United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-3134

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellant

v.

Javier Amaya

lllllllllllllllllllll Defendant - Appellee

____________

 Appeal from United States District Court 

for the Northern District of Iowa - Sioux City

____________

 Submitted: May 17, 2013

 Filed: September 23, 2013

____________

Before SHEPHERD, BEAM, and MELLOY, Circuit Judges.

____________

SHEPHERD, Circuit Judge.

A jury found Javier Amaya guilty of one count of conspiracy to launder money,

in violation of 18 U.S.C. § 1956(a)(1)(B)(i). The district court granted appellee’s 1

The Honorable Mark W. Bennett, United States District Judge for the

1

Northern District of Iowa. 
motion for a new trial. The government now appeals the grant of a new trial. We

affirm. 

I.

A grand jury indicted brothers Angel Amaya and Javier Amaya and two others

for conspiracy to commit money laundering involving proceeds of unlawful drug

activities. The grand jury also charged Angel and four others with a drug conspiracy

offense. All defendants except the Amaya brothers entered guilty pleas. After two

mistrials, the case against the Amayas was finally submitted to a jury. 

During the Amaya brothers’ four-day joint trial, the government presented

evidence showing that on February 8, 2011, Javier opened a bank account with a

Wells Fargo Bank branch in Sioux City, Iowa, using his own name and biographical

information. Angel was with Javier when the account was opened, and Javier

deposited $7800 in cash provided by Angel into the account. When the teller, who

was Angel’s friend, asked Angel where the money came from, Angel replied, “don’t

worry about it, you don’t want to know.” Angel also opened a new account that day,

depositing $8000 into it. Two of Angel’s associates opened new Wells Fargo

accounts on February 8 and either deposited or had deposited into them $8100 and

$8000, respectively. Immediately after opening these accounts, the four traveled to

California. On February 10 and 11, 2011, the four withdrew the money from their

accounts and gave it to Angel who used the money to pay a person known as el Paisa. 

The government also presented evidence to the jury including the testimony of

witnesses that when Angel was not home that Javier distributed drugs to buyers, that

purchasers left payment for Angel with Javier, and that Javier was present when

Angel distributed drugs and discussed obtaining large quantities of drugs for resale. 

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When the jury returned, the foreperson informed the court that the jury had

reached a unanimous verdict. After the verdict form was handed to the judge, the

judge remarked:

Well, I’ve noticed a problem with the verdict form that wasn’t—it’s our

fault. Well, let’s go through—okay. 

(Trial Tr. 639.) The court then read the verdict pertaining to Angel where it found

him guilty of both the money-laundering conspiracy and the drug conspiracy. The

court polled the jury as to the guilty verdict against Angel. 

On the verdict form, the jury was presented with a two-part question pertaining

to the money-laundering conspiracy charge against Javier. In “Step 1: Verdict” the

jury wasinstructed “[o]n the ‘money laundering conspiracy’ offense in Count 2 of the

Indictment and explained in Instruction Nos. 5 and 8, [to] please mark your verdict.” 

The form, however, did not provide any place for the jury to mark a verdict of guilty

or not guilty. The “Step 1: Verdict” continued with instructionsthat “[i]f you find the

defendant ‘not guilty’ in this offense, do not answer the question in Step 2.” In “Step

2: ‘Objectives’ of the ‘Money Laundering Conspiracy,’” the jury wasinstructed “[i]f

you found the defendant ‘guilty’ of the ‘money laundering conspiracy’ offense in

Count 2 of the Indictment, please indicate which one or more money laundering

offenses the conspirators agreed to commit as ‘objectives’ of the ‘money laundering

conspiracy.’” The jury was given two options in “Step 2” and marked on the verdict

form that the “objective” of the offense was “to conceal proceeds of the drug

conspiracy.” 

The district court explained the error as follows:

Now, with regard to Javier Amaya, the verdict form is inaccurate

because it doesn’t have a place for you to check guilty or not guilty in

step 1. But you’ve checked objectives—you checked the second

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objective, to conceal proceeds of the drug conspiracy. But what I want

to know is with regard to Javier Amaya, do you find him guilty in step

1 of the money laundering conspiracy?

