# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2004 Decided March 11, 2005

No. 03-3141

U NITED S TATES OF A MERICA

, A PPELLEE

v.

J AMES H. Y

ARBOROUGH

, A PPELLANT

Appeal from the United States District Court

for the District of Columbia

(03cr00070-01)

S andra G. Roland

, Assistant Federal Public Defen der,

a rgued the cause for appellant. With her on the briefs was A

. J.

K ramer

, Federal Public Defender. N eil H. Jaffee and Shawn

Moore , Assistant Federal Public Defenders, entered

appearances.

John P. Mannarino

, A ssistant U.S. Attorney, argued the

cause for appellee. With him on the brief were K enneth L.

Wainstein

, U.S. Attorney, and John R. Fi sher and R oy W.

McLeese, III

, Assistant U.S. Attorneys.

B efore: E

DWARDS

, S ENTELLE

, and R ANDOLPH

, Circuit

Judges

.2

Opinion for the Court filed by Circuit Judge R ANDOLPH

.

R ANDOLPH

, Circuit Judge :

James Yarborough appeals his

convictio n, after a jury trial, for illegally possessing a firearm as

a convicted felon. Yarborough argues that his conviction was

the product of c oercion resulting both from the district judge’s

ex parte and allegedly intrusive interchanges with the jury, and

from the judge’s delivery of a nonstandard anti-deadl ock charge.

On a winter night in January 2003, the pol ice received a

report about gunshots coming from a fenced field adjacent to a

junior high school. Two uniformed officers drove their squad

car to the scene. When they arrived they saw a man, later

identified as Yarborough, standing in the field, holding a chrome

pistol in hi

s right hand. Yarborough spotted the officers and

bolted. As they gave chase, at least one of the officers kept

Yarborough in sight unt il he ducked into a small courtyard.

When he emerged a minute late r

, unarmed, the police arrested

him. A later search of the courtyard uncovered a chrome pistol.

Forensic analysis matched the pistol to a shell casing found in

the field where the police first spotted Yarboro ugh. The grand

jury charged Yarborough with possession of a firearm and

a mmunition by a person who had been convicted of a crime

punishable by imprisonment for one year or more. 18 U.S.C.

§ 922(g)(1).

Yarborough’s trial beg a n on July 30, 2003. The

presentation of evidence took less th an four hours and consisted

almost entirely of testimony from the two arresting officers.

About ninety minutes afte r deliberations began, the jurors sent

out a note requesting transcripts of the officers’ testimony. The

judge suggested to counsel that rather than bringing the jury

back into the courtroom, it might be more expedient for him to

go to the jury room and inform the j urors in person that

transcripts could not be provided. Counsel for both sides3

consented.

When the judge returned a short t ime later, he informed

counsel on the record that the jurors had asked him two

additional questions. One juror wanted to know what would

happen if they were unable to decide on a verdict, to which the

judge replied:

“I’m not going to respond to that. I don’t even

want to think about that. I want you to deliberate with a view

toward reaching a

verdict.” Another juror wanted clarification

of the instructions regarding the legal definition of possession

because she found the original expl anation “a little fuzzy.” The

j udge replied, “I can report to counsel that you have some

questio ns about the possession instruction, but I am not going to

elaborate on it

without consulting with them.” When another

juror began to say something, the judge walked out the door,

telling the jurors “you are now deliberating.” Neither the

defense nor the prosecution objected when the judge told them

of these exchanges. Later that day, the jury sent another note

s tating, “We are stuck. We would like to continue tomorrow

morning.” It is not clear whether the judge informed counsel of

this note. Deliberations then adjourned until the next day.

On the morning of July 31, the judge notifi ed counsel for

the government and the defense of another exchange he had with

the jurors. The judge explained that when he went to the jurors’

room to release them for the day, the foreperson asked the judge

if he would “answer the questi on I asked about possession.”

