United States v. Williams ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-50599
v.  D.C. No.
DAVID DWIGHT WILLIAMS, CR-02-03171-IEG
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-50608
v.  D.C. No.
WILLIAM A. STEEL, CR-02-03171-IEG
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 06-50612
Plaintiff-Appellee,
v.  D.C. No.
CR-02-03171-IEG
TALFORD BROWN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding
Argued and Submitted
April 8, 2008—Pasadena, California
Filed November 6, 2008
15167
15168 UNITED STATES v. WILLIAMS
Before: William C. Canby, Jr., Andrew J. Kleinfeld, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
UNITED STATES v. WILLIAMS 15171
COUNSEL
Benjamin L. Coleman, Coleman & Balogh LLP, San Diego,
California, for appellant David Williams.
Michael Edmund Burke, San Diego, California, for appellant
William Steel.
15172 UNITED STATES v. WILLIAMS
Brian J. White, San Diego, California, for appellant Talford
Brown.
Stephen Frederick Miller, Assistant United States Attorney,
San Diego, California, for appellee United States.
OPINION
BYBEE, Circuit Judge:
David Williams, William Steel, and Talford Brown appeal
their convictions following a jury trial for conspiracy to inter-
fere with interstate commerce by robbery, conspiracy to pos-
sess cocaine with the intent to distribute, and possession of a
firearm during a drug crime and crime of violence. Williams,
Steel, and Brown argue, inter alia, that there was insufficient
evidence to support their convictions, that their indictment
should have been dismissed because of outrageous govern-
ment conduct, and that the district court should have declared
a mistrial because a juror revealed that she was the lone hold-
out. We hold that there was sufficient evidence to support the
convictions and that the government did not deny the defen-
dants their due process rights by engaging in outrageous con-
duct. Because the district court gave an Allen charge after a
juror disclosed that she was a holdout, we reverse and remand
for a new trial.
I
David Williams, Talford Brown, William Steel, and Evan
Hollingsworth1 were indicted in the Southern District of Cali-
fornia for one count of conspiracy to interfere with commerce
by robbery, see 18 U.S.C. § 1951(a); one count of conspiracy
1
Hollingsworth pleaded guilty to a single count of carrying a firearm
during a drug crime and crime of violence, in exchange for his testimony
at trial and for dismissal of the remaining two counts.
UNITED STATES v. WILLIAMS 15173
to possess cocaine with the intent to distribute, see 21 U.S.C.
§§ 841(a)(1), 846; and one count of carrying a firearm during
a drug crime and crime of violence, see 18 U.S.C.
§ 924(c)(1)(A), (c)(2).
The following account is taken from the evidence intro-
duced at trial. Around August 2002, a man identified only as
“Marty” introduced Williams as a drug dealer to a paid gov-
ernment informant named Tony.2 During that month, Tony
and Williams planned a marijuana sale in New Orleans. Tony
was to provide the marijuana, and Williams was to put Tony
in contact with a buyer. The deal did not go through, but Wil-
liams and Tony continued to negotiate planned drug transac-
tions, including one involving cocaine from Belize and one
involving a ten to fifty kilogram cocaine purchase by Wil-
liams. At some point during their association, Williams con-
fessed to Tony that he had pleaded no contest to and was
wanted for a bank robbery in Texas.
A few days before October 25, 2002, Williams told Tony
about a bank robbery he had planned, and that he needed to
sell a firearm to raise money to rent the getaway car. Williams
already had planned the bank robbery in some detail, having
identified the target bank and recruited someone on the inside
of the bank to help. Williams tried to enlist Tony to be the
getaway driver. Tony relayed this information to Floyd
Mohler, an agent with the Bureau of Alcohol, Tobacco and
Firearms (“ATF”), who proposed that Tony pitch the idea of
robbing a fictitious drug stash house in lieu of robbing the
bank.
2
At trial, Williams denied knowing anything about how to deal drugs
and contended that he had been introduced to Tony in June 2002 because
Williams needed money and Tony could provide him a loan. Many of the
conversations between Williams and Tony were taped, though conversa-
tions describing the drug deals other than the Jamaican marijuana deal,
described infra, were destroyed prior to trial.
15174 UNITED STATES v. WILLIAMS
On October 25, 2002, Tony met Williams and Andy Jauch,
an undercover Drug Enforcement Administration (“DEA”)
agent, at a restaurant and recorded the conversation. During
that meeting, Williams sold a handgun to Tony. Tony told
Williams that the gun was for a man named Enrique, who was
involved in a drug smuggling operation in San Diego and who
was interested in robbing a drug stash house. Williams
informed Tony and Jauch about some Jamaicans in New York
City who wanted to buy a significant quantity (between one
thousand and two thousand pounds) of marijuana. Williams
also supplied many details about his planned bank robbery.
On October 29, 2002, Williams and Tony met with a man
named Wayne, who was affiliated with the Jamaicans in New
York seeking to buy the marijuana. Williams flew to New
York to meet Wayne on November 1, 2002, and had several
recorded telephone conversations with Tony and Wayne.
These conversations concerned only the New York City mari-
juana transaction. Tony met with the Jamaicans later in
November 2002; the Jamaicans were arrested when they
arrived with the money to buy the marijuana.
On November 4, Tony introduced Williams to ATF agent
Harry Penate, who was playing the undercover role of
Enrique Romano. Penate told Williams that he had a job for
Williams, but that Williams could decline it if he wanted.
Penate told Williams that he operated drug stash houses for a
drug smuggling organization, but some of the drug loads
recently had been lost. To compensate for the lost loads, the
drug organization was not paying Penate. Penate said that in
a few days, the stash house would contain one hundred kilo-
grams of cocaine and between fifty and sixty thousand dollars
in currency, guarded only by the two women who count the
money and a single guard with a sawed off shotgun. Penate
told Williams that he wanted to hire someone with a crew to
rob the money and the cocaine. He told Williams that if this
robbery went well, there were two other stash houses that
could be robbed.
UNITED STATES v. WILLIAMS 15175
As the conversation progressed, Penate and Williams dis-
cussed more details about how to conduct the robbery, includ-
ing how to remove the drugs, how many people were in each
house and how many were armed, and whether they would
need to kill anyone. Williams indicated that he had two peo-
ple with whom he could do the job, that he had worked with
them before, and that he and his crew were ready to do the job
immediately. They discussed how they would split the money
and the drugs and how Williams would pay his crew. Wil-
liams indicated that one of the people he planned to use had
recently been involved in a home invasion robbery like the
one Penate had proposed, but had been caught.
