In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-3511, 08-3549, 08-3885 & 08-4144

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRIS BLITCH, MICHAEL HARRIS,

DEVARL WASHINGTON, and

MICHAEL CARWELL,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 CR 00586—Elaine E. Bucklo, Judge.

ARGUED NOVEMBER 5, 2009—DECIDED SEPTEMBER 3, 2010

Before BAUER, MANION, and WILLIAMS, Circuit Judges. 

WILLIAMS, Circuit Judge. Chris Blitch, Michael Harris,

Devarl Washington, and Michael Carwell were tried

and convicted of conspiring to distribute 15 kilograms of cocaine. During the trial, several events took

place that a district judge might never see during the

course of a judicial career. First, after the initial jury
2 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

heard testimony from the government’s principal witness,

jurors expressed concern for their safety because the

defendants had access to information about them. The

judge declared a mistrial after individual questioning

of the jurors revealed the jurors could not remain fair. A

new jury pool was summoned and provided written

questionnaires, but the new panel expressed the same

concern before jury selection had been completed. This

time, the judge did not conduct individual voir dire,

and the jury was sworn and impaneled. Finally, at the

end of the trial, when the jurors indicated they had

reached a unanimous verdict, one stated during the

polling in open court that the published verdict did not

represent her own decision.

These situations did not make for an easy case. Nonetheless, the court’s failure to individually voir dire

the second panel regarding its safety concerns, and her

instructions to keep deliberating after the jury poll,

when the jury had specifically requested to leave for

the day, lead us to the conclusion that the defendants

should receive a new trial. Therefore, we vacate the

judgment of the district court and remand for a new trial.

I. BACKGROUND

This case has its origins in Jamison Moore’s guilty plea

in Kane County, Illinois state court. Moore had been

charged with unlawful delivery of a controlled substance

and faced up to thirty years in prison. Facing that length

of time in custody, Moore accepted a plea offer from

the Kane County State’s Attorney’s Office that allowed

him to plead guilty and receive a probation-only sen-
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 3

tence. The no-jail offer did have conditions, of course. In

addition to the typical requirement of truthful cooperation, the probation-only offer here required Moore to:

perform whatever functions or assistance

required by Aurora Police Department and the

Kane County State’s Attorney’s Office which

results in the arrest and charging of TEN different

individuals with Delivery or Possession with intent to

deliver controlled substances or cannabis. Each case

must involve a class X amount of cannabis or controlled

substance by weight. The Defendant will not be a

transactional witness in any of the cases that are

ultimately charged as felony drug offenses, unless

specifically authorized.

(Emphases in original). In return, the plea agreement

provided that Moore would receive credit for time

served and that his sentence would be 48 months’ probation.

With Moore’s cooperation, the government concocted a

story. Special Agent David Gomez of the United States

Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) assumed the role of a disgruntled drug courier

named “Loquito” who wanted to rob a drug stash house

of about 15 kilograms of cocaine. Loquito told his story

to Blitch, Carwell, Harris, and Washington and met with

them to discuss the robbery of the stash house. In reality,

there was no upcoming delivery, no stash house, and

no cartel to rob, as the defendants were to find out.

On the chosen day, the defendants showed up at a

designated location, some with guns, masks, and gloves.
4 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

Harris and Blitch refused to get into a van with Loquito

and Moore and instead drove their own vehicle to a

storage facility, where Loquito had said the plan was to

eventually store the drugs. Carwell and Washington

were arrested on the storage facility premises. Harris and

Blitch, who declined to follow the van past the storage

facility’s gate, were arrested outside the gate. The four

were charged in federal court with conspiring to

possess with intent to distribute cocaine, in violation of

21 U.S.C. § 846; attempting to possess with intent to

distribute cocaine, in violation of 21 U.S.C. § 846; possessing firearms during and in relation to drug trafficking crimes, in violation of 18 U.S.C. § 924(c); and

being felons in possession of firearms, in violation of

18 U.S.C. § 922(g)(1).

On Monday, July 23, 2007, the district court assembled

fifty jurors and commenced voir dire. The court questioned prospective jurors orally and asked each their

name, occupation, and neighborhood of residence, as

well as questions on topics including the ages and occupation of their children and past experience with the

criminal justice system. The jurors and alternates were

selected, and the parties gave their opening statements

that afternoon.

