United States v. Patricia Driscoll ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 28, 2020 Decided January 5, 2021
No. 19-3074
UNITED STATES OF AMERICA,
APPELLEE
v.
PATRICIA DRISCOLL,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cr-00166-1)
Brian W. Stolarz argued the cause and filed the briefs for
appellant.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Elizabeth Trosman,
Chrisellen R. Kolb, Virginia Cheatham, and Kathryn L,
Rakoczy, Assistant U.S. Attorneys.
Before: WILKINS, KATSAS and WALKER, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: In November 2018, after a four-
week jury trial, Appellant Patricia Driscoll was convicted of
two counts of wire fraud, one count of first-degree fraud, and
two counts of tax evasion. On appeal, Driscoll argues that the
District Court committed several errors that warrant a new trial
or dismissal of the indictment. Specifically, she contends that
the District Court erred in denying her motion for mistrial or
dismissal based on Brady and Fifth Amendment violations.
She argues that the District Court should have granted a pretrial
discovery motion that would have revealed Government
misconduct. And she argues that the District Court delivered
multiple coercive anti-deadlock instructions to the jury.
We agree that the anti-deadlock instructions likely
coerced a unanimous verdict. Accordingly, we vacate
Driscoll’s convictions and remand for a new trial. As to the
Brady claim, we find no prejudice, so we affirm the District
Court’s denial of the motion to dismiss the indictment.
Because we remand for a new trial, we do not address
Driscoll’s pretrial discovery argument. And for the reasons
explained below, we do not reach Driscoll’s Fifth Amendment
argument.
I.
Driscoll is the former president of a nonprofit organization
in Washington, D.C. On May 22, 2015, ESPN published an
article detailing fraud allegations against her. The article
indicated that a former employee of the nonprofit had contacted
the FBI, and the same employee planned to file an IRS
whistleblower complaint which might lead to charges of
embezzlement and fraud against Driscoll.
3
The following month, Driscoll participated in a public
hearing against her ex-husband over the custody of their child.
During that four-day trial, Special Agent Robert Valdini—an
IRS criminal investigator—showed up, sat in the courtroom,
and observed testimony, including testimony from Driscoll
about her finances. Driscoll approached Valdini and asked
who he was, and Valdini responded that he was a member of
the public. Valdini also observed testimony from Tanya Finch,
a cousin of Driscoll’s ex-husband who also happened to be the
IRS whistleblower.
Valdini took detailed notes during the custody hearing,
gathering information for the criminal investigation against
Driscoll. Valdini had been authorized to attend the hearing by
an Assistant United States Attorney. And during the first three
days of the hearing, Valdini prepared memoranda of activity,
documenting testimony and exhibits relevant to the criminal
investigation.
On the final day of the custody hearing, Valdini took no
notes and prepared no memoranda. That day, he connected
with Driscoll’s ex-husband, along with the ex-husband’s new
wife and the couple’s custody lawyer. The four of them went
to lunch together at the request of Driscoll’s ex-husband, who
offered to provide Valdini information about Driscoll to aid in
the criminal investigation.
On September 20, 2016, Driscoll was indicted on eight
counts of fraud and tax evasion. In April 2017, defense counsel
filed pretrial motions, including a motion for discovery on a
“parallel proceeding” issue. In that motion, defense counsel
asked the District Court to authorize discovery on whether the
Government had used a civil “audit” process to gather
information for Driscoll’s criminal case. See generally United
States v. Kordel, 397 U.S. 1, 13 (1970) (“Government may not
use evidence against a defendant in a criminal case which has
4
been coerced from him under penalty of either giving the
evidence or suffering a forfeiture of his property.”). The
Government opposed the motion, arguing that it had already
provided substantial discovery about the IRS agent involved in
the case (including a “memorandum and handwritten notes”),
and calling Driscoll’s request “unfounded.” J.A. 129. In reply,
Driscoll raised the child custody hearing for the first time as an
issue warranting discovery. The Government moved to strike
portions of the reply for raising new issues, but then argued in
sur-reply that the defense was “not entitled” to further
discovery. J.A. 174, 183. In August 2017, the District Court
denied the motion in a minute order.
