NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0496n.06 No. 10-6262 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. MACA RDELL DOBB INS, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE MIDDLE DISTRICT OF TENNESS EE

Before: G IBBO NS, GRIF F IN and DONALD, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. Maca rdell Dobbins was char g ed with possession of coca ine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) and possession of a firea

rm by a felon in violation o f 1 8 U.S.C. §§ 922(g )(1) afte r Nashville police executed a sear ch war rant at his residenc e and discovere d coca ine base and a pistol. A jury convicted D obbins of the cocaine possession char g e but did not rea ch a unanimous verdic t as to the firea

rm char g e. Dobbins now appea ls the district court’s denial of his motion to quash and suppress the sear ch war rant and his motion for a mistrial and arg ues that his conviction must also be reve rsed beca use of the district court’s alleg edly err oneous respo n s e t o a question from the jury

. For the following rea sons, we aff irm Dobbins’s conviction. I. On October 3, 2008, Metropolitan Nashville Police Depa rtment (“MNPD” ) office rs went to 3007 Batavia Street, Apar tment 2, to conduct a controlled buy of narc otics with theassistance of a confide ntial informant. Detec tive Dale Be Craft and other MNPD o ff icer s followed the confide ntial informant to the Batavi a Street addre ss and watche d him enter Apartment 2, which was part of a triplex residential building. The office rs saw the

co n fidential informant emer g e a few minutes later with a substance that later field-tested positive for coc aine ba se. The next day , Be Craft obtained a sear ch war rant fo r Ap ar t ment 2 based on the controlled buy . MNPD office rs executed the w arr ant on Octobe r 6, 2008. After knocking

on the door and announcing themselves as police office rs, and having rec eived no response , the officers force d en t ry into the apartment. Be Craft procee ded to the bathroom wher e he

saw Dobbins standing in front of the toilet. Be Craft testified that the toilet bowl was filling back up with water and sever al i tems wer e floating in the toilet, including a plastic bag

co n t aining a substance that later field-teste d positive for coca ine base. Other offi ce rs encounte red Kimwanis Muse in one of the a partment’s be drooms, bedroom two. Dobbins and Muse we re r ead the ir Miranda rig hts, and the off icer s then sear ched the apar tment. On a dr esser

in bedroom two, an MNPD of fice r found a small box tha t c ontained a silver pistol, a plastic bag of coca ine, and ammunition. I n that bedroom, office rs also found digital scale s, another bag of coca ine, a knife, and a pair of jeans with a bag of coca ine in the pocket. On J anuar

y 21, 2009, a fede ral g rand jury returne d a two-count indictment char g ing Dobbins with being a felon in possession of a firea rm in violation of 18 U.S.C. §§ 922(g )(1) ,

an d u n l awf

ully possessing coca ine, in violation of 21 U.S.C. § 841(a) (1). Be fore trial , Dobbins moved t o quash the sea rch w arr ant and suppre ss evidence seized as a r esult of i ts

2execution, arg uing, inter alia , that the sear ch war rant did not particula

rly identify the place to be sear ched. The district court held a hear ing on the motion and denied it, ruling that the

sear ch wa rra nt identified the plac e to be se arc hed with suffic ient particula rity

. After the district court denied Dobbins’s motion, Dobbins’s counsel orally reque sted t h at t he court order the g overnme nt to disclose the identity of the confide ntial informa n t

. The court ag ree d and direc ted the g overnme nt to reve al the confide ntial informant’s identity to Dobbins’s counsel. The next day , an attorney fo r t h e go v ernme nt emailed Dobbins’s attorney : Her e is the re st of the info on the CI involved in this case. I spoke wit h the Detec tive and he inf

ormed me that he remembers the CI telling him that he boug ht narc otics from “Cat Ey es” w hich is Dobbins [ sic ] st ree t name. (R. 41-1.) Dobbins’s trial beg an on J une 8, 2010. The g overnme nt called Be Craft as i t s first witness. When Dobbins’s counsel cross-e x amined Be Craft, he asked him if the confide ntial informant had told Be Craft that Dobbins was the individual who s o l d him narc otics at t he Batavia S tree t addre ss. Be Craft testified that the i nformant had not told him that Dobbins had sold him narc otics. Dobbins’s counsel then asked Be Craft if the informant had “g ive[n] [hi m] any information with reg ard to a descr iption of any individual who was selling drug s out of 3007 Batavia[.] ” (R. 64, at 140.) Be Craft responde d in the aff irmative and testified that the informant g ave “[t] he descr iption of a black male with lots of tattoos and distinctiveco l o re d ey es. He g ave a nickname of Cat Ey es.” ( Id. at 141.) Dobbins’s counsel t h en attempted t o i m p ea ch Be Craft by asking him why the informant’s descr iption was not included in his police repor t. Be Craft testified that the descr iption was not in the repor t but

