United States v. Michael Harris ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-3511, 08-3549, 08-3885 & 08-4144
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HRIS B LITCH, M ICHAEL H ARRIS,
D EVARL W ASHINGTON, and
M ICHAEL C ARWELL,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 00586—Elaine E. Bucklo, Judge.
A RGUED N OVEMBER 5, 2009—D ECIDED S EPTEMBER 3, 2010
Before B AUER, M ANION, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Chris Blitch, Michael Harris,
Devarl Washington, and Michael Carwell were tried
and convicted of conspiring to distribute 15 kilo-
grams of cocaine. During the trial, several events took
place that a district judge might never see during the
course of a judicial career. First, after the initial jury
2 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
heard testimony from the government’s principal witness,
jurors expressed concern for their safety because the
defendants had access to information about them. The
judge declared a mistrial after individual questioning
of the jurors revealed the jurors could not remain fair. A
new jury pool was summoned and provided written
questionnaires, but the new panel expressed the same
concern before jury selection had been completed. This
time, the judge did not conduct individual voir dire,
and the jury was sworn and impaneled. Finally, at the
end of the trial, when the jurors indicated they had
reached a unanimous verdict, one stated during the
polling in open court that the published verdict did not
represent her own decision.
These situations did not make for an easy case. None-
theless, the court’s failure to individually voir dire
the second panel regarding its safety concerns, and her
instructions to keep deliberating after the jury poll,
when the jury had specifically requested to leave for
the day, lead us to the conclusion that the defendants
should receive a new trial. Therefore, we vacate the
judgment of the district court and remand for a new trial.
I. BACKGROUND
This case has its origins in Jamison Moore’s guilty plea
in Kane County, Illinois state court. Moore had been
charged with unlawful delivery of a controlled substance
and faced up to thirty years in prison. Facing that length
of time in custody, Moore accepted a plea offer from
the Kane County State’s Attorney’s Office that allowed
him to plead guilty and receive a probation-only sen-
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 3
tence. The no-jail offer did have conditions, of course. In
addition to the typical requirement of truthful coopera-
tion, the probation-only offer here required Moore to:
perform whatever functions or assistance
required by Aurora Police Department and the
Kane County State’s Attorney’s Office which
results in the arrest and charging of TEN different
individuals with Delivery or Possession with intent to
deliver controlled substances or cannabis. Each case
must involve a class X amount of cannabis or controlled
substance by weight. The Defendant will not be a
transactional witness in any of the cases that are
ultimately charged as felony drug offenses, unless
specifically authorized.
(Emphases in original). In return, the plea agreement
provided that Moore would receive credit for time
served and that his sentence would be 48 months’ proba-
tion.
With Moore’s cooperation, the government concocted a
story. Special Agent David Gomez of the United States
Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) assumed the role of a disgruntled drug courier
named “Loquito” who wanted to rob a drug stash house
of about 15 kilograms of cocaine. Loquito told his story
to Blitch, Carwell, Harris, and Washington and met with
them to discuss the robbery of the stash house. In reality,
there was no upcoming delivery, no stash house, and
no cartel to rob, as the defendants were to find out.
On the chosen day, the defendants showed up at a
designated location, some with guns, masks, and gloves.
4 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
Harris and Blitch refused to get into a van with Loquito
and Moore and instead drove their own vehicle to a
storage facility, where Loquito had said the plan was to
eventually store the drugs. Carwell and Washington
were arrested on the storage facility premises. Harris and
Blitch, who declined to follow the van past the storage
facility’s gate, were arrested outside the gate. The four
were charged in federal court with conspiring to
possess with intent to distribute cocaine, in violation of
21 U.S.C. § 846; attempting to possess with intent to
distribute cocaine, in violation of 21 U.S.C. § 846; pos-
sessing firearms during and in relation to drug traf-
ficking crimes, in violation of 18 U.S.C. § 924(c); and
being felons in possession of firearms, in violation of
18 U.S.C. § 922(g)(1).
On Monday, July 23, 2007, the district court assembled
fifty jurors and commenced voir dire. The court ques-
tioned prospective jurors orally and asked each their
name, occupation, and neighborhood of residence, as
well as questions on topics including the ages and oc-
cupation of their children and past experience with the
criminal justice system. The jurors and alternates were
selected, and the parties gave their opening statements
that afternoon.