The jurors heard testimony from Agent Gomez the

next day. At the end of the day, the court informed the

parties that when the Court Security Officer (CSO) had

been in the jury room earlier in the afternoon, several

jurors had expressed concern for their safety in front of

all the other jurors and wanted to know whether the
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 5

defendants would know where they lived. The judge told

the parties that this information bothered her in “two

ways, that obviously they were discussing the case in

violation of my order not to, at least in that sense,

and whether they have prejudged it. I think that we

are probably going to have to bring each one of them

individually in in the morning and talk to them and

decide whether I need a new jury.” The judge also told

the parties that the jury coordinator “promises me she

can get 50 people that were not here on Monday, so they

would be 50 new prospective jurors.”

The next morning, the CSO recounted for the court

and parties what had transpired the previous day. He

stated that the jurors had summoned him to the jury

room on the premise that they wanted to discuss the

heating in the courtroom, but that when he arrived the

jurors instead told him they were worried about their

families and themselves. The CSO explained that the

jurors then asked him a series of questions as to what

would be done to protect them from “retaliation,” and

he asked the jurors to put their concerns in writing for

the judge.

In light of this information, the judge summoned individual jurors to the courtroom, one at a time. She questioned each as to what had been said during the discussion regarding jury safety and inquired whether anything said would affect the juror’s ability to be fair and

impartial. After questioning the first four jurors, the

judge expressed concern about whether two could

remain fair. She then continued to individually question
6 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

the remaining jurors. After she finished, the judge concluded that the jurors’ responses did not assure her that

they could render a fair verdict and declared a mistrial.

The judge then brought all the jurors into the courtroom,

thanked them for their service, and informed them they

would be excused. She also assured them she had never

heard of any instances of retaliation against jurors.

The judge decided to use a jury questionnaire for the

next venire, which began the morning after the mistrial.

Prospective jurors completed a twenty-eight-item questionnaire that began by asking for full name and age,

followed by a request for the cities or suburbs or parts

of Chicago where the prospective juror had lived in the

last ten years. The questionnaire also requested the

name of the current employer, spouse’s occupation and

name of employer, and ages of any children, and it

asked additional questions related to experiences as a

victim of crime, with the court, and as a witness. The

judge also asked oral follow-up questions in court.

When voir dire had been completed, the judge

excused the jurors so that she could discuss the final

composition of the jury with the parties. One prospective juror remained in the courtroom with the CSO, and

the CSO informed the court that the prospective juror

wanted to know why the defendants had copies of the

jury questionnaires. The judge responded that counsel

had the questionnaires, and the prospective juror left the

room. The judge excused that prospective juror from

service on the jury.

The court and parties then began discussing which

other persons should be excused for cause. After a recess,
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 7

the court informed the parties, “We are having problems again. We just excused [one prospective juror]

because she was saying that she was concerned about it.

But she must have been talking to somebody named

Deborah Cohen who has now expressed the same

thing, that the defendants have their questionnaires. So

I’m going to excuse her [Cohen] for cause.” The court

also stated to the parties that she had given out the questionnaires for the attorneys’ use.

After a little more discussion, the judge informed the

parties: “Apparently [the CSO] thinks that this is a widespread problem, that they all saw it and they all were

talking about it.” The judge suggested she could bring

all the prospective jurors back into the courtroom to ask

whether any felt uncomfortable sitting on the jury. When

the prosecutor asked how widespread the situation

was, the judge responded that the CSO “thinks that

they were all discussing it.” As the judge and counsel

discussed how to proceed, a defense attorney remarked

that they were in the same situation as they had been

with the first group of jurors, and even the prosecutor

stated, “I just don’t see how you can do it without

just bringing in everyone individually.”

Nonetheless, the judge indicated she favored bringing

in the entire venire at once, where she would state that

there had never been a problem with juror safety and

then ask whether any person had a problem serving

on the jury. The defense reiterated its position that this

venire had expressed the same concerns as the previous

venire had and that a new jury pool should be assembled
8 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

the upcoming Monday. The judge responded that was

not possible because if she did that, the trial might not

finish before she was scheduled to sit by designation on

the Federal Circuit. 