The judge replied

that he was not sure, that he would have to

consult with the attorneys, that the jurors should read the official

instruction and continue to deliberate, and th at if they continued

to have a problem with the i nstruction they should make this

known in a note.

After further deliberations on the morning of July 31, the

jury sent out a new note:

“We are at a standstill. We have not4

been able to make any new progress. What do we do next?”

The judge brou

ght the jury out, and inquired of the foreperson:

“[I]s a reason why you are not able to make any new p rogress

continuing confusion or disagreement about the instructions?”

The foreperson answered “No.” The judge again asked, “You

think you got the instructions down; is that correct?” The

foreperson replied, “Yes.” The judge then released the jury for

lunch, informing them that he would instruct them further upon

their return.

After the jurors departed, the court told counsel that he

intended to deliver either an “ Allen ” ( Allen v. United States

, 164

U.S. 492 (1896)) anti-deadlock charge, as refined by U nited

States v. Thomas

, 449 F.2d 1177, 1187 (D.C. Cir. 1971) (en

banc), or a different formulation recommended by the Council

for Court Excellence, a nonp rofit organization devoted to

promoting judicial reform in the Washington, D.C. area. When

the jury reconvened, th

e judge opted for the latter, rejecting the

Thomas charg

e as “watered down” and “kind of useless.”

Defense counsel objected, requ esting the T

homas charge

instead. The judge then delivered the following instruction,

reproduced in its entirety:

You’ve indicated to me that you’re having troubl e reaching

a unani mous verdict. I think the record should reflect that

you have now been deliberating for a longer period of t i me

than it took you to hear the evidence in the case. I’m very

mindful of that.

My responsibility is to do whatever I ca n to assist you in the

work you’re doing, but I have another very important

responsibility, and that is not to coerce, pressure, push, or

lean on yo u in any way at all. You are the only judges of

the facts, and you will remain the only judges of the facts.5

You have very carefully not mentioned to me or to anyone,

as far as I know, ho w you are divided. And that’s exactly

appropriate, and I appreciate your mai ntaining that degree

of secrecy. I have no idea how you’re divided. I don’t

want to k now it until or unless you reach a unanimous

verdict.

I am not interested in forcing a decision h ere. What I am

interested in is offering to help you, if you think I c an help

you, and when I say if I c a n help you, I may enlist the

assistance of the lawyers here.

What I’m proposing is that it may be helpful for you in the

privacy of the jury room

-- and we have to do this very

privately and f

ormally -- to -- if you haven’t already done

this, to carefully identify where you agree and where you

disagree, and then discuss how the law and th e evidence

affect those issues; and then if you still have agreement

--

if you still have disagreement , what might be useful is for

you to identify for me any questions you have about the

evidence or the instructions for which you would like to

have assistance from the Court or from the lawyers.

If you choose this option -- and I do not insist that you do

-- but if you choose this option, then write down as clearly

and simply as you can where some further assistance might

help you in reaching a verdict.

I’m repeating myself much too much , but I have to make

very, very clear that I have no wish or intention to force a

verdict from you, and neither do I

-- neither am I asking you

to stay in that jury room forever.

If you consider what I have to say and quickly conclude that

this is not going to be of any help, then write a note about6

that, and tell me that it’s not going to be of any help.

But if you think it will be of help, then tell me as soon as

you care to whether and how the Court can he lp you to

reach a unanimous verdict.

And with that, I’m going to ask you to go back and consider

what I’ve just said. And thank you very much.

The jury resumed deliberations and soon de livered a note

requesting clarification of the law o n possession and

constructive posses sion. After consulting both attorneys, and

hearing no objection from either, the judge responded to these

queries. Less than an hour later, the jury returned a verdict of

guilty.

