USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1385

UNITED STATES,
Appellant,

v.

DANIEL PANIAGUA-RAMOS,
Defendant - Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos

Antonio Fust , U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr, Circuit Judge,

_____________

and DiClerico, Jr.,* District Judge.

______________

_____________________

Jos
A. Quiles-Espinosa,
________________________
whom Guillermo Gil, United
______________
States

Senior

Litigation Counsel,

States Attorney,

Assistant

United

Attorney,

Division,

Desire Laborde-Sanfiorenzo,
___________________________

Attorney,

and

Nelson P rez-Sosa,
__________________

Attorney, were on brief for appellant.

with

Edwin O. V zquez,
_________________

Deputy

Chief,

Assistant United
Assistant

United

Criminal

States

States

Jos R. Aguayo, with

_______________

whom Joaqu n Monserrate-Matienzo

___________________________

and

Joaqu n Monserrate-Pe agar cano were on brief for appellee.

_______________________________

____________________

February 3, 1998
____________________
____________________

Of the District of New Hampshire, sitting by designation.

DICLERICO, District

Judge.

After a

conviction by

DICLERICO, District Judge.

_______________

federal jury for conspiracy to possess with intent

to distribute

a controlled substance and an acquittal on a charge of aiding and

abetting

possession

of a

controlled substance,

appellee, Daniel Paniagua-Ramos, was

trial judge on

was

granted a new trial by

the ground that the district

prejudicial.

On appeal,

the

the defendant-

the

court's jury charge

government asserts

that the

district court

abused its discretion

by finding plain

error in

its charge and

granting a new trial.

Because we find

that the

district court

did not abuse

its discretion in

concluding that

its charge was improper, we affirm.

Factual and Procedural Background

Factual and Procedural Background
_________________________________

This

is an appeal

from an

order entered

January 15,

1997, by the district court granting a new trial.

The government

prosecuted the appellee, Daniel Paniagua-Ramos, for conspiracy to

possess

400 kilograms of

cocaine with the

intent to distribute

it, and for aiding and abetting the possession of the cocaine

violation of 18 U.S.C.

The

December

2 and 21 U.S.C.

case was

3, 1996,

to

tried in

Friday,

in

841(a)(1), 846.

district

court from

December 6,

1996.

Tuesday,

On

Friday,

December 6, the jury retired to deliberate for three hours, after

which they requested leave to continue on Monday, December 9.

Monday

a.m.,

morning they

but at

stating:

not

10:30

began

a.m. they

"We have not

be changed."

deliberating

The

at approximately

forwarded a

note

to the

On

9:30

court

reached an unanimous decision,

and will

court

continue

instructed the

jury to

-2-

trying to

decide.

After lunch,

they continued

deliberations.

The jury sent another note to the court at 4:16 p.m. stating: "We

still don't

have a unanimous

its decision."

At 4:33 p.m. the

the court, stating:

juror for the case

verdict between

verdict, and none wants

"We

jury sent yet another

suggest to

retire our

of Mr. Daniel Paniagua.

all jurors."

The

Due

court then

to change

note to

position as

to no unanimous

gave the jury

charge

draft

based in part

on the modified

of proposed criminal

consideration for

First Circuit.2

use as an

Allen1 charge
_____

law pattern jury

aid to

found in a

instructions under

the district courts

of the

The court instructed the jury as follows:

____________________

Allen v. United States, 164 U.S. 492 (1896).

_____
_____________

The draft pattern instruction from which the court derived its

Allen charge, titled

_____

Pattern Criminal Jury Instructions for the

___________________________________________

District Courts of the First Circuit, "Charge

______________________________________

to a

Part 6.06, provides as follows:

I am going
resume your

to instruct you to go
deliberations.

back and

I will

explain

why and give you further instructions.

In trials absolute certainty can be neither

expected nor
that

attained.

You

should consider

you are selected in the same manner and

Hung Jury"

from the same source as any future jury would

be selected.