Trial began on October 17, 2018. Two weeks into trial,
Valdini’s conduct at the child-custody hearing—and
specifically, his lunch with Driscoll’s ex-husband—came to
light through cross-examination of a Government witness and
subsequent questioning of the prosecutors by the District
Court. Government counsel had not been aware of Valdini’s
lunch outing, but after conferring with agents involved in the
investigation, the Government disclosed Valdini’s actions to
the District Court. The District Court ordered the Government
to produce “detailed, under oath account[s] of everything that
happened.” J.A. 236.
The following day, the Government submitted affidavits
from Valdini, two FBI agents, and Tanya Finch. The District
Court interrupted the trial and held an evidentiary hearing to
call Valdini and others involved in the child-custody
proceeding. At the evidentiary hearing, Valdini testified to
attending Driscoll’s custody trial, misrepresenting his identity
to Driscoll, and preparing memoranda of activity for each day
except the last, when he met with Driscoll’s ex-husband and
others.
5
Driscoll moved for a mistrial or dismissal, arguing that 1)
Valdini’s presence at the child-custody hearing violated her
Fifth Amendment right against self-incrimination, and 2) the
Government violated Brady by failing to disclose Valdini’s
conduct. The District Court denied the motions. On the Fifth
Amendment claim, the District Court found that Valdini’s
misrepresentations had not lured Driscoll into self-
incrimination. She was already on notice of her potential
criminal liability before the hearing due to the ESPN article,
and she was testifying at a public proceeding where a transcript
could be obtained by anyone. Additionally, the District Court
found no prejudice under Brady because Driscoll’s case-in-
chief had not begun, and defense counsel could use the
evidence effectively as impeachment evidence going forward.
Jury deliberations in Driscoll’s trial began on Tuesday,
November 20. The jury deliberated for approximately 45
minutes before breaking for Thanksgiving. After returning on
Monday, November 26, the jury sent a note to the District
Court at 11:20 am, stating: “We have one person that has his
mind made up and will not change his mind. What do we do?”
J.A. 379.
The District Court proposed reading instructions 2.510 and
2.601(III)(A) from the Criminal Jury Instructions for the
District of Columbia (i.e., the “Red Book”). While these
instructions are used in both D.C. local and federal courts, the
second instruction—known as the anti-deadlock Thomas
charge—adopts the exact language approved by this Court for
breaking a deadlocked jury. See United States v. Thomas, 449
F.2d 1177, 1184 nn.45–46 (D.C. Cir. 1971) (en banc).1
1
The Government initially opposed using an anti-deadlock charge,
arguing that it was too soon to use such an instruction, but defense
counsel did not object. The Government eventually agreed to the
6
The District Court called the jury back into the courtroom
and read Instruction 2.5102 and Instruction 2.601(III)(A), the
Thomas charge.3 After reading the Thomas charge, the District
Court continued:
instruction when the District Court decided to strike the words “Anti-
Deadlock Instruction” from the title.
2
Red Book Instruction 2.510, “Attitude and Conduct of Jurors in
Deliberations,” reads as follows: “The attitude and conduct of jurors
at the beginning of their deliberations are matters of considerable
importance. It may not be useful for a juror, upon entering the jury
room, to voice a strong expression of an opinion on the case or to
announce a determination to stand for a certain verdict. When one
does that at the outset, a sense of pride may cause that juror to hesitate
to back away from an announced position after a discussion of the
case. Furthermore, many juries find it useful to avoid an initial vote
upon retiring to the jury room. Calmly reviewing and discussing the
case at the beginning of deliberations is often a more useful way to
proceed. Remember that you are not partisans or advocates in this
matter, but you are judges of the facts.”
3
Red Book Instruction 2.601(III)(A), also known as the Thomas
charge, reads as follows: “The verdict must represent the considered
judgment of each juror. In order to return a verdict, it is necessary
that each juror agree to the verdict. In other words, 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 impartial 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 erroneous. But do not
surrender honest conviction as to the weight or effect of evidence
solely because 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 should be to reach a
just verdict from the evidence in the case.”
7
And we all appreciate that this isn’t easy, this is
hard work, going through evidence and going
through the charges, we appreciate that and we
thank you for that. And we’ll thank you more
than once for that because we know it’s not
easy. But it is really important, really important
to the parties and to the community, to the
country.