Although the focu

s of Yarborough’s appeal is on the

Council for Court Excellence charge, he also faults the judge’s

e x parte conversation with the deliberating jurors, and the

judge’s questioning of the jury foreperson, in open court,

regarding possible reasons for the d e adlock. Yarborough’s trial

attorney did not object to either incident. Plain error is therefore

the standard of review. United States v. Lancas ter , 968 F.2d

1250, 1254 (D.C. Cir. 1992). While the judge’s conduct may

have been irregular and otherwise fraught with the potential for

jury coercion, the record discloses no indication that coercion

actua lly resulted, much less a “high probability that the judge’s

conduct adversely affected the defendant.” S pan n v. United

States , 997 F.2d 1513, 1518 (D.C. Cir. 1993). Neither incident

therefore provides an ind ependent ground for reversal, but both

have some bearing on the ant i-deadlock instruction, to which

defense counsel did object.

In deciding Allen more than a century ago, the Supreme

Court recognized the authority of trial judges to encourage7

deadlocked juror s to reexamine their positions and engage in

further deliberation. The exercise of this judicial prerogative is

limited by the principle that a “criminal defendant being tried by

a jury is entitled to the uncoerced verdict of that body.”

Lowenfeld v. Phelps

, 484 U.S. 231, 241 (1988). Accordingly,

“[a]ny undue intrusion by the trial judg e into this exclusive

province of the jury is error of the first magnitude.” T

homas

, 449 F.2d at 1181. This tension became the subject of countless

criminal appeals. Nearly every time a trial judge gave one

version or another of an A llen charge, and the forme rly

deadlocked jury returned a verdict of guilty, the def endant was

able to mount at least a colorable claim of coercion. More than

three decades ago, in an ef fort to stem this tide, this court, sitting

en b anc , exercised its supervisory power and adopted the

standardized Allen charge now repr inted in the Criminal Jury

Instructions for

the District of Columbia (the “Redbook”),

Instruction 2.91, Alternative “A” (4th ed.). T homas

, 449 F.2d at

1187. The goal was to put an end to the “uncertainties of

gauging various Allen -type renditions in terms of the

coerciveness of their impact.” Id. at 118 6. “When each judge

freely devises his or her own variat ions on the same theme, this

causes a ‘d rain on appellate resources’ as the ‘inevitable

aberrations’ in

evitably precipitate more and more appeals.”

United States v. Berroa

, 46 F.3d 1195, 1198 (D.C. Cir. 1995)

(quoting Thomas , 449 F.2d at 1184, 1185).

In the years since Thomas

, we consistently have “refused to

crack open the Pandora’s box Thomas nailed shut.” B erroa

, 46

F.3d at 1197. Any substantial departure from the language

approved in Thomas is “presumptively coercive.” I d. at 1198.

The trial judge’s departure here w as substantial, and

intentionally so. The government does not argue otherwise. It

defends the conviction on the ground that the ins truction was

p hrased as an offer of assistance to the jurors rath er than an

exhortation for them to reexamine th eir views. As the8

government sees it, the instruction therefore was not subject to

the strictures of Thoma s . We decline the government’s

invitation to elevate form over function. The judge delivered the

charge as a last-ditch effort to break the jury’s deadlock, and as

a direct substitute for the standard instruction Thomas required.

The instruction acknowledged the jurors’ disagreement; stated

that the judge did not know how they were divided and did not

want to know “un

t il or unless you reach a unanimous verdict”;

told the jurors to “identify where you agree and where you

disagree, and then discuss how the law and the evidence affects

those issues”; and then, if the dis agreement persisted, told them

to consider identifying for t he judge “any questions you have

about the evidence or the i nstructions for which you would like

to have assistance from the Court or from the lawyers.”

The government also suggests that our de cision in U nited

States v. Ayeni

, 374 F. 3d 1313 (D.C. Cir. 2004), implicitly

endorsed the charge at issue here. In that case, we reversed a

conviction that resulted after the court d elivered the Council for

Court Excellence charge, received questions f rom the jury

relating to the evidence , and then permitted counsel to make

supplemental closing arguments in respo nse to the jury’s

q uestions. The charge itself was not a ground for appeal in

Ayeni

, and we did not consider its legitimacy. Today we do, and

we reject it as an acceptable model for use in this circuit.