The jurors heard testimony from Agent Gomez the
next day. At the end of the day, the court informed the
parties that when the Court Security Officer (CSO) had
been in the jury room earlier in the afternoon, several
jurors had expressed concern for their safety in front of
all the other jurors and wanted to know whether the
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 5
defendants would know where they lived. The judge told
the parties that this information bothered her in “two
ways, that obviously they were discussing the case in
violation of my order not to, at least in that sense,
and whether they have prejudged it. I think that we
are probably going to have to bring each one of them
individually in in the morning and talk to them and
decide whether I need a new jury.” The judge also told
the parties that the jury coordinator “promises me she
can get 50 people that were not here on Monday, so they
would be 50 new prospective jurors.”
The next morning, the CSO recounted for the court
and parties what had transpired the previous day. He
stated that the jurors had summoned him to the jury
room on the premise that they wanted to discuss the
heating in the courtroom, but that when he arrived the
jurors instead told him they were worried about their
families and themselves. The CSO explained that the
jurors then asked him a series of questions as to what
would be done to protect them from “retaliation,” and
he asked the jurors to put their concerns in writing for
the judge.
In light of this information, the judge summoned indi-
vidual jurors to the courtroom, one at a time. She ques-
tioned each as to what had been said during the discus-
sion regarding jury safety and inquired whether any-
thing said would affect the juror’s ability to be fair and
impartial. After questioning the first four jurors, the
judge expressed concern about whether two could
remain fair. She then continued to individually question
6 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
the remaining jurors. After she finished, the judge con-
cluded that the jurors’ responses did not assure her that
they could render a fair verdict and declared a mistrial.
The judge then brought all the jurors into the courtroom,
thanked them for their service, and informed them they
would be excused. She also assured them she had never
heard of any instances of retaliation against jurors.
The judge decided to use a jury questionnaire for the
next venire, which began the morning after the mistrial.
Prospective jurors completed a twenty-eight-item ques-
tionnaire that began by asking for full name and age,
followed by a request for the cities or suburbs or parts
of Chicago where the prospective juror had lived in the
last ten years. The questionnaire also requested the
name of the current employer, spouse’s occupation and
name of employer, and ages of any children, and it
asked additional questions related to experiences as a
victim of crime, with the court, and as a witness. The
judge also asked oral follow-up questions in court.
When voir dire had been completed, the judge
excused the jurors so that she could discuss the final
composition of the jury with the parties. One prospec-
tive juror remained in the courtroom with the CSO, and
the CSO informed the court that the prospective juror
wanted to know why the defendants had copies of the
jury questionnaires. The judge responded that counsel
had the questionnaires, and the prospective juror left the
room. The judge excused that prospective juror from
service on the jury.
The court and parties then began discussing which
other persons should be excused for cause. After a recess,
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 7
the court informed the parties, “We are having prob-
lems again. We just excused [one prospective juror]
because she was saying that she was concerned about it.
But she must have been talking to somebody named
Deborah Cohen who has now expressed the same
thing, that the defendants have their questionnaires. So
I’m going to excuse her [Cohen] for cause.” The court
also stated to the parties that she had given out the ques-
tionnaires for the attorneys’ use.
After a little more discussion, the judge informed the
parties: “Apparently [the CSO] thinks that this is a wide-
spread problem, that they all saw it and they all were
talking about it.” The judge suggested she could bring
all the prospective jurors back into the courtroom to ask
whether any felt uncomfortable sitting on the jury. When
the prosecutor asked how widespread the situation
was, the judge responded that the CSO “thinks that
they were all discussing it.” As the judge and counsel
discussed how to proceed, a defense attorney remarked
that they were in the same situation as they had been
with the first group of jurors, and even the prosecutor
stated, “I just don’t see how you can do it without
just bringing in everyone individually.”
Nonetheless, the judge indicated she favored bringing
in the entire venire at once, where she would state that
there had never been a problem with juror safety and
then ask whether any person had a problem serving
on the jury. The defense reiterated its position that this
venire had expressed the same concerns as the previous
venire had and that a new jury pool should be assembled
8 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
the upcoming Monday. The judge responded that was
not possible because if she did that, the trial might not
finish before she was scheduled to sit by designation on
the Federal Circuit.
