Fontenot, 14 F.3d 1364, 1368 (9th Cir. 1994) (‘‘[I]f a
3
supplemental jury instruction given in response to a jury’s
question introduces a new theory to the case, the parties
should be given an opportunity to argue the new theory.’’).
As the memo’s next two sentences explain, Ayeni had no
objection to the cases the government cited in its memoran-
dum—cases that involved supplemental arguments following
supplemental instructions. In other words, Ayeni ‘‘conceded’’
only that there are circumstances in which supplemental
arguments are allowed, not that the situation here was one of
those circumstances. The government sees Ayeni’s failure to
object to the cases cited in its memo as further evidence of
forfeiture, but not one of those cases involved arguments in
response to a jury’s factual questions. Ayeni’s failure to
object to those cases cannot fairly be viewed as forfeiting an
issue that they did not address.
To be sure, other language in Ayeni’s memorandum (not
cited by the government) does make a case-specific argument.
But viewed together with the more general statements quot-
ed above, this means only that Ayeni made two alternative
arguments: the broader claim that supplemental arguments
are never permitted in response to juries’ factual questions,
and the narrower assertion—which the court addresses—that
such arguments, even if permissible, were improper in this
case. A party making such alternative arguments does not,
of course, forfeit either one.
More generally, our job is not, as the government seems to
think, to see how creatively we can read pleadings in order to
avoid deciding an issue. Rather, particularly when reviewing
a criminal conviction where a person’s freedom is at stake, we
must address every fairly raised issue. For that reason, this
circuit has made clear that ‘‘where the record is ambiguous
we would rather err on the side of recognizing an objection
that was not made with the desired specificity than rejecting
one that was so made.’’ United States v. Purvis, 21 F.3d
1128, 1130 (D.C. Cir. 1994).
II.
Two bedrock characteristics of our system of trial by jury,
a system the Supreme Court has labeled ‘‘fundamental to the
4
American scheme of justice,’’ Duncan v. Louisiana, 391 U.S.
145, 149 (1968), are that jury deliberations occur in seclusion
and that the jury serves as the sole finder of fact. Regarding
the first characteristic, not only is ‘‘the sanctity of jury
deliberations TTT a basic tenet of our system of criminal
justice,’’ United States v. Schwarz, 283 F.3d 76, 97 (2d Cir.
2002), but courts go to great lengths to protect that sanctity.
For example, warning district courts to be chary when ques-
tioning jurors who may be hindering deliberations, this court
has explained that ‘‘a court may not delve deeply into a
juror’s motivations because it may not intrude on the secrecy
of the jury’s deliberations.’’ United States v. Brown, 823
F.2d 591, 596 (D.C. Cir. 1987). Along the same lines, other
circuits have reversed convictions simply because an alternate
juror sat silently in the jury room during deliberations, with
one court stating that ‘‘the presence of the alternate in the
jury room violated the cardinal principle that the delibera-
tions of the jury shall remain private and secret in every case.
The presence of any person other than the jurors to whom
the case has been submitted TTT impinges upon that privacy
and secrecy,’’ see United States v. Va. Erection Corp., 335
F.2d 868, 872 (4th Cir. 1964) (footnote omitted), and another
observing that ‘‘[o]nce the prescribed number of jurors be-
comes ‘the jury,’ then, and immediately, any other persons
are strangers to its proceedings. Their presence destroys the
sanctity of the jury and a mistrial is necessary,’’ United
States v. Beasley, 464 F.2d 468, 470 (10th Cir. 1972). Con-
gress too has taken steps to protect jury deliberations, mak-
ing it a crime to record, watch, or listen to any federal jury’s
deliberations (or to attempt to do so). See 18 U.S.C. § 1508
(2000).
No less fundamental than jury seclusion is the principle
that the jury—not the trial judge and not the attorneys—
serves as the trier of fact. As the Supreme Court has said:
Of course, TTT in a jury trial the primary finders of
fact are the jurors. Their overriding responsibility
is to stand between the accused and a potentially
arbitrary or abusive Government that is in command
5
of the criminal sanction. For this reason, a trial
judge is prohibited from entering a judgment of
conviction or directing the jury to come forward with
such a verdict, regardless of how overwhelmingly
the evidence may point in that direction. The trial
judge is thereby barred from attempting to override
or interfere with the jurors’ independent judgment
in a manner contrary to the interests of the accused.
