United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 7, 2004 Decided March 11, 2005
No. 03-3141
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMES H. YARBOROUGH,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(03cr00070-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee and Shawn
Moore, Assistant Federal Public Defenders, entered
appearances.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, and John R. Fisher and Roy W.
McLeese, III, Assistant U.S. Attorneys.
Before: EDWARDS, SENTELLE, and RANDOLPH, Circuit
Judges.
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Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: James Yarborough appeals his
conviction, after a jury trial, for illegally possessing a firearm as
a convicted felon. Yarborough argues that his conviction was
the product of coercion resulting both from the district judge’s
ex parte and allegedly intrusive interchanges with the jury, and
from the judge’s delivery of a nonstandard anti-deadlock charge.
On a winter night in January 2003, the police received a
report about gunshots coming from a fenced field adjacent to a
junior high school. Two uniformed officers drove their squad
car to the scene. When they arrived they saw a man, later
identified as Yarborough, standing in the field, holding a chrome
pistol in his right hand. Yarborough spotted the officers and
bolted. As they gave chase, at least one of the officers kept
Yarborough in sight until he ducked into a small courtyard.
When he emerged a minute later, unarmed, the police arrested
him. A later search of the courtyard uncovered a chrome pistol.
Forensic analysis matched the pistol to a shell casing found in
the field where the police first spotted Yarborough. The grand
jury charged Yarborough with possession of a firearm and
ammunition by a person who had been convicted of a crime
punishable by imprisonment for one year or more. 18 U.S.C.
§ 922(g)(1).
Yarborough’s trial began on July 30, 2003. The
presentation of evidence took less than four hours and consisted
almost entirely of testimony from the two arresting officers.
About ninety minutes after deliberations began, the jurors sent
out a note requesting transcripts of the officers’ testimony. The
judge suggested to counsel that rather than bringing the jury
back into the courtroom, it might be more expedient for him to
go to the jury room and inform the jurors in person that
transcripts could not be provided. Counsel for both sides
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consented.
When the judge returned a short time later, he informed
counsel on the record that the jurors had asked him two
additional questions. One juror wanted to know what would
happen if they were unable to decide on a verdict, to which the
judge replied: “I’m not going to respond to that. I don’t even
want to think about that. I want you to deliberate with a view
toward reaching a verdict.” Another juror wanted clarification
of the instructions regarding the legal definition of possession
because she found the original explanation “a little fuzzy.” The
judge replied, “I can report to counsel that you have some
questions about the possession instruction, but I am not going to
elaborate on it without consulting with them.” When another
juror began to say something, the judge walked out the door,
telling the jurors “you are now deliberating.” Neither the
defense nor the prosecution objected when the judge told them
of these exchanges. Later that day, the jury sent another note
stating, “We are stuck. We would like to continue tomorrow
morning.” It is not clear whether the judge informed counsel of
this note. Deliberations then adjourned until the next day.
On the morning of July 31, the judge notified counsel for
the government and the defense of another exchange he had with
the jurors. The judge explained that when he went to the jurors’
room to release them for the day, the foreperson asked the judge
if he would “answer the question I asked about possession.”
The judge replied that he was not sure, that he would have to
consult with the attorneys, that the jurors should read the official
instruction and continue to deliberate, and that if they continued
to have a problem with the instruction they should make this
known in a note.
After further deliberations on the morning of July 31, the
jury sent out a new note: “We are at a standstill. We have not
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been able to make any new progress. What do we do next?”
The judge brought the jury out, and inquired of the foreperson:
“[I]s a reason why you are not able to make any new progress
continuing confusion or disagreement about the instructions?”
The foreperson answered “No.” The judge again asked, “You
think you got the instructions down; is that correct?” The
foreperson replied, “Yes.” The judge then released the jury for
lunch, informing them that he would instruct them further upon
their return.
After the jurors departed, the court told counsel that he
intended to deliver either an “Allen” (Allen v. United States, 164
U.S. 492 (1896)) anti-deadlock charge, as refined by United
States v. Thomas, 449 F.2d 1177, 1187 (D.C. Cir. 1971) (en
banc), or a different formulation recommended by the Council
for Court Excellence, a nonprofit organization devoted to
promoting judicial reform in the Washington, D.C. area. When
the jury reconvened, the judge opted for the latter, rejecting the
Thomas charge as “watered down” and “kind of useless.”
Defense counsel objected, requesting the Thomas charge
instead. The judge then delivered the following instruction,
reproduced in its entirety:
You’ve indicated to me that you’re having trouble reaching
a unanimous verdict. I think the record should reflect that
you have now been deliberating for a longer period of time
than it took you to hear the evidence in the case. I’m very
mindful of that.
