United States of America, Plaintiff-appellee, v. Harold Silvern, Defendant-appellant, 484 F.2d 879 (7th Cir. 1973)

This case has been reheard en banc in an attempt to establish greater certainty in district courts in this Circuit, and to conserve judicial energy by possibly avoiding appeals and retrials, in regard to the giving of the so-called Allen or "dynamite" charge as a supplemental instruction to a deadlocked jury.

The Allen instruction was approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501-02, 17 S. Ct. 154, 157, 41 L. Ed. 528 (1896)¹  and although no court has held that the instruction itself is unconstitutional, it has had a stormy career.² 

From 1963 to 1969, the Allen charge, supplemented by a second paragraph advising the jury that the case "must be retried" if the jury failed to reach a verdict, was generally given in this circuit as part of the Manual on Jury Instructions in Federal Criminal Cases (La Buy Instructions), 33 F.R.D. 523, 611 (1963).³ 

In United States v. Brown, 411 F.2d 930, 933-934 (7th Cir. 1969), we held as follows:⁴ 

Because the district courts within this Circuit have encountered difficulties in determining what precise language to include in a supplemental charge and when it should be given, it is important for this court to articulate with specificity our standards. In dealing with supplementary instructions, the primary task of an appellate court is to set the standards for the proper conduct of the trial judge faced with a hung jury. We have reconsidered not only the presently approved form of the Allen charge as set forth in the LaBuy Instructions, but the numerous judicial decisions and scholarly literature in this field critical of the Allen charge. We have concluded that it would serve the interests of justice to require under our supervisory power that, in the future, district courts within this Circuit when faced with deadlocked juries comply with the standards suggested by the American Bar Association's Trial By Jury publication. These standards specifically provide:

5.4 Length of deliberations; deadlocked jury.

(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:

(i) that in order to return a verdict, each juror must agree thereto;

(ii) that 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) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and

(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

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In order to avoid the potential for prejudice and coercion to which we have referred, district courts in this Circuit are required henceforth to charge deadlocked juries in both criminal and civil cases in a manner consistent with the recommended standards.

Although our 1969 language was designed to produce uniform practices within the circuit, it has not had that result, possibly because of the final words that deadlocked juries be charged "in a manner consistent with the recommended standards." Widespread deviations from and substantial supplements to the ABA standards have been considered to be "consistent with" them and "complying" with them. United States v. DeStefano, 476 F.2d 324 (7th Cir. 1973).

In this case, the supplemental instruction was exceedingly lengthy and went far beyond the ABA standards.⁵  A majority of the court agrees with the panel of this court "under the facts of this case that neither the wording of the supplemental charge containing the ABA recommendations nor the timing and circumstances surrounding the charge violated defendant's constitutional rights" and "no prejudice occurred from the supplemental charge." United States v. Silvern, No. 72-1133 (7th Cir. February 27, 1973). The majority also agrees with the panel's disposition of the other issues in the case and we affirm the defendant's conviction.

However in the interest of judicial economy and uniformity, and under our supervisory power, district courts in this circuit are henceforth required to do the following in both civil and criminal cases.

If a supplemental instruction is deemed necessary and provided that the following instruction has been given prior to the time the jury has retired, it may be repeated:⁶ 

The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

You are not partisans. You are judges-judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.

Experience has now shown that variants in language or supplements or additions serve merely to proliferate appeals.⁷ 

If in any jury trial tried after thirty (30) days from this opinion a supplemental instruction relating to a deadlock is given other than in the above form, a resulting conviction will be reversed and remanded for a new trial.⁸ 

In addition, we suggest that the district courts consider whether the need for supplemental instructions may be reduced by sending into the jury room at the time the jury retires either a written copy or a tape recording of, together with equipment to enable the jury to hear, the complete instructions as given by the court.

Affirmed.

PELL, Circuit Judge (concurring in part and dissenting in part).

I concur in the affirmance of the defendant's conviction; however, since the opinion written by Judge Sprecher and approved by the majority of my brethren does establish new law in the Seventh Circuit,¹  I find myself free to record my disagreement with some of that new law. I do so with some reluctance because of my respect for the good judgment of my brothers and because my opinion with regard to the LaBuymodified Allen charge apparently runs counter to a considerable body of scholarly thought elsewhere.

In all candor, I do not find myself disturbed by the charge given by Judge Austin in the trial below. Apparently the majority of this court is really not too disturbed either because the charge was held not to violate the defendant's constitutional rights and not to be prejudicial. Nevertheless, apparently writing section one of a manual of instructions, the court states that deviation from the precise language of that instruction in the deadlocked jury situation is reversible error. I experience conceptual difficulty, even under our supervisory power, in establishing a standard from which no deviation may occur when we do so in the very case in which we hold that a deviation was neither constitutionally impermissible nor otherwise prejudicial.