3was in his notes and handed the file jacke t on which his notes wer e taken to Dobbins’s

counsel. Be Craft testified that the notes on the file jacke t said that the informant identified the seller a s “Cat Ey e,” a

black male with tattoos. Dobbins’s counsel moved for a mistrial on the gro u nd that the g overnme nt had withheld the identification information and cause d Dobbins’s counsel to em b ar k o n a prejudicia l line of questioning. After hear ing arg ument on the motion, the trial court denied it but indi cate d that it would inst ruct the jury not to consider any

identification of Dobbins made by Be Craft. Howeve r, afte r the g overnme nt produc ed t h e email in which it had informed Dobbins’s counsel that the informant had told t h e detec tive he boug ht narc otics from “Cat Ey es,” the trial court deter mined that Dobbins was n o t en t i t l ed to a limit ing instruction beca

use his counsel had known about the identification of his client as the seller for a t least a month befor e trial. After closing arg ument, the trial cour t instructed the jury , in part, as f ollows: The de fenda

nt has bee n char g ed with more tha n one cr ime. The number of char g es is no evidenc e of g uilt and this should not influence y our decision in any way . I t is y our duty to separ ately consider the evidenc e that rela tes t o eac h char g e and to r eturn a separ ate ve rdict for

eac h one of the m. For eac h char g e y ou must decide whether the g overnme nt has prese nted proof bey ond a rea sonable doubt that the defe ndant is g uilty of that particula r char g e. Your decision on one char g e whether i t is g uilty or not g uilty should not influence y our dec ision on the other cha rg e. (R. 66, at 125.) After two hours of deliberat i o n s on J une 10, the t rial court rea ssembled t he jury in order to disc harg e it f

or the day and asked if the jurors had any questions. One juror asked

4the court, “What occur s if we don’t rea ch a 100 perc ent of us, all—” to which th e court

responde d, “I ’ll g ive y ou an instruction about that. I t results in a mistrial. I t’s called a

m i s t ri al

. And I ’ll g ive y ou a further instruction in the morning afte r y ou have deliber at ed for a littl e while.” (

Id. at 135.) Howeve r, the court did not instruct the jury on mistrial the next m orning

. During the s econd da

y of deliber ations, the jury sent the court two notes. The first asked if the defendant needed to kn o w that the gun was in the hous e. The court answe red the jury ’s question in open court by rea ding to it two instructions from pag e seven of the jury instructions. A few hours later, the jury sent a second note which rea d, “Can we mistrial one char g e & find a verdic t on the other? ” The trial court proposed responding “y es,” a response to which Dobbins’s counsel objected. Dobbins’s counsel reque sted that the trial court mere ly direc t the jury to prior instructions. The trial court responde d to the jury ’s quest i o n as follows: “As I instructed y ou previously y ou are to consider the two char g es separ ately

. The

answe r to y our question is ‘y es.’” (R. 58.) Soon there afte r, the ju ry rea ched a verdic t. The jury failed to rea ch a unanimous verdic t as to Count one, which char g ed Dobbins with being a felon in possession of a firea rm in violation of 18 U.S.C. §§ 922(g) (1) but re turned a unanimous g uilty

verdic t as to Count two, which char g ed him with u n l aw ful ly possessing coca ine in violation of 21 U.S.C. § 841(a) (1). II. Dobbins arg

ues that the district court err ed in denying his motion to quash the sear ch

war rant and suppress all fruits of the sear ch of the apar tment at 3007 Batavia Street.