There is no reason

to suppose

that

this case would ever be submitted to 12

men

and

women

more

intelligent,

more

impartial or more competent to decide it than

you, or that more

or clearer evidence

be produced in the future.

duty

to

decide

conscientiously

the
do

would

Thus, it is

case

so without

if

your

you

can

violence

to

your individual judgment.

The verdict to
of course,

be his

which a juror agrees

or her

own verdict,

must,
the

result of his or her own convictions, and not

a mere acquiescence in

-3-

the conclusion of his

____________________

or her fellow jurors.

12

minds to

Yet, in order to bring

unanimous result,

examine the questions

an

you

must

submitted to you

with

open mind and with proper regard for, and

deference

to,

the

opinion of

your

fellow

jurors.

In

conferring together

proper respect to

you

ought to

pay

each other's opinions

and

you ought to listen with a mind open to being

convinced by

each other's arguments.

where there is

Thus,

disagreement, jurors favoring

acquittal should consider whether a doubt

their

own mind is

makes

no impression

other equally
have heard

same

degree of
to

upon the

honest and

who

desire

a reasonable one

the same

at

when it

minds of

the

intelligent jurors
evidence with

attention and with

arrive

in

the truth

the

the same
under

the

sanction of the same oath.

On

the

other

hand,

jurors

favoring

conviction ought seriously

whether they should
or

to ask themselves

not distrust the

sufficiency of

evidence

weight

which fails

to

dispel reasonable doubt in the minds of their

fellow jurors.

Not only should jurors

examine their

positions, but

majority should
they

have

in the minority re-

do so

also, to

given careful

sufficient weight
favorably

jurors in

to the

impressed

the

see whether

consideration

and

evidence that

has

the

persons

in

disagreement with them.

Burden of proof is a legal tool for helping

you

decide.

prosecution

The
a

law

imposes

high burden

of

upon

proof.

the
The

prosecution has the burden to establish, with

respect to each count, each essential element
of

the

offense,

and

essential element beyond

And if

with respect

to

establish

that

a reasonable doubt.

to any

element of

any

count you

are left in reasonable

doubt, the

defendant

is entitled to the benefit of such

doubt and must be acquitted.

It is your duty to

decide the case, if you

can conscientiously do so without violence to

-4-

Members of the
notes but I

jury, I have seen

want you to listen

your two

carefully to

what I have to say and, of course, this is an

additional instruction.
pay

careful

I want all of you to

attention to

this

instruction

that I am going to give you.

In

trials,

participated
neither be
happens,

such
in,

as

this

absolute

one

that

certainty

expected nor attained.

you
can

And that

I would say, in the majority of the

trials.

You

should consider

that you

are

selected or you were selected in this case in

the same manner

and from the same

source as

any future jury

will be selected.

In other

____________________

your individual

judgment.

duty to return a verdict

which

all of you

agree

on

all

It

is also

on any counts as to

agree, even if

counts.

your

But

you cannot

if

you cannot

agree, it is your right to fail to agree.

now instruct you

to go back

and resume

your deliberations.

Pattern Criminal

Jury Instructions

Drafting Committee,

Pattern
_______

Criminal Jury Instructions for the District Courts of the First

_________________________________________________________________
Circuit, "Charge to
_______

a Hung

Jury," Part

6.06 (discussion

draft

later adopted without significant revision).

This
prepared
Committee.
October 1,

by

charge
the

At

was

contained

Pattern Criminal
the First

1997, the

in

Jury

Instructions

Circuit Judicial

federal

discussion

judges present

draft

Drafting

Conference held
voted to

on

approve

publication of the final version of the pattern instructions with

the following caveat appearing in the Preface:

Although

we

instructions
commentary
helpful

in

particular

believe
and,

that

that

in

case, it

pattern

particular,

accompanies

crafting

the

jury

them

the

will

charge

bears emphasis

be

in

that no

district judge is required to use the pattern

instructions, and
has

not in

that the Court

any way

approved the

of Appeals
use of

particular instruction.