My basic feeling is that the matter of writing instructions should remain in the hands of the trial judges. They are the ones at the battle site who are best in the position to judge which instructions are appropriate to the factual issues. Likewise they are best in the position to determine the nature, necessity, and verbiage of instructions to be given in connection with the functional aspects of jury deliberation, including those that may be necessary when it reasonably appears that a jury has reached the status of being deadlocked. If in any instruction the court misstates the law and the effect is prejudicial then, of course, a reversal would ordinarily follow. By prescribing the exact language in which a trial judge may instruct in the deadlocked situation we are, it seems to me, substantially circumscribing the discretionary flexibility needed by the trial judge for effective trial administration. It is one thing to find no error in an instruction which has been given in a trial, thereby putting our tacit approval on it, and an entirely different matter to engage in a priori processes of word fixation.

In considering the desirability in our trial procedures of the giving of an instruction such as the one given by Judge Austin, we should look at it in the context of the occasion in which it is utilized. While we probably should not say as an absolute, necessitas est lex temporis et loci, because our system of justice does not mandatorily require that every jury should render a verdict, nevertheless it seems to me that it is desirable that a disposition should be reached if it can be without compromise of honest conviction or violence to individual judgment. I find nothing wrong in Judge Austin's admonition that " [i]t is your duty to decide the case if you can conscientiously do so." Indeed, the ABA recommendations do not deny the desirability of giving an additional instruction to the deadlocked jury with regard to their duty to deliberate with a view to reaching an agreement.

In the context of the situation of the deadlocked jury it appears to me that three basic situations might be involved. The first of these is where the jury is evenly or approximately evenly divided. Here, if the deliberations have been of some substantial duration it appears to me that there is not sufficient "dynamite" in the challenged charge to cause the situation to change. As a matter of fact, the challenged charge is primarily concerned with the situation where there is a small minority holding out against a majority. The remaining two basic situations are found in the latter posture. While there may be subcategories, and at the risk of oversimplification, the minority jurors are either reasonable or unreasonable. If the obdurateness of the minority is of the latter type, whether flowing from corruption or from what some trial lawyers inelegantly refer to as pigheadedness, it seems unlikely that the challenged charge will have much blasting effect. If it did, I cannot say that this would necessarily be a bad result, at least as long as reason is to play some part in jury determinations.

Ultimately then we are concerned with those jurors who are reasonable but are conscientiously unconvinced that the majority position is correct. We would all agree, I think, that no juror, but particularly not the type of juror just described, should feel that he is being pressured by the trial judge to agree to a verdict just for the sake of closing out the case. I do not find such pressure in the challenged charge. It is axiomatic that no one instruction encompasses all of the law in a case. Likewise, each paragraph of a particular instruction should be considered as a part of the whole. Thus, even though the jurors in the challenged instruction are reminded that absolute certainty cannot be expected (which is probably a truism) and that the case will be left open and undecided if a verdict is not reached (also true), on balance the jurors are sufficiently instructed that they do not have to surrender their honest convictions merely for the purpose of returning a verdict.

Looking at the overall impact of the challenged instruction, it appears to me that it advises jurors that as reasonable persons they should take another look at whether their position is reasonable and correct. It also is to be noted that this admonition is directed at the majority as well as the minority.

If we become embroiled in semantical niceties in looking at instructions, niceties which have arguably little impact upon the lay people composing juries,²  then I would tend to think that the ABA based instruction (which has been now laid down as the only instruction which can be given to a deadlocked jury) could be interpreted by the average juror as being a "bugle call" for a hung jury. That is no more to be desired than is an instruction which improperly pressures a unanimous decision.

Further, I cannot agree with the majority decision in two other respects. The requirement that the deadlocked instruction can only be given when it is first given as a part of the regular charge exceeds the ABA standard "may give or repeat . . . ." Secondly, and this follows from what I have already said, I would in any event include in the prescribed instruction the words which were recommended by the Committee on the Operation of the Jury System of the Judicial Conference of the United States (footnote 7 of the majority opinion):

"(v) that each juror who finds himself in the minority should reconsider his views in the light of the opinions of the majority, and each juror who finds himself in the majority should give equal consideration to the views of the minority."

The committee's comments are illuminating:

"This additional paragraph makes it perfectly clear that instructions to take the views of other jurors into account are not directed solely to minority jurors and also reflects the viewpoint of several leading jurists."

I concur in the suggestion of the majority opinion that consideration be given to letting the jury have the instructions during its deliberation.

STEVENS, Circuit Judge (concurring).

Recognizing the importance of an unambiguous statement of the rule to be applied in this circuit in the future, I concur in the clear, straight-forward opinion which Judge Sprecher has written. Candor, however, compels me to add two brief comments.