(Trial Tr. 640.) 

The district court then proceeded, without first consulting the parties, to poll

the jurors to confirm that they had reached a unanimous verdict as to Javier. Each

juror answered affirmatively. The court later performed a second polling “to make

sure everybody’s unanimous intent was to find Javier Amaya guilty of money

laundering.” The court asked the jury, “Is that your intent?” (Trial Tr. 641.) Again,

each juror answered affirmatively. Neither the government nor the defense counsel

objected to the procedure and neither sought to make a record of the error in the

verdict form. 

Both Amaya brothers filed post-trial motions for acquittal or alternatively for

a new trial, raising several issues. As relevant to this appeal, Javier argued that the

absence of a place to indicate the verdict on the verdict form in combination with the

polling of the jury warranted a grant of a mistrial or a new trial. The district court

agreed, noting it “remain[ed] concerned that the jurors may have felt coerced by the

error in the verdict form and, just as importantly, by my immediate attempt to correct

that error by polling the jury to obtain their individual verdicts in open court.” The

court granted Javier’s motion for a new trial, holding that there was a plain error in

the verdict form, that the error had an improper influence on the jury and thus affected

Javier’s substantial rights, and that the error of improper procedure affected the

fairness, integrity, and public reputation of the judicial proceedings. 

The government now appeals, arguing that the district court abused its

discretion in granting the motion for a new trial. 

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II.

“Upon the defendant’s motion, the court may vacate any judgment and grant

a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “The

decision to grant a Rule 33 motion is within the sound discretion of the District Court,

and we will reverse only for an abuse of that discretion.” United States v. Dodd, 391

F.3d 930, 934 (8th Cir. 2004). When considering a motion for a new trial, a district

2

court may “weigh the evidence, disbelieve witnesses, and grant a new trial even

where there is substantial evidence to sustain the verdict.” United States v. Campos,

306 F.3d 577, 579 (8th Cir. 2002) (quotation omitted). Despite the broad discretion

district courts enjoy under this rule, we have endeavored to remind courts that the

discretion has limits and the courts “must exercise the Rule 33 authority ‘sparingly

and with caution.’” Id. (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th

Cir. 1980)). “Corresponding to the district court’s broad discretion is the limited

scope of our review: we will reverse the district court’s ruling on the motion for new

trial only if we find that ruling to be a clear and manifest abuse of discretion.” United

States v. Malloy, 614 F.3d 852, 862 (8th Cir. 2010) (quoting Lincoln, 630 F.2d at

1319), cert. denied, 131 S. Ct. 3023 (2011). We will find a district court abused its

discretion if it “fails to consider a factor that should have been given significant

weight, considers and gives significant weight to an improper or irrelevant factor, or

commits a clear error of judgment in considering and weighing only proper factors.” 

Dodd, 391 F.3d at 934. 

Because neither party objected to either the verdict form or the polling of the

jury, the district court applied the plain error standard in deciding to grant Javier’s

motion for a new trial. See Fed. R. Crim. P. 30(d); Fed. R. Crim. P. 52(b); United

States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988) (holding that it is appropriate

Both parties agree that abuse of discretion is the appropriate standard of 2

review in this case despite the district court’s application of a plain error standard. 

-5-
for district court to apply plain error review to a defendant’s motion for new trial

where issues were not objected to during trial). The district court found it committed

two specific plain errors. First, it determined that the verdict form for Javier was

plainly erroneous because it was obvious that the form should have contained a place

for the jury to indicate its verdict but that place was missing on the form. Second, the

court decided that it committed error when it “substitut[ed] polling of the jury for the

rendering of a verdict on a properly composed verdict form after private

deliberations.” The district court held that these combined errors “potentially ha[d]

the same effect as polling deadlocked jurors” which the court found may have had a

coercive effect on the jury, that being the jury may have rendered a premature verdict

without the ordinary safeguards of private deliberations with a proper verdict form. 

Finally, the district court held that the errors were such a departure from the normal

procedure for returning and recording a jury verdict that it seriously affected the

fairness, integrity, or public reputation of the judicial proceedings. United States v.