On November 5, Williams and Tyrone Sprewell met with
Penate and sold him another gun. Sprewell was introduced to
Penate as someone who would be helping with the robbery,
who had done similar things in the past, and who had done
jobs with Williams before. Sprewell was later arrested on an
outstanding warrant when he was pulled over during a traffic
stop.
On November 8, Williams met Penate at a restaurant and
discussed the plan details. He indicated that he intended to kill
the armed guard at the stash house. He told Penate that Spre-
well did not want to participate in the robbery, but that he had
two other guys for the job. Williams said of his crew that
“[t]hey know everything,” including how the money and
drugs would be divided. He said they had done jobs like this
before and that they were pros.
On November 13, Williams met Penate at another restau-
rant near a motel in San Diego (“San Diego motel”) and dis-
cussed the final details of the stash house robbery planned for
the next day. Williams told Penate that the other members of
the crew were following him and that they had brought some
things so they could “handle” themselves. Penate told Wil-
liams that he had rented a room at another motel (“Chula
Vista motel”) five blocks from the stash house in Chula Vista,
15176 UNITED STATES v. WILLIAMS
which they would use to stage the robbery. He also told Wil-
liams that there would be over one hundred kilograms of
cocaine and about $100,000 in cash in the house at the time
of the robbery. Penate rented a minivan for Williams to drive.
Williams said that he had three people involved, two who
knew the plan and one who was just driving the guns and
police radio down.3 After this meeting, they retired to the
room Penate had rented at the San Diego motel, which had
been wired for audio and video recording.
On the morning of November 14, 2002, Penate met Wil-
liams at a room in the San Diego motel. Williams had been
joined by Hollingsworth, Steel, and Brown. Prior to Penate’s
arrival, Williams called Penate and asked him to bring some
breakfast items, as well as potatoes to be used as silencers,
which Penate did.
Penate described to the four men the details of the plan at
this meeting, including how they would enter the house. He
told them if they did not want to participate, they should say
so and “be on your way.” Brown audibly indicated his will-
ingness to participate, and Penate testified that Williams,
Steel, and Hollingsworth nodded their assent.4 Williams,
Steel, Brown, and Hollingsworth then wiped the room free of
fingerprints. While they prepared to leave, Williams asked
Brown, “How many you got?” Brown replied, in an apparent
reference to the number of bullets in his gun, “I will got nine,
but I only need one.”
Penate, the three appellants, and Hollingsworth then left the
San Diego motel to drive to the second motel in Chula Vista.
3
Hollingsworth, who pleaded guilty to a reduced set of charges, was the
third man who drove the guns down but did not know the plan.
4
Portions of audiotape 9A, discussed in more depth infra, recorded one
side of Penate’s conversation with the other agents after he left the first
motel. In a disputed portion of that tape, Penate referred to “one of those
two other dudes who didn’t nod.”
UNITED STATES v. WILLIAMS 15177
Penate drove a blue Ford Explorer; Williams followed in the
rented minivan, then Hollingsworth in a Jaguar sedan. Steel
completed the caravan with Brown as a passenger in a Dodge
Intrepid. All four vehicles pulled into the Chula Vista hotel;
only Williams followed Penate into the rear parking area
where the SWAT team deployed a flash-bang grenade before
arresting Williams. Steel and Brown, in the Dodge Intrepid,
left the Chula Vista hotel shortly after arriving. The Chula
Vista police stopped them as they drove away. The officers
ordered Steel and Brown out of the car and arrested them; a
search of Brown upon his arrest revealed a gun holster on his
waist.
A search of the Intrepid recovered a knife, a blue and red
mask, a gray mask, a piece of paper with handwritten direc-
tions to the San Diego motel, flex ties, a road guard vest, two
cell phones, a black leather wallet with an identification card
belonging to Brown, and three whole potatoes. A later search
recovered two loaded semiautomatic pistols in a compartment
in the center gear box console. One of the weapons was
loaded with six hollow-point copper jacketed bullets; the
other contained seven rounds of hollow-point, hydroshock,
copper jacketed bullets. A search of the Jaguar, which was
also stopped at the Chula Vista motel, recovered a revolver
loaded with hollow point hydraulic bullets, a police scanner,
and three mobile radios from a speaker box. A search of the
minivan recovered a nylon mask, a pair of Nomex gloves, and
a small flashlight.
On November 7, 2003, a jury returned verdicts of guilty on
each of the three counts for each of the three appellants. The
district court denied various pre-trial and post-trial motions
that are the subject of this appeal, including a motion for mis-
trial resulting from a note sent by a juror; a pre-trial motion
to dismiss the indictment for outrageous government miscon-
duct and entrapment, and a post-trial motion to dismiss for
outrageous government misconduct and to enter a judgment
of acquittal under Federal Rule of Criminal Procedure 29. The
15178 UNITED STATES v. WILLIAMS
district court sentenced Williams to 37 months of imprison-
ment on count 1, a concurrent term of 188 months of impris-
onment on count 2, and a consecutive term of 60 months
imprisonment on count 3, to be followed by a period of 5
years of supervised release. The district court sentenced
Brown to a term of 71 months of imprisonment on count 1,
a concurrent term of 27 months imprisonment on count 2, and
a consecutive term of 60 months of imprisonment on count
three, to be followed by a period of 5 years of supervised
release. The district court sentenced Steel to 87 months of
imprisonment on count 1, a concurrent term of 33 months of
imprisonment on count 2, and a consecutive term of 60
months of imprisonment on count 3, to be followed by a
period of 6 years of supervised release.
Williams, Brown, and Steel timely appealed.
II
Williams, Brown, and Steel present several claims for our
review, some of which all three defendants join and some of
which are presented individually. We first address the claims
that, if successful, would result in either a judgment of acquit-
tal or dismissal of the indictment. We then proceed to discuss
the claim that the district court erred in giving an improper
Allen charge after a juror disclosed that she was a holdout.5
A
Williams, Brown, and Steel first argue that the district court
erred in refusing to enter a judgment of acquittal under Fed-
5
Because we conclude that the district court committed reversible error
by giving an improper Allen charge, we need not reach the claims that the
district court erred in failing to give a limiting instruction on Hollings-
worth’s guilty plea, in failing to instruct the jury properly on the elements
of the crime underlying the conspiracy charges, or in improperly admitting
co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E).