With the entire venire assembled back in the courtroom,

the judge said:

Okay. Have we got everybody? Okay. This will just

take a minute, I think.

I realized a little bit ago there was a prospective

juror who, one, was discussing this case outside,

and we weren’t sure who all she was discussing it

with, and, of course, that should not have happened. I just said you can’t discuss the case, and

it’s improper.

But anyway, this person apparently had indicated

that for some reason she had an issue about

juror safety or something because, of course, defense counsel and the government and everybody

needs to go over the qualifications of everybody.

So in the first place, I want to tell you that never in

the entire history of the United States as far as

I know, and I certainly, I’m quite sure of it, has

there ever been, ever been an issue about juror

safety. But I want this, you know, I want to know

that the people who will decide this case and every

case, you know, are deciding it with respect

to the evidence that they hear and they aren’t

thinking about anything else.
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 9

So if there is anybody here who somehow thinks

that they have an issue about it, I want you to

stay behind while everybody else leaves and I’ll

talk to you.

One person stayed behind and said he had also noticed

that the defendants had the jurors’ information. The

judge excused that juror from service but not anyone

else, and the judge also confiscated notes that a

spectator had taken during voir dire.

The case then proceeded to trial. Although the defense

subpoenaed Moore, he did not appear at trial, and the

jurors did not hear about his plea agreement. (The judge

issued an arrest warrant for Moore when he failed

to appear. The warrant, however, was not served

upon him, and the judge concluded during post-trial

proceedings that the government had not taken sufficient steps to locate Moore. The judge nonetheless

found that Moore’s absence did not prejudice the defense.)

The jurors began deliberating on a Thursday afternoon. At 3:20 p.m. the next day, the court discussed a

jury question with the parties and counsel, and the

judge indicated her intention to answer the question

by referring the jury to its previous instructions. She

also told the parties that the jury “had sent an earlier

note that I didn’t see any need to call you about just

saying they’d like to leave at 3:30 this afternoon, and

I told them they could.” While the court was still discussing the question with the parties, the jury sent

another note that it had reached a verdict. The court

assembled the jurors in the courtroom, and the foreperson informed the court that the jury had reached a
10 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

unanimous verdict. The court read the verdict, which

pronounced the defendants guilty on all counts, and

polled the jurors at the defendants’ request.

During the poll, the second juror answered that the

verdict did not represent her individual verdict. The

court responded by telling the jury, without conferring

first with counsel:

All right. Then I’m going to ask that you people go

back to the jury room. At one point you had indicated you wanted to leave today, but I’ll let you

people decide what you want to do and deliberate

further. We do not have a unanimous verdict, so

that is all.

The jurors returned to the jury room. They soon sent out

a new note that said: “We have a debated situation with

a decision on two of the counts. One, Count 2; two,

Count 3. May we have a little direction if possible?

What options do we have. Can a juror be asked to be

dismissed in a proceedings?”

The court and counsel discussed how to respond, and

the court decided to say, “Please continue to deliberate.

A juror may not be dismissed.” A defense attorney expressed the view that the jurors might take the direction

to continue to deliberate to mean that they needed to

stay later, and the judge responded that they had already been told they could go home at 3:30 that day.

The jury returned with a verdict that found the

defendants guilty on all counts.

The defendants each received a sentence of twenty-five

years’ imprisonment. We note that the large quantity of
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 11

drugs—15 kilograms—involved in the fictitious plot in

this case helped drive the twenty-five-year sentences

each defendant received. See U.S.S.G. § 2D1.1 (setting

base offense level at 34 when quantity of cocaine is at

least 15 kilograms but less than 50 kilograms). And we

have commented before that were we policymakers, we

might question whether concocting a scheme involving

a fictitious stash house represents the proper use of law

enforcement resources. United States v. Corson, 579 F.3d

804, 806 (7th Cir. 2009). That said, we turn to the defendants’ arguments on appeal.