With the entire venire assembled back in the courtroom,
the judge said:
Okay. Have we got everybody? Okay. This will just
take a minute, I think.
I realized a little bit ago there was a prospective
juror who, one, was discussing this case outside,
and we weren’t sure who all she was discussing it
with, and, of course, that should not have hap-
pened. I just said you can’t discuss the case, and
it’s improper.
But anyway, this person apparently had indicated
that for some reason she had an issue about
juror safety or something because, of course, de-
fense counsel and the government and everybody
needs to go over the qualifications of everybody.
So in the first place, I want to tell you that never in
the entire history of the United States as far as
I know, and I certainly, I’m quite sure of it, has
there ever been, ever been an issue about juror
safety. But I want this, you know, I want to know
that the people who will decide this case and every
case, you know, are deciding it with respect
to the evidence that they hear and they aren’t
thinking about anything else.
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 9
So if there is anybody here who somehow thinks
that they have an issue about it, I want you to
stay behind while everybody else leaves and I’ll
talk to you.
One person stayed behind and said he had also noticed
that the defendants had the jurors’ information. The
judge excused that juror from service but not anyone
else, and the judge also confiscated notes that a
spectator had taken during voir dire.
The case then proceeded to trial. Although the defense
subpoenaed Moore, he did not appear at trial, and the
jurors did not hear about his plea agreement. (The judge
issued an arrest warrant for Moore when he failed
to appear. The warrant, however, was not served
upon him, and the judge concluded during post-trial
proceedings that the government had not taken suf-
ficient steps to locate Moore. The judge nonetheless
found that Moore’s absence did not prejudice the defense.)
The jurors began deliberating on a Thursday after-
noon. At 3:20 p.m. the next day, the court discussed a
jury question with the parties and counsel, and the
judge indicated her intention to answer the question
by referring the jury to its previous instructions. She
also told the parties that the jury “had sent an earlier
note that I didn’t see any need to call you about just
saying they’d like to leave at 3:30 this afternoon, and
I told them they could.” While the court was still dis-
cussing the question with the parties, the jury sent
another note that it had reached a verdict. The court
assembled the jurors in the courtroom, and the fore-
person informed the court that the jury had reached a
10 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
unanimous verdict. The court read the verdict, which
pronounced the defendants guilty on all counts, and
polled the jurors at the defendants’ request.
During the poll, the second juror answered that the
verdict did not represent her individual verdict. The
court responded by telling the jury, without conferring
first with counsel:
All right. Then I’m going to ask that you people go
back to the jury room. At one point you had indi-
cated you wanted to leave today, but I’ll let you
people decide what you want to do and deliberate
further. We do not have a unanimous verdict, so
that is all.
The jurors returned to the jury room. They soon sent out
a new note that said: “We have a debated situation with
a decision on two of the counts. One, Count 2; two,
Count 3. May we have a little direction if possible?
What options do we have. Can a juror be asked to be
dismissed in a proceedings?”
The court and counsel discussed how to respond, and
the court decided to say, “Please continue to deliberate.
A juror may not be dismissed.” A defense attorney ex-
pressed the view that the jurors might take the direction
to continue to deliberate to mean that they needed to
stay later, and the judge responded that they had al-
ready been told they could go home at 3:30 that day.
The jury returned with a verdict that found the
defendants guilty on all counts.
The defendants each received a sentence of twenty-five
years’ imprisonment. We note that the large quantity of
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 11
drugs—15 kilograms—involved in the fictitious plot in
this case helped drive the twenty-five-year sentences
each defendant received. See U.S.S.G. § 2D1.1 (setting
base offense level at 34 when quantity of cocaine is at
least 15 kilograms but less than 50 kilograms). And we
have commented before that were we policymakers, we
might question whether concocting a scheme involving
a fictitious stash house represents the proper use of law
enforcement resources. United States v. Corson, 579 F.3d
804, 806 (7th Cir. 2009). That said, we turn to the defen-
dants’ arguments on appeal.
II. ANALYSIS
The defendants urge us to grant them a new trial on
several grounds. The jury did not hear about Moore’s
plea agreement or the incentive he had to garner the
defendants’ arrests, and the defendants argue that the
jury should have heard this information. However, we
express no opinion on the propriety of this and several
other arguments. Fundamental to our system of criminal
justice is the right to be tried by an impartial jury that
is free from coercion, and we focus on the defendants’
contention that issues relating to the jury necessitate a
new trial.
