United States v. McDonald, No. 12-2056 (2d Cir. 2014)

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Defendant appealed his conviction on three federal fraud charges. The court concluded that the challenged jury instruction, considered in its context and circumstances, did not tend to coerce jurors into reaching a verdict; the instruction did not urge jurors to reconsider their views and defendant was not entitled to a further charge counseling jurors to hold fast to their conscientiously held beliefs; defendant's remaining arguments were without merit; and, therefore, the court affirmed the judgment of the district court.

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12 2056 cr United States v. McDonald UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: Dec. 11, 2013 Decided: July 22, 2014) Docket No. 12 2056 cr UNITED STATES OF AMERICA, Appellee, v. ROBERT E. MCDONALD, Defendant Appellant. Before: CABRANES, SACK, and LYNCH, Circuit Judges. Appeal from a judgment of the United States District Court for the Southern District of New York (John G. Koeltl, Judge), convicting the defendant on one count each of securities fraud, wire fraud, and mail fraud. The defendant argues that after a jury poll revealed that the guilty verdict was not unanimous, he was entitled to a charge reminding minority jurors not to relinquish their conscientiously held beliefs. Because the district court did not err in its response to the jury poll, and because the defendantÊ¹s remaining arguments are without merit, the judgment of the district court is AFFIRMED. ARLO DEVLIN BROWN (Jason H. Cowley, Justin Anderson, on the brief), Assistant United States 1 Attorneys for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee. STEVEN G. BRILL, Sullivan & Brill, LLP, New York, NY, for Defendant Appellant. SACK, Circuit Judge: This appeal is from a judgment of the United States District Court for the Southern District of New York (John G. Koeltl, Judge), convicting the defendant on three federal fraud charges. The principal issue before us is the propriety of the actions taken by a trial judge, presiding over a criminal trial, after a jury poll revealed that the guilty verdict rendered was not unanimous. In this case, upon learning that at least one juror did not join the verdict, the district court, briefly and with little elaboration, instructed the jury to continue its deliberations. The defendant asserts that this pithy instruction pressured the dissenting juror into changing her vote and argues that he was entitled instead to the string of exhortations, caveats, and qualifications commonly known as a Êºmodified Allen charge.Êº AppellantÊ¹s Br. at 13 (referring to Allen v. United States, 164 U.S. 492 (1896)). We conclude that there was no such requirement in the context and circumstances of this case. We therefore affirm the judgment of conviction. 2 BACKGROUND1 Defendant Robert E. McDonald was convicted after a ten day jury trial on one count each of federal securities fraud, wire fraud, and mail fraud, all in connection with a scheme to raise money to buy several hotels in the Midwest. Throughout the trial, McDonald represented himself with the assistance of standby counsel. At the close of trial, after deliberating for nearly four hours over a two day period, the jury announced that it had reached a verdict and that the defendant had been found guilty on all three counts. In a poll ordered by the district court immediately thereafter, the first ten jurors confirmed the guilty verdict. But when asked whether ÊºguiltyÊº was her verdict, juror number eleven responded Êºno.Êº The trial judge discontinued the polling, so the twelfth juror was not polled. The trial judge then held a sidebar conference at which he told counsel for both sides that he intended to instruct the jury to continue deliberating. Both parties agreed. The judge then told the jury that he would Êºsend you back to continue to deliberate to see whether you can reach a unanimous verdict, in light of all of the instructions that I have given you.Êº Trial Tr. at 1407. After the jury resumed deliberations, the judge told both parties that he had identified a model jury instruction for a situation in which a jury poll reflected The undisputed facts relevant to this appeal are canvassed in greater detail in the opinion of the district court. See United States v. McDonald, 825 F. Supp. 2d 472, 475 78 (S.D.N.Y. 2011). 