United States v. Martin Linen Supply Co., 430 U.S. 564, 572–
73 (1977) (citations omitted). This court has also emphasized
the importance of the jury as fact-finder. Indeed, ‘‘our
opinions have repeatedly emphasized our conviction that the
jury’s role as fact-finder is TTT central to our jurisprudence.’’
United States v. Comer, 421 F.2d 1149, 1154 (D.C. Cir. 1970);
see also Belton v. United States, 382 F.2d 150, 156 (D.C. Cir.
1967) (‘‘[T]he principle that the jury should be permitted to
find the facts is a cornerstone of our jurisprudenceTTTT’’).
Underscoring the importance of that role, this court, sitting
en banc, has declared that ‘‘[a]ny undue intrusion by the trial
judge into this exclusive province of the jury is error of the
first magnitude.’’ United States v. Thomas, 449 F.2d 1177,
1181 (D.C. Cir. 1971) (en banc).
In my view, supplemental arguments in response to juries’
factual questions conflict with these hallmarks of the jury
system. Such arguments give attorneys who, in effect, have
‘‘peeked’’ into the jury’s deliberations—by listening to its
questions and hearing its concerns—an opportunity to pro-
vide tailored responses to those questions, questions that
concern factual matters and that the jurors formulated as
part of their deliberative process. The arguments thus per-
mit the lawyers to effectively participate in the jury’s deliber-
ations, almost as if they were in the jury room itself. Indeed,
had the supplemental arguments in this case been permissi-
ble, then nothing would have prevented the jury from submit-
ting additional factual questions to the court, or the court
from permitting additional rounds of such arguments, thus
launching an ongoing dialogue between jury and lawyers.
Though no extended dialogue was needed to produce a ver-
dict in this case, the fact remains that the jury convicted
6
Ayeni only after the attorneys contributed to its deliberations,
intruding on its role as sole fact-finder. Of course, no one
told the jury which facts to find, but the jury’s role as fact-
finder can be invaded without being completely usurped.
Juries find facts via a deliberative process that takes place in
seclusion, and when counsel offer arguments tailored to ad-
dress the factual concerns that arise during that deliberative
process, the process—and thus the jury’s role as sole fact-
finder—has been invaded.
Contrary to the government’s suggestion, the fact that
courts permit or even require supplemental arguments when
a trial judge provides supplemental legal instructions does not
justify the use of such arguments in response to factual
questions. Juries’ legal questions, which are what usually
prompt supplemental instructions, differ fundamentally from
their factual questions for an obvious reason: juries do not
serve as the ‘‘triers of law.’’ They are not expected to divine
the law for themselves the way they are expected to find the
facts. Rather, the trial judge, aided by counsel, provides the
jury with the proper legal standard. See, e.g., Kelly v. South
Carolina, 534 U.S. 246, 256 (2002) (‘‘A trial judge’s duty is to
give instructions sufficient to explain the lawTTTT’’). Indeed,
‘‘[w]hen a jury makes explicit its [legal] difficulties a trial
judge should clear them away with concrete accuracy.’’ Bol-
lenbach v. United States, 326 U.S. 607, 612–13 (1946).
By contrast, where a jury’s questions relate to a factual
matter, a substantive reply (whether by the judge or the
attorneys) risks interfering with the jury’s exclusive responsi-
bility for resolving factual questions. For this reason, several
circuits have upheld district courts that refused to answer
juries’ factual questions. In one case, for example, the dis-
trict court told jurors who submitted factual questions,
‘‘[m]embers of the jury: The Court cannot answer your
questions. It is for you as fact finders to interpret the
evidence, weigh it and evaluate it without further directions
from the Court. Please proceed with your deliberations.’’
United States v. Aubin, 961 F.2d 980, 983 (1st Cir. 1992)
(quoting the district court) (internal quotation marks omit-
ted). Sustaining the district court’s actions, the First Circuit
7
explained that ‘‘[t]he jury questions sought to resolve a
conflict among the jurors as to what the testimony had been;
such a conflict must be resolved by the trier of fact.’’ Id.; see
also United States v. Blumberg, 961 F.2d 787, 790 (8th Cir.