A. Jury Bias
The Sixth Amendment of the United States Constitu-
tion guarantees the bedrock principle of trial by an impar-
tial jury. Skilling v. United States, 130 S. Ct. 2896, 2912-13
12 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
(2010); see also Murphy v. Florida, 421 U.S. 794, 799 (1975)
(“The constitutional standard of fairness requires that
a defendant have ‘a panel of impartial, ‘indifferent’ ju-
rors.’ ”) (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)).
This guarantee means “a jury that determines guilt on
the basis of the judge’s instructions and the evidence
introduced at trial, as distinct from preconceptions or
other extraneous sources of decision.” Oswald v.
Bertrand, 374 F.3d 475, 477 (7th Cir. 2004).
The defendants contend that they were denied their
right to an impartial jury by the district court’s refusal
to empanel a new venire or, they say, to investigate
bias properly after it became known that the prospec-
tive jurors were discussing their safety fears in light of
the defendants’ access to their personal information
including their names, occupations, and ages and occupa-
tions of their children. As a general rule, we leave mat-
ters relating to jury selection to the sound discretion
of the trial judge. Skilling, 130 S. Ct. at 2917-18; United
States v. Vasquez-Ruiz, 502 F.3d 700, 704 (7th Cir. 2007).
But that discretion is not unfettered, see Vasquez-Ruiz,
502 F.3d at 704, and affording a defendant due process
requires not only “a jury capable and willing to decide
the case solely on the evidence before it,” but also “a
trial judge ever watchful to prevent prejudicial occur-
rences and to determine the effect of such occurrences
when they happen.” Smith v. Phillips, 455 U.S. 209,
217 (1982).
The appropriate procedure when potential juror bias
presents itself “is a function of the probability of bias; the
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 13
greater that probability, the more searching the inquiry
needed to make reasonably sure that an unbiased jury
is impaneled.” Oswald, 374 F.3d at 480. That even one
juror’s “peace of mind” was affected can be enough to
deprive a defendant of a fair trial. See United States v.
Simtob, 485 F.3d 1058, 1064 (9th Cir. 2007) (vacating con-
viction and remanding for further proceedings in light
of court’s failure to investigate potential juror prejudice
after a juror informed the court that he felt threatened
by the defendant’s “eye-balling” him); see also United
States v. Martinez-Salazar, 528 U.S. 304, 316 (2000)
(“[T]he seating of any juror who should have been dis-
missed for cause . . . require[s] reversal.”). And in this
case it was not just one juror who had expressed con-
cern that the defendants had access to the question-
naires; the judge’s understanding was “that they all saw
it and they all were talking about it.” This is not a case,
then, of speculation about whether jury members
might have feared for their safety. They did here. This
is also not a case of speculation about whether jury mem-
bers might have been discussing any fears they held.
They did that here as well.
In light of the revelation that the whole venire had
been exposed to the discussions of fear for personal safety,
the defendants were concerned that they would not
receive a fair trial from persons who might have pre-
judged the case or were motivated by fear or preconcep-
tion. They immediately requested a new pool or, at the
least, individual questioning of the prospective jurors.
They received neither. It is certainly true that not
all allegations of juror bias or misconduct require indi-
14 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
vidualized voir dire. Vasquez-Ruiz, 502 F.3d at 706; see
also United States v. Stafford, 136 F.3d 1109, 1112-13 (7th
Cir. 1998). We also recognize that “courts face a
delicate and complex task whenever they undertake to
investigate reports of juror misconduct or bias during
the course of a trial . . . . [A]ny such investigation is intru-
sive and may create prejudice by exaggerating the im-
portance and impact of what may have been an insig-
nificant incident.” United States v. Abrams, 137 F.3d 704,
708 (2d Cir. 1998).
Nonetheless, we find the procedure in this case insuf-
ficient under the circumstances. The first important
circumstance is, as we have already emphasized, the
widespread nature of the discussions among the jurors.
Unlike cases where a judge decides against individual
voir dire of the entire panel at the risk of conjuring up
new fears among previously unexposed jurors, individual
questioning here did not run the same risk of planting
a new concern in anyone’s mind since all the venire
members were part of the discussion. Cf. United States v.
