United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2004 Decided March 11, 2005

No. 03-3141

UNITED STATES OF AMERICA,

APPELLEE

v.

JAMES H. YARBOROUGH,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(03cr00070-01)

Sandra G. Roland, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender. Neil H. Jaffee and Shawn

Moore, Assistant Federal Public Defenders, entered

appearances.

John P. Mannarino, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Kenneth L.

Wainstein, U.S. Attorney, and John R. Fisher and Roy W.

McLeese, III, Assistant U.S. Attorneys.

Before: EDWARDS, SENTELLE, and RANDOLPH, Circuit

Judges.
2

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: James Yarborough appeals his

conviction, after a jury trial, for illegally possessing a firearm as

a convicted felon. Yarborough argues that his conviction was

the product of coercion 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-deadlock charge.

On a winter night in January 2003, the police 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 his right hand. Yarborough spotted the officers and

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

Yarborough in sight until he ducked into a small courtyard.

When he emerged a minute later, 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 Yarborough. The grand

jury charged Yarborough with possession of a firearm and

ammunition 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 began on July 30, 2003. The

presentation of evidence took less than four hours and consisted

almost entirely of testimony from the two arresting officers.

About ninety minutes after 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 jurors in person that

transcripts could not be provided. Counsel for both sides
3

consented.

When the judge returned a short time 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 explanation “a little fuzzy.” The

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

questions 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

stating, “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 notified 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 question 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 that if they continued

to have a problem with the instruction 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 not
4

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

The judge brought the jury out, and inquired of the foreperson:

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

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 United

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 nonprofit organization devoted to

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

the jury reconvened, the judge opted for the latter, rejecting the

Thomas charge as “watered down” and “kind of useless.”

Defense counsel objected, requesting the Thomas charge

instead. The judge then delivered the following instruction,

reproduced in its entirety:

You’ve indicated to me that you’re having trouble reaching

a unanimous verdict. I think the record should reflect that

you have now been deliberating for a longer period of time

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

mindful of that.

My responsibility is to do whatever I can 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 you 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, how you are divided. And that’s exactly

appropriate, and I appreciate your maintaining that degree

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

want to know it until or unless you reach a unanimous

verdict.

I am not interested in forcing a decision here. What I am

interested in is offering to help you, if you think I can help

you, and when I say if I can 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 formally -- 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 the 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 about
6

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 help 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 delivered a note

requesting clarification of the law on possession and

constructive possession. 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 focus of Yarborough’s appeal is on the

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

ex parte conversation with the deliberating jurors, and the

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

regarding possible reasons for the deadlock. Yarborough’s trial

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

the standard of review. United States v. Lancaster, 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

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

conduct adversely affected the defendant.” Spann v. United

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

therefore provides an independent ground for reversal, but both

have some bearing on the anti-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 encourage
7

deadlocked jurors 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 judge into this exclusive

province of the jury is error of the first magnitude.” Thomas,

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 Allen charge, and the formerly

deadlocked jury returned a verdict of guilty, the defendant was

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

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

en banc, exercised its supervisory power and adopted the

standardized Allen charge now reprinted in the Criminal Jury

Instructions for the District of Columbia (the “Redbook”),

Instruction 2.91, Alternative “A” (4th ed.). Thomas, 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 1186. “When each judge

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

causes a ‘drain on appellate resources’ as the ‘inevitable

aberrations’ inevitably 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.” Berroa, 46

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

approved in Thomas is “presumptively coercive.” Id. at 1198.

The trial judge’s departure here was substantial, and

intentionally so. The government does not argue otherwise. It

defends the conviction on the ground that the instruction was

phrased as an offer of assistance to the jurors rather than an

exhortation for them to reexamine their views. As the
8

government sees it, the instruction therefore was not subject to

the strictures of Thomas. 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 “until 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 disagreement persisted, told them

to consider identifying for the judge “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.” 

The government also suggests that our decision in United

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 delivered the Council for

Court Excellence charge, received questions from the jury

relating to the evidence, and then permitted counsel to make

supplemental closing arguments in response to the jury’s

questions. 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. See COUNCIL FOR COURT EXCELLENCE, JURIES

FOR THE YEAR 2000 AND BEYOND: PROPOSALS TO IMPROVE THE

JURY SYSTEMS IN WASHINGTON, D.C. 70 & n.95 (1998); see

also ARIZ. R. CRIM. P. 22.4. The Arizona model expressly

contemplates an “invitation to dialogue” extending beyond
9

purely legal questions and elicits the 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.” ARIZ. R. CRIM. P. 22.4 cmt.

Such an approach oversteps the bounds of a federal court’s

proper role when presiding over a jury trial. The function of a

federal 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 counsel conceded at oral argument

that the Arizona procedure of interposing the trial judge in the

jury’s deliberative 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 facts after receiving the instruction.

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

between the judge and the foreperson indicated that the division

among the jurors did not stem from the instructions. That

suggests 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 not want his view of the evidence

exposed 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 question whose answer is

impermissible. It follows that the question itself is

impermissible.

Because coercive effects never can be proven with

certainty, the issue becomes whether the instruction had “a

substantial propensity for prying individual jurors from beliefs

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

preceded his “invitation 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 the
10

remark as a rebuke for engaging in excessively drawn out

deliberations. 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. See United States v. U.S.

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

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

We add to this the fact that the jury returned a verdict shortly

after receiving the Council for Court Excellence instruction,

which increases the likelihood of coercion. See Berroa, 46 F.3d

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

of the nonstandard 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. Ayeni,

374 F.3d at 1317.

In short, by departing from the instruction approved in

Thomas, the court acted in a presumptively coercive manner.

The government has not rebutted this presumption. See Spann,

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

conviction and remand for a new trial.

So ordered.