1992) (finding no abuse of discretion where the district court,
having received a factual question from the jury and ‘‘[b]eliev-
ing further instruction would invade the province of the jury
as the ultimate fact finder, TTT told the jurors they should
answer the question for themselves by examining the evi-
dence’’). Courts have also warned trial judges against usurp-
ing the jury’s fact-finding role even as they carry out their
obligation to clear up the jury’s legal difficulties. For in-
stance, after explaining the importance of answering a jury’s
legal questions, the Fourth Circuit cautioned that ‘‘ ‘the court
must be careful not to invade the jury’s province as fact
finder.’ Such a distinction is consistent with our fundamental
belief that it is the court that provides the legal yardstick and
the jury that measures the evidence.’’ United States v. Ellis,
121 F.3d 908, 925 (4th Cir. 1997) (quoting Blumberg, 961 F.2d
at 790) (citation omitted); see also United States v. Nunez,
889 F.2d 1564, 1569 (6th Cir. 1989) (‘‘Questions from a
deliberating jury present a dilemma for a trial court. The
court must be careful not to invade the jury’s province as
fact-finder. Nevertheless, the court must respond to ques-
tions concerning important legal issues.’’); United States v.
Walker, 575 F.2d 209, 214 (9th Cir. 1978) (Kennedy, J.)
(‘‘Because the jury may not enlist the court as its partner in
the fact-finding process, the trial judge must proceed circum-
spectly in responding to inquiries from the jury.’’).
Of course, where a jury’s legal question leads the judge to
give supplemental instructions, supplemental arguments may
be appropriate if the instructions introduce legal theories or
concepts about which the parties never had a chance to argue.
See, e.g., Loveless v. United States, 260 F.2d 487, 487–88 (D.C.
Cir. 1958) (per curiam) (reversing a conviction because the
district court refused to allow additional argument after
providing supplemental instructions regarding a lesser of-
fense—manslaughter—that was not mentioned in the original
instruction). But while lawyers often address the facts when
8
arguing in response to a supplemental instruction, they do so
only in relation to legal questions, not factual ones. For
example, in a case cited by the government, the jury asked
whether the defendant could be convicted of first-degree
murder even if he had not (1) inflicted the fatal injury
himself, (2) planned the murder, and (3) been the only one to
premeditate the murder. See United States v. Horton, 921
F.2d 540, 542–43 (4th Cir. 1990). Such legal questions reveal
the jury’s uncertainty about the law. Attorneys who argue in
response to supplemental instructions induced by such ques-
tions will not know of any factual disputes that might be
dividing the jury, and will thus be unable to focus their
arguments on such disputes.
This case shows exactly how supplemental arguments in
response to juries’ factual questions permit attorneys to focus
on factual issues, indeed on the very factual issues that are
dividing the jury and preventing a verdict (since juries are
unlikely to ask questions about issues on which they agree).
Recall that in seeking to prove that Ayeni defrauded the D.C.
Superior Court by obtaining almost 2,000 witness-fee vouch-
ers and having them redeemed by individuals who never
appeared as witnesses, the government called (among others)
a handwriting expert to testify that it was indeed Ayeni who
had signed out all the vouchers. On cross-examination, the
expert acknowledged that she could not say for certain that
any of the signatures in the voucher sign-out book were
Ayeni’s. It seems clear from the jury’s questions that this
concession caused the deadlock, with some jurors evidently
believing that the concession meant that the government had
failed to prove Ayeni’s guilt beyond a reasonable doubt. This
was hardly surprising, given that in his closing argument the
prosecutor offered the jurors no explanation for the conces-
sion. Indeed, he failed to mention it at all in his closing even
though Ayeni’s counsel not only highlighted the concession in
his closing, but also argued that by itself it created reasonable
doubt. See Tr. 12/12/02 at 95–96, reprinted in J.A. at 142–43
(‘‘So we bring in the President’s own document handwriting
examinerTTTT I said, Ms. King have you verified one of those
signatures with virtual certainty was Mr. Ayeni’s? No, not a
9
one. Well, why not? Forget all the curves and graphs.
