United States v. Marcus Jabor Alls ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 27, 2007
No. 06-13540 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00175-CR-C-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS JABOR ALLS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(August 27, 2007)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Marcus Alls appeals his conviction for possession of a firearm by
a felon, in violation of 18 U.S.C. § 922(g)(1). Alls argues that the circuit’s pattern
Allen charge1 given by the district court in his case was inherently coercive.
Our review of “a district court’s decision to give an Allen charge is limited
to evaluating the coercive impact of the charge.” United States v. Trujillo, 146
F.3d 838, 846 (11th Cir. 1998). When the district court does not poll the jury prior
to reading the Allen charge, as here, we will reverse only if we find under the
totality of the circumstances that the charge was inherently coercive. Id.In Allen v. United States, 164 U.S. 492, 501-02, 17 S. Ct. 154, 157 (1896),
the Supreme Court upheld a charge urging jurors to reconsider whether their
opinions were reasonable and to fulfill their duty to decide the case if
conscientiously possible. The Supreme Court concluded that “[t]he very object of
the jury system is to secure unanimity by a comparison of views, and by arguments
among the jurors themselves.” Id. at 501. Therefore, the Court stated that it
“cannot be the law that each juror should not listen with deference to the
arguments, and with a distrust of his own judgment, if he finds a large majority of
the jury taking a different view of the case from what he does himself.” Id.In United States v. Rey, 811 F.2d 1453, 1459 (11th Cir. 1987), we
considered our circuit’s pattern Allen charge and stated that an Allen charge which
1
See Eleventh Circuit Criminal Pattern Jury Instructions, Trial Instruction No. 7 (2003).
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urges jurors to reconsider whether their doubt is reasonable “virtually guarantees
jury confusion” and “can intimidate individual jurors.” Id. at 1459. Even so, we
upheld the Allen charge based on our precedent. Id. at 1460; see also United States
v. Dickerson, 248 F.3d 1036, 1050-51 (11th Cir. 2001). In United States v.
Chigbo, 38 F.3d 543, 545 (11th Cir. 1994), we noted that the short time in which a
jury returned its verdict after receiving the Allen charge did not change our
decision. Also, we have held that a jury does not need to indicate a deadlock
before the court issues an Allen charge. Government of Canal Zone v. Fears, 528
F.2d 641, 644 (5th Cir. 1976).2
Considering the totality of the circumstances shown in the record, we
conclude that the Allen charge given by the district court was not inherently
coercive. Accordingly, we affirm Alls’s conviction.
AFFIRMED.
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
3