II. ANALYSIS

The defendants urge us to grant them a new trial on

several grounds. The jury did not hear about Moore’s

plea agreement or the incentive he had to garner the

defendants’ arrests, and the defendants argue that the

jury should have heard this information. However, we

express no opinion on the propriety of this and several

other arguments. Fundamental to our system of criminal

justice is the right to be tried by an impartial jury that

is free from coercion, and we focus on the defendants’

contention that issues relating to the jury necessitate a

new trial.

A. Jury Bias

The Sixth Amendment of the United States Constitution guarantees the bedrock principle of trial by an impartial jury. Skilling v. United States, 130 S. Ct. 2896, 2912-13
12 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

(2010); see also Murphy v. Florida, 421 U.S. 794, 799 (1975)

(“The constitutional standard of fairness requires that

a defendant have ‘a panel of impartial, ‘indifferent’ jurors.’ ”) (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)).

This guarantee means “a jury that determines guilt on

the basis of the judge’s instructions and the evidence

introduced at trial, as distinct from preconceptions or

other extraneous sources of decision.” Oswald v.

Bertrand, 374 F.3d 475, 477 (7th Cir. 2004).

The defendants contend that they were denied their

right to an impartial jury by the district court’s refusal

to empanel a new venire or, they say, to investigate

bias properly after it became known that the prospective jurors were discussing their safety fears in light of

the defendants’ access to their personal information

including their names, occupations, and ages and occupations of their children. As a general rule, we leave matters relating to jury selection to the sound discretion

of the trial judge. Skilling, 130 S. Ct. at 2917-18; United

States v. Vasquez-Ruiz, 502 F.3d 700, 704 (7th Cir. 2007).

But that discretion is not unfettered, see Vasquez-Ruiz,

502 F.3d at 704, and affording a defendant due process

requires not only “a jury capable and willing to decide

the case solely on the evidence before it,” but also “a

trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences

when they happen.” Smith v. Phillips, 455 U.S. 209,

217 (1982).

The appropriate procedure when potential juror bias

presents itself “is a function of the probability of bias; the
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 13

greater that probability, the more searching the inquiry

needed to make reasonably sure that an unbiased jury

is impaneled.” Oswald, 374 F.3d at 480. That even one

juror’s “peace of mind” was affected can be enough to

deprive a defendant of a fair trial. See United States v.

Simtob, 485 F.3d 1058, 1064 (9th Cir. 2007) (vacating conviction and remanding for further proceedings in light

of court’s failure to investigate potential juror prejudice

after a juror informed the court that he felt threatened

by the defendant’s “eye-balling” him); see also United

States v. Martinez-Salazar, 528 U.S. 304, 316 (2000)

(“[T]he seating of any juror who should have been dismissed for cause . . . require[s] reversal.”). And in this

case it was not just one juror who had expressed concern that the defendants had access to the questionnaires; the judge’s understanding was “that they all saw

it and they all were talking about it.” This is not a case,

then, of speculation about whether jury members

might have feared for their safety. They did here. This

is also not a case of speculation about whether jury members might have been discussing any fears they held.

They did that here as well.

In light of the revelation that the whole venire had

been exposed to the discussions of fear for personal safety,

the defendants were concerned that they would not

receive a fair trial from persons who might have prejudged the case or were motivated by fear or preconception. They immediately requested a new pool or, at the

least, individual questioning of the prospective jurors.

They received neither. It is certainly true that not

all allegations of juror bias or misconduct require indi-
14 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

vidualized voir dire. Vasquez-Ruiz, 502 F.3d at 706; see

also United States v. Stafford, 136 F.3d 1109, 1112-13 (7th

Cir. 1998). We also recognize that “courts face a

delicate and complex task whenever they undertake to

investigate reports of juror misconduct or bias during

the course of a trial . . . . [A]ny such investigation is intrusive and may create prejudice by exaggerating the importance and impact of what may have been an insignificant incident.” United States v. Abrams, 137 F.3d 704,

708 (2d Cir. 1998).

Nonetheless, we find the procedure in this case insufficient under the circumstances. The first important

circumstance is, as we have already emphasized, the

widespread nature of the discussions among the jurors.

