FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ROBERT B. SPROAT, 

Defendant-Appellant.

No. 22-10249 

D.C. No. 

4:18-cr-02220-

RM-EJM-3 

OPINION

Appeal from the United States District Court

for the District of Arizona

Rosemary Márquez, District Judge, Presiding

Argued and Submitted November 14, 2023

San Jose, California

Filed December 28, 2023

Before: Susan P. Graber, Richard A. Paez, and Michelle T. 

Friedland, Circuit Judges.

Opinion by Judge Graber
2 USA V. SPROAT

SUMMARY*

Criminal Law

The panel affirmed Robert Sproat’s securities fraud 

conviction in a case in which Sproat argued that the district 

court improperly coerced the jurors into reaching a 

unanimous guilty verdict by sending them home at 4:30 p.m. 

with the instruction to return the next day. 

The panel was not persuaded by Sproat’s argument that 

the instruction to return was the equivalent of an Allen

charge. The panel wrote that simply excusing the jurors for 

an evening recess did not equal an instruction to them to 

strive for a unanimous verdict. And even if the jury had been 

firmly deadlocked, instructing them to return the next day—

without more—would not have been the equivalent of an 

Allen charge. The panel noted that the late-afternoon 

instruction did not convey that the jurors were required to 

continue to deliberate the next day; the district court did not 

ask the jury to identify the nature of its impasse or the vote 

count before excusing the jurors for the evening; and any 

theoretical risk of coercion was cured by the partial Allen

instruction that the district court gave the following day, an 

instruction that Sproat endorsed. 

The panel rejected Sproat’s other arguments in a separate 

memorandum disposition. 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
USA V. SPROAT 3 

COUNSEL

Thomas S. Hartzell (argued), T.S. Hartzell Attorney at Law, 

Tucson, Arizona, for Defendant-Appellant. 

Terry Michael Crist, III, (argued), Assistant United States 

Attorney; Christina M. Cabanillas, Deputy Appellate Chief; 

Gary M. Restaino, United States Attorney, District of 

Arizona; United States Attorney’s Office, Tucson, Arizona; 

for Plaintiff-Appellee.

OPINION

GRABER, Circuit Judge: 

Defendant Robert Sproat engaged in a securities fraud 

scheme by promising his victims profitable, low-risk returns 

on dubious ventures that never materialized. A jury 

convicted him on ten counts of securities fraud. He appeals, 

and we affirm. In this opinion, we address and reject 

Defendant’s argument that the district court improperly 

coerced the jury into returning guilty verdicts.1 

FACTUAL AND PROCEDURAL HISTORY

A federal grand jury indicted Defendant and two codefendants, Robert Moss and Jeffrey McHatton, on ten 

counts of securities fraud, in violation of 15 U.S.C. §§ 78j(b) 

and 78ff, and 17 C.F.R. § 240.10b-5. Moss pleaded guilty, 

and Defendant and McHatton proceeded to a joint trial. 

1 In a separate memorandum disposition, we reject Defendant’s other 

arguments.
4 USA V. SPROAT

The superseding indictment alleged that all three 

defendants fraudulently promoted and sold securities in 

various ventures, including the recovery of hidden gold in 

the Philippines, the procurement of low-alpha lead in South 

and Central America, and the processing of a large diamond 

in Africa. Defendants allegedly promised investors 500% 

returns on some of the supposed ventures, even though the 

Fortitude Foundation, the Christian foundation that the 

defendants purported to represent, was in default and had

failed to fund an earlier promised joint venture. 

Trial began on June 24, 2022. The jury started its 

deliberations two-and-a-half weeks later, at about 2:00 p.m. 

on July 12, 2022. The next day, July 13, at 2:42 p.m., the 

jury sent the judge a note stating: “After reviewing the 

evidence and discussion, the jury is at an impasse. We need 

advice as to next steps.” The judge responded with a 

question: “Would coming back tomorrow help you?” The 

jury responded at 3:30 p.m.: “No, we don’t think breaking 

today and resuming tomorrow will change our impasse.” 