J.A. 390. Defense counsel then objected to the instruction,
arguing that the additional references to “community” and
“country” might be taken by jurors to mean “the Government.”
The next day, at 3:15 PM, the jury sent another note
indicating its inability to reach agreement. This time, the note
read: “One Juror is not following the Judges rules [sic]. He
already has his mind made up, and he is not basing his decision
on the facts. Is it possible to request an alternate juror?” J.A.
393. Defense counsel suggested a voir dire of the holdout
juror, and the Government suggested the Court speak with the
jury foreperson. The District Court called the jury back, and
began by referencing the previous day’s instruction:
Well, yesterday I gave you instructions, follow-
up instructions to deal with, a note that has some
similarities to this note, and I stand by that. And
you have those—you’ll have that one
instruction in the book of instructions I’ve
already given you.4 And I think I addressed the
issue as to the necessary spirit and approach that
4
It appears from the record that the “one instruction” jurors had in
writing was Instruction 2.510, not the Thomas instruction. See J.A.
390, 408 (“[T]hey don’t have the Thomas instruction with them.
They have the first one in their instructions.”).
8
each juror must take as it relates to
deliberations, and I stand by that.
J.A. 401. The Court continued:
In my judgment, it is way too premature to be
requesting an alternate juror.
I hope, and I hope time will show, that
whichever juror this is, that he or she will
embrace the spirit and the language that I read
yesterday and will come around to keeping an
open mind and discussing with the other jurors
their position as it relates to the facts that they
believe have been proven in this case. So that’s
my answer to the second note.
J.A. 401–02. Defense counsel objected to this instruction,
arguing that it was effectively an anti-deadlock instruction
devoid of crucial Thomas language. The District Court
responded that the instruction functionally included the
“second half of the Thomas instruction,” because it
“encourage[d] [the jurors] to follow the letter and the spirit of
what I read to them yesterday.” J.A. 407.
The following day, the jury sent another note at 4:25 pm
indicating it had reached a partial verdict: “We are unanimous
on 3 counts and deadlocked on 2 counts.” J.A. 411. At that
point, the Government and Driscoll both asked the District
Court to take the partial verdict, and Driscoll moved for a
mistrial on the remaining counts. The Government did not
oppose the mistrial motion.
The Court called the jury back and read an instruction
nearly identical to Red Book 2.601(I), the standard “Initial
9
Instruction to Jury that Indicates It Cannot Agree.”5 The jury
had been deliberating for approximately 16 hours, and the
District Court stated that this was “not unusual” given the
“amount of documents” and witnesses in the case. J.A. 420.
The District Court further instructed: “As a result, I’m going
to ask you to continue deliberations in this case tomorrow.
Keep an open mind about the case, with a view of listening to
others and expressing your own point of view, to see whether
you can reach unanimity on these other two counts.” J.A. 420.
The District Court then reminded jurors twice more to “keep
an open mind” before sending them home. J.A. 420–21.
The jury reconvened at 10:00 am the following morning.
At 11:10 am, the jury reached a unanimous guilty verdict on all
five counts.
II.
We first address Driscoll’s argument that the District
Court improperly denied her motions for mistrial and dismissal
of the indictment. Driscoll contends that the District Court
erred in denying her motion for mistrial or dismissal because:
1) Valdini’s presence at her child-custody hearing violated her
5
Red Book Instruction 2.601(I) reads as follows: “Your note
indicates that you have been unable to reach a unanimous decision at
this time. [This has been a relatively long trial—longer than many
trials we have in this courthouse. There were a large number of
witnesses who testified and a substantial amount of evidence
received, and I would expect that it would take some time to reach a
resolution of this matter.] My best judgment is that you have been
deliberating for a total of about [[insert number] [hours] [days]],
which is not unusual in cases such as this. As a result, I am going to
ask that you deliberate further in this case and that you keep an open
mind about the case with a view to listening to others and expressing
your own point of view to see whether you can reach a unanimous
decision. Please resume your deliberations at this time.”