Poitra, 648 F.3d 884, 887 (8th Cir. 2011) (“To obtain relief under a plain-error

standard of review, the party seeking relief must show that there was an error, the

error is clear or obvious under current law, the error affected the party’s substantial

rights, and the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.”).

We find no abuse of discretion in the district court’s determination that the

verdict form error and the substitution of a polling procedure for a return of the

verdict constituted plain error. First, although Federal Rule of Criminal Procedure

31(a) provides only that “[t]he jury must return its verdict to a judge in open court,”

the clear intent of the district court in this case for the jury to indicate the verdict on

a properly completed verdict formis obvious. By comparison, for both counts against

Javier’s brother Angel the jury was provided a place to indicate its verdict. Next, the

3

The dissent emphasizesthat “district courts have wide latitude in constructing

3

either written or oral jury instructions, including written or oral verdict information.”

-6-
Rules dictate that the court may poll the jury “[a]fter a verdict is returned.” Fed. R.

Crim. P. 31(d). There is simply no procedure in place for the jury to return a verdict

through polling by the court. “The purpose of a jury poll ‘is to give each juror an

opportunity, before the verdict is recorded, to declare in open court his assent to the

verdict which the foreman has returned,’ to ensure that ‘a unanimous verdict has in

fact been reached and that no juror has been coerced or induced to agree to a verdict

to which he has not fully assented.’” United States v. Cherry, 720 F.3d 161, 167 (4th

Cir. 2013) (quoting United States v. Carter, 772 F.2d 66, 68 (4th Cir. 1985)). Thus,

the district court’s finding of plain error was not an abuse of discretion. 

4

See infra at 15. Assuming the district court could have made a conscious decision to

permit the return of verdict by oral pronouncement, that is not the procedure the

district court elected to utilize in this case. Rather, the district court’s instructions

demonstrated a clear intent for the jury to return its verdict on a written verdict form. 

The critical component of the form—a place for the jury to indicate the verdict—was

missing. We reject the dissent’s characterization of this significant error as “a minor

ambiguity” or a “slight imperfection.” See infra at 10, 16. The dissent cannot dispute

that the district court had the discretion to require the jury to return the verdict

through a completed verdict form, and the district court clearly instructed the jury in

this case to do so, but then provided a fatally flawed form to the jury. Compounding

this significant error, the district court, without taking time to properly consider how

best to proceed when the intended procedure was disrupted, polled the jury with the

presumptive question “do you find him guilty in step 1 of the money laundering

conspiracy?” (Trial Tr. 640.) 

The dissent characterizes our decision in Cundiff v. United States, 501 F.2d

4

188 (8th Cir. 1974) (per curiam), as “a substantially similar context” to the

circumstances presented here. See infra at 17. Cundiff is easily distinguishable from

this case. The defendant in Cundiff recognized the potential error before the jury

returned the verdict, and the district court called the jury back into the courtroom

before completion of deliberations to explain the proper use of the forms and to

clarify that the jury was not required to find the defendant guilty of the lesserincluded offense. Cundiff, 501 F.2d at 190. The dissent also attempts to draw a

comparison to the use of a jury poll in the two cases, claiming that the district court

in Cundiff “also conducted a jury poll . . . as was also done in this case.” See infra

-7-
Nor do we find that the court abused its discretion when it determined that the

errors affected Javier’s substantial rights. See United States v. Olano, 507 U.S. 725,

734 (1993) (holding that in most cases, for an error to affect a defendant’s substantial

rights, the error must be prejudicial). In the circumstance of polling a deadlocked

jury, the Supreme Court explained:

Its effect upon a divided jury will often depend upon circumstances

which cannot properly be known to the trial judge or to the appellate

courts and may vary widely in different situations, but in general its

tendency is coercive. It can rarely be resorted to without bringing to

bear in some degree, serious although not measurable, an improper

influence upon the jury, from whose deliberations every consideration

other than that of the evidence and the law as expounded in a proper

charge, should be excluded. Such a practice, which is never useful and

is generally harmful, is not to be sanctioned.