5Dobbins claims that the sear ch war rant was void beca

use it did not descr ibe the place to be

sear ched with sufficie nt particula rity —rathe r, Dobbins arg ues, it authorized the sear ch of the entire triplex building when cause had only been shown to sear ch one unit of that building. We do not ag ree . We revie w de novo the district court’s deter mination that a sear ch war rant descr ibes the place to be sea

rche d with sufficient pa

rticularity

. United St ates v. King , 227 F.3d 732, 750 (6th Cir. 2000). As the Supreme Court expl ained in Maryland v. G arrison : The manifest purpose of this particula rity require ment was to preve nt g ener al sear ches. By l i m i t ing the authorization to sear ch to the specific are as and things for which there i s probable cause to sear ch, the require ment ensure s that the sear ch will be car efully tailored to its justifications, and will not take on the char acte r of the wide-r ang ing exploratory sear ches the Fr am er s intended to prohibit. 480 U.S. 79, 84 (1987). We employ “a two-par

t test for deter

mining wh et h er a descr iption in a war rant is sufficie nt to sati s fy t h e p articularity require ment: (1) whether the place to be sear ched is descr ibed with sufficie nt particula ri t y as to enable the executing office rs to locate and identify the premises with rea sonable eff ort; and (2) whether there is rea sonable probability that some other premises may be mistakenly sear ched.” King , 227 F.3d at 750. “A war rant descr ibing an entire building when cause is shown for sear ching only one apar tment is void.” United States v. Votteller , 544 F.2d 1355, 1363 ( 6th Cir. 1976). I n pertinent part, the sear ch war ra nt at issue in this case descr ibed the place to be

sear ched a s follows: The targ et structure is located at 3007 Batavia Street. The targ et structure is [ sic ] one story residential triplex

. The targ et structure is red brick with white trim. Fa cing the targ et structure from Batavia Street there are the numbers 63007 over the n u m b er 1 aff ix ed upon a door which fac es Batavia Street. Fa cing the t arg et s tructure from Batavia Street t h e targ et door is located on the left side of the targ et structure

. Fa cing this side of the targ et structure the targ et door is the door on the left. The targ et door is the second door from Batavia Street on this side of the targ et structure

. The targ et door is tan in color. The sear ch shall also include all outbuildings, outhouses and storag e buildings, all vehicles found ther eon, and all vehicles in close proxi mity which have a

nexus to the location or persons prese nt a t the location for the afor esaid e vidence

. . . . (R. 26-2.) Dobbins arg

ues that this lang uag e descr ibes the entire 3007 Batavia Street triplex when cause was only show n t o s ea rc h one unit of the building, the unit from which the confide ntial informant purc hased c ocaine

. I n Votteller , a case on which Dobbins relies heavily , the s ear ch warra nt authorized t h e sear ch of a multi-use, three story building which contained a bar on the first floo r an d residential apar

tments on the second and third floors. Votteller , 544 F.2d at 1362. T he Votteller war rant de scribed the premises to be se arc hed as f ollows: 57 Euclid Avenue , Kenton County , Kentucky

. A three -story red brick structure , the first floor of which contains the Starlight Ba r, 224 Elm Street, L udlow, Kentucky

. This structure also has an entra nce onto Euclid Avenue , known as 57 Euclid Avenue

. Wit hin this 3-story structure is located telephone number 581-8421. This structure is located on the northea st corne r of the interse ction of Elm Street and Euc lid Avenue, L udlow, Kentucky

. Id. We held that the war

rant was insufficiently particula r beca use it failed to state that only the S tarlig ht Ba

r wa s the subject of the sear ch wa rra nt; rather, it author ized a sear ch of the entire building, including residential units for which no probable cause had been shown. See id. at 1362–64. Unlike the sear ch war

rant at issue in Vott ell er , the war rant in this case does not descr ibe an entire building as the place to be sear ched. After g ener ally descr ibing the targ et 7structure as a “re sidential triplex ,” the war rant descr ibes the “tar g et door”—the door behind which the office rs wer e authorized to sear ch. The war rant notes that “[f]acing t h e t ar get structure from Batavia Street there are the numbers 3007 over the number 1 aff ix ed upon a door which fac es Batavia Street.” (R. 26-2.) We ca n re as o n ably infer that the number 1 ref err ed to unit 1 of 3 in the triplex