10
Fifth Amendment right against self-incrimination, and 2) the
Government’s failure to disclose Valdini’s improper conduct at
the child-custody hearing violated its obligations under Brady
v. Maryland, 373 U.S. 83 (1963).
Driscoll did not develop her Fifth Amendment argument
until the reply brief, so we do not address it. See Schneider v.
Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (“It is not
enough merely to mention a possible argument in the most
skeletal way . . . . [A] litigant has an obligation to spell out its
arguments squarely and distinctly . . . .”). As to the Brady
claim, we agree with the District Court that the non-disclosure
did not result in prejudice, so we affirm the denial of the
motions for mistrial or dismissal.
A.
Typically, this Court reviews the denial of a mistrial or
new trial for abuse of discretion. United States v. McLendon,
378 F.3d 1109, 1112 (D.C. Cir. 2004) (citing United States v.
Gartmon, 146 F.3d 1015, 1027 (D.C. Cir. 1998)); United States
v. Sitzmann, 893 F.3d 811, 821 (D.C. Cir. 2018) (per curiam)
(quoting United States v. Johnson, 519 F.3d 478, 487 (D.C. Cir.
2008)), cert. denied, 140 S. Ct. 1551 (2020). But the question
of “whether the Government has breached its obligations under
Brady is a question of law that is reviewed de novo.” United
States v. Borda, 848 F.3d 1044, 1066 (D.C. Cir. 2017) (citing
United States v. Emor, 573 F.3d 778, 782 (D.C. Cir. 2009);
Johnson, 519 F.3d at 488). The remedy for a Brady violation
is a new trial, but dismissal is an appropriate remedy of last
resort “where no other remedy would cure prejudice against a
defendant.” United States v. Pasha, 797 F.3d 1122, 1139 (D.C.
Cir. 2015).
11
“To prove a Brady violation, the movant must demonstrate
three elements.” Borda, 848 F.3d at 1066. “First, the evidence
at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching. Second, the evidence
must have been suppressed by the government, either willfully
or inadvertently. And third, prejudice must have ensued.”
Sitzmann, 893 F.3d at 826 (internal citations, brackets, and
quotation marks omitted). To prove prejudice, “the defendant
must show that there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” Id. (internal quotation
marks omitted) (quoting United States v. Bagley, 473 U.S. 667,
682 (1985)). “A new trial will rarely be warranted based on a
Brady claim where the defendant obtains the information in
time to use it at the trial.” Borda, 848 F.3d at 1067 (quoting
United States v. Andrews, 532 F.3d 900, 907 (D.C. Cir. 2008)).
Driscoll’s Brady claim fails because she has not
demonstrated prejudice. The District Court held an evidentiary
hearing to call Valdini and other witnesses involved in the
family-court trial. Defense counsel was able to question
Valdini extensively about his conduct at the child-custody
hearing—including his lack of notes and memoranda on the
final day, and his lunch with Driscoll’s ex-husband. All of this
evidence was disclosed before defense began its case-in-chief,
and the District Court gave counsel a “wide berth” to use it
during trial. J.A. 340–41.
The record shows that defense counsel made significant
use of the evidence to cross-examine Valdini in front of the
jury. See J.A. 354–55 (“And [they] asked you if you wanted to
go out to lunch; is that right?”); id. at 359 (“[I]sn’t it true that
you did not write a memo of activity for the last day?”).
Defense also recalled Tanya Finch in its case-in-chief and
questioned her about her biases. The District Court questioned
12
Valdini separately about his surveillance of the child-custody
hearing.
Driscoll has not persuaded us of a reasonable probability
that earlier disclosure of this evidence would have changed the
outcome of her case. She asserts that she was “forced to
accept” Valdini’s testimony on certain topics. Appellant Br.
47. Specifically, she argues she was unprepared for Valdini’s
testimony that he discussed her child-custody case with the
AUSA and a supervisor before attending the hearing. And she
asserts that Valdini was untruthful when he testified that he was
not asked to identify himself at the child-custody hearing by
court staff—while another witness testified that Valdini was
asked to identify himself by court staff.