Brasfield v. United States, 272 U.S. 448, 450 (1926). We have previously indicated

that concerns about errors in polling depend on “whether it is likely that the

proceedings conducted by the trial court coerced the juror in arriving at his final

verdict.” Amos v. United States, 496 F.2d 1269, 1272 (8th Cir. 1974). As Brasfield

cautions, the conducting of a poll of the jury before a verdict has been properly

returned “can rarely be resorted to without bringing to bear in some degree, serious

although not measurable, an improper influence upon the jury.” Brasfield, 272 U.S.

at 450. The district court expressed concerns that when it substituted the polling

procedure for a return of verdict through a properly completed verdict form it fell

within Brasfield’s warning that the action “can rarely be resorted to without bringing

to bear in some degree . . . an improper influence upon the jury.” Id. 

at 17. Such claim by the dissent fails to draw an important distinction. The polling

in this case was done in substitution for the return of the verdict whereas the polling

in Cundiff was conducted “[a]fter the jury returned its verdict.” Cundiff, 501 F.2d at

190. 

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Finally, the district court noted that the error in the verdict formand the polling

procedure was a significant departure from regular procedure “as to seriously affect

the fairness, integrity, or public reputation of judicial proceedings.” Indeed this

procedure is so irregular that the district court could “find no opinions of the federal

Circuit Courts of Appeals or the Supreme Court squarely on point with the

circumstances presented here.” We have also been unable to find cases which are “on

point” or more analogous to those considered by the district court or presented by the

partiesin their briefs. This suggeststhat the procedure employed by the district court

to return and record the verdict in this case was a significant departure from

traditional practice. While nothing in the criminal rules specify the manner in which

the verdict must be returned, the facts of this case make it obvious that the court

intended the jury to indicate its verdict on the verdict form. In light of this, we cannot

say the district court’s determination that the procedure seriously affected the

“fairness, integrity, or public reputation of judicial proceedings” was an abuse of

discretion. 

We note that the government’s brief presents strong arguments, does a

commendable job of attempting to distinguish adverse cases, and cites to cases that,

while not binding or squarely on point, generally support its argument. Indeed, the

dissent finds the government’s argument to be persuasive, and we recognize that the

dissent’s opinion makes a case for why the district court could have been affirmed

had the court denied the motion for a new trial. However, the district court granted

the motion for a new trial, and in so doing, also presented persuasive and

introspective reasoning for why its missteps justified the grant of a new trial. Under

the confines of the abuse of discretion review, “we defer to the ruling of a respected,

able trial judge” because “the trial judge, not an appellate court reading a cold record,

can best weigh the errors against the record as a whole to determine whether those

errors in the conduct of the trial justify a new trial.” McBride, 862 F.2d at 1320. 

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III.

Accordingly, we affirm.

BEAM, Circuit Judge, dissenting.

A federal trial court may not order the "do over" of a substantially error-free

criminal trial simply because the court wants to try to do a slightly better job the next

time around or because the court believes the jury may produce a more acceptable

result. As I explain in more detail below, a minor ambiguity in one sentence of one

jury instruction does not support a new trial that will unreasonably waste tax dollars,

unnecessarily exhaust prosecutorial resources of the Northern District of Iowa and

thoughtlessly burden under-compensated members of the District's jury pool. This

particular jury, being a typically perceptive, intellectually astute and self-reliant

American federal court deliberative body, faultlessly worked its way through a

marginal instructional imperfection to reach a well-reasoned and evidentiarily

supported verdict. Thus, the district court'sfaulty discernment and errant application

of plain trial error, coupled with its capricious overturning of the jury's work product,

constituted a fundamental abuse of judicial discretion. From this untoward result, I

dissent.

Notwithstanding the district court's seventy-two page explication on multiple

aspects of the Amaya brothers post-trial motions, the factual and legal issues in this

appeal are relatively simple. The dispute bottoms on whether Javier Amaya was

guilty of being part of an 18 U.S.C. § 1956 money laundering conspiracy as

affirmatively and unanimously determined by a jury of his peers. And, there can be

no doubt that Javier was indeed guilty as charged.