My responsibility is to do whatever I can to assist you in the
work you’re doing, but I have another very important
responsibility, and that is not to coerce, pressure, push, or
lean on you in any way at all. You are the only judges of
the facts, and you will remain the only judges of the facts.
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You have very carefully not mentioned to me or to anyone,
as far as I know, how you are divided. And that’s exactly
appropriate, and I appreciate your maintaining that degree
of secrecy. I have no idea how you’re divided. I don’t
want to know it until or unless you reach a unanimous
verdict.
I am not interested in forcing a decision here. What I am
interested in is offering to help you, if you think I can help
you, and when I say if I can help you, I may enlist the
assistance of the lawyers here.
What I’m proposing is that it may be helpful for you in the
privacy of the jury room -- and we have to do this very
privately and formally -- to -- if you haven’t already done
this, to carefully identify where you agree and where you
disagree, and then discuss how the law and the evidence
affect those issues; and then if you still have agreement - -
if you still have disagreement, what might be useful is for
you to identify for me any questions you have about the
evidence or the instructions for which you would like to
have assistance from the Court or from the lawyers.
If you choose this option -- and I do not insist that you do --
but if you choose this option, then write down as clearly
and simply as you can where some further assistance might
help you in reaching a verdict.
I’m repeating myself much too much, but I have to make
very, very clear that I have no wish or intention to force a
verdict from you, and neither do I -- neither am I asking you
to stay in that jury room forever.
If you consider what I have to say and quickly conclude that
this is not going to be of any help, then write a note about
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that, and tell me that it’s not going to be of any help.
But if you think it will be of help, then tell me as soon as
you care to whether and how the Court can help you to
reach a unanimous verdict.
And with that, I’m going to ask you to go back and consider
what I’ve just said. And thank you very much.
The jury resumed deliberations and soon delivered a note
requesting clarification of the law on possession and
constructive possession. After consulting both attorneys, and
hearing no objection from either, the judge responded to these
queries. Less than an hour later, the jury returned a verdict of
guilty.
Although the focus of Yarborough’s appeal is on the
Council for Court Excellence charge, he also faults the judge’s
ex parte conversation with the deliberating jurors, and the
judge’s questioning of the jury foreperson, in open court,
regarding possible reasons for the deadlock. Yarborough’s trial
attorney did not object to either incident. Plain error is therefore
the standard of review. United States v. Lancaster, 968 F.2d
1250, 1254 (D.C. Cir. 1992). While the judge’s conduct may
have been irregular and otherwise fraught with the potential for
jury coercion, the record discloses no indication that coercion
actually resulted, much less a “high probability that the judge’s
conduct adversely affected the defendant.” Spann v. United
States, 997 F.2d 1513, 1518 (D.C. Cir. 1993). Neither incident
therefore provides an independent ground for reversal, but both
have some bearing on the anti-deadlock instruction, to which
defense counsel did object.
In deciding Allen more than a century ago, the Supreme
Court recognized the authority of trial judges to encourage
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deadlocked jurors to reexamine their positions and engage in
further deliberation. The exercise of this judicial prerogative is
limited by the principle that a “criminal defendant being tried by
a jury is entitled to the uncoerced verdict of that body.”
Lowenfeld v. Phelps, 484 U.S. 231, 241 (1988). Accordingly,
“[a]ny undue intrusion by the trial judge into this exclusive
province of the jury is error of the first magnitude.” Thomas,
449 F.2d at 1181. This tension became the subject of countless
criminal appeals. Nearly every time a trial judge gave one
version or another of an Allen charge, and the formerly
deadlocked jury returned a verdict of guilty, the defendant was
able to mount at least a colorable claim of coercion. More than
three decades ago, in an effort to stem this tide, this court, sitting
en banc, exercised its supervisory power and adopted the
standardized Allen charge now reprinted in the Criminal Jury
Instructions for the District of Columbia (the “Redbook”),
Instruction 2.91, Alternative “A” (4th ed.). Thomas, 449 F.2d at
1187. The goal was to put an end to the “uncertainties of
gauging various Allen-type renditions in terms of the
coerciveness of their impact.” Id. at 1186. “When each judge
freely devises his or her own variations on the same theme, this
causes a ‘drain on appellate resources’ as the ‘inevitable
aberrations’ inevitably precipitate more and more appeals.”
United States v. Berroa, 46 F.3d 1195, 1198 (D.C. Cir. 1995)
(quoting Thomas, 449 F.2d at 1184, 1185).
In the years since Thomas, we consistently have “refused to
crack open the Pandora’s box Thomas nailed shut.” Berroa, 46
F.3d at 1197. Any substantial departure from the language
approved in Thomas is “presumptively coercive.” Id. at 1198.
