DULCE HERNANDEZ-GARCIA, PETITIONER V. UNITED STATES OF AMERICA No. 89-7859 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-12) is reported at 901 F.2d 875. JURISDICTION The judgment of the court of appeals was entered on April 23, 1990. The petition for a writ of certiorari was filed on June 18, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether, in polling the jury, the district court coerced a juror into agreeing to a guilty verdict. 2. Whether the district court's Allen charge constituted plain error. STATEMENT After a jury trial in the United States District Court for the District of New Mexico, petitioner was convicted on three counts of transporting illegal aliens, in violation of 8 U.S.C. 1324(a)(1)(B). The district court sentenced petitioner to three years' probation, three months of which was to be served in a halfway house. The court of appeals affirmed. 1. At 10:45 p.m. on August 5, 1988, a car driven by petitioner, a resident alien, was stopped by agents of the United States Border Patrol on Interstate 25 approximately 20 miles south of Truth or Consequences, New Mexico. The four passengers in the car had entered the United States illegally. Petitioner had picked up three of the passengers in Mexico, driven them to the border with the United States, provided them with documents purporting to explain their presence in the United States, and drove them away from the border after they had crossed illegally. Gov't C.A. Br. 3-6. 2. At petitioner's trial, after the jury had deliberated for approximately six hours, the jury informed the district court by a written note that agreement on a verdict was unlikely. The court consulted with counsel and, without objection, gave the jury an Allen charge, App. 3-4, 11. See Allen v. United States, 164 U.S. 492 (1896). /1/ The jury then resumed its deliberations. One-and-one-half hours later, it returned guilty verdicts on all three counts of the indictment. When polled, the first six jurors indicated their agreement with the verdicts. The seventh juror, Jamie Lucero, however, said that he agreed with the verdict with "qualifications." Pet. App. 12. The district court and Lucero then engaged in a colloquy, during which the court sought to determine whether Lucero in fact agreed with the verdict, or dissented from it. After asking Lucero a few questions and consulting with counsel, the district court again addressed Lucero. The court told Lucero that the court did not wish to embarrass Lucero, but needed to learn where he stood on the verdict. The court told Lucero, "If you can, sir, I must ask you to state either yes or no as to whether this is your verdict," ibid., whereupon Lucero indicated his agreement with the verdict by stating, "Yes." Ibid. /2/ 3. The court of appeals affirmed. Pet. App. 1-12. Petitioner contended that the district court's handling of the poll of juror Lucero coerced Lucero into voting "guilty." The court of appeals rejected that argument, holding that the trial court properly sought clarification of Lucero's response when he expressed uncertainty about his verdict. The district court's limited inquiry, the court of appeals concluded, did not coerce Lucero into agreeing with the verdicts of the other jurors. Id. at 10. Although petitioner had not objected in the district court to the court's Allen charge, petitioner challenged that instruction on appeal. He argued that the statement in that charge that if the jury should not agree on a verdict, "the case is left open and must be tried again," Pet. App. 11, was coercive. The court of appeals, while observing that use of "may" rather than "must" in this context was preferable, nonetheless found that the trial court's use of the term "must" was not reversible error, and was clearly not plain error. Id. at 5-6. ARGUMENT 1. Petitioner argues that the district court coerced juror Lucero into voting guilty. Pet. 12-24. That fact-bound claim lacks merit. The practice of polling the jury to determine whether each juror agrees with the jury's verdict is commonly done in federal criminal cases. A district court also has discretion to repoll a jury if a juror expresses uncertainty about his verdict. United States v. Morris, 612 F.2d 483, 489 (10th Cir. 1979). Indeed, "(i)n any case upon the appearance of any uncertainty or contingency in a jury's verdict it is the duty of the trial judge to resolve that doubt, for there is no verdict as long as there is any uncertainty or contingency to the finality of the jury's determination." Ibid. (internal punctuation and citation omitted). That practice is not inherently coercive. As Judge Levanthal once wrote, "(t)here is a distinction in law and fact between actions of the trial judge to obtain clarity in place of confusion, and actions that produce a likelihood that a juror has been coerced." Williams v. United States, 419 F.2d 740, 746 (D.C. Cir. 1969) (en banc). Evidence during a jury poll of a juror's uncertainty "does not require setting the trial at naught," since further inquiry "can serve to clear up apparent confusion" on the juror's part. Ibid. See also United States v. Tapanes, 685 F.2d 1291 (11th Cir. 1982); United States v. Duke, 527 F.2d 386, 394 (5th Cir. 1976); United States v. Brooks, 420 F.2d 1350, 1353 (D.C. Cir. 1969); Cook v. United States, 379 F.2d 966, 970-971 (5th Cir. 1967). See Scruggs v. Williams, 903 F.2d 1430, 1434-1435 (11th Cir. 1990). In this case, as the court of appeals correctly ruled, the district court properly attempted to clarify the uncertainty caused by juror Lucero's initial response to the jury poll -- "Ah, qualifications, yes, sir." Pet. App. 12. The trial court's second inquiry produced the response, "Ah, I'll go along with the jury." Ibid. In response to a third inquiry from the court, Lucero responded, "Just that I went along with the experience and conviction of the majority. I trust in what they believe." Ibid. The court said that it must ask the juror "directly again" whether the guilty verdicts were "in fact" his verdicts, ibid., and Lucero responded, "Ahm, with the jury." Ibid. The