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To begin, I adopt the court majority's factual recitation as set forth in the first

three paragraphs of Section I. For purposes of this dissent, I further emphasize the

following facts.

At the beginning of the trial, the district court orally instructed the jury on juror

responsibilities, trial procedure,the substantive law applicable to the criminal charges

against each defendant and the requirements for formalizing and returning a verdict. 

Each juror was also provided a written copy of these oral instructions for use during

the trial. Both the written and oral instructions contained verdict formulation

language which included words and marks to be used by the jury in returning a

verdict specific to each defendant. The district court read from the written

instructions pertaining to the money laundering conspiracy charges against the

Amayas as follows:

Then Count 2, money laundering, step 1 is the verdict. On the money

laundering conspiracy offense in Count 2 of the indictment and

explained in instructions numbers 5 and 8, please mark your verdict. If

you find the defendant [Angel Amaya] not guilty of this offense, do not

answer the question in step 2. Instead go on to consider your verdict on

the charge against Defendant Javier Amaya. There's a place for not

guilty and guilty.

And then step 2, objectives of the money laundering conspiracy, if you

found the defendant [Angel Amaya] guilty of the money laundering

conspiracy offense in Count 2 of the indictment, please indicate which

one or more money laundering offenses the conspirators agreed to

commit as objectives of the money laundering conspiracy. Objectives

of the money laundering conspiracy were explained in instruction

number 8. To promote the carrying on of the drug conspiracy, to

conceal proceeds of drug conspiracy, or to avoid transaction reporting

requirements under federal law.

. . .

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[T]hen Roman numeral two on page four of the verdict form involves

Javier Amaya. As to Defendant Javier Amaya, we, the jury,

unanimously find as follows. Notice it's only Count 2 because Javier

Amaya's only charged in the money laundering count. Step 1, verdict,

and then I'm not going to repeat it because it's the identical money

laundering with regard to the other – the first defendant.

Following is a copy of the verdict reached for each defendant as completed by the

jury.

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Federal Rule of Criminal Procedure 33(a) provides that, upon defendant's

motion, a district court "may vacate any judgment and grant a new trial if the interest

of justice so requires." "The Rule does not define 'interests of justice' and the courts

have had little success in trying to generalize its meaning." United States v. Kuzniar,

881 F.2d 466, 470 (7th Cir. 1989); see also Morales-Fernandez v. I.N.S., 418 F.3d

1116, 1119-20 (10th Cir. 2005) ("'interests of justice' is a rather elusive concept");

United States v. Roberts, 978 F.2d 17, 21 (1st Cir. 1992) ("Justice is an ideal that

defies precise definition."). For this reason, in order to understand what "interest of

justice" means, the phrase must be placed in specific context. Rule 33 allows a

defendant to file a motion for a new trial "based on newly discovered evidence" (Rule

33(b)(1)) or "grounded on any reason other than newly discovered evidence" (Rule

33(b)(2). This latter basis is referred to as "other grounds." 

One of the most common "other grounds" basis for a new trial motion is that

the verdict is against the weight of the evidence. 3 Charles Alan Wright, et al.,

Federal Practice & Procedure Criminal § 582 (4th ed.). When this is the basis for the

motion, "[a] district court may grant a new trial under Rule 33 only if the evidence

weighs so heavily against the verdict that a miscarriage of justice may have

occurred." United States v. McClellon, 578 F.3d 846, 857 (8th Cir. 2009) (quotation

omitted). Here, however, the district court did not grant the Rule 33 motion for

evidentiary reasons but rather grounded the ruling in a perception that legal error had

occurred. Indeed, and even though the court majority fails to mention this important

point, the district court correctly and specifically determined in its new trial analysis

that Javier Amaya is "not entitled to . . . [a] new trial[] on the money laundering

conspiracy on the basis of insufficiency of the evidence."

Rather, proceeding under the "other grounds" rubric of Rule 33(b)(2), the

district court employed a plain error test as formulated in Federal Rule of Criminal

Procedure 52(b). This Rule 52(b) analysis involved, of course, the adequacy of the

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jury instructions, more specifically the instructions dealing with the return of a verdict

against Javier. 