1 3 a lack of unanimity.2 The judge noted that the first part of this model instruction tracked what the jury had already been told: verdicts must be unanimous, and the jury should continue deliberations. The second part of the instruction reflected what is commonly referred to as a Êºmodified Allen charge,Êº see United States v. Haynes, 729 F.3d 178, 194 (2d Cir. 2013), encouraging the jurors to consult with one another and to change their minds if convinced of a new view, while counseling them not to surrender sincerely held convictions. The judge stated that he was not inclined to give that instruction, but asked whether either party had a different view. McDonald s standby counsel, after conferring with 2 The model instruction read in full: It appears from the answers given from the polling of the jury that your verdict is not unanimous. As I previously instructed you, the Court cannot accept a verdict of guilty or not guilty unless it is unanimous. I must therefore ask that you return to the jury room and continue your deliberations. The instructions which I previously gave still apply. Specifically I remind you that you should discuss and consider the evidence, listen to the arguments of your fellow jurors, present your individual views, and consult with one another. You should not hesitate to change your views if you are convinced they are erroneous. However, you should not surrender a conscientiously held conviction simply because you are outnumbered or merely in order to reach a verdict. App. 788 (quoting 1 9 Leonard B. Sand et al., Modern Federal Jury Instructions Criminal ¶ 9.12 (2014)). 4 McDonald, agreed that the instruction was not necessary. After about an hour of additional deliberation, the jury again returned a guilty verdict, which a jury poll confirmed was unanimous. The judgment of conviction was entered on May 10, 2012, and McDonald was sentenced principally to 70 monthsÊ¹ imprisonment. After trial and before sentencing, McDonald moved for a new trial under Federal Rule of Criminal Procedure 33, arguing that the district courtÊ¹s instruction that the jury continue its deliberations was Êºimproper and coercive.Êº United States v. McDonald, 825 F. Supp. 2d 472, 474 (S.D.N.Y. 2011). The district court denied this motion on November 22, 2011. Id. at 484. McDonald appeals. He renews his argument that the district courtÊ¹s supplemental instruction to the jury was unduly coercive. He also challenges aspects of the courtÊ¹s initial jury instructions, certain evidentiary rulings, and the basis for the securities fraud charge. DISCUSSION If a jury poll reveals that a verdict is not unanimous, the trial judge Êºmay direct the jury to deliberate further or may declare a mistrial and discharge the jury.Êº Fed. R. Crim. P. 31(d); accord United States v. Rastelli, 870 F.2d 822, 835 (2d Cir.), cert. denied, 493 U.S. 982 (1989). Because this rule Êºentrusts the trial judge with a measure of discretion, the reasonable exercise of this discretion should be accorded proper deference by a reviewing court.Êº United States v. Gambino, 951 F.2d 498, 501 (2d Cir. 1991) (internal quotation marks omitted), cert. denied, 504 U.S. 918 (1992); see also United States v. Thomas, 303 F.3d 138, 142 (2d Cir. 2002) (stating that denial of motion for a new trial is reviewed for abuse of discretion). 5 Our review is further limited in cases such as this, where the defendant failed to raise a timely objection to the judgeÊ¹s jury instruction. United States v. Nouri, 711 F.3d 129, 138 (2d Cir.) (stating that review in these circumstances is limited to plain errors affecting substantial rights and the fairness or integrity of judicial proceedings), cert. denied, 134 S. Ct. 309 (2013); see also United States v. Martinez, 446 F.2d 118, 120 (2d Cir.) (applying plain error review to an Allen charge), cert. denied, 404 U.S. 944 (1971); Fed. R. Crim. P. 30(d) & 52(b) (stating that failure to object to a jury instruction Êºprecludes appellate review,Êº except in situations involving plain error). For the following reasons, we conclude that the district courtÊ¹s instruction was wholly appropriate and therefore did not constitute error, let alone plain error.3 When a trial judge issues a supplemental instruction to a divided jury, its propriety turns, at least in part, on whether the charge Êºtends to coerce undecided jurors into reaching a verdict that is, whether the charge encourages jurors to abandon, without any principled reason, doubts that any juror conscientiously holds as to a defendantÊ¹s guilt.Êº United States v. Vargas Cordon, 733 F.3d 366, 377 (2d Cir. 2013) (internal quotation marks omitted). We must Êºconsider the supplemental charge given by the trial court in its Indeed, as we noted in United States v. Hertular, 562 F.3d 433 (2d Cir. 2009), when a defendant Êºnot only fail[s] to object to the challenged charge,Êº but also Êºspecifically endorse[s]Êº the instruction, Êº[s]uch endorsement might well be deemed a true waiver.Êº Id. at 444 (citations and internal quotation marks omitted). We need not decide whether the defendantÊ¹s express acceptance of the district courtÊ¹s proposed instruction was a Êºtrue waiver,Êº however, as we conclude that, assuming plain error review is appropriate here, there was no error in the district courtÊ¹s instruction. 