UNITED STATES v. WILLIAMS 15179
eral Rule of Criminal Procedure 29 for insufficiency of the
evidence on various aspects of the charges against them.6
1
Steel and Brown first argue that there was insufficient evi-
dence to convict them of the conspiracy in counts one and two
of the indictment.7 They base their argument on inconsistent
testimony Penate gave concerning whether Steel or Brown
orally assented to the plan to rob the fictitious stash house.
[1] Penate initially testified at trial that during the Novem-
ber 14 meeting at the San Diego motel, he verbally confirmed
with each individual (Williams, Hollingsworth, Steel, and
Brown) that they were “in”—that is, that they agreed to par-
ticipate in the plan to rob the stash house. On cross-
examination, however, he said that Steel gave an oral
response, but later testified, “I don’t believe Steel was verbal
during that whole time,” and that Steel just nodded. Some evi-
6
We review de novo a motion for a judgment of acquittal under Federal
Rule of Criminal Procedure 29, viewing the evidence against the appel-
lants in the light most favorable to the government to determine whether
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. United States v. Pacheco-Medina, 212
F.3d 1162, 1163 (9th Cir. 2000).
7
Williams joins this claim, arguing that if there was insufficient evi-
dence to convict his co-defendants of conspiracy, then he could not have
been convicted of conspiring with a government agent. It is well-
established law that “the agreement in a conspiracy cannot be established
with evidence that the defendant had an agreement with a government
informer.” United States v. Ching Tang Lo, 447 F.3d 1212, 1225-26 (9th
Cir. 2006) (citing United States v. Escobar de Bright, 742 F.2d 1196,
1198-200 (9th Cir. 1984)). As to Williams,“[t]he question, therefore, is
whether there was sufficient evidence to find a conspiracy with someone
other than government agents and informants.” Id. at 1226. Hollingsworth
pleaded guilty and testified for the government at trial. Hollingsworth’s
testimony therefore provides sufficient evidence for Williams’ conspiracy
conviction; Williams’ contention to the contrary lacks merit. Regardless,
for the reasons that follow, we hold there was sufficient evidence to sup-
port Steel and Brown’s convictions.
15180 UNITED STATES v. WILLIAMS
dence suggested that Steel may not have even nodded.
Penate’s testimony concerning Brown was similarly inconsis-
tent. At a pretrial motion hearing, Penate admitted it was pos-
sible only Williams agreed orally, but, at trial, he testified
only Brown orally assented. Steel and Brown also argue that
their actions after they left the San Diego motel indicate that
they did not agree to the conspiracy because they did not fol-
low the caravan to the Chula Vista motel, where they were
supposed to go, but were pulled over entering the freeway.
Steel and Brown’s argument incorrectly assumes that the only
evidence that could support a conspiracy conviction is evi-
dence of their affirmative agreement to join it. “[A] conspir-
acy may be proven by circumstantial evidence that the
defendants acted together with a common goal.” United States
v. Iriarte-Ortega, 113 F.3d 1022, 1024 (9th Cir. 1997),
amended by United States v. Iriarte-Ortega, 127 F.3d 1200(9th Cir. 1997). With that standard in mind, there was ample
evidence to convict Steel and Brown of both conspiracy to
commit robbery and conspiracy to possess cocaine with the
intent to distribute.
[2] Evidence supporting the conspiracy to commit robbery
charge included that Steel and Brown met with Williams, the
government agents, and Hollingsworth at the San Diego motel
on November 14 and participated in wiping down fingerprints
in the room. They brought guns with hollow point bullets to
the meeting, and Brown told Williams that, though his gun
had nine rounds of ammunition, “I only need one.” Brown
and Steel rode in the car together from the San Diego motel
to the Chula Vista motel, with Brown wearing a holster that
fit one of the guns later recovered from his car. The search of
their car also revealed flex-ties, workers’ vests, masks, gloves,
a knife, and potatoes to be used as gun silencers. Brown and
Steel claim that they did not drive to the back of the Chula
Vista motel parking lot, but trial testimony was sufficient for
the jury to conclude that they initially drove to the Chula
Vista motel and fled when they saw the police.
UNITED STATES v. WILLIAMS 15181
In addition to this evidence, other evidence supported the
charge of conspiracy to possess cocaine with the intent to dis-
tribute. Williams told Penate on November 13 that “the only
people that know the plan are the two guys,” an apparent ref-
erence to Steel and Brown. Referring to the people who Wil-
liams had recruited to help him with the robbery, Williams
said, “They know that they’re going in, they’re getting paid
to do a job. . . . They know everything.” Williams said to
Penate, “I told [his crew] I was gonna a [sic] touch ‘em back
some later, once I got all the money from Tony. Later on
down the line I said I’m gonna give ya’ll some of the money
on that [the drugs].”
[3] Although some of the trial evidence supported an infer-
ence of not guilty—such as Penate’s inconsistent testimony
concerning who verbally assented to participate in the plan
and the fact that Brown and Steel were not apprehended at the
predesignated meeting location —when viewed in the light
most favorable to the government, there was ample evidence
for a rational jury to conclude beyond a reasonable doubt that
the appellants “acted together with a common goal.” Iriarte-
Ortega, 113 F.3d at 1024.
2
[4] Steel and Brown next argue that there was insufficient
evidence of an effect on interstate commerce or that there was
actually any cocaine at the fictitious stash house. The crux of
these two arguments is that a conspiracy to rob a non-existent
stash house cannot interfere with interstate commerce. We
squarely rejected this argument in United States v. Rodriguez,
360 F.3d 949, 957 (9th Cir. 2004) (“[T]he non-existent status
of the target drug traffickers is inapposite. Impossibility is not
a defense to the conspiracy charge.”), and we summarily
reject it here.
3
[5] Steel and Brown next argue that there was insufficient
evidence of an intent to distribute the cocaine that was the
15182 UNITED STATES v. WILLIAMS
subject of the conspiracy to possess. This argument lacks
merit. The evidence produced at trial was sufficient for a jury
to conclude that Penate told Williams on November 13, 2002,
that there would be one hundred kilograms of cocaine in the
stash house at the time of the planned robbery, and expert tes-
timony established that this was a sufficiently large amount
that it would be intended for distribution. Williams was also
recorded telling Tony that Williams’ crew knew everything
about the plan, including how the drugs and money would be
divided. During a November 8 conversation between Penate
and Williams, Williams said, “I already know that they [Steel
and Brown] [a]re gonna see the [cocaine] so I told them I was
gonna a [sic] touch ‘em back some later, once I got all the
money from Tony. Later on down the line I said I’m gonna
give ya’ll some of the money on that, and they were like it’s
cool. I said the cash, we’re gonna split it up, ya’ll too gonna
get a third.” Viewed in the light most favorable to the govern-
ment, this evidence was sufficient to permit a rational jury to
find that Steel and Brown intended to distribute the cocaine
after they obtained it.