Although many trial judges find it good practice to provide juries with written

copies of instructions on the law applicable in a particular case, including verdict

formulation instructions, others do not follow that practice, relying upon the official

record of the trial to provide a description of such information when needed. Both

approaches are acceptable because written instructions including verdict-related

instructions are not required in federal trial courts. United States v. Eberhardt, 657

F.2d 221, 222 (8th Cir. 1981); United States v. Johnson, 466 F.2d 537, 538 (8th Cir.

1972) (per curiam).

In any event, district courts have wide latitude in constructing either written or

oral jury instructions, including written or oral verdict information. See United States

v. White Calf, 634 F.3d 453, 456 (8th Cir. 2011) (reviewing formulation of jury

instructionsfor an abuse of discretion); United States v. Martison, 419 F.3d 749, 753

(8th Cir. 2005) (reviewing verdict form for an abuse of discretion). Jury instructions

of either kind are sufficient "if they fairly and adequately submitted the issues to the

jury." United States v. Espinoza, 684 F.3d 766, 783 (8th Cir.) (quotations omitted),

cert. denied, 133 S. Ct. 589 (2012). And, we have never required jury instructions,

including verdict forms contained therein, to be faultless or to fit the individualized

or idiosyncratic preferences of a particular judge.

In both civil and criminal cases, this court has recognized that any alleged error

in a verdict instruction must be viewed within the broader context of the jury

instructions as a whole. United States v. Brown, 330 F.3d 1073, 1077-78 (8th Cir.

2003) ("the jury instructions and verdict form viewed as a whole did not allow the

jury to convict [the defendant] of a different offense than . . . charged"); Gander v.

FMC Corp., 892 F.2d 1373, 1378 (8th Cir. 1990) ("We must . . . consider whether

the form, taken together with the instructions to the jury, is so misleading or

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confusing that the jury verdict cannot stand. In determining whether the verdict form

is confusing, we must consider it in light of the instructions given.") And, within this

expansive context, where the jury instructions as a whole properly charge the jury,

use of an instruction that is marginally imperfect or lacks some clarity does not render

the instruction illusory, coercive or constitute reversible error. United States v Hall,

325 F.3d 980, 982 (8th Cir. 2003) (citing Crimm v. Mo. Pac. R.R., 750 F.2d 703, 711

(8th Cir.1984)). This is especially true, where, as here, the most that can be said in

support of the trial judge's Rule 33 new trial order is that there might conceivably

have been a small measure of ambiguity in one phrase pertaining to one instruction,

and even more, as here, when the purported ambiguity presents no hint whatever of

having confused the jury.

As earlier noted, the district court informed the jury that the money laundering

verdict instructions initially given for Angel Amaya and those given immediately

thereafter for Javier Amaya were identical. And this was true, except that the words

"not guilty" and "guilty" with a line behind each word or words, although included

in Angel's instruction, were omitted from Step 1 of Javier's instruction. There can be

little doubt, however, that the jury fully understood it could and should find Javier

either "not guilty" or "guilty." First, the jury instructions as a whole informed the jury

of the charge and explained that each charge against each defendant needed to be

considered separately, that each charge required a unanimous verdict, and that the

jury had the option to find Javier either "not guilty" or "guilty." Second, on Javier's

verdict form, like that of Angel, the jury was instructed that it should only move to

"Step 2" if it found that Javier was guilty under "Step 1." The jury moved to "Step 2,"

in both instances, specifically finding, as relevant here, that Javier committed an

objective in the money laundering conspiracy, namely concealing proceeds of the

drug conspiracy. Finally, after the district court mentioned the verdict form issue it

perceived to the jury, it then conducted a poll in which each individual juror in open

court confirmed the earlier announced unanimous guilty verdict. Thus, there is no

indication whatever in the trial record, that the slight imperfection in the verdict form

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imagined by the trial court–arising from the wordsin Step 1 saying "please mark your

verdict" when there was no specific place to make such a mark except in the

"Objectives" findings portion–constituted error of any hue let alone plain error. 