. The war rant then states, “F acing the targ et structure from Ba tavia Street the targ et door is located on the left side of the targ et structure

. . . . The targ et door is the second door from Batavia Street on this side of the targ et structure .” ( Id. ) These two sentenc es make clea r that the war

rant authori z ed the sear ch of only one unit in the triplex

. I n d es cr ibing the targ et door as “on the left side” of the structure and as “the second door,” the war

rant described the door next to unit 1— i.e. unit 2. That i s prec isely the place that was sear ched. Acc ording ly , the district court did not err in concluding that the

war rant descr ibed with sufficie nt particula rity the place to be sear ched: unit 2 of the triplex

. Dobbins’s construction of the lang uag e of the war rant is strained: He arg ues that by using the term “tar g et door,” the war rant did not limit the sear ch to the unit behind that door, but rathe r mere ly identified the focus of the i n v es tiga tion, while allowing a sear ch of the entire triplex

. Dobbins points to lang uag e in the war rant authorizing the sear ch of “all outbuildings, outhouses and storag e buildings” as ev i d ence that the war rant authorized a

sear ch of the entire triplex. This is an unpersua sive interpre tation of the war rant’s lang uag e. The other two units of the triplex wer e not outbuildings, outhouses, or storag e buil d ings—the y wer e other residential units. We reje ct Dobbins’s interpre tation of the war rant. Be cause the war

rant did not authorize a sear ch of the entire triplex or cre ate a rea sonable probability that office rs

8would sear ch the wrong unit of the triplex , the war rant was sufficie ntly particula r. See King , 227 F.3d a t 750. III. Dobbins n ex t arg ues that his rig ht to a fair trial was violated by the g overnme nt’s prejudicia l failure to disclose Be Craft’s roug h notes conce rning the confide ntial informant’s identification of Dobbins as the seller of the narc otics purcha sed during the controlled buy

. Dobbins points to two, independe nt bases requiring the g overnme nt to disclose Be Craft’s notes—the court’s oral order at the co n cl u s ion of the suppression hear ing on May 11 and Fe dera l Rule of Criminal Procedure 16(a) (1)( E). We reje ct Dobbins’s arg

ument that the g overnme nt failed to comply with the court’s oral order to disclose information re gar ding the confide ntial informant. Contrary to Dobbins’s claim, the court never direc ted the g overnme nt to disclose to Dobbins’s counsel all of its written rec ords rela ted to the confide ntial informant. The court’s oral order direc ted the g overnme nt to tell Dobbins’s counsel (1) the confide ntial informant’s ident ity and criminal re co rd , if any ; and (2) whether the confide ntial informant said he g ot drug s from Dobbins. The g overnme nt told Dobbins’s counsel prec isely what it was order ed t o t el l him—that the confide ntial informant told Be Craft that an individual whose street name was “Cat Ey es” sold him the drug s and that Dobbins went by that street name. The g overnme nt there fore complied with the district court’s or der. 1

Dobbins arg ues that the g overnme nt violate d the court’s or der by failing to tell Dobbins’s 1 counsel that the confide ntial informant descr ibed the man who sold him drug s as a black man with tattoos and distinctive ey es. Thoug h t h e g overnme nt could have rela y ed the descr iption the confide ntial informant g ave Be Craft more completely , the district court’s order did not direc t the g overnme nt to g ive such specific s. (R. 80, at 28–29.) Moreove r, the email descr iption of the seller 9Detec tive Be Craft’s notes also wer e not discovera ble under Fe dera l Rule of Criminal Procedur e 16. Rule 16(a) (1)( E) provides that, up o n defe ndant’s reque st, the g overnme nt must permit the d ef

en d an t t o inspect i tems such as documents i n its possession if: “(i) the item is materia l t o p reparing the defense; (ii) the gover nment intends to use t he it em i n its