The parties then met with the judge, beginning at 4:18 

p.m. The government sought an Allen charge.2 Defendant 

and his co-defendant objected. The judge noted the late 

2 “The term ‘Allen charge’ is the generic name for a class of 

supplemental jury instructions given when jurors are apparently 

deadlocked . . . . In their mildest form, these instructions carry reminders 

of the importance of securing a verdict and ask jurors to reconsider 

potentially unreasonable positions. In their stronger forms, these charges 

have been referred to as ‘dynamite charges,’ because of their ability to 

‘blast’ a verdict out of a deadlocked jury.” United States v. Berger, 473 

F.3d 1080, 1089 (9th Cir. 2007) (citations and internal quotation marks 

omitted); see also Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir. 

1999) (“In the archetypal Allen charge context, the judge instructs a 

deadlocked jury to strive for a unanimous verdict.”). 
USA V. SPROAT 5

hour—“the problem is it’s 4:22 right now”—and decided to 

bring the jury into the courtroom. The judge then had the 

following exchange with the presiding juror, Juror 37:

THE COURT: . . . Juror 37, in your opinion, 

is the jury unable to agree on a verdict as to 

one or more counts?

JUROR 37: Yes.

THE COURT: And is there any reasonable 

possibility -- probability that the jury could 

reach a unanimous verdict on all counts if you 

were sent back to the jury room for further 

deliberation?

JUROR 37: At this time we have said that, 

no, not a unanimous verdict on all counts.

THE COURT: And would you be able -- do 

you believe that there is a reasonable poss- --

probability that you would be able to reach a 

unanimous verdict on all counts if you came 

back tomorrow and continued your 

deliberations?

JUROR 37: When we posed that to the 

group, the answer was no, from a minority of 

us, that no amount of deliberating would 

change a decision.

THE COURT: And is that -- as to all jurors, 

is there anyone that disagrees with the 

answers provided by your foreperson, Juror 

Number 37?

(Jurors shaking their heads.)
6 USA V. SPROAT

THE COURT: If I can see a show of hands, 

is there anyone that disagrees? Can I see a 

show of hands, does everyone agree with 

Juror 37? I see all hands. 

At a sidebar, the parties again disputed whether the court 

should give an Allen charge. The judge conferred again with 

the foreperson and told the jury: 

THE COURT: Juror 37, is there unanimous 

agreement as to some of the counts? 

JUROR 37: No.

THE COURT: Well, it is 4:30, I am going to 

let the parties -- I am going to excuse the 

jurors for evening recess, and I’ll see you 

tomorrow at 9:00 o’clock. I will see you 

tomorrow at 9:00 o’clock. Does 9:30 work? 

Jurors, does 9:30 work better for you? 

JUROR 37: I think 9:30 is less stressful on 

all of us. 

THE COURT: Yes, let’s do 9:30 then. We’ll 

see you tomorrow at 9:30. 

Thank you. 

(Jury out.) 

THE COURT: Thank you. I’ll see counsel 

tomorrow at 9:30. I think at 9:30 tomorrow, 

when they are here, I am more inclined to 
USA V. SPROAT 7 

give them the Allen charge and then send 

them back for further deliberation. 

Defendant’s lawyer raised a “strong protest and objection.” 

He explained: “It’s almost as though they would be here ad 

infinitum until they reach a decision. And it is coercive. 

And I just want the Court to register my strong, my strenuous 

objection.” 

The next morning, July 14, 2022, Juror 37 sent a note at 

9:35 a.m., stating: “We would like to continue to try to 

deliberate.” The judge proposed to counsel that she give a 

partial Allen charge, cautioning the jurors not to change an 

honest belief. The judge also explained why she had asked 

the jury to return: 

THE COURT: . . . [T]he reason I asked them 

to come back last night was because the 

length of the trial, you know, we’ve been in 

trial for two and a half weeks. We’ve had --

I don’t know how many witnesses. I think 

[the bailiff] was going to look it up. But 

we’ve had a number of witnesses and victims 

in this case, and a 10-count indictment, or 10 

counts for each defendant, on a complex case. 