Indeed, since the record (including evidence of yet a second poll of the jurors)

provides ample assurance that the jury intended to find Javier guilty, the verdict

instruction had no adverse affect upon his substantial rights. And, with these

assurances of a proper guilty verdict, nothing suggests that the verdict form's alleged

minor imperfection could have affected the fairness, integrity, or public reputation of

Javier's trial. Accordingly, these assurances viewed in the alternative context of a

trial court's supervisory discretion, clearly establish wholly abusive conduct on the

part of the trial judge in its overturning of the jury's fully supportable guilty verdict.

In Cundiff v. United States, this court determined that no error occurred in a

substantially similar context. 501 F.2d 188 (8th Cir. 1974) (per curiam). Cundiff

highlighted that the district court verbally explained the verdict instructions, as was

done in this case, and also conducted a jury poll where "each juror agreed that the

verdict was his separate and individual verdict," id. at 190, as was also done in this

case. 

Further, and perhaps more importantly, the trial court's supposed concern about

the instructional ambiguity is much adieu about nothing. Every required facet of the

return of a verdict in a federal criminal trial was fully complied with in this case. 

Federal Rule of Criminal Procedure 31 states, in relevant part, as follows:

(a) Return. The jury must return its verdict to a judge in open court. 

The verdict must be unanimous.

. . . 

(d) Jury Poll. 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

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the jurors individually. If the poll reveals a lack of unanimity, the court

may direct the jury to deliberate further or may declare a mistrial and

discharge the jury.

So, without regard to the so-called instructional omission and resulting ambiguity,

Rule 31's requirements were followed to the letter in this case. The trial record

reports that the following occurred in open court:

(The jury entered the courtroom.)

THE COURT: Thank you. Please be seated.

And who is the foreperson? Okay. Mr. Knaack, did I pronounce that

correctly? Has the jury reached a unanimous verdict?

JUROR KNAACK: Yes, sir.

THE COURT: Okay. Would you hand the verdict form to Melissa, and

then she'll hand it to me, and I'll review it. And then once I've reviewed

it, I'll announce the verdict.

She never peeks. I just can't believe that.

Well, I've noticed a problem with the verdict form that wasn't – it's our

fault. Well, let's go through – okay.

With regard to Defendant Angel Amaya, you found the defendant guilty

of the drug conspiracy, checked methamphetamine, cocaine, and

marijuana, found on the methamphetamine 500 grams or more, found on

the cocaine 500 grams or more, and on the money laundering count

found the defendant guilty and then checked all three objectives.

So, with regard to Defendant Angel Amaya, is that your true and correct

verdict? And we'll just start in the back row, and we'll go down the row.

JUROR SCHROEDER: Yes.

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JUROR LIEN: Yes.

JUROR KNAACK: Yes, sir.

JUROR TONNER-COLVERT: Yes.

JUROR MULDER: Yes, sir.

JUROR BARGE: Yes.

JUROR MILLER: Yes, sir.

JUROR PLATHE: Yes, sir.

JUROR HOEKSTRA: Yes, sir.

JUROR SUHR: Yes, sir.

JUROR MOLGAARD: Yes, sir.

JUROR GAGNON: Yes, sir.

. . . 

THE COURT: Now, with regard to Javier Amaya, the verdict form is

inaccurate because it doesn't have a place for you to check guilty or not

guilty in step l. But you've checked objectives – you checked the second

objective, to conceal proceeds of the drug conspiracy. But what I want

to know is with regard to Javier Amaya, do you find him guilty in step

1 of the money laundering conspiracy?

JUROR KNAACK: Yes, sir.

THE COURT: And we'll just start in the back row again.

JUROR SCHROEDER: Yes, sir.

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JUROR LIEN: Yes, Your Honor.

JUROR KNAACK: Yes.

JUROR TONNER-COLVERT: Yes.

JUROR MULDER: Yes, sir.

JUROR BARGE: Yes, sir.

JUROR MILLER: Yes, sir.

THE COURT: Front row?

JUROR HOEKSTRA: Yes, sir.

JUROR SUHR: Yes, sir.

JUROR MOLGAARD: Yes, sir.