Given the ample opportunity defense counsel had to cross-
examine Valdini after the evidentiary hearing and to call
witnesses to impeach Valdini, the argument that Driscoll was
“forced to accept” answers and could not probe apparent
contradictions is unpersuasive. We agree with the District
Court that Driscoll was not prejudiced by the timing of the
Government’s disclosure of Valdini’s actions. Accordingly,
we affirm the District Court’s denial of the motions for mistrial
or dismissal based on Brady.
III.
We now turn to Driscoll’s argument that the anti-deadlock
jury instructions were coercive upon the jury. We conclude
that the instructions likely coerced a unanimous verdict against
Driscoll. While no single instruction alone may have
constituted error, “on balance, the events surrounding the
court’s delivery of the nonstandard instruction[s] suggest a
substantial propensity for coercive effect.” United States v.
Yarborough, 400 F.3d 17, 22 (D.C. Cir. 2005).
13
A.
In United States v. Thomas, this Court sought to prevent
undue coercion on jurors by exercising its supervisory
authority to mandate the use of standardized language in the
anti-deadlock instruction given in this Circuit. See 449 F.2d
1177, 1184–86 (D.C. Cir. 1971) (en banc). We explained that
“appellate courts should no longer be burdened with the
necessities and niceties—and the concomitant uncertainties—
of gauging various Allen-type renditions in terms of the
coerciveness of their impact.” Id. at 1186. In the years since
Thomas, we have repeatedly cautioned district courts against
“expanding on the Thomas script after a jury indicates
deadlock.” United States v. Lloyd, 515 F.3d 1297, 1305 (D.C.
Cir. 2008); Yarborough, 400 F.3d at 21 (“Any substantial
departure from the language approved in Thomas is
presumptively coercive.” (internal quotation marks omitted));
United States v. Berroa, 46 F.3d 1195, 1197 (D.C. Cir. 1995)
(“We therefore flatly refuse the district court’s invitation to
crack open the Pandora’s box Thomas nailed shut.”); United
States v. Spann, 997 F.2d 1513, 1519 (D.C. Cir. 1993) (“[W]e
remind the district court judges of the mandate delivered in
Thomas and that failure to comply therewith may under other
circumstances lead to reversal.”).
One of the central concerns of the Thomas Court was the
potential for coercion by “prying individual jurors loose from
beliefs they honestly have.” Thomas, 449 F.2d at 1182. The
Thomas charge thus cautions jurors to “consult with one
another . . . with a view to reaching an agreement,” but “do not
surrender honest conviction . . . solely because of the opinion
of your fellow jurors, or for the mere purpose of returning a
verdict.” Criminal Jury Instructions for D.C. Instruction
2.601(III)(A). “Any substantial departure from the language
approved in Thomas is presumptively coercive.” Yarborough,
14
400 F.3d at 21 (internal quotation marks omitted); see also
Spann, 997 F.2d at 1518 (noting that the “most significant
[element] to . . . the Thomas court” was the language that “no
juror should surrender his honest conviction” (internal
quotation marks omitted)).
Here, over the course of three jury instructions, the District
Court increasingly strayed from the language of Thomas.
Taken together, under the circumstances of this case, these
instructions likely coerced a lone holdout juror to surrender his
or her honestly held views in favor of a unanimous verdict.
The initial note from the jury indicated that there was a
holdout: one person had “his mind made up and [would] not
change his mind.” J.A. 379. The District Court responded to
this note by reading the Thomas charge, but the District Court
also added, without advance notice to the parties, improvised
remarks about the importance of rendering a verdict “to the
parties and to the community, to the country.” J.A. 390.
Driscoll argues that this add-on language impermissibly
deviated from Thomas and suggested—by reference to
“country” and “community”—that the jury had a duty to
convict. Appellant Br. 59. She correctly cites Yarborough for
the proposition that “[a]ny substantial departure from the
language approved in Thomas is presumptively coercive.”
Yarborough, 400 F.3d at 21 (internal quotation marks omitted).
But even though the language here departed from Thomas, we
conclude that this language, in isolation, did not affect
Driscoll’s substantial rights. See FED. R. CRIM. P. 52(a). The
District Court shared the language about parties, community,
and country after reciting the full Thomas instruction and
thanking jurors for their work. Jury service is always a service
to the parties, community, and country, and the
acknowledgment of that fact could not reasonably be taken to
suggest that a unanimous guilty verdict must be rendered, or
15
that an individual juror should abandon her views.