Why not? There’s a reasonable doubt, ladies and gentlemen.
If they are his signatures, why didn’t she simpl[y] classify
them as a virtual certainty, hit the highest classification, case
over.’’ (paragraph break omitted)). The jury thus began its
deliberations with nothing to counter Ayeni’s argument that
the expert’s failure to match any signatures constituted rea-
sonable doubt. And apparently at least some jurors found
merit in the argument, leading them to wonder why the
government had even called the expert, and to ask that very
question when invited to voice their concerns.
Having heard the jury’s concerns, and thus been alerted to
the precise weakness in his presentation of the case, the
prosecutor took full advantage of the opportunity provided by
the supplemental arguments to correct his earlier mistake—
he gave the jury a response to defense counsel’s argument
unlike anything he had said in his closing. The expert, he
said to the jury:
told you TTT that she could not be absolutely certain.
Well, why is that? You know these voucher sign-out
logs are signed at a counter, and they are signed in a
hurry frequently. You know that the vouchers TTT
were often signed by Mr. Ayeni in his automobile.
Of course she can’t be absolutely certain. That’s not
a shock or a surprise.
Tr. 12/16/02 at 13, reprinted in J.A. at 187. So whereas in his
closing the prosecutor had given the jury absolutely no
explanation for the expert’s inability to match any signatures,
in his supplemental argument made after the jury voiced its
concerns about the expert—concerns relating to a factual
matter that were developed via the deliberative process—the
prosecutor not only provided a reason (that the vouchers
were often signed hurriedly, sometimes at a counter and
sometimes in a car), but also made it sound as if the reason
was obvious.
In case this new explanation for the expert’s concession
failed to convince the jurors, the prosecutor offered a second
argument targeted precisely at the key factual issue causing
10
the deadlock. This argument—which, though not completely
new, was significantly more focused than what the prosecutor
had said in his closing—consisted of telling the jurors that if
the expert’s testimony bothered them, they could simply
forget it. ‘‘Think with me for a moment, if you will,’’ he said.
‘‘If we had never called the handwriting expert in this case at
all, if you had never heard her name, if you had never heard
that she had done any analysis on this, TTT you would still
have many roads by which to achieve the destination of being
firmly convinced.’’ Id., reprinted in J.A. at 185. In his
closing, the prosecutor had said nothing quite so direct. In
fact, only in discussing a different witness, Troy Robinson,
had the prosecutor used similar language. ‘‘I submit that you
don’t even need Troy Robinson’s testimony to prove beyond
any reasonable doubt that this man is guilty as charged.’’ Tr.
12/12/02 (p.m.) at 82; see also id. at 103–04 (‘‘I told you in the
opening phase of my closing argument that you could go back
into the jury room and if Troy Robinson never walked into
this courtroom you would have sufficient evidence, in fact
more than enough evidence, to find this gentleman guilty
beyond a reasonable doubt.’’). Moreover, while the prosecu-
tor had made a point in his closing similar to the ‘‘many
roads’’ statement, he did not make it in connection with his
discussion of the handwriting expert, instead relying on the
jury to put the two points together. In his supplemental
argument, by contrast, the prosecutor expressly linked the
two points.
To be sure, neither of these arguments, nor anything else
the prosecutor or Ayeni’s counsel said during the supplemen-
tal arguments, was inherently inappropriate. Both of the
prosecutor’s points, and everything else the two lawyers told
the jury, could properly have been included in their closings.
In that circumstance, however, each lawyer would have been
speaking purely as an advocate presenting his case to jurors
whose factual concerns he knew nothing about, rather than as
a ‘‘quasi-juror’’ offering targeted responses to questions about
factual matters that other jurors had formulated during their
deliberations. It is not simply the content of what lawyers
say during supplemental arguments that matters, in other
11
words, but the context in which they say it. The context of
the arguments here, i.e., in response to a jury’s factual
questions, rendered them improper.