case -in-chie f at trial; or (iii) the item was obtained from or belong s to the defe ndant.” Fe d. R. Crim. P. 16(a) (1)( E). Dobbins arg ues that Be Craft’s notes wer e materia l to prepa ring his defe nse. We revie w a district court’s ruling s under Rule 16 for an abuse of discretion. United States v. Jordan , 544 F.3d 656, 667 (6th Cir. 2008). I t is a defe ndan t ’s burden to make a prima facie showing of m ater iality in order to obtain disclosure of a document unde r Rule 16. United States v. Phillip , 948 F.2d 241, 250 ( 6th Cir. 1991). “Mate riality under Rule 16 has not been authoritatively define d in this C i rcuit.” United States v. Lykins , 428 F. App’x 621, 624 (6th Cir. 2011) ( per curiam ). Howeve r, we have rec ently stated “that information which does not counter the g overnme nt’ s ca s e o r bolster a defe nse is not materia l ‘mere ly beca use the g overnme nt may be able to use it to rebut a defe nse position.’” Id. (quoting United States v. S t ev en s , 985 F.2d 1175, 1180 (2d Cir. 1993)). “Rather , there must be an indication that pre -trial disclosure [of the contested document] would have enable d the defe ndant to ‘alter the quantum of proof in his favor ,’ not

mere ly that a defe ndant would have been dissuaded from proff ering easily impeacha

ble evidenc e.” Id. (quoting Steve ns , 985 F.2d at 1180); see also United States v. Caro , 597 F.3d

as “Cat Ey es” wa s s u fficient to put Dobbins’s counsel on notice that he might wish to seek clar ification reg arding the informant’s ident i fi ca t i on of Dobbins befor e attempting to impeach Be Craft. 10608, 621 (4th Cir. 2010) (“F o r t h e defe ndant to show materia lity under this rule, ‘[t] here

must be some indication that t h e p re t rial disclosure of the disputed evidenc e would have enable d the defe ndant signific antly to al t er the quantum of proof in his favor .’” (quoting United States v. Ross , 511 F.2d 757, 763 (5th Cir. 1975))) ; United States v. Jordan , 316 F.3d 1215, 1251 (11th Cir. 2003) (“The re must be some indication that the pretria l disclosure of the item would enable the defe ndant signific an t l y t o alt er the quantum of proof in his favor .”) (interna l quotation marks and alterations omitted); United States v. Olano , 62 F.3d 1180, 1203 (9th Cir. 1995) (to make a p r i ma facie showing of materia lity the “def endant must demonstrate t h at the object would have been helpful to his or her defe nse.”) ; United States v. Ross , 511 F.2d 757, 762–63 (5th Cir. 1975) (to be materia l, “[t] here must be some indication that

. . . disclosure of the disputed evidenc e would have enable d th e defe ndant signific antly to alter the quantum of proof in his favor ”); but see United States v. Marshall , 132 F.3d 63, 67–70 (D.C. Cir. 1998) (inculpatory evidenc e may be discovera ble under Rule 16(a) (1)( E)(i). “I n assessing materia lit y , we consider the logic al rela tionship betwee n the information withheld and the issues in the case , as well as the importance of the information in lig ht of the evidenc e as a whole.” Lykins , 428 F. App’x a t 624 (citing Steve ns , 985 F.2d at 1180). I n Lykins , we held that the g overnme nt did not violate Rule 16(a) (1)( E) by failing to disclose a photogr aph showing the defe ndant holding a firea rm beca use the photogr aph was not material to the prepar ation of defendant’ s defe nse i n a prosecution for being a felon in possession of a firea

rm. Id. at 622, 624–25. The disputed photogr aph, which was admitted i n t h e governme nt’s rebuttal case, showed the defendant holdi ng a rifle other than the on e

11he was convicted of possessing. Id. at 623. We he ld that the photogr aph was not materia l,

noting that the photogr aph showed the defe ndant holding a differ ent firea rm than the one he

was char g ed with possessing, and rea soning that it would not have aided him in ref uting the g overnme nt’s case ag ainst him. Id. at 624. W e acknowledg ed that “[t] he photogra ph was unfavor able to defe ndant beca use it contra dicted his testimony that he had not held or hunted with a g un,” but we he ld that “a Rule 16 violation cannot be sustained based merely on an arg ument that disclosure would have resulted in r econside ration of defe ndant’s decision to testify or for mulation of a more e ffe ctive def ense strateg y .” Id. at 624–25. Dobbi ns’s arg