Pattern

Criminal Jury

Instructions Drafting

Committee, Pattern
_______

Criminal Jury Instructions for the District Courts of the First

_________________________________________________________________
Circuit,
_______

Preface

(visited

-5-

Dec.

17,

1997)

words,

the

doesn't

fact

that you

have

this is

the

mean that

case.

The case will have

if you cannot
is this:

agree.

not agreed
end of

the

to be tried again

The point I

am making

There is no reason to suppose that

this case would be ever [sic] submitted to 12

jurors

different

either more

from

you people

intelligent or

who

more capable

more impartial or more competent than

of you.

And they

are
or

the 12

are going to hear the same

evidence that you have heard.

The

point that I am trying to make is that

you, the 12

of you, have to make a conscious

effort to try to decide

do

so

without

this case if you can

doing

violence

to

your

dealing

with

individual judgment.

know

by

experience

in

collective decisions, because I have sat, for

example, on the

Court of Appeals many

times

and then
the

it is

three judges deciding,

that

three judges or the many judges may have

different views

on something.

But

when you

have different views you have to look

calmly

at the issues

to see

whether

and calmly assess them

there is any way of bringing about a

solution.

You have

to

opinions.
open

to

pay respect

You have
be

to listen

convinced

arguments.

of

Thus,

disagreement,

jurors

other

that

other's

with a

where

favoring acquittal should

doubt in their

to each

people's

there

are

mind

is

presently

consider whether a

own mind is a

reasonable one

when it makes no impression upon the minds of

the

other

equally

honest

and

intelligent

jurors who have heard the same evidence

the
same

same degree

of attention

and with

with
the

desire to arrive at the truth under the

sanction of the same oath.

On

the

other

conviction ought to
whether they

hand,

jurors

favoring

seriously ask themselves

should not distrust

the weight

or sufficiency of the evidence which fails to

dispel reasonable doubt in the minds of their

fellow jurors.

Not only should jurors in the

examine

their positions,

minority re-

but jurors

in the

-6-

majority
they

have

should also

given careful

sufficient weight
favorably

do so

to the

impressed

to

see whether

consideration

and

evidence that

has

the

persons

in

disagreement with them.

Remember that I gave you a charge on Friday

and

I gave you

this morning the

charge for

you to

have in writing.

instruction is

a legal

The burden of proof

tool that

will help

you to decide this case.

The law imposes upon the prosecution a high

burden

of

burden to

proof.
establish

count each
and

to

The prosecution
with

respect

essential element of

establish

that

beyond a reasonable doubt.

has the
to

each

the offense

essential

element

And with

respect

to any element of any count that you are left

in reasonable
entitled

to

doubt, then
the benefit

the defendant
of such

is

doubt and

must be acquitted.

It is your
can

do so

duty to decide the

without

individual judgment.
before,

doing violence

to

your

But remember, as I said

that your indecision is not going to

be the end of this.

I have

case if you

Because in the long run

to take your indecisive verdict, that

is no verdict, and I will have to

simply try

this case again, as I said, and get 12 jurors

that may be worse equipped, they are going to
hear the same evidence, and they are going to
go through the same exercise.

So the

point that I

that if you put all

and all of you
fight with

that you

make is

of your 12 minds to work

make an honest effort

each other, for

honestly listen
sure

am trying to

to each
will be

not to

example, but

other, I
able to

to

am pretty
agree

on a

verdict.

Remember something that I

if

I did

not, I think

said before, and

I did say

it in the

preliminary instructions that I gave you, you

are not parties

to this

work for the government.

to

the defendant.

controversy
mission
decide

this

case

You do

not

You are not related

You are strangers to this

the same

is to try

case.

way that

to resolve this
on

-7-

the

basis

am.

Our

case, to
of

the

instructions

and

applicable law.
requires.

on

the

That is

That is

basis
what

of

the

the only system

the

system
that we

have.

So with that in mind, I am going to beg you

to go

back and

give it a

try because

I am

pretty sure that you can.