4
Finally, Williams argues that there was insufficient evi-
dence to convict him of conspiracy to possess cocaine with
the intent to distribute because he demonstrated entrapment as
a matter of law.8
[6] “To establish entrapment as a matter of law, the defen-
dant must point to undisputed evidence making it patently
clear that an otherwise innocent person was induced to com-
8
We review de novo claims of entrapment as a matter of law. United
States v. Sandoval-Mendoza, 472 F.3d 645, 648 (9th Cir. 2006). A verdict
should be affirmed when the jury has been instructed on the elements of
entrapment, as it was here, “unless, viewing the evidence in the govern-
ment’s favor, no reasonable jury could have concluded that the govern-
ment disproved the elements of the entrapment defense.” Id. (quoting
United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th Cir. 2002)).
UNITED STATES v. WILLIAMS 15183
mit the illegal act by trickery, persuasion, or fraud of a gov-
ernment agent.” United States v. Smith, 802 F.2d 1119, 1124
(9th Cir. 1986). This is a subjective inquiry into whether “the
Government’s deception actually implants the criminal design
in the mind of the defendant.” United States v. Russell, 411
U.S. 423, 436 (1973). “Inducement can be any government
conduct creating a substantial risk that an otherwise law-
abiding citizen would commit an offense, including persua-
sion, fraudulent representations, threats, coercive tactics,
harassment, promises of reward, or pleas based on need, sym-
pathy or friendship.” United States v. Davis, 36 F.3d 1424,
1430 (9th Cir. 1994).
[7] The defense of entrapment fails “[i]f the defendant is
predisposed to commit the crime.” Smith, 802 F.2d at 1124.
We use five factors to determine whether a defendant was
predisposed, though no single factor is controlling. See United
States v. Busby, 780 F.2d 804, 807 (9th Cir. 1986). These fac-
tors include:
(1) the character or reputation of the defendant,
including any prior criminal record; (2) whether the
government initially made the suggestion of criminal
activity; (3) whether the defendant engaged in the
criminal activity for profit; (4) whether the defendant
evidenced reluctance to commit the offense that was
overcome by repeated government inducement or
persuasion; and (5) the nature of the inducement or
persuasion supplied by the government.
Smith, 802 F.2d at 1124-25. “[T]he defendant’s reluctance to
engage in criminal activity is the most important.” Id. at 1125.
[8] Williams argues that he was induced as a matter of law
because the government offered him hundreds of thousands to
perhaps more than a million dollars in potential cocaine sales.
But even assuming that Williams was induced to enter the
conspiracy by the lure of substantial financial gain, the gov-
15184 UNITED STATES v. WILLIAMS
ernment proved that he was predisposed to commit the crime.
Williams correctly points out that the question of predisposi-
tion is to be determined prior to the time the government
agent suggested the criminal activity. See United States v.
Poehlman, 217 F.3d 692, 703 (9th Cir. 2000). Even with that
limitation, ample evidence on each of the five Smith factors
supported a jury finding that Williams was predisposed to
commit the crime. First, Williams was a fugitive from justice
for a bank robbery in Texas, he had engaged in previous crim-
inal gun sales, and he had been introduced to Tony as a mid-
dleman drug dealer. There was strong evidence of the latter,
as Williams planned a drug deal involving about $700,000 in
marijuana. The first factor relevant to the determination of his
predisposition, his character and reputation including his prior
criminal record, suggests that he was predisposed to this type
of criminal activity. See Smith, 802 F.2d at 1124-25.
The second factor also supports the conclusion that Wil-
liams was predisposed to commit the robbery. Although the
government initially suggested the stash house robbery, it did
so only after Williams told the agents of his plans to commit
bank robbery, which he concocted entirely on his own. While
the criminal schemes are not identical, they both involve
stealing property with force as well as the use of firearms. See
id.The third Smith factor counts squarely against Williams. It
is undisputed that Williams engaged in the conspiracy for a
profit, which weighs against an entrapment defense. See id.[9] The fourth and most important Smith factor does not
support Williams’ argument, either. There is no evidence that
Williams expressed any reluctance about the robbery that
needed to be “overcome by repeated government inducement
or persuasion.” Id. at 1125. The evidence indicated that Wil-
liams was ready and willing at all times to participate in the
robbery. Penate told Williams on more than one occasion that
he could decline the job, but Williams responded: “I’m ready
UNITED STATES v. WILLIAMS 15185
to do it tomorrow! Like I said, all I gotta do is get the car. If
push comes to shove I’ll use my own car.” When Penate told
Williams that he needed an answer by the next day, Williams
stated, “You got your answer right now!” Williams needed no
persuasion from the government agent to enter into this con-
spiracy, which counts heavily against his entrapment argu-
ment.
The fifth Smith factor, the nature of the inducement pro-
vided by the government, also provides no support for Wil-
liams. The stash house robbery was suggested as an
alternative to a bank robbery, which Williams thought would
net a similar amount of money.
[10] Viewing the evidence as a whole in the government’s
favor, a reasonable jury could find that Williams was predis-
posed to commit the crime and therefore the government dis-
proved the elements of entrapment.
****
[11] Accordingly, we affirm the district court’s decision to
deny the appellants’ Rule 29 motions.
B
Williams, Brown, and Steel next argue that the district
court erred in failing to dismiss the indictment due to outra-
geous government conduct.9 They claim the government con-
cocted, directed, and supervised the criminal enterprise from
start to finish, and thus falls within the prohibition on outra-
geous government conduct imposed by the Due Process
Clause of the Fifth Amendment. See United States v. Russell,
9
We review de novo claims of outrageous government conduct, viewing
the evidence in the light most favorable to the government and reviewing
the district court’s factual findings for clear error. United States v.
Gurolla, 333 F.3d 944, 950 (9th Cir. 2003).
15186 UNITED STATES v. WILLIAMS
411 U.S. 423, 431-32 (1973). For the reasons described
below, we reject their argument.10
[12] “ ‘Outrageous government conduct is not a defense,
but rather a claim that government conduct in securing an
indictment was so shocking to due process values that the
indictment must be dismissed.’ ” United States v. Holler, 411
F.3d 1061, 1065 (9th Cir. 2005) (quoting United States v.
Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995)). This claim
requires meeting a “high standard,” id. at 1066, with a show-
ing that “the government’s conduct violates fundamental fair-
ness and is ‘shocking to the universal sense of justice
mandated by the Due Process Clause of the Fifth Amend-
ment.’ ” United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.
2003) (quoting Russell, 411 U.S. at 431-32). We explained in
Gurolla that “[t]his standard is met when the government
engineers and directs a criminal enterprise from start to fin-
ish,” but “is not met when the government merely infiltrates
an existing organization, approaches persons it believes to be
already engaged in or planning to participate in the conspir-
acy, or provides valuable and necessary items to the venture.”
Id. (internal quotation marks and citations omitted).
[13] In United States v. Bonanno, 852 F.2d 434 (9th Cir.
1988), we set forth five factors that, when satisfied, indicate
that the governmental conduct was acceptable. The five fac-
tors are:
(1) the defendant was already involved in a continu-
ing series of similar crimes, or the charged criminal
enterprise was already in process at the time the gov-
10
We assume without deciding that Brown and Steel have standing to
raise this claim, although there is substantial merit to the government’s
argument that only Williams has standing to bring this claim. See United
States v. Bogart, 783 F.2d 1428, 1433 (9th Cir. 1986) (finding that only
defendants to whom the government’s conduct is directed have standing
to raise an outrageous government conduct claim).
UNITED STATES v. WILLIAMS 15187
ernment agent became involved; (2) the agent’s par-
ticipation was not necessary to enable the defendants
to continue the criminal activity; (3) the agent used
artifice and stratagem to ferret out criminal activity;
(4) the agent infiltrated a criminal organization; and
(5) the agent approached persons already contem-
plating or engaged in criminal activity.
Id. at 437-38.
[14] These five factors are all satisfied in this case. First,
the district court found that Williams was already involved in
a continuing series of similar crimes. He had been introduced
to Tony by a third party nearly three months before the stash
house robbery was suggested. Williams was introduced to
Tony as a middleman drug dealer, and Williams planned
major drug deals with Tony from August until October 2002,
including one involving up to two thousand pounds of mari-
juana. Williams initiated several of these drug transactions on
his own. During this time period, Williams told Tony that he
was wanted for a Texas bank robbery to which he pleaded no
contest. Before the stash house robbery was suggested to Wil-
liams, he told Tony about a thoroughly planned bank robbery
he intended to complete with his experienced crew. Williams
indicated that he needed to sell a handgun to raise money to
rent the getaway car for the bank robbery and asked Tony to
be the getaway driver. The next day, Williams actually sold
the gun. As this evidence shows, Williams was involved in
both robberies and drug transactions before Tony suggested
the idea of the stash house robbery.
Williams counters that the district court erred in looking to
criminal activity committed by Williams after he met the con-
fidential informant. This argument is unpersuasive. Compe-
tent evidence showed that Williams was introduced to Tony
as a drug dealer and that Williams readily engaged in plans
to buy and sell drugs with little or no encouragement from the
government informants or agents. The evidence also showed
15188 UNITED STATES v. WILLIAMS
that Williams concocted the bank robbery scheme entirely on
his own, without any help from Tony. The first Bonanno fac-
tor is satisfied.
[15] The second Bonanno factor is also satisfied. Tony’s
participation was not necessary to enable Williams to carry
out the bank robbery or many of the planned drug deals. Wil-
liams already had detailed plans to conduct the robbery, and
he personally negotiated with the Jamaicans in New York for
a very large marijuana transaction.
The last three Bonanno factors are similarly met. Williams
indicated that he had an experienced crew and that they were
ready to help with the bank robbery he had independently
planned—the agents thus “infiltrated a criminal organization.”
Id. at 438. Although the government agents suggested the
stash house robbery to prevent Williams from conducting the
bank robbery, this is best characterized as a “stratagem to fer-
ret out criminal activity,” not outrageous government conduct.
Williams was clearly “already contemplating or engaged in
criminal activity.” Id.
[16] The appellants argue that just because Williams had
planned a bank robbery and had been involved in some
planned drug deals did not mean that he was engaged in a
crime similar to the one proposed by the government agents,
which combined robbery with drug dealing. This argument is
unpersuasive because the stash house robbery is sufficiently
similar to the planned bank robbery that the government’s
substitution of a real bank robbery with a fictitious stash
house robbery does not “violate[ ] fundamental fairness [or]
‘shock[ ] the universal sense of justice mandated by the Due
Process Clause of the Fifth Amendment.’ ” Gurolla, 333 F.3d
at 950 (quoting Russell, 411 U.S. at 431-32). Both crimes
required significant advance planning, the use of force to
deprive persons of property, and the use of firearms, and both
crimes required the participants’ willingness to threaten or
take human life. A stash house robbery differs from a bank
UNITED STATES v. WILLIAMS 15189
robbery only in the type of property to be stolen and the likeli-
hood that the innocent public will be injured during the crime.
The government’s decision to use a sting operation to appre-
hend this group of criminals reduced the risk of violence to
the public and is to be commended, not condemned. Though
perhaps creative, the government’s sting does not violate the
universal sense of justice.11
11
In connection with the outrageous government conduct claim, the
appellants present two additional arguments. First, they argue that the gov-
ernment created a crime of violence, in violation of Justice Powell’s con-
currence in Hampton v. United States, 425 U.S. 484 (1976). Justice Powell
stated: “There is certainly a constitutional limit to allowing governmental
involvement in crime. It would be unthinkable, for example, to permit
government agents to instigate robberies and beatings merely to gather
evidence to convict other members of a gang of hoodlums.” Hampton, 425
U.S. at 493 n.4 (Powell, J., concurring in the judgment) (quoting United
States v. Archer, 486 F.2d 670, 676-77 (2d Cir. 1973)). The government
correctly notes that Justice Powell was referring “to government conduct
that would encourage and condone direct and deliberate harm to others,”
such as if the government prosecuted a defendant for robbery after encour-
aging the defendant to rob a victim. Justice Powell’s concurrence explic-
itly approves the use of sting operations to combat drug offenses. See
Hampton, 425 U.S. at 493 (Powell, J., concurring). Here, the sting opera-
tion not only involved drugs, it was also designed to catch Williams, a
known bank robber and drug dealer, in a conspiracy to perform the types
of acts that he already indicated his willingness to perform and had begun
planning. The government did not instigate a robbery or beating “merely
to gather evidence to convict other members of a gang of hoodlums.” Id.at 493 n.4. They devised a plan to catch a potentially dangerous group of
robbers in a controlled sting operation.