It is true, as the government points out, that the district
court gave both sides equal time to argue, but that in no way
mitigates the problems with having the attorneys participate
in the jury’s deliberations. Our system does not permit trial
by a jury equally divided between advocates for the prosecu-
tion and advocates for the defense. We require trial by an
impartial jury, something that cannot be created by balancing
jurors partial to one side against jurors partial to the other.
Defendants have a right to panels composed entirely of
impartial jurors. See Parker v. Gladden, 385 U.S. 363, 366
(1966) (per curiam) (‘‘[P]etitioner was entitled to be tried by
12 TTT impartial and unprejudiced jurors.’’); Jackson v. Unit-
ed States, 395 F.2d 615, 618 (D.C. Cir. 1968) (‘‘Kemper’s
presence on the jury TTT had such a strong tendency to deny
him a trial by twelve impartial jurors TTT that we are
constrained to order a new trial.’’ (emphasis added)).
The problems that flow from allowing supplemental argu-
ments in response to factual questions—intrusion into the
jury’s deliberations and invasion of its fact-finding role—may
explain why such arguments have almost never been used in
this country. The parties cite no criminal case in which they
were employed, and just one civil case, Withers v. Ringlein,
745 F. Supp. 1272 (E.D. Mich. 1990). My own research
uncovered only one other such case, see State v. Sabala, 943
P.2d 776, 778 (Ariz. 1997), but that arose in Arizona, which
amended its rules of criminal procedure to authorize such
arguments expressly, see State v. Patterson, 56 P.3d 1097,
1098–99 (Ariz. Ct. App. 2002) (discussing Arizona Rule of
Criminal Procedure 22.4 and the process that yielded it). I
also found a Massachusetts case in which the trial judge
invited deadlocked jurors to pose questions that the attorneys
could address with supplemental arguments. See Common-
wealth v. Gomez, 770 N.E.2d 477, 479 (Mass. App. Ct. 2002).
In that case, however, the prosecutor not only objected ‘‘that
the proposed procedure would intrude upon the function and
province of a deliberating jury and would impermissibly
12
attempt to find out where the jurors stood,’’ id., but also
brought a joint petition for an emergency injunction barring
such arguments to a justice of the state’s highest court, a
petition the justice granted, see id. at 480. In short, it seems
that virtually all judges throughout our history have deemed
supplemental arguments in response to juries’ factual ques-
tions improper (or simply not permitted).
In departing from this consensus, the district judge here
was driven partly by his concern that offering his own
response to the jury’s questions would either be unfair to one
side or else unhelpful. See Op. at 5. The concern about
crafting an unbalanced answer had merit, but the concern
about an unhelpful answer much less so. Put simply, not
every jury question requires a substantive answer. See
supra pages 6–7; see also Ellis, 121 F.3d at 925 (upholding
the district court’s refusal to answer the question ‘‘[w]ho are
the two men standing next to each other in the photograph
that is marked Defendant’s Exhibit #12?’’). This does not
mean that the district court here had no choice but to declare
a mistrial as soon as the jurors reported being ‘‘hopelessly
deadlocked.’’ It could have, as we have explained, see op. at
5–6, simply answered ‘‘no’’ to the signature-authenticity ques-
tion and told the jurors that it could not answer the question
about why the expert testified. Or it could have given them
the anti-deadlock charge that this court approved in United
States v. Thomas, 449 F.2d at 1186. It could not, however,
attempt to avoid a mistrial by allowing the attorneys to
invade the jury’s deliberations and fact-finding process. In-
deed, if a desire to prevent mistrials (and hence to preserve
judicial resources) could alone justify steps to break a dead-
lock, then this court would not have proscribed use of the
anti-deadlock instruction named after Allen v. United States,
164 U.S. 492 (1896), see Thomas, 449 F.2d at 1186, for that
charge similarly induces more verdicts and thus reduces the
number of mistrials.
More generally, a mistrial—the result the district court
here sought to prevent—plays an important and healthy role
in our criminal justice system. ‘‘A mistrial from a hung jury
is a safeguard to liberty. In many areas it is the sole means
13
by which one or a few may stand out against an overwhelm-
ing contemporary public sentiment. Nothing should interfere
with its exercise.’’ Green v. United States, 309 F.2d 852, 854
n.3 (5th Cir. 1962) (Wisdom, J.) (quoting Huffman v. United
States, 297 F.2d 754, 759 (5th Cir. 1962) (Brown, J., dissent-
ing)) (internal quotation marks omitted); see also Johnson v.