McAnderson, 914 F.2d 934, 943-44 (7th Cir. 1990) (affirming
decision not to individually question remaining jurors
about fear or bias after judge removed jurors who
had received or heard about threatening phone calls).
In addition, although it was understood that the dis-
cussions of safety concerns were widespread, no juror
was asked what had been said in the internal discussions.
Cf. Vasquez-Ruiz, 502 F.3d at 707 (failure to question
individual jurors “left a void in the record”).
Notably, the identical situation had already arisen
with the first panel of jurors, and the judge and
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 15
prosecutor agreed then that an individual inquiry of
each juror was needed. After questioning only four of
the jurors in the first trial, the effect was already so
obvious that the judge stated, “I doubt we’ll need to
go through [all] 12 [jurors].” The court ultimately
granted a mistrial in the first trial, with no objection
from the government, and it stated at one point “so
many of them were involved in the discussion that I’m
not sure we are going to be able to solve this.”
When the same issue arose with the second group of
jurors, however, the court did not individually question
the jurors. That was despite the defense’s objection,
and also despite the government’s recognition that each
juror should be questioned one at a time, with the pros-
ecutor stating, “I just don’t see how you can do it
without bringing in every one individually. . . .” It is
hard to see a difference between the first and second trials
that counseled against individual questioning in the
second. In the first trial, the issue arose after two days
of trial had already been held. The petit jury had been
selected, the parties had presented opening statements,
the government had presented its direct examination of
its principal witness, Agent Gomez, and the defendants
were into the third cross-examination of the agent. But
a jury had not even been selected when the issue arose
in the second trial. The fact that the issue arose so early
in the second trial would seem to make it an easier deci-
sion to start over than in the first trial. As the district
court said when declaring a mistrial in the first trial, “If
this was two weeks into the trial, it would be a little
tougher call.”
16 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
The only discernable difference in the record as to
why the same procedure of questioning each juror indi-
vidually was not followed in the second trial is that the
judge planned to sit by designation on another court
the following Tuesday and that any delay in jury selec-
tion might have interfered with that schedule. When the
second venire’s safety concerns were revealed, defense
counsel requested a new jury pool, and the following
colloquy transpired between the court and defense counsel:
COUNSEL: Judge, the way I would weigh in on
this is we are in the exact situation
we were in the last time.
JUDGE: I am not going to take every one of
these 55 people again.
COUNSEL: I understand that, but they’ve ex-
pressed the same concern that the
last venire expressed.
JUDGE: I don’t even know why. I don’t un-
derstand it.
COUNSEL: And because of that, I think they’ve
already expressed some kind of deep
seated—
JUDGE: Okay. If you have something to add,
or are you disagreeing with what
I proposed before I forget it?
COUNSEL: My position is that we should let
these people go, we should come
back Monday and try it again.
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 17
JUDGE: Well, we won’t be able to do that be-
cause we might not finish before
I have to sit on the Federal Circuit.
COUNSEL: Then I think, I don’t think my client
can get a fair trial. I just don’t think
he can, because I think they’ve al-
ready expressed—
JUDGE: Now you’re just making speeches
now at this point. Bring the jurors in.
When the identical issue arose with the first group
of jurors, the government argued for an individualized
inquiry. It did the second time too. Although district
judges have discretion in deciding how to handle
instances of potential juror bias, that discretion must be
based on proper factors. See Verizon Commc’ns, Inc. v.
Inverizon Int’l, 295 F.3d 870, 872-73 (8th Cir. 2002) (an
abuse of discretion occurs when an irrelevant or
improper factor is considered and given significant
weight); United States v. Robertson, 45 F.3d 1423, 1438-39
(10th Cir. 1995). It appears from the record that sched-
uling concerns were the basis for the decision not to
conduct individual voir dire the second time the issue
arose. Cf. United States v. Thornton, 1 F.3d 149, 155-56 (3d
Cir. 1993) (affirming decision not to question jurors
individually when trial judge weighed the potential
emphasis that came from questioning jurors against
the probable extent and gravity of the misconduct and
concluded that individual voir dire would make the
situation worse).