3 6 context and under all the circumstances.Êº Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (internal quotation marks omitted). In undertaking this assessment, we adopt the viewpoint of a juror in the minority position. See Smalls v. Batista, 191 F.3d 272, 280 81 (2d Cir. 1999). Applying these standards, we conclude that the district courtÊ¹s supplemental charge was not coercive. The instruction did not intimate to the jurors that all twelve were required to reach an agreement. It asked only that the jury continue deliberations Êºto see whetherÊº a unanimous verdict were possible. Trial Tr. at 1407. In this respect, the instruction is substantially similar to the supplemental charge that this Court approved in Spears v. Greiner, 459 F.3d 200 (2d Cir. 2006), cert. denied, 549 U.S. 1124 (2007), in which the court Êºasked the jurors to consider the facts Ê¹with an attempt to reach a verdict if that be possible.Ê¹Êº Id. at 206 (emphasis in Spears) (internal quotation marks omitted). As in Spears, the courtÊ¹s instruction in this case did not urge dissenting jurors to alter their views or encourage the jurors to attempt to persuade each other. See id. It did not give the Êºincorrect and coerciveÊº impression Êºthat the only just result was a verdict,Êº United States v. Haynes, 729 F.3d at 194, or that the dissenting juror Êºhad no other choice but to convince or surrender,Êº Smalls, 191 F.3d at 280. Rather, the courtÊ¹s brief instruction, on its face, left open the possibility that the jurors would have principled disagreements that would prevent them from reaching a unanimous verdict. The context in which the instruction was given further supports our conclusion that the charge was not coercive. The district court told the jury to continue its deliberations Êºin light of all of the instructions that I have given you.Êº Trial Tr. at 1407. This instruction referenced the courtÊ¹s original charge, which both required the jurors to engage in robust deliberation and 7 urged them to hold fast to their conscientiously held beliefs. See id. at 1358; Spears, 459 F.3d at 206 (approving a supplemental instruction where the initial charge Êºinclude[d] cautionary language telling jurors that they had a right to stick to their arguments and stand up for their own strong opinionsÊº). Moreover, the fact that the defendant and his standby counsel initially approved of the district courtÊ¹s approach to the non unanimous verdict Êºindicates that the potential for coercion argued now was not apparent . . . on the spot.Êº Lowenfield, 484 U.S. at 240; accord Spears, 459 F.3d at 206. The defendant nonetheless argues that he was entitled to additional language Êºadmonishing [each] juror not [to] abandon any conscientiously held beliefs.Êº AppellantÊ¹s Br. at 23. This argument invokes more than a century of jurisprudence dealing with so called ÊºAllen charges,Êº a term that refers to the Supreme CourtÊ¹s decision in Allen v. United States, 164 U.S. 492, 501 02 (1896). In disposing of this argument, it may be helpful to disentangle our increasingly complicated jurisprudence regarding Allen charges from the principles that govern our assessment of the district courtÊ¹s straightforward and wholly proper instruction in this case. ÊºThe Allen or Ê¹dynamiteÊ¹ charge is designed to blast loose a deadlocked jury.Êº Green v. United States, 309 F.2d 852, 854 (5th Cir. 1962) (Wisdom, J.). The Êºdefining characteristicÊº of this charge Êºis that it asks jurors to reexamine their own views and the views of others.Êº4 Haynes, 729 F.3d at 192 (internal quotation The Allen charge today comes in two versions: a ÊºtraditionalÊº charge that urges minority jurors to reconsider their views in light of the majority, and a more even handed ÊºmodifiedÊº charge that asks all jurors minority and majority to reexamine their own views and consider the 4 8 marks omitted). ÊºIts function is to emphasize that a verdict is in the best interests of both prosecution and defense,Êº and to avoid the hefty costs of retrial when it is possible for the jury to reach a unanimous verdict Êºwithout any juror yielding a conscientious conviction.Êº United States v. Hynes, 424 F.2d 754, 757 (2d Cir.) (internal quotation marks omitted), cert. denied, 399 U.S. 933 (1970). We generally require that judges muffle the explosive effects of the Allen charge by adding mitigating language. A Êºnecessary componentÊº of any charge encouraging jurors to reconsider their views, therefore, is a further instruction Êºadmonish[ing] the jurors not to surrender their own conscientiously held beliefs.