Second, the appellants argue that the government directed the criminal
scheme from start to finish. This argument lacks merit because Williams
was intimately involved in the development of the plan. Williams hatched
the bank robbery scheme entirely on his own, and he participated in the
planning stages of the stash house robbery. He arranged for his crew to
help him, including instructing Hollingsworth to bring a gun and a police
scanner to the motel. He sold weapons to raise money to rent the car for
the robbery, and he repeatedly indicated his willingness to do the job.
Government agents may have “provide[d] valuable and necessary items to
the venture,” Gurolla, 333 F.3d at 950, but that is insufficient to demon-
strate that the government directed the enterprise from start to finish. Id.15190 UNITED STATES v. WILLIAMS
C
Brown, Williams, and Steel next argue that the indictment
should be dismissed because the prosecution failed to disclose
a portion of audiotape 9A until the very late stages of the trial.
Tape 9A recorded Penate’s side of a conversation with other
agents as he left the San Diego motel to drive to the Chula
Vista motel on November 14. During the prosecution’s clos-
ing rebuttal argument, the government played a portion of
tape 9A. At one point during the segment played, Penate
apparently refers to “one of those other two dudes that didn’t
nod.” The appellants’ attorneys immediately objected that
they had not received a copy of that portion of the tape prior
to trial, that it was exculpatory material that should have been
disclosed under Brady v. Maryland, 373 U.S. 83 (1963), and
that the government should be sanctioned with a dismissal of
the indictment.
The district court agreed that the recorded conversation was
exculpatory and material to the defense because it called into
question whether all of the defendants agreed to participate in
the stash house robbery. Rather than dismiss the indictment,
however, the district court permitted the defense to reopen its
case to question Penate about the recording. Despite this
remedial measure, the appellants argue that the indictment
should be dismissed because the prosecution failed to disclose
it at a time when it was useful at trial.12
[17] The three elements of a Brady violation are: (1) “[t]he
evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching”; (2)
“that evidence must have been suppressed by the State, either
willfully or inadvertently”; and (3) “prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
12
We review de novo claims of Brady violations. United States v. Dan-
ielson, 325 F.3d 1054, 1074 (9th Cir. 2003).
UNITED STATES v. WILLIAMS 15191
[18] There was some question at trial whether the recording
on tape 9A referred to two defendants who “didn’t nod” or
who “did the nod.” The district court, after listening “to it
over and over,” stated that “it could go either way.” The evi-
dence was ambiguous and supported either interpretation, and
it could have been used to impeach Penate, one of the govern-
ment’s most important witnesses. It therefore satisfies the first
element of a Brady violation because it was exculpatory.
There is no dispute that it also satisfies the second element
because the defense did not receive it until very late in the
trial.
[19] We need not address the third Brady element of preju-
dice, because a new trial is usually the appropriate remedy for
a Brady violation, see United States v. Chapman, 524 F.3d
1073, 1086 (9th Cir. 2008), and we are granting the appellants
a new trial on other grounds. Moreover, a Brady violation jus-
tifies or requires dismissal of the indictment only in cases ris-
ing “to the level of flagrant prosecutorial misconduct.” Id. We
have no difficulty concluding on this record that no such fla-
grant misconduct occurred. The taped segment was ambigu-
ous, and the district court found there was no bad faith in
failing to deliver the tape to the defense in a timely manner.
The record supports that determination. Dismissal of the
indictment therefore is not warranted.13
13
Related to the Brady argument, the appellants argue that the govern-
ment violated their due process rights by presenting Penate’s perjured tes-
timony and that the indictment should therefore be dismissed. We review
this claim for plain error because the appellants did not object to the pre-
sentation of Penate’s testimony at trial. United States v. Geston, 299 F.3d
1130, 1134 (9th Cir. 2002). Although there were inconsistencies in
Penate’s testimony, there was no evidence that the government knowingly
presented false testimony. See id. at 1135 (“It is a prosecutor’s duty to
‘refrain from knowingly presenting perjured testimony and from know-
ingly failing to disclose that the testimony used to convict defendant was
false.’ ” (quoting United States v. Aichele, 941 F.2d 761, 766 (9th Cir.
1991))). The inconsistencies in Penate’s testimony were argued to the jury
as the finder of fact. We reject the appellants’ argument that the indict-
ment should be dismissed on this basis.
15192 UNITED STATES v. WILLIAMS
D
Finally, Williams, Brown, and Steel challenge the district
court’s decision to give a supplemental jury instruction in
response to a juror’s note.14 They argue that the district court
was required to declare a mistrial because the juror’s note
revealed that she was a holdout. We agree.
The jury began deliberating at 9:10 a.m. on November 7,
2003. At about 11:45 a.m. on that same day, the district court
received a note from the foreperson. The note stated, in rele-
vant part: “[C]an a juror send you a note through me without
my seeing it?” About thirty minutes after receiving that note,
the foreperson sent another note saying, “Your Honor, the
juror refuses to proceed until you have responded to her
note.” The district court consulted with the parties and then
sent a note to the jury saying that any juror could send a note
to the court. The district court then received a note from Juror
No. 1. The note said (all spelling as in original):
Judge Gonzales, I disagree with my fellow jurers of
(a) entrapment, (b) conspiracy of possession to dis-
tribution of drugs, concerning David Williams,
Steele, & Brown. I can’t get pass this issue, & feel
the other jurers have already convicted the three
defendants on all accounts. As it stands, my head-
ache is worst and will not be bombarded to change
my opinion. May I please be excused from this case,
as I feel very strong about my decision & could not
face the defendants with the charges the other jurers
are hard on declaring.
14
We review for an abuse of discretion the district court’s decision to
issue a supplemental instruction, but we review de novo claims that a dis-
trict court coerced a jury’s verdict. United States v. Berger, 473 F.3d 1080,
1089 (9th Cir. 2007). In conducting this review, we view the supplemental
instruction as a whole. Lowenfield v. Phelps, 484 U.S. 231, 237 (1988).
UNITED STATES v. WILLIAMS 15193
/s/ [name omitted] Jurer # 1.
P.S. I hate to use the word prejudice, but feel its
presence strong in the room above the law.
