United States v. Smith, No. 15-1901 (7th Cir. 2016)
Annotate this CaseSmith distributed heroin in Chicago. Four times, he sold heroin to an FBI confidential source. The FBI recorded telephone conversations between the two, searched the source and his car, provided the money, equipped him with an audio recorder, and conducted surveillance from nearby. At Smith’s trial for distributing heroin (21 U.S.C. 841(a)(1)), the court read aloud the “Silvern instruction,” urging jurors to use their “considered judgment,” listen to fellow jurors, but “not surrender [their] honest beliefs” for the sake of a unanimous verdict. The jury’s first two notes to the court requested copies of the verdict form and clarification about the definition of “distribution.” In a third note, a juror referred to being bullied by another juror and asked to be removed. Defense counsel requested that the jurors continue deliberating. The court proposed repeating the Silvern instruction. Defense counsel did not object. Another juror submitted a note, asking to be removed, stating “I cannot make a sound disstion [sic].” Defense counsel responded, “Continue to deliberate.” The court replied “each of you is part of the jury that has been picked ….. must continue to deliberate.” Defense counsel stated that the instruction was “perfect.” The jury found Smith guilty 20 minutes later. The court polled each juror. Seven months later, with new counsel, Smith moved for a new trial, arguing that the response was unfairly coercive because it did not remind the jurors to hold onto their convictions, despite being bullied and being unable to make a sound decision. The Seventh Circuit affirmed, finding that the argument had been waived.
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