1. In view of the references to United States v. DeStefano, 476 F.2d 324 (7th Cir. 1973), in both the majority and dissenting opinions, it may be of significance to record the fact that I cast one of the four votes in favor of granting the petition for rehearing en banc in that case. The reason for my vote was my concern that the panel opinion had incorrectly decided that the failure of the district court to subpoena an occurrence witness violated the defendant's right to compulsory process. Id. at 329-331.¹ 

2. I have not yet been able satisfactorily to explain to myself how this circuit can lawfully announce that an instruction to a jury which the Supreme Court has specifically and squarely held is not reversible error in federal criminal trials shall in the future constitute reversible error when given in such trials conducted in the Seventh Circuit. Possibly the answer is confidence that Supreme Court review of a decision such as this would lead to an overruling of Allen. That confidence may well be misplaced, cf. Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152; even if warranted, it does not provide a completely satisfactory answer to a difficult question.

SWYGERT, Chief Judge (dissenting in part, concurring in part).

I am in full agreement with the preservation of our decision in United States v. Brown, 411 F.2d 930 (7th Cir. 1969), and with the majority's decision that any deviation from it will henceforth result in a reversal. However, I dissent from the majority's failure to find reversible error by the district judge's refusal to follow our mandate in Brown. The majority seems to excuse the judge by an allegedly vague sentence in the Brown opinion: "In order to avoid the potential for prejudice and coercion to which we have referred, district courts in this Circuit are required henceforth to charge deadlocked juries in both criminal and civil cases in a manner consistent with the recommended standards." 411 F.2d at 934. After citing this sentence the majority says: "Although our 1969 language was designed to produce uniform practices within the circuit, it has not had that result, possibly because of the final words that deadlocked juries be charged 'in a manner consistent with the recommended standards.' Widespread deviations from and substantial supplements to the ABA standards have been considered to be 'consistent with' them and 'complying' with them. United States v. DeStefano, 476 F.2d 324 (7th Cir. 1973)." The citation of DeStefano is unfortunate. That case dealt with deviations from the Brown standards closely similar to those seen here and indulged in by the same judge. More important is the fact that a majority of this court agreed but were denied the opportunity to rehear it en banc, since the defendant DeStefano died prior to the rehearing. Therefore, I submit, the holding of the majority of the panel in DeStefano is a questionable precedent.¹  However, if the reference to DeStefano should be interpreted as an assertion that "widespread deviations from and substantial supplements to the ABA standards" have occurred throughout the Circuit since Brown, there is scant support for such an interpretation. According to the appeals that have been heard, only two judges within the Circuit have deviated from the ABA standards mandated by Brown.² 

That the district judge was confused or had difficulty with the alleged vagueness of the language in Brown is belied by the record. Because the point is important I quote a large portion of the colloquy between the judge and counsel which preceded the jury's reception of the supplemental instruction.³ 

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It is clear from the record that the trial judge-despite the lip service he paid to Brown and its requirement of a jury "charge . . . in a manner consistent with the recommended standards"-deliberately incorporated most of the Allen charge which had been condemned by this court in Brown. If it is true that our mandate in Brown of consistent adherence to the ABA standards is sufficiently ambiguous to authorize a range of equivalent jury charges, the broadest reasonable reading of Brown would not approve what the judge did here. To give, as the judge himself put it, "a modified charge, modified from the Allen charge," was a clear violation of our direction in Brown (emphasis supplied).

The majority's opinion on rehearing does not address itself to the coercive elements of the charge given in this case, nor to their likely prejudicial effect. Most of the coercive admonitions contained in the Allen charge were given. See note 5, majority opinion. Moreover, it does not deal with the untimeliness of the supplemental charge. After the jury had deliberated for fourteen hours on two successive days, the trial judge sua sponte advised counsel that he proposed to give the jury a supplemental charge. The jury, however, was deadlocked neither then nor after the judge and counsel had discussed the proposed supplemental charge, for the first opinion in this case is in error in its assertion that the jury "had informed the judge that they were in fact deadlocked."⁴  Immediately before he put his proposal into effect, the judge asked the jury whether they had "yet arrived at a verdict." He received a response of "not yet." This phrase may hardly be taken to justify the elaborate charge which followed. In Brown we repeatedly laid stress on the fact that the ABA recital was to be given to deadlocked juries. It may be true, I admit, that an instruction following Brown is appropriate even if a jury has not deliberated to the point of deadlock, provided it has consumed in unsuccessful deliberation an amount of time which is patently out of proportion to the difficulty of the issues in the case before it and the amount of testimony taken at trial. When the proper time has passed, the trial judge should then make discreet inquiry of the jurors as to the status of their deliberations. If they estimate that a verdict is close at hand, their instruction under Brown is clearly inappropriate. This case-broad in its issues, arguably close on its facts, and lengthy in its trial⁵ -fails to fit the first formula after fourteen hours of deliberation, see United States v. Flannery, 451 F.2d 880 (1st Cir. 1971), Burroughs v. United States, 365 F.2d 431 (10th Cir. 1966), but cf. Thaggard v. United States, 354 F.2d 735 (5th Cir. 1966), and the failure of the trial judge to ascertain the probable imminence of a verdict is unquestionably clear. The instruction modified from Allen, then, is not the only reason to reverse this case.

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