No objections

to the charge were made after the charge

was given and before the jury retired to deliberate.

Crim. P.

counsel

30.3

at

Immediately

counsel that

No copies of the

the

after

time

the

the charge given

At approximately

pattern charge were provided to

charge

instructing

6:40 p.m. the

See Fed. R.
___

the

was

jury,

given

the

to

court

the

jury.

informed

was the proposed

pattern charge.

jury returned a

verdict finding

the defendant guilty

on the conspiracy charge and

not guilty on

the substantive charge of aiding and abetting.

On December

the

On

13, 1996, the defendant received a copy of

proposed pattern jury

December 16,

instruction pursuant to

1996, after

contrasting

instruction with the instruction as

the defendant filed a

his request.

the proposed

pattern

given by the district court,

timely request for a new trial.

See Fed.
___

____________________

Fed. R. Crim. P. 30 states in relevant part:

No party may

assign as error any

portion of

the charge or omission therefrom unless

that

party objects thereto before the jury retires

to consider
the matter

its verdict,
to which

stating distinctly

that party

objects and

the grounds of the objection.

Pursuant to Fed. R. Crim. P. 30, a party waives an objection to a

jury instruction if

the party fails to enter

the objection into

the record after the judge has instructed the jury but before the
jury

retires

to

deliberate.

See
___

Kerr-Selgas
___________

v.

American
________

Airlines, Inc., 69 F.3d 1205, 1212-13 (1st Cir. 1993).

______________

-8-

R. Crim.

charge

verdict.

P. 33.

was

The

defective

Since

defendant argued that

and

coerced

the defendant

the

failed to

jury

the court's

Allen
_____

into reaching

object to

the charge

before

reviewed

the

jury

retired

the charge

to

for plain

government's arguments opposing

trial.

The government

deliberate,

error.

a new

the

district

The court

trial and

appeals this decision,

court abused its discretion in ordering a new

court

rejected the

ordered a

new

arguing that the

trial on the basis

that the Allen charge constituted plain error.

_____

Discussion
Discussion
__________

It is

within the discretion

set aside a jury

must be

verdict and order a new trial,

"sparingly used, and

miscarriage of justice."

376, 387 (1st Cir.

of the district

then only

but this remedy

where there would

be a

United States v. Indelicato, 611

_____________
__________

F.2d

1978) (quotations omitted).

court must sustain the

court to

"[A]n appellate

granting of a new trial unless

there was

an abuse of

discretion."

Borr s v. Sea-Land Service, Inc., 586

______
_______________________

F.2d 881, 887 (1st Cir. 1978).

A review for abuse of discretion

is deferential to the district court, as the court was present at

the

trial and

evidence, the

had the

witnesses,

several components

United States
_____________

to

and

first hand

the jury.

the abuse

to observe

However,

of discretion

there

standard.

the

are

See
___

v. Castro, No. 97-1684, 1997 WL 705863, at *2 (1st

______

Cir. Nov. 18, 1997).

the district

opportunity

court in

While a court of appeals need not defer

reviewing questions of

law, see
___

to

Koon v.
____

United States, 116 S. Ct. 2035, 2047 (1996), findings of fact are
_____________

-9-

often

subjected

to clear

error

review,

see Castro,
___ ______

1997

WL

705863, at *2.

Because the defendants in this case failed to object to

the Allen charge in a timely

_____

take notice of the error

of Fed.

R. Crim.

not

unless the error meets the requirements

P. 52(b).4

Supreme Court articulated

fashion, a reviewing court may

In

United States
_____________

v. Olano,
_____

the proper analysis to be

the

employed in

reviewing for

First,

plain error.

an error must have

Second, the error must be

"obvious" or "clear

error

must

See 507
___

been committed.

its

under current law."

affect substantial

discretion take

appropriate to do so.

731-737 (1993).

See id. at 732-733.

___ ___

"plain," which has been interpreted as

notice

Id. at 734.
___

rights.