The trial judge’s departure here was substantial, and
intentionally so. The government does not argue otherwise. It
defends the conviction on the ground that the instruction was
phrased as an offer of assistance to the jurors rather than an
exhortation for them to reexamine their views. As the
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government sees it, the instruction therefore was not subject to
the strictures of Thomas. We decline the government’s
invitation to elevate form over function. The judge delivered the
charge as a last-ditch effort to break the jury’s deadlock, and as
a direct substitute for the standard instruction Thomas required.
The instruction acknowledged the jurors’ disagreement; stated
that the judge did not know how they were divided and did not
want to know “until or unless you reach a unanimous verdict”;
told the jurors to “identify where you agree and where you
disagree, and then discuss how the law and the evidence affects
those issues”; and then, if the disagreement persisted, told them
to consider identifying for the judge “any questions you have
about the evidence or the instructions for which you would like
to have assistance from the Court or from the lawyers.”
The government also suggests that our decision in United
States v. Ayeni, 374 F.3d 1313 (D.C. Cir. 2004), implicitly
endorsed the charge at issue here. In that case, we reversed a
conviction that resulted after the court delivered the Council for
Court Excellence charge, received questions from the jury
relating to the evidence, and then permitted counsel to make
supplemental closing arguments in response to the jury’s
questions. The charge itself was not a ground for appeal in
Ayeni, and we did not consider its legitimacy. Today we do, and
we reject it as an acceptable model for use in this circuit.
The Council for Court Excellence charge openly invites an
intrusion into the basic functions of the jury and does so in a
manner that is rife with the potential for coercion. The charge
is copied from one in Arizona, adopted in 1995 for use in the
state’s courts. See C OUNCIL FOR COURT EXCELLENCE, JURIES
FOR THE YEAR 2000 AND BEYOND: PROPOSALS TO IMPROVE THE
JURY SYSTEMS IN WASHINGTON, D.C. 70 & n.95 (1998); see
also ARIZ . R. CRIM . P. 22.4. The Arizona model expressly
contemplates an “invitation to dialogue” extending beyond
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purely legal questions and elicits the jury’s factual and
evidentiary concerns, in response to which a court may “direct[]
the attorneys to make additional closing argument [or] reopen[]
the evidence for limited purposes.” ARIZ . R. CRIM . P. 22.4 cmt.
Such an approach oversteps the bounds of a federal court’s
proper role when presiding over a jury trial. The function of a
federal trial judge is to be an arbiter of law, not a trier of fact.
The importance of this distinction has been recognized
throughout the federal judiciary, see Ayeni, 374 F.3d at 1320-21
(Tatel, J., concurring) (enumerating holdings of multiple
circuits), and government counsel conceded at oral argument
that the Arizona procedure of interposing the trial judge in the
jury’s deliberative process is inconsistent with the law of this
circuit, see also id. at 1316-17. The government responds that
in this case, the jury did not ask any factual questions and did
not disclose its views of the facts after receiving the instruction.
No one but the jurors knows why. The pre-lunch exchange
between the judge and the foreperson indicated that the division
among the jurors did not stem from the instructions. That
suggests that the hangup was over the evidence. One possible
explanation for the jury’s failure to take up the judge’s invitation
is that a holdout juror did not want his view of the evidence
exposed in open court. All we can be sure of is that when a
court invites jurors to “identify for me any questions you have
about the evidence,” it is asking a question whose answer is
impermissible. It follows that the question itself is
impermissible.
Because coercive effects never can be proven with
certainty, the issue becomes whether the instruction had “a
substantial propensity for prying individual jurors from beliefs
they honestly have.” Thomas, 449 F.2d at 1182. Here, the judge
preceded his “invitation to dialogue” with his observation that
the jury had been deliberating for a longer period of time than it
had taken to hear the evidence. The jurors could have taken the
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remark as a rebuke for engaging in excessively drawn out
deliberations. In addition, the judge had entered the jury room
on two separate occasions without counsel or a court reporter
present, and those visits formed the basis for the judge’s belief
regarding the jury’s confusion. See United States v. U.S.
Gypsum Co., 438 U.S. 422, 462 (1978) (recognizing the
“hazards of ex parte communication with a deliberating jury”).
We add to this the fact that the jury returned a verdict shortly
after receiving the Council for Court Excellence instruction,
which increases the likelihood of coercion. See Berroa, 46 F.3d
at 1198. On balance, the events surrounding the court’s delivery
of the nonstandard instruction suggest a substantial propensity
for coercive effect. Because there is “no way to know” what
transpired in the jury room following the charge, the government
cannot meet its burden of proving the error harmless. Ayeni,
374 F.3d at 1317.
In short, by departing from the instruction approved in
Thomas, the court acted in a presumptively coercive manner.
The government has not rebutted this presumption. See Spann,
997 F.2d at 1516. We therefore reverse Yarborough’s
conviction and remand for a new trial.
So ordered.