Unlike cases where a judge decides against individual

voir dire of the entire panel at the risk of conjuring up

new fears among previously unexposed jurors, individual

questioning here did not run the same risk of planting

a new concern in anyone’s mind since all the venire

members were part of the discussion. Cf. United States v.

McAnderson, 914 F.2d 934, 943-44 (7th Cir. 1990) (affirming

decision not to individually question remaining jurors

about fear or bias after judge removed jurors who

had received or heard about threatening phone calls).

In addition, although it was understood that the discussions of safety concerns were widespread, no juror

was asked what had been said in the internal discussions.

Cf. Vasquez-Ruiz, 502 F.3d at 707 (failure to question

individual jurors “left a void in the record”).

Notably, the identical situation had already arisen

with the first panel of jurors, and the judge and
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 15

prosecutor agreed then that an individual inquiry of

each juror was needed. After questioning only four of

the jurors in the first trial, the effect was already so

obvious that the judge stated, “I doubt we’ll need to

go through [all] 12 [jurors].” The court ultimately

granted a mistrial in the first trial, with no objection

from the government, and it stated at one point “so

many of them were involved in the discussion that I’m

not sure we are going to be able to solve this.”

When the same issue arose with the second group of

jurors, however, the court did not individually question

the jurors. That was despite the defense’s objection,

and also despite the government’s recognition that each

juror should be questioned one at a time, with the prosecutor stating, “I just don’t see how you can do it

without bringing in every one individually. . . .” It is

hard to see a difference between the first and second trials

that counseled against individual questioning in the

second. In the first trial, the issue arose after two days

of trial had already been held. The petit jury had been

selected, the parties had presented opening statements,

the government had presented its direct examination of

its principal witness, Agent Gomez, and the defendants

were into the third cross-examination of the agent. But

a jury had not even been selected when the issue arose

in the second trial. The fact that the issue arose so early

in the second trial would seem to make it an easier decision to start over than in the first trial. As the district

court said when declaring a mistrial in the first trial, “If

this was two weeks into the trial, it would be a little

tougher call.”
16 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

The only discernable difference in the record as to

why the same procedure of questioning each juror individually was not followed in the second trial is that the

judge planned to sit by designation on another court

the following Tuesday and that any delay in jury selection might have interfered with that schedule. When the

second venire’s safety concerns were revealed, defense

counsel requested a new jury pool, and the following

colloquy transpired between the court and defense counsel:

COUNSEL: Judge, the way I would weigh in on

this is we are in the exact situation

we were in the last time.

JUDGE: I am not going to take every one of

these 55 people again.

COUNSEL: I understand that, but they’ve expressed the same concern that the

last venire expressed.

JUDGE: I don’t even know why. I don’t understand it.

COUNSEL: And because of that, I think they’ve

already expressed some kind of deep

seated—

JUDGE: Okay. If you have something to add,

or are you disagreeing with what

I proposed before I forget it?

COUNSEL: My position is that we should let

these people go, we should come

back Monday and try it again.
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 17

JUDGE: Well, we won’t be able to do that because we might not finish before

I have to sit on the Federal Circuit.

COUNSEL: Then I think, I don’t think my client

can get a fair trial. I just don’t think

he can, because I think they’ve already expressed—

JUDGE: Now you’re just making speeches

now at this point. Bring the jurors in.

When the identical issue arose with the first group

of jurors, the government argued for an individualized

inquiry. It did the second time too. Although district

judges have discretion in deciding how to handle

instances of potential juror bias, that discretion must be

based on proper factors. See Verizon Commc’ns, Inc. v.