Finally, once these three elements

in

U.S. 725,

See
___

id.
___

Third, the

at

734-35.

are satisfied, the court

of the

plain

See id. at 735-737.

___ ___

error

if it

may

is

We will address these

elements seriatim.
________

A. The Error
_____________

In the

the

past, we have

"dynamite charge"

and noted

referred to the Allen

_____

that

it should

charge as

be used

with

"great

caution, and

only when

absolutely

States
______

v. Flannery,
________

451

880, 883

defendant may

ways.

See
___

F.2d

be prejudiced by

necessary."

(1st

Cir.

an Allen charge
_____

United States v. Angiulo,

_____________
_______

number of

485 F.2d 37, 39

(1st Cir.

Fed. R. Crim. P. 52(b) provides:

Plain errors or defects affecting substantial

rights may be noticed although they

were not

brought to the attention of the court.

-10-

1971).

in a

____________________

United
______

1973).

Therefore, we have

instructed district courts to include

three elements in the substance

its

potentially

Manning, 79
_______

prejudicial

F.3d 212,

of an Allen charge to ameliorate

_____

effect.

222 (1st Cir.

should instruct jurors in substance

See
___

1996).

United States
______________

"A

v.

district court

that (1) members of both the

majority and the minority should reexamine their positions, (2) a

jury

has the

proving

right to

guilt

government."

beyond

Id.
__

avoid substantive

fail

to agree,

reasonable

We have further

departures from

and (3)

doubt

the

remains

instructed trial

burden of

with

the

courts to

approved formulations

of the

Allen charge, and to avoid using language that might heighten its
_____

coercive

effect.

See Angiulo, 485

___ _______

F.2d at 39.

In situations

where the substance of these elements was not communicated to the

jury,

this

inquiry.

court

has found

reversible

See Angiulo, 485 F.2d at 39-40.

___ _______

error

without further

At issue in this case

is the second element.

The trial court

at the cost of doing

stated that agreement should

violence to a juror's independent judgment,

and that an indecisive verdict

the court determined that

charge the

fail

substance of the

to agree.

This

will require a new trial.

it had failed to include

jury's right

indicated that implicit in the

to

not come

While

in its Allen
_____

to fail to

agree, it

charge given was the jury's right

court

has refrained

from

offering

definite wording for an Allen charge,

_____

a court's

failure to include

and in Vachon we held that

______

the specific language "a

jury has

-11-

the right

to disagree"

did not

necessitate a new

trial.

United States v. Vachon, 869 F.2d 653, 659 (1st Cir. 1989).
_____________
______

See
___

However, the case at hand is readily distinguished from

Vachon.
______

Here, the

language the court

used to

communicate the

jury's right to fail to agree was insufficient when considered in

the coercive context in

already informed the

reach

which it was

given, i.e., the jury

court on three occasions that

unanimous verdict.

Moreover,

had

it could not

any force

behind

the

implicitly communicated right to fail to agree was negated by the

court's other

statements in

summarized the "point"

you

put all of

your 12

honest effort not

honestly listen to

able to agree

which it was

embedded.

of the Allen charge given

_____

minds to

work and all

to fight with each other, for

The court

by stating "if

of you

make an

example, but to

each other, I am pretty sure that you will be

on a verdict."

This

statement inevitably created

an

atmosphere of coercion that minimized the significance of the

positions held by

unanimity.

her

the individual jurors and

Referring to a

individual judgment as

juror's attempts to maintain

a "fight" undermined

that jurors should not do violence to their

The coercive nature of this

in effect compelled

his or

the admonition

individual judgment.

language was enhanced by the court's

statement that the "mission" was to "try to resolve this case, to

decide this case . . . .

That is what the system requires.

is the only system that we have . . . .

That

I am going to beg you to

go back and give it a try because I am pretty sure that you can."