And in looking at their responses, from Juror 

Number 37 yesterday, she emphasized that 

they would not be able to reach a verdict on 

all counts. So she hesitated on the “all.” And 

when I asked her about -- she emphasized the 

“all.” And when I asked her about the -- the 

second time, if they were able to reach --

when I asked her if they would be able to 

reach a verdict on any of the counts, there was 
8 USA V. SPROAT

hesitation there. So that’s why I asked them 

to come back.

But by asking them to come back, I don’t 

want to convey that I am forcing them to 

reach a verdict. So that’s why I think that [a 

partial Allen charge is warranted].

The government sought a full Allen charge. McHatton

asked for minor wording changes. For his part, Defendant’s 

lawyer had “no objection to the proposed language” and 

asked the court to “give the proposed instruction as quickly 

as possible.” But Defendant’s lawyer also reiterated his 

earlier objection: “[B]y bringing them back today, that was 

the functional equivalent of an Allen charge: Come on back 

and deliberate some more. I believe they already feel 

sufficiently coerced.”

The judge brought the jury back into the courtroom and 

instructed them:

THE COURT: . . . Thank you, ladies and 

gentlemen, for coming back. 

I did receive your note indicating that you 

would like to continue to deliberate, but I just 

want to make sure you understand that by 

asking to you [sic] return today, I do not want 

to convey that you must deliberate until you 

reach a unanimous verdict. You should not 

change an honest belief as to the weight or 

effect of the evidence solely because of the 

opinions of your fellow jurors or for the mere 

purpose of returning a verdict. If at any time 

today you feel you would not be able to reach 
USA V. SPROAT 9 

a unanimous verdict, please let [the bailiff] 

know and you will be excused. 

But thank you for agreeing to continue with 

your deliberations, and you are excused. You 

may go follow [the bailiff] and continue with 

your deliberations. 

The jury deliberated for the remainder of that day and 

into the next day, July 15, 2022. That afternoon, the jury 

convicted Defendant and McHatton on all counts. The 

district court sentenced Defendant to 30 months’ 

imprisonment, to be followed by three years of supervised 

release. Defendant timely appeals.

DISCUSSION

“Any criminal defendant . . . being tried by a jury is 

entitled to the uncoerced verdict of that body.” Lowenfield 

v. Phelps, 484 U.S. 231, 241 (1988). “[A]n instruction is 

unconstitutionally coercive if it denies a defendant the due 

process right to a trial by a fair and impartial jury.” 

DeWeaver v. Runnels, 556 F.3d 995, 1007 (9th Cir. 2009). 

We review de novo whether a judge has improperly coerced 

a jury’s verdict, a mixed question of law and fact. United 

States v. Berger, 473 F.3d 1080, 1089 (9th Cir. 2007). In 

determining whether the jury was improperly coerced, we 

must “consider the supplemental charge given by the trial 

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

Lowenfield, 484 U.S. at 237 (quoting Jenkins v. United 

States, 380 U.S. 445, 446 (1965) (per curiam)); see also

Berger, 473 F.3d at 1090 (holding that we review the 

“totality of the circumstances” and that no single factor is 

“talismanic” (citations and internal quotation marks 

omitted)). 
10 USA V. SPROAT

Defendant argues that the court improperly coerced the 

jurors into reaching a unanimous guilty verdict by sending 

them home at 4:30 p.m. on July 13, 2022, with the 

instruction to return the next day. We disagree. 

Ordinarily, it is not unconstitutionally coercive merely to 

instruct a jury that has informed the court of an impasse to 

return the next day. And we are not persuaded by 

Defendant’s argument that the instruction to return was the 

equivalent of an Allen charge. To be sure, the court was 

considering an Allen charge. But simply excusing the jurors 

for an evening recess did not equal an instruction to them to 

strive for a unanimous verdict. Although Defendant argues 

that the command to return amounted to an Allen charge 

because the jury was hopelessly deadlocked, the record gives 

us reason to question that premise. The judge perceived that 

Juror 37 hesitated when saying that the jury would not be 

able to reach a verdict.

But even if the jury had been firmly deadlocked, 

instructing them to return the next day—without more—

would not have been the equivalent of an Allen charge. 