Inverizon Int’l, 295 F.3d 870, 872-73 (8th Cir. 2002) (an

abuse of discretion occurs when an irrelevant or

improper factor is considered and given significant

weight); United States v. Robertson, 45 F.3d 1423, 1438-39

(10th Cir. 1995). It appears from the record that scheduling concerns were the basis for the decision not to

conduct individual voir dire the second time the issue

arose. Cf. United States v. Thornton, 1 F.3d 149, 155-56 (3d

Cir. 1993) (affirming decision not to question jurors

individually when trial judge weighed the potential

emphasis that came from questioning jurors against

the probable extent and gravity of the misconduct and

concluded that individual voir dire would make the

situation worse).
18 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

We are mindful of the discretion district judges have

when determining whether a jury is biased and of the

deference we pay to a district judge’s determination that

a jury can remain impartial. As the Supreme Court said

recently, “Reviewing courts are properly resistant to

second-guessing the trial judge’s estimation of a juror’s

impartiality, for that judge’s appraisal is ordinarily influenced by a host of factors impossible to capture

fully in the record—among them, the prospective juror’s

inflection, sincerity, demeanor, candor, body language,

and apprehension of duty.” Skilling, 130 S. Ct. at 2918.

Here, however, those same considerations are not in

play, as the judge did not individually question the

jurors at issue. We also understand the concern that a

defendant could affirmatively make jurors fearful and

then try to benefit from a more focused inquiry, but

there is no suggestion in this case that it was the defendants’ conduct that made the jurors uncomfortable. Cf.

United States v. Owens, 426 F.3d 800, 805 (6th Cir. 2005).

And we do not say that individualized voir dire is necessarily required every time a jury expresses concern

that defendants have access to information about

them. Under the circumstances of this particular case,

however, we find the inquiry inadequate. This is not

to suggest that the judge should have cancelled her commitment to sit by designation, a practice we fully support. Here, though, we cannot discern any basis from the

record why this short trial could not have been rescheduled to another date. No speedy trial concerns were

raised, it was the defendants who requested a new panel

of jurors, and they expressed no scheduling conflicts. In
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 19

It is not our place to suggest the best method for addressing 1

jurors’ safety concerns, if that is a recurring problem, as that

is a matter for the district court to address. That the issue

arose twice in this case may well have been a fluke. We also

note that although the jury coordinator informed the judge

that she would assemble fifty new persons for the second venire,

it is possible that a member of the first jury spoke with a

member of the second venire and expressed the first jury’s

concerns.

fact, we do not see any indication in the record that the

court or counsel were unavailable soon after the judge

returned from sitting by designation.1

The government argues that even if the inquiry was

unsatisfactory, the defendants should not receive a new

trial because it maintains they were not prejudiced. We

note that in doing so, it treats the jurors’ safety concerns

as an external influence. Compare Simtob, 485 F.3d at 1064,

with, e.g., United States v. Lopez, 271 F.3d 472, 489 (3d

Cir. 2001). The defendants, pointing to cases including

Oswald, 374 F.3d at 482, contend that the right to be

tried before an impartial jury is structural such that

they need not show prejudice and are not subject to

harmless error review. While we note that even under

the government’s position, it would have the burden to

rebut the presumption of prejudice from an external

influence on the jury, see Vasquez-Ruiz, 502 F.3d at 705,

we need not resolve the issue as the defendants point to

another source of error as well. See United States v. Allen,

269 F.3d 842, 847 (7th Cir. 2001) (“Cumulative errors,

while individually harmless, when taken together can
20 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

prejudice a defendant as much as a single reversible

error and violate a defendant’s right to due process of

law.”). We turn there now.

B. Instruction to Continue the Deliberations

After the court read a verdict that stated the defendants

had been found guilty on all counts, a poll of the jurors

revealed that the published verdict did not represent

the individual verdict of each of the jurors. The

defendants contend that subsequent directions the jury

received to continue deliberating, at and after the time

that the jury had already requested and received permission to leave for the weekend, were coercive and necessitate a new trial.

“The principle that jurors may not be coerced into

surrendering views conscientiously held is so clear as

to require no elaboration.” Jenkins v. United States, 380 U.S.

445, 446 (1965) (per curiam). Our assessment of whether

instructions to the jury were impermissibly coercive

looks to “ ‘whether the court’s communications pressured

the jur[ors] to surrender their honest opinions for the

mere purpose of returning a verdict.’ ” United States v.