These statements infer that it

would be reasonable, perhaps even

-12-

expected, for

submitted,

on their

the jurors to come

and that our system of

arriving at

compulsion

was

such

to a decision

justice required and depended

a decision.

intensified

by

Finally,

the

dissatisfaction with an indecisive verdict.

that the jury's

be the end of

this" and that "in the

the aura

court's

of

implicit

The court emphasized

indecision "is no verdict" and

simply try this case again."

on the evidence

"is not going to

long run" "I will have

to

These

run counter

should

statements in the

to our

context in which

instruction that "in

be careful to . . . avoid

they appear

all events,

the court

language which might heighten"

the coercive effect of an Allen charge.

_____

Angiulo, 485 F.2d at 39.

_______

This court has expressly disapproved of statements that "directly

imply[] that

it would

be

reasonable for

decision on the evidence before them."

the jury

to reach

Id. (disapproving court's

___

statements to jury (1) about expense of trial, (2) that court did

not want

to

difficult);

try case

see also
________

again, and

(3) that

Flannery, 451
________

F.2d

case

at 883

was not

very

(disapproving

court's statement "the case must at some time be decided.")

Moreover, because the jury's weakly enunciated right to

deliver

an

indecisive

verdict

was

closely

intertwined

with

language that

failed

strongly compelled

to communicate

right to fail to agree.

determination that its

a jury

adequately the

agreement, the

substance

of the

charge

jury's

We therefore find that the lower court's

instruction was legally insufficient

was

correct under the circumstances.

-13-

The government fails in its attempt to characterize the

trial court's order for a new trial as being premised solely upon

the court's failure to state expressly that the jury had a "right

to fail to agree."

The trial court's order focused on

the First

Circuit's requirement that "the substance of the jury's right" be

_________

communicated.

The court found that it had "failed to communicate

the notion that the jury has a 'right' to deliver an inconclusive

verdict,"

and that

the

communicating the extent

Second,

given the

charge

lacked

"complete

of the jury's obligations

facts

of

this case,

we

accuracy

in

and rights."

disagree with

the

government's contention that the defendant's failure to object in

timely manner

indicates the

parties

were not

provided

charge.

Immediately

with

charge was

a copy

not

of

in error.

the draft

after the jury was excused,

The

pattern

the court said

to the parties "[b]efore you say anything, let me say this . . ."

and informed

proposed

the

parties

that

Allen
_____

charge

pattern

considering for publication.

that the failure

the

that

We agree

instruction

the

First

given

Circuit

with the district

of the parties to object

was

was

court

was understandable in

these circumstances.

B. The Clarity of the Error

____________________________

The second requirement of Rule 52(b) is

be plain

or clear.

Here,

constituted clear error

early

as

1973 that

substance of

the

the three

the court's error

under current

failure to

elements was

-14-

law.

instruct

that the error

in its instruction

We established

the jury

reversible error,

as

on the

without

further

inquiry as

Angiulo, 485
_______

to

the

F.2d at 39-40.

coerciveness of

The

the

charge.

error committed by

See
___

the trial

court is therefore "plain error" under Rule 52(b).

C. Substantial Rights Affected

_______________________________

Finally,

we must address the third requirement of Rule

52(b), whether the plain

error affected substantial rights.

In

most instances, this requires that the error be prejudicial.

See

___

Olano, 507 U.S. at 734-735.

_____

the court

over a six

Here, the jury sent three notes

hour period indicating

deadlocked, and ultimately suggested that

"retire."

and

instructed

entrenched

the

jury

that we

which it was given.

an hour

acquitted

and forty

in

with

their

the jury be allowed to

the

have found to

opinions.

Allen
_____

The

charge at

be coercive

court

issue,

in the

then

using

context in

The jury returned its verdict approximately

minutes later.

Its verdict

was split.

It

the defendant of the substantive charge, but convicted

the defendant of the conspiracy charge.

it likely

was

A reasonable inference is that the jurors were divided

deeply

language

that the jury

to

that the modified

The district court found

Allen charge "intimated

_____

[the jury]

into a

decision" and "tainted

this jury's

deliberation."

