7.7 DEADLOCKED JURY
Members of the jury, you have reported that you have been unable to reach a unanimous verdict in this case. I have decided to suggest a few additional thoughts to you.
As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. You should not, however, change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.
I also remind you that in your deliberations you are to consider the instructions that I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.
What I have just said is not meant to rush you or pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry.
I ask that you now return to the jury room and continue your deliberations with these additional comments in mind.
Before giving any supplemental jury instruction to a deadlocked jury and before declaring a mistrial or partial mistrial based on jury deadlock or partial deadlock, the Committee recommends the court review Jury Instructions Committee of the Ninth Circuit, A MANUAL ON JURY TRIAL PROCEDURES (2013) §§ 5.4, 5.5, and 5.6; see also United States v. Hernandez-Guardado, 228 F.3d 1017, 1029 (9th Cir. 2000) ("The most critical factor is the jury’s own statement that it is unable to reach a verdict."); Rogers v. United States, 609 F.2d 1315, 1317 (9th Cir. 1979) (noting that before declaring mistrial based on jury deadlock, "the judge should question the jury . . . either individually or through its foreman, on the possibility that its current deadlock could be overcome by further deliberations") (internal quotation marks and citation omitted).
The Committee recommends caution when considering whether to give a supplemental instruction (sometimes known as an "Allen charge") to encourage a deadlocked jury to reach a verdict. See United States v. Evanston, 651 F.3d 1080, 1085-88 (9th Cir. 2011) (noting extraordinary caution to be exercised when giving an "Allen charge").
As the Ninth Circuit explained in United States v. Berger, 473 F.3d 1080, 1089 (9th Cir.2007):
The term "Allen charge" is the generic name for a class of supplemental jury instructions given when jurors are apparently deadlocked; the name derives from the first Supreme Court approval of such an instruction in Allen v. United States, 164 U.S. 492, 501-02 (1896). In their mildest form, these instructions carry reminders of the importance of securing a verdict and ask jurors to reconsider potentially unreasonable positions. In their stronger forms, these charges have been referred to as "dynamite charges," because of their ability to "blast" a verdict out of a deadlocked jury.
Allen "charges are proper ‘in all cases except those where it’s clear from the record that the charge had an impermissibly coercive effect on the jury.’" United States v. Banks, 514 F.3d 959, 974 (9th Cir. 2008) (quoting United States v. Ajiboye, 961 F.2d 892, 893 (9th Cir. 1992)). In assessing the coerciveness of an Allen charge, the Ninth Circuit considers "(1) the form of the instruction, (2) the time the jury deliberated after receiving the charge as compared to the total time of deliberation, and (3) any other indicia of coerciveness." United States v. Freeman, 498 F.3d 893, 908 (9th Cir. 2007) (citing United States v. Daas, 198 F.3d 1167, 1179-80 (9th Cir. 1999)); see also Warfield v. Alaniz, 569 F.3d 1015, 1029 (9th Cir. 2009) (holding that weekend interval between "standard" Allen charge and resumption of deliberations "probably would have diluted any coercive effect").
This instruction is in a "neutral form" of the Allen charge, that is, "in a form not more coercive than that in Allen." See United States v. Beattie, 613 F.2d 762, 765 (9th Cir.1980); see also United States v. Steele, 298 F.3d 906, 911(9th Cir. 2002). Nonetheless, it is reversible error to give even a neutral Allen charge that has a coercive effect on the jury’s deliberations:
If the trial judge gives an Allen charge after inquiring into the numerical division of the jury, "the charge is per se coercive and requires reversal." Ajiboye, 961 F.2d at 893-94. "Even when the judge . . . is inadvertently told of the jury’s division, reversal is necessary if the holdout jurors could interpret the charge as directed specifically at them—that is, if the judge knew which jurors were the holdouts and each holdout juror knew that the judge knew he was a holdout." Id. at 894 (citing United States v. Sae-Chua, 725 F.2d 530, 532 (1984)).
United States v. Williams, 547 F.3d 1187, 1205 (9th Cir. 2008) (reversing conviction after neutral Allen charge when "hold-out" juror knew her identity was known by the court). See Evanston, 651 F.3d at 1085-88 (holding that district court committed reversible error by allowing supplemental closing arguments to deadlocked jury after court gave Allen instruction and inquired as to reason for deadlock).