Crotteau, 218 F.3d 826, 835 (7th Cir. 2000) (quoting United

States v. Kramer, 955 F.2d 479, 489 (7th Cir. 1992)). Even

though a judge might have the best of intentions, innocently intended directions can still be coercive. United

States v. Chaney, 559 F.2d 1094, 1098 (7th Cir. 1977). In

Chaney, for example, the judge gave a supplemental

instruction to the jurors at 12:20 a.m. that said, “If you

do not arrive at a verdict then the jury will be brought
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 21

into the court tomorrow morning at 9:30 and the Court

will then determine what course should be taken.” We

ruled that the jurors could have understood the direction

to mean that they must reach a verdict to avoid being

required to stay until 9:30 a.m., or that they must

deliberate until reaching a verdict, or that the court might

require them to continue deliberating in the morning

even though they had been without sleep. In light of

these potential inferences, we concluded that the instruction, although innocently given, required a new trial. Id.

In this case, the jurors began deliberating on a Thursday

afternoon and began again the next morning. Sometime

on Friday, the jurors sent a note that requested permission

to leave that day by 3:30 p.m., and the judge responded

that they could. At about 3:20 p.m., the jury sent a note

with a question about the requirements for conviction

on one of the charges. While the judge and parties were

discussing how to respond to the question, the jury sent

another note that said it had reached a verdict.

The court brought the jurors into the courtroom. After

announcing a verdict that convicted the defendants on

all counts, the court polled the jurors at the defendants’

request, and the second juror polled responded that the

published verdict did not represent her individual verdict. The defendants contend on appeal that at this point,

the judge should have given the instruction we approved

in United States v. Silvern, 484 F.2d 879, 883 (7th Cir. 1973),

which provides:

The verdict must represent the considered judgment of each juror. In order to return a verdict, it
22 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

is necessary that each juror agree thereto. Your

verdict must be unanimous. 

It is your duty, as jurors, to consult with one

another and to deliberate with a view to reaching

an agreement, if you can do so without violence

to individual judgment. Each of you must decide

the case for yourself, but do so only after an 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 your 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 is to ascertain the truth from

the evidence in the case.

During discussions with the trial judge, however, defense

counsel stated it did not think a Silvern instruction was

a good idea then, so our review of the request for a

Silvern instruction is for plain error. See United States

v. Jones, 600 F.3d 847, 856 (7th Cir. 2010).

The jury must be deadlocked before a Silvern instruction is required. See United States v. Degraffenried, 339

F.3d 576, 580 (7th Cir. 2003); United States v. Miller, 159

F.3d 1106, 1101-11 (7th Cir. 1998). The juror’s response

during the poll that the verdict as published did not

reflect her own verdict meant there was not a unanimous

verdict, but it did not necessarily mean the jury was
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 23

deadlocked. See United States v. Carraway, 108 F.3d 745,

752 (7th Cir. 1997) (per curiam). As we explained in

Carraway, “[W]hen the court decided . . . to have the jury

continue deliberating—after polling of the jury had been

interrupted by the juror’s announcement that she disagreed with the guilty verdict against Carraway—there

was no clear indication that the jury was deadlocked as

to Carraway’s culpability and that further deliberations would be fruitless. The jury had, after all, signed a

unanimous verdict as to Carraway, and the reason for

the objecting juror’s second thoughts were (and are)

unknown.” Id. The same reasoning holds true here. We

do not know why the juror responded that the published verdict did not represent her individual verdict,

and, more importantly, there was no indication that

further deliberations would not be helpful. There was no

plain error when the jury did not receive a Silvern instruction at that juncture.

The lack of a Silvern instruction at this point (and note

that the jury had received the Silvern instruction as one

of its instructions before it began deliberating), therefore,

was not a problem in and of itself. The direction to continue deliberating after the poll revealed a lack of unanimity also was not inherently problematic, see Carraway,

108 F.3d at 752, as reflected in Rule 31(d) of the Federal

Rules of Criminal Procedure: 

After a verdict is returned but before the jury is

discharged, the court must on a party’s request, or

may on its own, poll the jurors individually. If

the poll reveals a lack of unanimity, the court
24 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

may direct the jury to deliberate further or may

declare a mistrial and discharge the jury.