The Council for Court Excellence charge openly invites an

intrusion into the basic functions of the jury and does so in a

manner that is rife with the potential for coercion. The charge

is copied from one in Arizona, adopted in 1995 for use in the

state’s courts. S e e C OUNCIL FOR C OURT E XCELLENCE

, J URIES

FOR THE Y

EAR 2000 AND B EYOND : P ROPOSALS TO I MPROVE THE

J URY S YSTEMS IN W ASHINGTON

, D.C. 70 & n.95 (1998); see

also A RIZ

. R. C RIM

. P. 22.4. The Arizona model expressly

contemplates an “invitation to dialo g ue” extending beyond9

purely legal questions and elicits th e jury’s factual and

evidentiary concerns, in response to which a court may “direct[]

the attorneys to make additional closing argument [or] reopen[]

the evidence for limited purposes.” A R IZ

. R

. C RIM

. P. 22.4 cmt.

Such an approach oversteps the bounds of a fed eral court’s

proper role when

presiding over a jury trial. The function of a

fed eral trial judge is to be an arbiter of law, not a trier of fact.

The importance of this distinction has been recognized

throughout the federal judiciary, see Ayeni

, 374 F.3d at 1320-21

(Tatel, J., concurring) (enumerating holdings of multiple

circuits), and government coun sel conceded at oral argument

that the Arizona procedure of interposing the trial judge in the

jury’s deliberati

ve process is inconsistent with the law of this

circuit, see also id. at 1316-17. The government responds that

in this case, the jury did not ask any factual questions and did

not disclose its views of the fa cts after receiving the instruction.

No one but the jurors knows why. The pre-lunch exchange

between the judge and the foreperson indicate d that the division

among the juro rs did not stem from the instructions. That

s uggests that the hangup was over the evidence. One possible

explanation for the jury’s failure to take up the judge’s invitation

is that a holdout juror did no t want his view of the evidence

e xposed in open court. All we can be sure of is that when a

court invites jurors to “identify for me any questions you have

about the evidence,” it is asking a qu estion whose answer is

impermissible. It follows that the question itself is

impermissible.

Because coercive effe cts never can be proven with

certainty, the issue becom es whether the instruction had “a

substantial propensity for p rying individual jurors from beliefs

they honestly have.” Thomas, 449 F.2d at 1182. Here, the judge

preceded his “inv

itation to dialogue” with his observation that

the jury had been deliberating for a longer period of time than it

had taken to hear the evidence. The jurors could have taken the10

remark as a rebuke for engaging in excessive ly drawn out

deliber ations. In addition, the judge had entered the jury room

on two separate occasions without counsel or a court reporter

present, and those visits formed the basis for the judge’s belief

regarding the jury’s confusion. S ee United St ates v. U.S.

Gypsum Co. , 438 U.S. 422, 462 (1978) (recognizing the

“hazards of ex parte communication with a deliberat ing jury”).

W e add to this the fact that the jury returned a verd ict shortly

after receiving the Council for Cou rt Excellence instruction,

which increases the likeli

hood of coercion. S ee Berroa

, 46 F.3d

at 1198. On balance, the events surrounding the court’s delivery

of the no nstandard instruction suggest a substantial propensity

for coercive effect. Because there is “no way to know” what

transpired in the jury room following the charge, the government

cannot meet its burden

of proving the error harmless. A yeni

, 374 F.3d at 1317.

In short, by departing from the instruction approved in

T h omas

, the court acted in a presumptively coercive manner.

The government has not rebutted this presumption. S ee Spann

, 997 F.2d at 1516. We therefore reverse Yarborough’s

conviction and remand for a new trial.

So ordered.