The appellants moved for a mistrial, but the district court
instead opted to reread to the jury one of the original jury
instructions, supplementing it with an additional admonition
to treat each juror with respect. The supplemental instruction
said:
I want all of you to discuss the case with your fellow
jurors to reach an agreement if you can do so. Your
verdict, whether guilty or not guilty, must be unani-
mous. Each of you must decide the case for yourself,
but you should do so after you have considered all
the evidence, discussed it fully with the other jurors,
and listened to the views of your fellow jurors.
Do not be afraid to change your opinion if the dis-
cussion persuades you that you should, but do not
come to a decision simply because the other jurors
think it is right.
It is important that you attempt to reach a unanimous
verdict but only if each of you can do so after having
made your own conscientious decision.
Do not change an honest belief about the weight and
effect of the evidence simply to reach a verdict.
I want all of you to treat each other respectfully. I
want all of you to listen to the views of your fellow
jurors. And I want you to consider all of the instruc-
tions that I’ve given to you in addition to this one.
I’ve singled this one out right now because I wanted
to remind you of it, but all the jury instructions are
15194 UNITED STATES v. WILLIAMS
equally important. And so I want you to go back in
that jury room. I want you to treat each other with
respect. I want each of you to talk about your views
about the evidence in the case, and then we’ll see
what happens from there. So you are all excused to
go back into the jury room.
The jury retired to deliberate again, and returned verdicts of
guilty at about 5:00 p.m. on the same day.
Citing United States v. Sae-Chua, 725 F.2d 530 (9th Cir.
1984), the appellants argue that a mistrial was required
because this instruction, given after the district court became
aware that there was a holdout juror, was an improperly coer-
cive Allen charge. The government responds that the supple-
mental instruction was not an Allen charge and that it was not
coercive.
1
The first issue that must be resolved is whether this supple-
mental instruction warrants use of the Allen charge frame-
work. The district court clearly did not intend to give an Allen
charge; indeed, the court specifically stated that it was not
going to give an Allen charge because the jury foreperson had
not sent a note indicating deadlock. However, the determina-
tion of whether an Allen charge has been given does not
depend on whether the parties or the district court thought the
court was giving such a charge. Instead, it depends on the cir-
cumstances under which the supplemental instruction is given
and the content of the instruction.
[20] An Allen charge “is the generic name for a class of
supplemental jury instructions given when jurors are appar-
ently deadlocked.” United States v. Mason, 658 F.2d 1263,
1265 n.1 (9th Cir. 1981). Because “the fundamental question
is whether the jury was improperly coerced, thus infringing
the defendant’s due process rights . . . courts have not hesi-
UNITED STATES v. WILLIAMS 15195
tated to apply an Allen charge analysis . . . where the jury has
not yet reached a deadlock.” Weaver v. Thompson, 197 F.3d
359, 365 (9th Cir. 1999) (citing United States v. Wills, 88 F.3d
704, 716-17 (9th Cir. 1996)). “So long as the defendant has
offered facts that fairly support an inference that jurors who
did not agree with the majority felt pressure from the court to
give up their conscientiously held beliefs in order to secure a
verdict, we must proceed to the Allen charge analysis.” Id.[21] The facts presented by Williams, Steel, and Brown
clearly “support an inference” that a juror who disagreed with
the majority felt pressure from the court to give up her consci-
entiously held belief. Id. The juror’s note to the judge stated
that she felt “very strong” about her decision and that she dis-
agreed with her fellow jurors, who she felt had already con-
victed the defendants “on all accounts.” She named specific
issues material to the determination of guilt, which she said
she could not “get pas[t].” She also said she “could not face
the defendants” with the charges that the other jurors wished
to sustain. In response to that unambiguously worded note,
the district court instructed the jury to continue deliberating
and for the jurors to consider changing positions “if the dis-
cussion persuades you that you should.” This kind of situation
is the precise type of situation for which the Allen framework
has been developed: Juror No. 1 knew that the judge knew her
position and reasonably—in fact, more than likely—could
have interpreted the supplemental instruction to be directed at
her.
Moreover, the district court’s supplemental instruction
resembled instructions in other cases involving Allen charges
because it “carr[ied a] reminder[ ] of the importance of secur-
ing a verdict and ask[ed] jurors to reconsider potentially
unreasonable positions.” Mason, 658 F.2d at 1265 n.1. For
example, in United States v. Steele, the district court
instructed the jury that they had “the duty to discuss the case
with one another and to deliberate in an effort to reach a unan-
imous verdict if each of you can do so without violating your
15196 UNITED STATES v. WILLIAMS
individual judgment and conscious [sic].” 298 F.3d 906, 910
(9th Cir. 2002). Similarly, the district court in this case said,
“I want all of you to discuss the case with your fellow jurors
to reach an agreement if you can do so. Your verdict, whether
guilty or not guilty, must be unanimous.” The Allen charge in
Steele read:
During your deliberations you should not hesitate to
reexamine your own views and change your opinion
if you are now persuaded that it is wrong. However,
you should not change an honest belief . . . solely
because [of] the opinions of your fellow jurors or for
the mere purpose of returning a verdict. . . . Each of
you should ask yourself whether you should question
the correctness of your present position.
298 F.3d at 910. The district court in this case said, “Do not
be afraid to change your opinion if the discussion persuades
you that you should, but do not come to a decision simply
because the other jurors think it is right.” We analyzed the
instruction given in Steele as an Allen charge, albeit a “neutral
form” of the Allen charge, which in the circumstances of that
case was not unduly coercive. Id. at 910-11. The supplemental
instruction given in this case is not materially different from
the instruction given in Steele.
[22] We therefore conclude that the district court, although
it did not intend to do so, gave a “neutral form” of the Allen
charge. We now analyze the instruction as an Allen charge.
2
[23] Allen “charges are proper ‘in all cases except those
where it’s clear from the record that the charge had an imper-
missibly 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)). If the trial judge
gives an Allen charge after inquiring into the numerical divi-
UNITED STATES v. WILLIAMS 15197
sion 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 nec-
essary 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 (9th Cir. 1984)).
Williams, Brown, and Steel principally rely on Sae-Chua to
support their argument that reversal is required because of the
district court’s supplemental instruction. They argue the dis-
trict court knew the identity of the holdout juror (Juror No. 1)
and Juror No. 1 knew the district court knew her identity. In
that situation, any Allen charge is impermissibly coercive and
requires a mistrial. See Sae-Chua, 725 F.2d at 532.