However, our review does not end there, as the defendants also contend that the court’s communications after

the poll were coercive of unanimity. This argument

requires that we consider the directions given by the

trial court in “ ‘context and under all the circumstances.’ ”

Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (quoting

Jenkins, 380 U.S. at 446). Although Rule 31(d) allows a

judge to direct the jury to deliberate further if a poll

reveals a lack of unanimity, it does not allow, of course,

for directions that are coercive. And although we find

no plain error in the fact that the jurors did not receive

a Silvern instruction after the poll, the policy behind

the Silvern instruction matters: a juror should not “surrender his honest conviction as to the weight or effect

of evidence solely because of the opinion of his fellow

jurors, or for the mere purpose of returning a verdict.”

Silvern, 484 F.2d at 883 n.5.

The jurors had asked earlier in the day to leave by

3:30 p.m. and been told they could. Nonetheless, when

the jury returned a verdict very close to that time and

the second juror polled answered that the published

verdict did not represent her own, the court followed

that juror’s response by stating:

All right. Then I’m going to ask that you people

go back to the jury room. At one point you had

indicated you wanted to leave today, but I’ll let

you people decide what you want to do and deliberate further. We do not have a unanimous

verdict, so that is all.
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 25

This directive to continue deliberating was issued right

around 3:30 p.m., the time that the jury had already asked

for and received permission to leave. It came without

the caveat that if the jurors still wanted to leave at

3:30 p.m. that day, they could do so by simply telling the

judge. Cf. United States v. Talkington, 875 F.2d 591, 596-97

(7th Cir. 1989) (direction not coercive that asked jurors

whether they wished to (1) continue deliberating for

another hour, or (2) go either home or to a hotel for

the evening and continue deliberating the next morning

at 10:00 a.m.). It also came without consulting counsel;

hearing from the parties outside the jury’s presence

might have yielded a response to the jury upon which

all could agree. Cf. Talkington, 875 F.2d at 597.

On their face, the directions the jurors received after

the poll suggested that the jurors could not leave for the

day until they had a unanimous verdict, despite

their previous request to have already left by that

point. Perhaps the statement, “At one point you had

indicated you wanted to leave today, but I’ll let you

people decide what you want to do and deliberate further,” had been intended as an invitation for the jurors

to leave for the day if they wished in light of their

earlier request to depart at 3:30 p.m. Unfortunately, it

reads as the opposite, especially since it was preceded

by a direction to return to the jury room and followed

by the statement, “We do not have a unanimous verdict,

so that is all.”

At the time of that direction, apparently only a single

vote stood between the defendants and conviction, and
26 Nos. 08-3511, 08-3549, 08-3885 & 08-4144

care was especially important. The jurors soon sent out

another note confirming their disagreement: “We have a

debated situation with a decision on two of the counts.

They are as follows: One, Count 2; two, Count 3. May we

have a little direction if that is possible? Can a juror be

asked to be dismissed in a proceedings?” The court discussed the note with counsel and indicated it would

answer with the direction, “Please continue to deliberate.

A juror may not be dismissed.” One defense counsel

responded with concern that the jurors might take such

a direction to mean they could not leave as early as

they wanted and stated, “ ‘Please continue to deliberate.’

Maybe that means they’ll think they have to stay tonight.

I mean, maybe—” The court responded, “Well, they

have already been told they can go home.” To that,

defense counsel responded with the ambiguous, “Okay,”

which could well be an acknowledgment that the court

had ruled against it. The bottom line is that the jurors

were again told without caveat to continue deliberating,

despite their request earlier in the day to leave by 3:30 p.m.

We do not know why jurors had asked to leave that day

by 3:30 p.m., or whether the holdout juror needed or

wanted to leave by that time on that particular day. What

we do know is that the jurors may well have understood the post-poll instructions to mean that they

needed to return a unanimous verdict immediately if

they still wanted to leave at their requested time.

Even though the effect was unintentional, under these

circumstances, we conclude that the instructions were

impermissibly coercive. These directions, along with

the inadequacy of the inquiry into the jurors’ safety
Nos. 08-3511, 08-3549, 08-3885 & 08-4144 27

concerns, lead us to conclude that the defendants

should receive a new trial.

III. CONCLUSION

The judgment of the district court is VACATED, and

the defendants will receive a new trial. Circuit Rule 36

shall apply.

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