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 fourweek 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 selfincrimination. 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-inchief 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 2.5102and 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 “AntiDeadlock 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, followup 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 crossexamine 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.