The

trial court's findings on the prejudicial effect of the Allen are

_____

entitled to

deference, and we

find them to be

reasonable under

the circumstances.

The government

free from undue

argues, however,

influence, and that

prejudicial effect on the defendant.

-15-

that the

the charge did

verdict was

not have

It asserts that the verdict

was not inconsistent, and that the court erred when it considered

the

inconsistency

Although

vacate

(1932),

of

the

an inconsistent

a conviction,

verdict

verdict in

see Dunn
___ ____

an inconsistent

as

evidence

itself is

of

not

grounds to

v. United States, 284

______________

verdict can

coercion.

be probative of

U.S. 390

whether a

jury was confused or coerced into rendering a compromise verdict,

see United States v. Washington,

___ _____________
__________

*3

(6th Cir.

Oct. 8,

1997)

No. 96-5196, 1997 WL 614568, at

(considering alleged

inconsistent

verdict as evidence of jury confusion); Hafner v. Brown, 983 F.2d

______
_____

570, 575 (4th

Cir. 1992) ("If the district

an inconsistent verdict

judge concludes that

reflects jury confusion or

he or she has the duty to clarify the law

uncertainty,

governing the case and

resubmit the verdict

not disagree

with the district

the evidence in

that

and

for a jury decision.")

court that "given the

this case, the logical verdicts

[the defendant] was

the

Furthermore, we do

guilty of both

conspiracy charge

charges."

To

bolster its

argues that

neither party

or

that

would have been

the substantive charge

he

was innocent

contentions,

the

objected to the

indicate

urges

any

that the

coercion.

irregularity in

polling

Polling

a verdict.

charge, an

coercion is

is

the

jurors

useful

to

See Siverson
___ ________

1208, 1219-1220 (7th Cir. 1985).

to indicate

of

of

both

government again

have already addressed supra, and need not revisit.

_____

government

nature of

issue we

Finally, the

failed

to

indicate

an

v. O'Leary,
_______

764 F.2d

However, the failure of a poll

not conclusive as

to whether

coercion

actually existed.

See Manning, 79 F.3d

___ _______

at 223 (in

open court,

-16-

after jury had reached verdict, asking "juror to admit before his

fellow jurors that

he had voted against his will

much.").

D. Miscarriage of Justice
__________________________

was asking too

We find

are therefore

satisfied in

discretionary.

substantial

error

that the three elements required by Rule 52(b)

Even

when plain

However, Rule

error

is found

that

52(b) is

affects

rights, a reviewing court must determine whether the

"'seriously affect[s]

reputation of the

discretion

this case.

integrity or

public

judicial proceedings'" before exercise

of its

is appropriate.

the fairness,

Olano, 507
_____

U.S.

at 736

(quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936)); see Johnson
_________________________
___ _______

v.

United States,
_____________

117 S.

standard, a reviewing

Ct. 1544,

1550 (1997).

court should exercise its

Under

this

discretion when

failure to take notice of the error would result in a miscarriage

of justice.

See Olano, 507 U.S. at 736.

___ _____

Here, the

government's case relied upon

the testimony

of a cooperating witness.

of this witness

through cross

officer."

the "severe

The trial court found the credibility

to be "substantially compromised

examination and by

"intimidated [the

broken only

an

by

Allen
_____

charge

of a

the Allen
_____

charge"

depriving the defendant of "whatever

-17-

led to

which

This court forewarned

in Angiulo when we
_______

may

probation

it was likely this

jury] into a decision."

against this precise situation

concern that

the testimony

The court determined that

deadlock

by impeachment

prejudice

expressed our

defendant

by

safeguard he might have had

in a hung jury

In this case

[or] a declaration of mistrial."

the jury verdict may be attributed at least in part

to coercion by

the court.

We agree with

implicit determination that a failure

result

in

485 F.2d at 39.

miscarriage of

discretion.

Affirmed.
Affirmed.
________

justice.

the district

court's

to order a new trial would

We

find

no abuse

of

-18-