18 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
We are mindful of the discretion district judges have
when determining whether a jury is biased and of the
deference we pay to a district judge’s determination that
a jury can remain impartial. As the Supreme Court said
recently, “Reviewing courts are properly resistant to
second-guessing the trial judge’s estimation of a juror’s
impartiality, for that judge’s appraisal is ordinarily in-
fluenced by a host of factors impossible to capture
fully in the record—among them, the prospective juror’s
inflection, sincerity, demeanor, candor, body language,
and apprehension of duty.” Skilling, 130 S. Ct. at 2918.
Here, however, those same considerations are not in
play, as the judge did not individually question the
jurors at issue. We also understand the concern that a
defendant could affirmatively make jurors fearful and
then try to benefit from a more focused inquiry, but
there is no suggestion in this case that it was the defen-
dants’ conduct that made the jurors uncomfortable. Cf.
United States v. Owens, 426 F.3d 800, 805 (6th Cir. 2005).
And we do not say that individualized voir dire is neces-
sarily required every time a jury expresses concern
that defendants have access to information about
them. Under the circumstances of this particular case,
however, we find the inquiry inadequate. This is not
to suggest that the judge should have cancelled her com-
mitment to sit by designation, a practice we fully sup-
port. Here, though, we cannot discern any basis from the
record why this short trial could not have been resched-
uled to another date. No speedy trial concerns were
raised, it was the defendants who requested a new panel
of jurors, and they expressed no scheduling conflicts. In
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 19
fact, we do not see any indication in the record that the
court or counsel were unavailable soon after the judge
returned from sitting by designation.1
The government argues that even if the inquiry was
unsatisfactory, the defendants should not receive a new
trial because it maintains they were not prejudiced. We
note that in doing so, it treats the jurors’ safety concerns
as an external influence. Compare Simtob, 485 F.3d at 1064,
with, e.g., United States v. Lopez, 271 F.3d 472, 489 (3d
Cir. 2001). The defendants, pointing to cases including
Oswald, 374 F.3d at 482, contend that the right to be
tried before an impartial jury is structural such that
they need not show prejudice and are not subject to
harmless error review. While we note that even under
the government’s position, it would have the burden to
rebut the presumption of prejudice from an external
influence on the jury, see Vasquez-Ruiz, 502 F.3d at 705,
we need not resolve the issue as the defendants point to
another source of error as well. See United States v. Allen,
269 F.3d 842, 847 (7th Cir. 2001) (“Cumulative errors,
while individually harmless, when taken together can
1
It is not our place to suggest the best method for addressing
jurors’ safety concerns, if that is a recurring problem, as that
is a matter for the district court to address. That the issue
arose twice in this case may well have been a fluke. We also
note that although the jury coordinator informed the judge
that she would assemble fifty new persons for the second venire,
it is possible that a member of the first jury spoke with a
member of the second venire and expressed the first jury’s
concerns.
20 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
prejudice a defendant as much as a single reversible
error and violate a defendant’s right to due process of
law.”). We turn there now.
B. Instruction to Continue the Deliberations
After the court read a verdict that stated the defendants
had been found guilty on all counts, a poll of the jurors
revealed that the published verdict did not represent
the individual verdict of each of the jurors. The
defendants contend that subsequent directions the jury
received to continue deliberating, at and after the time
that the jury had already requested and received permis-
sion to leave for the weekend, were coercive and neces-
sitate a new trial.
“The principle that jurors may not be coerced into
surrendering views conscientiously held is so clear as
to require no elaboration.” Jenkins v. United States, 380 U.S.
445, 446 (1965) (per curiam). Our assessment of whether
instructions to the jury were impermissibly coercive
looks to “ ‘whether the court’s communications pressured
the jur[ors] to surrender their honest opinions for the
mere purpose of returning a verdict.’ ” United States v.