Êº Smalls, 191 F.3d at 279. In other words, we generally expect that a trial judge using an Allen type supplemental charge will employ both components: He or she will both urge jurors to try to convince each other and remind jurors to adhere to their conscientiously held views. See Spears, 459 F.3d at 206; Smalls, 191 F.3d at 278 (stressing that the charge in that case Êºwas unconstitutionally coercive because it both (1) obligated jurors to convince one another that one view was superior to another, and (2) failed to remind those jurors not to relinquish their own conscientiously held beliefsÊº (emphasis in original)). In light of these characteristics, it should be clear that the district courtÊ¹s instruction was not an Allen charge at all. See McDonald, 825 F. Supp. 2d at 479 80 views of others. See, e.g., Allen, 164 U.S. at 501 02 (reflecting the traditional charge); Vargas Cordon, 733 F.3d at 377 78 (upholding a traditional charge, though emphasizing that it Êºshould be used sparingly, and with cautionÊº); Haynes, 729 F.3d at 193 (discussing the distinction). This distinction is not important here, and the principles discussed above apply to both variants. 9 (explaining the difference between an Allen charge and the kind of instruction at issue here). The instruction contained no language Êºobligat[ing] jurors to convince one another that one view was superior,Êº which ordinarily would require the inclusion of further cautionary language. Smalls, 191 F.3d at 278. And we find nothing in the context and circumstances of this case that would require the cautionary language despite the absence of any Allen type instruction to reconsider oneÊ¹s views. See, e.g., Spears, 459 F.3d at 204 n.3, 206 07 (noting that a supplemental charge must be evaluated in context regardless of how it is characterized, and finding no undue coercion); cf. Jimenez v. Myers, 40 F.3d 976, 981 (9th Cir. 1993) (per curiam) (finding that, even without explicitly using the language of an Allen charge, Êºthe trial courtÊ¹s comments and conduct amounted to . . . a de facto Allen chargeÊº requiring the mitigating language). In the circumstances presented by this case, we think that the district courtÊ¹s approach was a prudent one.5 The courtÊ¹s instruction correctly carried no Judge Sand, commenting on the model instruction proposed in his treatise, suggests to the contrary that a modified Allen charge Êºshould be given whenever the poll of the jury reveals that the verdict was not unanimous.Êº Sand et al., supra note 2, ¶ 9.12 (emphasis added) (stressing that jurors should be reminded of their duty to deliberate Êºbecause it seems unlikely that a juror would express a negative answer during a poll unless there had been a failure of communication among the jurorsÊº). We think that the district courtÊ¹s brief request in this case that the jurors continue their deliberations will provide, in many situations, a sensible and manageable alternative to the often unwieldy instructions of a full modern Allen charge. At least one other circuit takes a similar approach, instructing jurors only to Êºreturn to the jury room and continue deliberations.Êº Id. (quoting Eighth Circuit pattern jury instructions). 5 10 implication that any juror opposing conviction was obligated to reconsider her views. We need not address whether any type of Allen charge would have been permissible here, because that issue is not before us. But we do note that modern Allen charges have become increasingly lengthy and complex, and therefore district judges should be mindful of presenting them in a way that aids, rather than confuses, the jury. See George C. Thomas III & Mark Greenbaum, Justice Story Cuts the Gordian Knot of Hung Jury Instructions, 15 Wm. & Mary Bill Rts. J. 893, 923 24 (2007) (reprinting, Êºat the risk of boring the reader to death . . . a typical modern Allen chargeÊº). This applies with even greater force in circumstances where the ÊºdynamiteÊº language of an Allen charge, even with the mitigating language, is given immediately after a jury poll reveals a lone dissenter. See Lowenfield, 484 U.S. at 253 54 (Marshall, J., dissenting) (noting that Êºan Allen charge given on the heels of a jury poll poses special risks of coercionÊº). Such a circumspect approach avoids the implication that the trial court is exerting pressure on the jury to reach a decision. CONCLUSION We conclude that the challenged jury instruction in this case, considered in its context and circumstances, did not tend to coerce jurors into reaching a verdict. The instruction did not urge jurors to reconsider their views, and the defendant was not entitled, in this context, to a further charge counseling jurors to hold fast to their conscientiously held beliefs. We have considered the defendantÊ¹s remaining arguments on appeal, and we find them to be without merit. The judgment of the district court is therefore AFFIRMED. 11

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