Furthermore, the jury remained completely deadlocked after
this instruction, so the instruction appears to have had no
coercive effect. See Spann, 997 F.2d at 1518 (holding that “the
trial judge’s comments” were “probably proscribed under
Thomas,” but they “had no direct effect on the jury [because]
. . . they did not break the jury deadlock or cause the guilty
verdict”).
Driscoll also contends that the District Court should have
given the initial 2.601(I) instruction or inquired into the “nature
of” the jury’s deadlock before issuing the Thomas instruction.
Appellant Br. 58 (citing Barbett v. United States, 54 A.3d 1241,
1246–47 (D.C. 2012)); id. at 64. But Driscoll encouraged the
District Court to give the Thomas instruction, so she cannot
now argue that the order of the instructions or the failure to
inquire into the nature of the deadlock constituted error.6 See
United States v. Kanu, 695 F.3d 74, 80 (D.C. Cir. 2012)
(“[U]nder the invited error doctrine [] a party may not complain
on appeal of errors that he himself invited or provoked the
district court to commit.” (quoting United States v. Wells, 519
U.S. 482, 488 (1997))).
Nonetheless, the District Court’s subsequent instruction
deviated even further from Thomas. Upon receiving the second
6
Although Driscoll waived an objection to the timing of the Thomas
instruction, she did not waive her objection to the actual language
used by the Court (e.g., the additional wording about “parties,”
“community,” and “country”). This is because the District Court did
not discuss this language in advance with counsel, so Driscoll had no
opportunity to raise an objection ahead of time. We caution district
courts to always consult with counsel about the wording of a jury
instruction before the instruction is given, so that counsel may place
objections on the record and suggest modifications before the jury
hears the charge. This practice is far preferable to attempting to
“unring the bell” after a problematic instruction has been given.
16
note stating that a juror was “not following” rules and “ha[d]
his mind made up,” J.A. 393, the District Court called the jury
to the courtroom, briefly referenced the previous day’s
instructions, and then effectively addressed the holdout juror
directly with an instruction:
I hope, and I hope time will show, that
whichever juror this is, that he or she will
embrace the spirit and the language that I read
yesterday and will come around to keeping an
open mind . . . .
J.A. 401. While this second instruction reminded the holdout
juror to “keep[] an open mind,” it eliminated what we have
described as Thomas’s “most significant” element—“do not
surrender honest conviction . . . for the mere purpose of
returning a verdict,” Criminal Jury Instructions 2.601(III)(A);
see Spann, 997 F.2d at 1518—while calling direct attention to
the holdout juror.
The Government argues that this second instruction was
not coercive because the District Court prefaced it by
reminding jurors of the previous day’s (Thomas) instructions,
and because the District Court’s language did not suggest a
juror should change his mind. Gov. Br. 53. We disagree. First,
the District Court only made cursory mention of the previous
day’s instructions—not enough to constitute a second Thomas
charge.7 And second, the District Court called upon the
holdout juror, in the courtroom, to “come around to keeping an
open mind” without reminding the juror to maintain “honest
conviction[s].” Criminal Jury Instructions 2.601(III)(A). An
individual could have reasonably understood that language to
7
Given our finding that this particular combination of instructions to
the jury was coercive, we need not reach Driscoll’s argument that
giving additional instructions designed to encourage unanimity
following the Thomas instruction was per se error.
17
mean she should become willing to change her mind,
notwithstanding her honest convictions. See Thomas, 449 F.2d
at 1183 (“No juror should be induced to agree to a verdict by a
fear that a failure . . . to agree will be regarded by the public as
reflecting upon either his intelligence, or his integrity.”
(quoting Kesley v. United States, 47 F.2d 453, 454 (5th Cir.