Crotteau, 218 F.3d 826, 835 (7th Cir. 2000) (quoting United
States v. Kramer, 955 F.2d 479, 489 (7th Cir. 1992)). Even
though a judge might have the best of intentions, inno-
cently intended directions can still be coercive. United
States v. Chaney, 559 F.2d 1094, 1098 (7th Cir. 1977). In
Chaney, for example, the judge gave a supplemental
instruction to the jurors at 12:20 a.m. that said, “If you
do not arrive at a verdict then the jury will be brought
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 21
into the court tomorrow morning at 9:30 and the Court
will then determine what course should be taken.” We
ruled that the jurors could have understood the direction
to mean that they must reach a verdict to avoid being
required to stay until 9:30 a.m., or that they must
deliberate until reaching a verdict, or that the court might
require them to continue deliberating in the morning
even though they had been without sleep. In light of
these potential inferences, we concluded that the instruc-
tion, although innocently given, required a new trial. Id.In this case, the jurors began deliberating on a Thursday
afternoon and began again the next morning. Sometime
on Friday, the jurors sent a note that requested permission
to leave that day by 3:30 p.m., and the judge responded
that they could. At about 3:20 p.m., the jury sent a note
with a question about the requirements for conviction
on one of the charges. While the judge and parties were
discussing how to respond to the question, the jury sent
another note that said it had reached a verdict.
The court brought the jurors into the courtroom. After
announcing a verdict that convicted the defendants on
all counts, the court polled the jurors at the defendants’
request, and the second juror polled responded that the
published verdict did not represent her individual ver-
dict. The defendants contend on appeal that at this point,
the judge should have given the instruction we approved
in United States v. Silvern, 484 F.2d 879, 883 (7th Cir. 1973),
which provides:
The verdict must represent the considered judg-
ment of each juror. In order to return a verdict, it
22 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
is necessary that each juror agree thereto. Your
verdict must be unanimous.
It is your duty, as jurors, to consult with one
another and to deliberate with a view to reaching
an agreement, if you can do so without violence
to individual judgment. Each of you must decide
the case for yourself, but do so only after an im-
partial consideration of the evidence with your
fellow jurors. In the course of your deliberations,
do not hesitate to reexamine your own views
and change your opinion if convinced it is errone-
ous. But do not surrender your honest conviction
as to the weight or effect of evidence solely be-
cause of the opinion of your fellow jurors, or for
the mere purpose of returning a verdict. You are
not partisans. You are judges—judges of the facts.
Your sole interest is to ascertain the truth from
the evidence in the case.
During discussions with the trial judge, however, defense
counsel stated it did not think a Silvern instruction was
a good idea then, so our review of the request for a
Silvern instruction is for plain error. See United States
v. Jones, 600 F.3d 847, 856 (7th Cir. 2010).
The jury must be deadlocked before a Silvern instruc-
tion is required. See United States v. Degraffenried, 339
F.3d 576, 580 (7th Cir. 2003); United States v. Miller, 159
F.3d 1106, 1101-11 (7th Cir. 1998). The juror’s response
during the poll that the verdict as published did not
reflect her own verdict meant there was not a unanimous
verdict, but it did not necessarily mean the jury was
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 23
deadlocked. See United States v. Carraway, 108 F.3d 745,
752 (7th Cir. 1997) (per curiam). As we explained in
Carraway, “[W]hen the court decided . . . to have the jury
continue deliberating—after polling of the jury had been
interrupted by the juror’s announcement that she dis-
agreed with the guilty verdict against Carraway—there
was no clear indication that the jury was deadlocked as
to Carraway’s culpability and that further delibera-
tions would be fruitless. The jury had, after all, signed a
unanimous verdict as to Carraway, and the reason for
the objecting juror’s second thoughts were (and are)
unknown.” Id. The same reasoning holds true here. We
do not know why the juror responded that the pub-
lished verdict did not represent her individual verdict,
and, more importantly, there was no indication that
further deliberations would not be helpful. There was no
plain error when the jury did not receive a Silvern instruc-
tion at that juncture.
The lack of a Silvern instruction at this point (and note
that the jury had received the Silvern instruction as one
of its instructions before it began deliberating), therefore,
was not a problem in and of itself. The direction to con-
tinue deliberating after the poll revealed a lack of unanim-
ity also was not inherently problematic, see Carraway,
108 F.3d at 752, as reflected in Rule 31(d) of the Federal
Rules of Criminal Procedure:
After a verdict is returned but before the jury is
discharged, the court must on a party’s request, or
may on its own, poll the jurors individually. If
the poll reveals a lack of unanimity, the court
24 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
may direct the jury to deliberate further or may
declare a mistrial and discharge the jury.