When a defendant “offer[s] facts that fairly support an 

inference that jurors who did not agree with the majority felt 

pressure from the court to give up their conscientiously held 

beliefs in order to secure a verdict,” the court “must proceed 

to the Allen charge analysis.” Weaver v. Thompson, 197 

F.3d 359, 365 (9th Cir. 1999). Defendant has not offered 

such facts here. Telling the jurors to return the next day 

neither explicitly nor implicitly encouraged them to reach a 

unanimous verdict. See Jiminez v. Myers, 40 F.3d 976, 980–

81 (9th Cir. 1993) (per curiam) (concluding that, because the 

district court “effectively instructed the jurors to make every 

effort to reach a unanimous verdict,” the “comments and 

conduct amounted to giving the jury a de facto Allen
USA V. SPROAT 11

charge”). Nor did the jury’s note to the court, the 

foreperson’s comments, or the court’s responses identify or 

in any way target jurors with minority views. The record, 

therefore, does not support treating the court’s instruction as 

an Allen charge. 

Even if an instruction to return could be coercive in 

certain circumstances, it was not coercive here. First, the 

late-afternoon instruction did not convey that the jurors were 

required to continue deliberating the next day; the next day, 

the court might have decided to excuse the jury after 

concluding that no further deliberation was called for. 

Crucially, the jury understood the judge’s instruction to be 

nothing more than a recess for the day. When the jury 

returned the next morning, it sent a note stating: “We would 

like to continue to try to deliberate.” Had the jurors 

understood the judge’s instruction the previous afternoon to 

require them to continue deliberating, the jurors would not 

have asked to continue to deliberate. 

Second, the court did not ask the jury to identify the 

nature of its impasse or the vote count before excusing the 

jurors for the evening. In other jury coercion cases, we have 

considered whether the district court “asked the jury to 

identify areas or issues of disagreement.” United States v. 

Della Porta, 653 F.3d 1043, 1050 (9th Cir. 2011); see, e.g., 

id. at 1050–51 (holding that there was no jury coercion 

where no Allen charge was given and where the “district 

court did not extract from the jury information about its factfinding process” and “never asked the jury to reveal the 

nature of its deadlock in the first instance” before ordering 

supplemental arguments). Rather, the judge’s inquiries here 

were limited to establishing that the jury was at an impasse 

and clarifying that there was no unanimity as to any counts. 

After bringing the jury back into the courtroom, the judge 
12 USA V. SPROAT

first inquired if, in the foreperson’s opinion, the jury was 

unable to agree on a verdict as to any counts. The judge then 

asked for a show of hands from the other jurors to ascertain 

that the other jurors agreed with the foreperson that further 

deliberation would not change the impasse. Finally, the 

judge confirmed with the foreperson that there was not 

unanimous agreement as to any counts. At no point during 

those exchanges with the jurors did the court ask the jury to 

reveal vote counts, “areas of disagreement,” or “specific 

factual matters on which it disagreed.” Id. at 1050. 

Finally, any theoretical risk of coercion was cured by the 

partial Allen instruction that the court gave the following 

day, an instruction that Defendant endorsed. The judge 

said: “I just want to make sure you understand that by 

asking [you to] return today, I do not want to convey that 

you must deliberate until you reach a unanimous verdict. 

You should not change an honest belief as to the weight or 

effect of the evidence solely because of the opinions of your 

fellow jurors or for the mere purpose of returning a verdict. 

If at any time today you feel you would not be able to reach 

a unanimous verdict, please let [the bailiff] know and you 

will be excused.” The court thus emphasized the possibility 

that the jurors would not reach a unanimous verdict, the 

command that the jurors should not change an honest belief, 

and the assurance that the jurors could be excused at any time 

if they concluded that they could not overcome their earlier 

impasse. Thus, the court’s instruction the next day

ameliorated any coercive effect that might have resulted 

from sending the jurors home and instructing them to return. 

See Berger, 473 F.3d at 1090 (“[T]he ameliorative 

instruction cured any coerciveness that may have resulted 

from the judge’s informal comments to the jurors.”). 

AFFIRMED.