Hardin, 926 S.W.2d 236, 243 (Tenn. 1996) (same); State v.
Martin, 211 N.W.2d 765, 769 (Minn. 1973) (same); Fields v.
State, 487 P.2d 831, 837 (Alaska 1971) (‘‘A hung jury is a
legitimate end of a criminal trialTTTT’’), quoted in State v.
Kaiser, 504 N.W.2d 96, 99 (S.D. 1993). In this circuit, Judge
Skelly Wright voiced a similar view in his dissent in Jenkins
v. United States, 330 F.2d 220 (D.C. Cir. 1964) (per curiam), a
case in which the trial judge told deadlocked jurors that they
‘‘have got to reach a decision in this caseTTTT It is a simple
case,’’ id. at 221 n.2 (Wright, J., dissenting). Although Judge
Wright’s view that ‘‘a hung jury can be a safeguard to
liberty,’’ id. at 222, failed to sway his colleagues, the Supreme
Court vindicated his position when it reversed the conviction
on the ground that the trial judge’s comment was impermissi-
bly coercive, see Jenkins v. United States, 380 U.S. 445, 445–
46 (1965) (per curiam). In short, ‘‘a mistrial is as much a part
of the jury system as a unanimous verdict,’’ Williams v.
United States, 338 F.2d 530, 533 (D.C. Cir. 1964); see also
State v. Marsh, 490 P.2d 491, 503 (Ore. 1971) (‘‘[T]he possibili-
ty of a hung jury based upon an honest difference in opin-
ion[ ] is part and parcel of our jury system.’’), and while
reducing their number would certainly bring some efficiency
gains, our decision, as the Supreme Court recently put it,
‘‘cannot turn on whether or to what degree trial by jury
impairs the efficiency or fairness of criminal justice,’’ Blakely
v. Washington, 542 U.S. , 2004 WL 1402697, *9 (June 24,
2004). This court made the same point over thirty years ago
when banning the Allen charge:
Particularly in these days of burgeoning litigation,
we share the trial judge’s sensitivity to the need for
adjustment of judicial processes to the point of
highest efficiency. But while there is need to expe-
dite the work of the courts, this cannot be at the
14
expense of the call of conscience. Indeed, it may
well be that a hung jury might lead the prosecutor
to reconsider whether the case, particularly a close
or weak case, should be presented again to a jury—
so that a mistrial need not necessarily ‘‘require’’ a
retrial, as the trial judge told the jurors.
Thomas, 449 F.2d at 1183–84. Just as efficiency cannot come
‘‘at the expense of the call of conscience,’’ id. at 1184, neither
can it come at the expense of vital constitutional protections.
In saying this, I do not mean to suggest that supplemental
arguments in response to factual questions necessarily in-
fringe ‘‘vital constitutional protections.’’ Although doubting
their validity, I am unprepared to foreclose the possibility
that such arguments actually represent a worthwhile innova-
tion. But given the extent to which they intrude into the
jury’s role as exclusive fact-finder, and given that the nation’s
judicial system has a two-hundred-plus-year history of con-
ducting trials without them, I believe they should be adopted,
if at all, not by individual judges in the middle of trials, but
through some formal procedure, such as legislation or amend-
ments to the rules of criminal procedure, the route Arizona
took. See Pan Am. World Airways v. United States Dist.
Court, 523 F.2d 1073, 1078 (9th Cir. 1975) (‘‘[A] procedure
that deviates so sharply from the traditional role of the
judiciary cannot be justified as an ad hoc rule of practice.’’).
A more formal procedure would permit the kind of rigorous
and thorough examination of the benefits and drawbacks of
supplemental arguments that so novel and untested a change
in longstanding jury procedures requires. Cf. 12 CHARLES
ALLEN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3152
(2d ed. 1997) (describing the ‘‘extremely careful’’ process by
which the Federal Rules of Civil Procedure are amended, a
process ‘‘calculated to ensure that any changes reflect the
best thinking of the entire profession’’).