However, our review does not end there, as the defen-
dants also contend that the court’s communications after
the poll were coercive of unanimity. This argument
requires that we consider the directions given by the
trial court in “ ‘context and under all the circumstances.’ ”
Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (quoting
Jenkins, 380 U.S. at 446). Although Rule 31(d) allows a
judge to direct the jury to deliberate further if a poll
reveals a lack of unanimity, it does not allow, of course,
for directions that are coercive. And although we find
no plain error in the fact that the jurors did not receive
a Silvern instruction after the poll, the policy behind
the Silvern instruction matters: a juror should not “sur-
render his honest conviction as to the weight or effect
of evidence solely because of the opinion of his fellow
jurors, or for the mere purpose of returning a verdict.”
Silvern, 484 F.2d at 883 n.5.
The jurors had asked earlier in the day to leave by
3:30 p.m. and been told they could. Nonetheless, when
the jury returned a verdict very close to that time and
the second juror polled answered that the published
verdict did not represent her own, the court followed
that juror’s response by stating:
All right. Then I’m going to ask that you people
go back to the jury room. At one point you had
indicated you wanted to leave today, but I’ll let
you people decide what you want to do and delib-
erate further. We do not have a unanimous
verdict, so that is all.
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 25
This directive to continue deliberating was issued right
around 3:30 p.m., the time that the jury had already asked
for and received permission to leave. It came without
the caveat that if the jurors still wanted to leave at
3:30 p.m. that day, they could do so by simply telling the
judge. Cf. United States v. Talkington, 875 F.2d 591, 596-97
(7th Cir. 1989) (direction not coercive that asked jurors
whether they wished to (1) continue deliberating for
another hour, or (2) go either home or to a hotel for
the evening and continue deliberating the next morning
at 10:00 a.m.). It also came without consulting counsel;
hearing from the parties outside the jury’s presence
might have yielded a response to the jury upon which
all could agree. Cf. Talkington, 875 F.2d at 597.
On their face, the directions the jurors received after
the poll suggested that the jurors could not leave for the
day until they had a unanimous verdict, despite
their previous request to have already left by that
point. Perhaps the statement, “At one point you had
indicated you wanted to leave today, but I’ll let you
people decide what you want to do and deliberate fur-
ther,” had been intended as an invitation for the jurors
to leave for the day if they wished in light of their
earlier request to depart at 3:30 p.m. Unfortunately, it
reads as the opposite, especially since it was preceded
by a direction to return to the jury room and followed
by the statement, “We do not have a unanimous verdict,
so that is all.”
At the time of that direction, apparently only a single
vote stood between the defendants and conviction, and
26 Nos. 08-3511, 08-3549, 08-3885 & 08-4144
care was especially important. The jurors soon sent out
another note confirming their disagreement: “We have a
debated situation with a decision on two of the counts.
They are as follows: One, Count 2; two, Count 3. May we
have a little direction if that is possible? Can a juror be
asked to be dismissed in a proceedings?” The court dis-
cussed the note with counsel and indicated it would
answer with the direction, “Please continue to deliberate.
A juror may not be dismissed.” One defense counsel
responded with concern that the jurors might take such
a direction to mean they could not leave as early as
they wanted and stated, “ ‘Please continue to deliberate.’
Maybe that means they’ll think they have to stay tonight.
I mean, maybe—” The court responded, “Well, they
have already been told they can go home.” To that,
defense counsel responded with the ambiguous, “Okay,”
which could well be an acknowledgment that the court
had ruled against it. The bottom line is that the jurors
were again told without caveat to continue deliberating,
despite their request earlier in the day to leave by 3:30 p.m.
We do not know why jurors had asked to leave that day
by 3:30 p.m., or whether the holdout juror needed or
wanted to leave by that time on that particular day. What
we do know is that the jurors may well have under-
stood the post-poll instructions to mean that they
needed to return a unanimous verdict immediately if
they still wanted to leave at their requested time.
Even though the effect was unintentional, under these
circumstances, we conclude that the instructions were
impermissibly coercive. These directions, along with
the inadequacy of the inquiry into the jurors’ safety
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 27
concerns, lead us to conclude that the defendants
should receive a new trial.
III. CONCLUSION
The judgment of the district court is V ACATED , and
the defendants will receive a new trial. Circuit Rule 36
shall apply.
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