In Sae-Chua, the jury foreperson notified the court on the
second day of deliberations that one juror refused to vote
guilty even though that juror believed the defendant was in
fact guilty. 725 F.2d at 531. The court brought the jury into
the courtroom to poll them about whether they believed fur-
ther deliberations would result in a verdict. Eleven jurors indi-
cated their belief that a verdict could be reached; one juror
indicated that a verdict could not be reached. Id. The court
gave an Allen charge, and the jury returned a guilty verdict
after several more hours of deliberation. Id. Reversing the
verdict because the supplemental instruction was improperly
coercive, we noted that an important consideration is whether
the judge giving the Allen charge “was unaware of the nature
or extent of numerical division.” Id. We reasoned that, in the
circumstances presented in Sae-Chua, “the most rational
inference to be drawn was that the eleven who favored contin-
ued deliberations constituted the majority favoring conviction
and that the one who felt further deliberations would be fruit-
less was the juror to whom the foreman had referred in his
note.” Id. at 532. “Under these circumstances the charge could
only be read by the dissenting juror as being leveled at him.”
15198 UNITED STATES v. WILLIAMS
Id. We found it critical that both the judge and the dissenting
juror knew that the judge was aware of the dissenting juror’s
identity. Id.; see also Ajiboye, 961 F.2d at 894.
In other situations, where the numerical division of the jury
has been disclosed, but the votes of individual jurors has not,
we have not reversed. For example, in United States v.
Changco, 1 F.3d 837 (9th Cir. 1993), the foreperson sent a
note to the court indicating that one juror was holding out. We
upheld the district court’s supplemental instruction telling the
jury not to disclose its numerical division again, urging the
jury to continue deliberating to try to reach a verdict, and
instructing them not to surrender conscientiously-held beliefs.
Id. at 842. Similarly, in United States v. Green, 962 F.2d 938(9th Cir. 1992), the jury disclosed its numerical division but
“did not indicate that further deliberations would be fruitless.”
Id. at 944. For that reason, we concluded that “a mistrial
would have been premature.” Id. In neither case did the dis-
trict court know how any individual juror had voted.
Although this case is similar to Green and Changco and
different from Sae-Chua in some respects, the core problem
present in Sae-Chua is present here. Unlike in Sae-Chua, the
district court did not poll the jurors before giving the supple-
mental instruction. As in Green, the jury foreperson did not
indicate that further deliberations would be fruitless.15 In fact,
the district court had no indication, from the foreperson or any
other juror, that an actual vote had been taken or what the
results of any vote were, for the juror’s note indicated only
that she “fe[lt] the other jur[o]rs have already convicted the
three defendants on all accounts,” but did not say that a vote
had been taken or what the positions of the other jurors were.
As in Green and Changco, the supplemental instruction given
15
The note from Juror No. 1 did inform the court that at least she did
not feel that further deliberations would be helpful. Juror No. 1 felt
strongly enough about the issue to stop deliberations until the foreperson
sent the note to the court.
UNITED STATES v. WILLIAMS 15199
by the district court in response to the note was a neutral vari-
ety of an Allen charge. It simply encouraged the jurors to
reach a unanimous verdict “only if each of you can do so after
having made your own conscientious decision.” The instruc-
tion is virtually identical to the instruction given in Changco
and Green. See Changco, 1 F.3d at 842; Green, 962 F.2d at
944.
[24] These differences are overshadowed by the most
important consideration: There is no indication in Changco
and Green that the district court knew the identity of the hold-
out jurors when the Allen charge was given.16 But here, after
Juror No. 1 passed her note to the district judge, the district
judge knew the identity of a juror who, in the words of the
juror, “fe[lt] very strong about my decision and could not face
the defendants with the charges the other jur[o]rs are hard on
declaring,” and who indicated that she would “not be bom-
barded to change my opinion.” Juror No. 1 obviously knew
that the court knew her identity. The situation precisely fits
the problem that the Ajiboye court described:17 “Even when
16
Changco is ambiguous as to whether the district judge knew the iden-
tity of the holdout juror at the time the Allen charge was given. In that
case, the note to the court from the foreperson said, “Can’t convince one
person. Don’t know what to do. Set mind before case. She can’t hear well
and is not looking at evidence.” 1 F.3d at 842. Describing a separate inci-
dent with the jury that Changco also appealed, we wrote: “The second
incident arose . . . when an individual juror (the same juror, it turns out,
who was the subject of the first note) passed a note to the judge, claiming
she was being intimidated, harassed and physically threatened by other
jurors.” Id. The Changco court gave no indication as to how it knew that
the same juror was the subject of both notes, but it also did not indicate
that the district judge knew the identity of the holdout at the time of the
supplemental instruction or, importantly, that the holdout juror knew that
the judge knew her identity.
17
In fact, this case presents a stronger argument for application of the
Sae-Chua rule than Sae-Chua itself. In Sae-Chua, we reversed based on
an inference that the juror who felt further deliberations would not be
fruitful was the holdout juror referenced in the foreperson’s note. Here,
there is no doubt about the identity of the holdout juror, or that the juror
knew the district court knew her identity, because the juror sent a note
directly to the district judge.
15200 UNITED STATES v. WILLIAMS
the judge does not inquire but 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 hold-
out.” Ajiboye, 961 F.2d at 894 (citing Sae-Chua, 725 F.2d at
532). Ajiboye and Sae-Chua required the district court to
declare a mistrial in these circumstances.18
[25] That there was no indication here that the jury had
taken a vote or that the foreperson believed that further delib-
erations would not be productive does not change our conclu-
sion. When a juror clearly discloses to the district court that
she disagrees with the rest of the jury and that she cannot
return a different verdict, as Juror No. 1 disclosed here, the
district court cannot give a supplemental instruction instruct-
ing the jury to continue deliberating.19 Ajiboye, 961 F.2d at
894; Sae-Chua, 725 F.2d at 532.
[26] Accordingly, the district court abused its discretion in
denying the appellants’ motion for a mistrial.
III
We REVERSE the judgment of the district court and
REMAND for a new trial.
18
In reaching this conclusion, we are aware of the conscientious effort
that the district court made to avoid a mistrial after a lengthy trial, and we
commend the district court for that effort. In this circumstance, as our
opinion today makes clear, nothing could have prevented a mistrial.
19
The district court is free to give supplemental instructions so long as
the judge does not know the identity of the jurors that are the holdouts.