ument that Be Craft’s roug h notes wer e discovera ble under R u l e 16(a) (1)( E) is not persua sive for two rea sons. First, under the majority view—the view we took in Lykins —Rule 16(a) (1)( E) compels the disclosure only of information which “alter [s] the quantum of proof in [the defendant’s] f a vo r . ” Lykins , 428 F. App’x at 624 (empha sis added) ; accord Caro , 597 F.3d at 621; Jordan , 316 F.3d a t 1 251; Olano , 62 F.3d at 1203; Steve ns , 985 F.2d at 1180; Ross , 511 F.2d at 762–63. Be Craft’ s t es t i m o n y that his notes ref lected the confide ntial informant’s descr iption of the seller as a man with distinctive ey es who went by the street name “Cat Ey es” w as cle arly not evidence that altere d the quantum of proof in Dobbins’s favor

. Rather, the notes tende d to support the g overnme nt’s case by showing that Dobbins was selling narc otics from the B atavia Stre et addr ess. Second, as we held in Lykins , “informa tion

. . . is not materia l ‘mere ly beca use t he g overnme nt may be able to use it to rebut a defe nse position.’” Id. (quoting S t ev ens , 985 F. 2 d at 1180). The fac t that Be Craft took notes ref lecting the confide ntial informant’s phy sical descr iption of t h e seller matching Dobbins’s descr iption undermined Dobbins’s

12attempt to impeach Be Craft. I ndeed, this is prec isely why Dobbins arg ues he was prejudice d

by the non-disclosure. Had he known about the not es, Dobbins’s counse l wo u l d not have elicited testimony

about the confide ntial inf ormant’s descr iption of the seller in a n attempt to impeach Be Craft. L ike the photogr aph at issue i n L yk i n s , the notes on Be Craft’s case folder wer e unfavor able to the defe nse, and the disclosure of the notes woul d l i k el y have resulted in “for

mulation of a more eff

ective defe nse strateg y .” Lykins , 428 F. App’x at 625. But in Lykins we held that this is not e noug h to rende r the undisclosed document materia l. Id. Acc ording ly , we conclude that there was no Rule 16 viola t i o n as a result of the g overnme nt’s failu re t o d isclose Be Craft’s notes, and the trial court did not err when it denied Dobbins’s motion for a mistrial. 2 IV. Dobbins next arg ues th at the trial court’s response to the jury ’s question, “Can we mistrial one char g e & find a verdic t on the oth er ? ” wa s incorre ct in substance and form. Dobbins arg ues that the portion of the court’s response that stated, “The answe r to y our question is ‘y es’” improperly indicated to the jury that it cou l d d ec l ar e itself hung , in contravention of Feder al R ule of Criminal Procedur e 31(b)(3) ’s dictate that only the court

can decla re a mistrial. Dobbins further arg ues that by including the word “y es” in its response , the court improperly and pre judicially influence d the jury ’s delibera tive proce ss, causing it to brea

k its deadloc k befor e it had finished deliberating. Dobbins claims that the

Be cause we find no Rule 16 viola t i o n , we need not rea ch Dobbins’s arg ument that the 2 g overnme nt’s email fa iled to cure the Rule 16 violation. 13district court’s answe r cause d the jury to rea ch an impermissible compromise verdic t,

requiring reve rsal of his convic tion. “The district court’s action s in responding to questions from the jury are revie wed for abuse of discretion.” United States v. Khalil , 279 F.3d 358, 367 (6th Cir. 2002) (interna l quotation marks omitted). There is “a high standard for reve rsal of a conviction on the g rounds of improper instructions.” Id. (interna l quotation marks omitted). We “may reve rse

a judgme nt only i f t h e i nstructions, viewed as a whole, wer e confusing , misleading and prejudicia l.” Id. (interna l quotation marks omitted). The court did not abuse its discretion when it answe red the jury ’s mistrial question. Nothing in the distri ct co u rt ’s answe r encour ag ed the jury to usurp the court’s power to decla re a mistrial. Reading the trial court’s initial instruction on separ ately considering the char g es ag ainst Dobbins, the jury ’s quest i o n , and the trial court’s response toge ther, it is ap p ar en t t h at the jury was neither confuse d nor misled by the trial court’s response . Th e jury ’s question counter

posed “mistrial[i ng ] one char g e” with “f i n d [ ing] a verdic t on the other.” T his sug g ests that the jury believed “mistrial[i ng ]” mere ly to be the opposite of “find[ing] a verdic t