JUROR GAGNON: Yes, sir.

JUROR PLATHE: Yes, sir.

THE COURT: And then with regard to step 2, the objectives, you have

crossed out the third objective which I had asked you to do before

closing arguments. And then there's an X next to the second objective

which is to conceal the proceeds of the drug conspiracy. There's a

checkmark next to X.

So I just want to make sure that everybody's unanimous intent was to

find Javier Amaya guilty of money laundering because that's the only

charge he's charged with and to find that it was to conceal the proceeds

of the drug conspiracy. And just to be sure, because it's our screw-up on

the verdict form, we'll start in the back row again. Is that your intent?

JUROR SCHROEDER: Yes.

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JUROR LIEN: Yes.

JUROR KNAACK: Yes, sir.

JUROR TONNER-COLVERT: Yes.

JUROR MULDER: Yes, sir.

JUROR BARGE: Yes, sir.

JUROR MILLER: Yes.

THE COURT: Front row?

JUROR HOEKSTRA: Yes, sir.

JUROR SUHR: Yes, sir.

JUROR MOLGAARD: Yes, sir.

JUROR GAGNON: Yes.

JUROR PLATHE: Yes, sir.

. . .

(The jury exited the courtroom.)

Thus, it is abundantly clear that notwithstanding the minor ambiguity in the jury

instruction arising from the words "please mark your verdict" with no obvious place

to make a mark–but telling the jury to next move on to the "objectives" inquiry unless

it found Javier not guilty–all requirements ofRule 31 were more than adequately met.

Accordingly, even if one could give any measure of credence to the district

court's purported concerns about polling the jurors in open court instead of returning

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them for more deliberation, such concerns were more than belied by the jury polling

that occurred not just once, but twice. Indeed, impugning the credibility of the juror's

polling responses on this record constitutes unsupportable diminution of the jury

room independence, intellectual acuity and ethical integrity of this jury. Under the

circumstances presented in this case, United States v. Howard, establishes the

absolute propriety of polling the jury as a proper mechanism to clear up any

ambiguity in the finality of a jury verdict. 507 F.2d 559, 561 (8th Cir. 1974); accord

United States v. Poole, 545 F.3d 916, 918 (10th Cir. 2008). And, Howard does not

even remotely support the idea that polling a unanimous jury in open court may be

a coercive action.5

As a final act of inconsistency, the district court found sufficient evidence to

convict Javier of the conspiracy but seems to, in part, base its new trial ruling on a

latent observation that the evidence against Javier was "underwhelming." Of course,

even a cursory review of the trial record refutes this idea.

The court majority finds that the district court did not abuse "its discretion

5

when it determined that the errors affected Javier's substantial rights." Relying on

Brasfield v. United States, 272 U.S. 448 (1926), and Amos v United States, 496 F.2d

1269 (8th Cir. 1974), the court majority seems to indicate that the district court's

polling procedure may have coerced the jury. Brasfield is, of course, inapposite as

it involved a situation where the trial judge polled a deadlocked jury, a practice that

"is never useful and is generally harmful, [and] not to be sanctioned." 272 U.S. at

449. Here, however, we are not dealing with a deadlocked jury asthe jury foreperson

announced to the district court that the jury had reached a unanimous verdict, the

verdict form showed that the jurors had unanimously found Javier committed an

objective of the money laundering conspiracy, and subsequent polling revealed

unanimity. And, far fromcoercive conduct, in Amos, we actually sanctioned the trial

court's conduct of polling and engaging a single juror "to dispel any confusion" in the

verdict. 496 F.2d at 1273. In sum, Brasfield and Amos do not establish coercion in

this case and certainly do not establish that the procedure utilized affected Javier's

substantial rights.

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The de minimis nature of any substantive issue of lack of clarity in the jury

instructions as a whole, the strength of the evidence of Javier Amaya's guilt, the total

lack of any indication of the trial judge's ability to sway the jury's decision-making

capabilities by polling a wholly unanimous jury in open court, and the obvious

strength of the twice repeated jury polls makesjudicial abuse of discretion a palpable

reality in this case. I dissent.

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