1931))); see also id. at 1181 (“When efforts to secure a verdict
from the jury reach the point that a single juror may be coerced
into surrendering views conscientiously entertained, the jury’s
province is invaded and the requirement of unanimity is
diluted.”). The potential for undue coercion was particularly
acute here, where the judge addressed an individual juror
directly—in front of all of his or her peers—since the other
jurors could use the judge’s words to wear down the holdout
once they returned to the jury room. Cf. Mullin v. United
States, 356 F.2d 368, 370 (D.C. Cir. 1966) (Burger, J.) (“It
would have been a precarious undertaking for the Judge to give
a supplemental charge to consider each other’s views when he
was already advised that only [a minority of] jurors voted for
acquittal.”). And indeed, the second jury instruction appeared
to move the holdout juror: The jury’s third note stated that it
had reached a unanimous verdict on three counts, remaining
deadlocked on two.
The District Court’s final instruction was additionally
coercive. This instruction initially hewed closely to Red Book
Instruction 2.601(I), but later included additional improvised
remarks that twice reminded jurors to “keep an open mind.”
J.A. 420–21. While there is nothing that prevents a District
Court from reading Instruction 2.601(I) when the jury indicates
an inability to agree, cf. United States v. Lopesierra-Gutierrez,
708 F.3d 193, 207–08 (D.C. Cir. 2013) (reviewing for plain
error), its use can be problematic after the jury formally
announces a “deadlock,” because the instruction reminds jurors
to “[k]eep an open mind” while saying nothing about
maintaining honest convictions. Under the circumstances of
18
this case, where jurors had deliberated for sixteen hours,
received prior sets of instructions including the Thomas
instruction, and continued to report themselves deadlocked, the
jury should at least have been reminded of the need to maintain
honest convictions to “insure against even the suggestion of
juror coercion,” Lloyd, 515 F.3d at 1305—particularly when,
in the third instruction, jurors were told three separate times to
“keep an open mind.” In other words, the potential for coercion
was heightened by the timing of this final instruction. Notably,
both the Government and Driscoll asked the District Court to
take a partial verdict rather than issue this last instruction, and
the Government expressed reservations about giving
Instruction 2.601(I) to the jury at this stage. J.A. 418–19; see
District Court Tr. Nov. 28, 2018, at 14 (“[I]t’s been our position
all along that the Court can’t read additional anti-deadlock
instructions.”).
The Government now argues that this third instruction was
permissible because “in essence” it reminded jurors to maintain
their honest convictions. Gov. Br. 56. “We decline the
government’s invitation to elevate form over function.”
Yarborough, 400 F.3d at 21. The fact of the matter is that this
third instruction omitted this critical element, and the
instruction’s coercive effect is evident from the “fact that the
jury returned a verdict shortly after.” See id. at 22 (noting that
a short turnaround time “increases the likelihood of coercion”).
After deliberating for sixteen hours, the jury was deadlocked
on two counts—but after receiving this third instruction, the
jury took only one hour and ten minutes to reach a unanimous
guilty verdict on those two remaining counts. The “swift
resolution of the issues in the face of positive prior indications
of hopeless deadlock” suggests that this third instruction
influenced the verdict. See United States v. U.S. Gypsum Co.,
438 U.S. 422, 462 (1978).
19
“[C]oercive effects never can be proven with certainty,”
but where instructions show a “substantial propensity for
prying individual jurors from beliefs they honestly have,” the
affected verdict cannot stand. See Yarborough, 400 F.3d at 22(quoting Thomas, 449 F.2d at 1182); see also United States v.
Strothers, 77 F.3d 1389, 1391 (D.C. Cir. 1996). If “efforts to
secure a verdict from the jury reach the point that a single juror
may be coerced into surrendering views conscientiously
entertained,” then “the requirement of unanimity is diluted.”
Thomas, 449 F.2d at 1181. Taken together, the instructions in
this case had a substantial propensity to coerce a holdout juror
into foregoing her conscientiously held convictions in favor of
a unanimous verdict. The combination of three anti-deadlock
type charges—where the second spoke directly to a holdout
juror about keeping an “open mind” without also reminding the
juror not to surrender “honest convictions,” and the third
likewise lacked an admonition to maintain “honest
convictions” notwithstanding three admonitions to “keep an
open mind”—suggests that unanimity here was attained by
coercion and that the error was not harmless. Accordingly,
Driscoll’s convictions must be reversed.
IV.
For the foregoing reasons, we vacate Driscoll’s
convictions and remand for a new trial.
So ordered.