. . . . ” I f we rea d the jury ’s question natura lly , we must conclude that it was asking if it could find and return a unanimous verdic t on one count, but not a nother. I n first responding , “[a]s I instructed y ou previously y o u ar e to consider the two char g es separ ately ,” the district court ref ere nced its ear lier instructions in which it corr ectly instructed the jury that “[i] t is y our duty to separ ately consider the evidenc e that rela tes to

eac h char g e and to r eturn a separ ate ve rdict for

eac h one of the m.” (R. 58; R. 66, at 125.) Only then di d the court respond that the a nswer to the jur

y ’s question was “ y es.” ( R. 58.)

14Reading the two parts of this response toge ther, it is clea r that the district court convey ed to the jury that it must consider Counts one and two sepa rate ly , but if it did so, and could not

rea ch a verdic t on one of the counts, it could return a verdict on the ot her count. Reversa l is a ppropriate “only if the instructions, viewed as a whole , wer e confusing , misleading and prejudicia l.” Khalil , 279 F.3d at 367 (empha sis added) (interna l quotation marks omitted.) The court’s answer here did not mislead t h e j u ry i n to believing it could declare a mi strial, rende ring reve rsal unwa

rra nted. Dobbins arg ues that by using the word “y es” the district court improperly encour ag ed the jury to rea ch a co mpromise verdic t. I t is true that a court’s last-minute, incorre ct instruction in response to a question from a “hopele ssly dea d l o ck ed ” jury may war rant

reve rs al if the instruction is akin to “a plain hint from the judge that a verdic t oug ht to be forthcoming .” Bollenbach v. United St ates , 326 U. S

. 6 0 7 , 611–13 (1946). Howeve r here, unlike in Bollenbach , there is simply no evidenc e in the rec ord that the jury was “hopele ssly deadloc ked.” Fur

ther, the trial court’s i n s t ruction did not hint to the jury that a verdic t should be forthcoming

—it rei t erated that the jury must consider the char g es separ ately

. Contrary to Dobbins’s arg ument, Bollenbach did not hold that any use of the word “y es” in response to a jury ’s question impermissibly encour ag es it to reac h a compr omise verdict. Dobbins also relies on United States v. Davidson , 367 F.2d 60, 62–63, 65 (6th Cir. 1966), in support o f his arg ument that the court encour ag ed the jury to rea ch an impermissible c ompromise verdic t. But the fac ts of Davidson are rea dily distinguishable. I n Davidson , the jury repor ted to the court that it had rea ched an “impasse,” and afte r further d eliberations, repor

ted that it was “conc lusively deadloc ked.” Id. After resumin g

15delibera tio n s the following wee k, the jury sent a note to the court asking if it could

rec ommend leniency in the event that it returne d a g uilty verdic t. Id. The court told the jury that sometimes juries rec ommended leniency , and “y ou may do it in this case ,” but also told it that the leniency recommendation would not be binding on the court. Id. About thirty minutes later, t h e jury returne d g uilty verdic ts ag ainst both defe ndants with

rec ommendations of leniency

. Id. at 63. I n Davidson , the circ umstan ce s s u rr o u nding the return of the g uilty verdic ts strong ly sug g ested that the jury had re ac h ed a compromise verdic t, or had otherwise been improperly influence d by the district court’s response to its question. Unlike in Davidson , here the jury never repor ted that it was deadloc ked—a situation that might g ive rise to a desire to rea ch a compromise verdic t. I n fac t, t h e j u ry never indicated that it was encounte ring any obstacles in its deliberations. I n reiter ating to the jury that it must consider eac h count separ ately , the trial court actua lly minimized the likelihood that the jury would rea ch a compromise verdic t. Dobbins’s arg ument that he was prejudice d by an impermissible compromise verdic t is too specula tive to war rant relief , espec ially g iven the defe rential abuse of discretion st andar d of review with which we revie w a trial court’s response s to questions from the jury

. 3 V. For the re asons stated he rein, we aff irm the judg ment of the district cour t.

Be cause we find no err or, we need not addre ss Dobbins’s arg ument that cumul ative error 3 rende red his trial funda

mentally unfair. 16