court then conferred with counsel at side bar. See Pet. 9-10. It rejected the suggestion of defense counsel that Lucero be questioned in chambers, but said that "the response has not been as clear as I feel it should be and I think I will ask him one more time, if he can, to tell us yes or no, whether this is or is not his verdict." Pet. 10. Defense counsel asked the court to qualify the question with the phrase "if you are able to." Ibid. The court said: "Let me see if I can handle it." Ibid. After assuring juror Lucero that his questioning was not intended to embarrass the juror, the court asked: "If you can, sir, I must ask you to state either yes or no as to whether or not this is your verdict," to which Lucero answered, "Yes." Pet. App. 12. On this record, the court of appeals correctly found that the district court "did not mishandle the polling of juror Lucero." Pet. App. 9. Lucero's qualified answers to the court's inquiries clearly invited further exploration. After the fourth qualified answer, the trial court prudently consulted counsel and accepted defense counsel's suggestion that the court should inform Lucero that he should give an unequivocal answer to the court's inquiry only if he could do so. In the event, the court assured the juror that it had no intent to embarrass him, then qualified its question with the phrase "(i)f you can." Id. at 12. The court of appeals accurately described this entire undertaking as a "limited inquiry," id. at 10, and correctly found that it was not coercive. Petitioner's argument to the contrary is without merit. See Amos v. United States, 496 F.2d 1269, 1273 (8th Cir.), cert. denied, 419 U.S. 896 (1974) ("due deference" owed to trial court's views on whether recalcitrant juror's ultimate acquiescence in verdict came freely, without pressure from the court); United States v. Brooks, 420 F.2d at 1353 ("The trial judge is in a much better position than an appellate court to determine whether a recalcitrant juror's eventual acquiescence in a verdict was in fact freely given."). Petitioner errs in claiming, Pet. 22, that the decision below conflicts with decisions from the Fifth and District of Columbia Circuits. The difference between the results in those cases and this one turns on a difference in their facts, not on a disagreement about the correct legal principle. /3/ The district court's tempered and respectful inquiry of juror Lucero in this case ("If you can, sir, * * *") was in no way coercive and is in stark contrast to the facts of the cases cited by petitioner. In addition, the Fifth and District of Columbia Circuits, on which petitioner relies, have stated that a district court has the discretion to question a juror to clarify his ambiguous remarks. See United States v. Duke, 527 F.2d at 394; United States v. Brooks, 420 F.2d at 1353; Williams v. United States, 419 F.2d at 746; Cook v. United States, 379 F.2d at 970-971. See also Scruggs v. Williams, 903 F.2d at 1434-1435. 2. Petitioner also contends that the district court's Allen charge coerced the jury into returning a guilty verdict. Pet. 24-27. That contention does not warrant review by this Court for several reasons. To begin with, petitioner did not object to the instruction given at trial and therefore can prevail only if he can show that the district court's use of this instruction was plain error. See Fed. R. Crim. P. 51, 52(b); United States v. Frady, 456 U.S. 152, 163 (1982). The plain error doctrine authorizes the courts "to correct only 'particularly egregious errors,' * * * (and) is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Young, 470 U.S. 1, 15 (1985) (quoting Frady, 456 U.S. at 163 & n.14). See Henderson v. Kibbe, 431 U.S. 145, 154 (1977) ("It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court."). Petitioner does not and could not claim that the use of a supplemental instruction to a deadlocked jury is coercive. This Court has upheld the use of supplemental instructions like the one given here on four prior occasions. Lowenfield v. Phelps, 484 U.S. 231, 237-241 (1988); Kawakita v. United States, 343 U.S. 717, 744 (1952), aff'g 190 F.2d 506, 521-528 (9th Cir. 1951); Lias v. United States, 284 U.S. 584, aff'g 51 F.2d 215, 218 (4th Cir. 1931); Allen v. United States, 164 U.S. at 501-502. Every circuit has also approved the use of some form of supplemental jury instruction. Lowenfield v. Phelps, 484 U.S. at 238 n.1 (collecting cases). And none of the cases cited by petitioner, Pet. 26-27, held that the use of an instruction like this one is plain error. For those reasons, petitioner's argument reduces to a challenge to the Allen charge used in this case, and that fact-bound claim does not warrant review by this Court. Petitioner's claim also lacks merit. Whether a supplemental charge coerced the jury depends on its terms, its context, and "all the circumstances." Jenkins v. United States, 380 U.S. 445, 446 (1965); Lowenfield v. Phelps, 484 U.S. at 238. The terms, context, and circumstances of this case reveal that the instruction was not error, let alone plain error. The supplemental instruction given in this case was carefully balanced. It was addressed to both the majority and the minority among the jurors, and therefore did not run afoul of the primary criticism of the Allen charge -- that it is directed to jurors in the minority. See, e.g., United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971). Indeed, the instruction in this case specifically directed a majority leaning toward conviction to reconsider the correctness of a judgment not shared by several fellow jurors. It reminded the jurors of their responsibility to deliberate and give full consideration to the evidence in the case and to reach a verdict if possible, but it also directed the jurors not to abandon their individual judgment in doing so, and further instructed the jurors to return a unanimous verdict of "not guilty" if the evidence failed to establish guilt beyond a reasonable doubt. Considered "in its context and in all the circumstances," Jenkins v. United States, 380 U.S. at 446, the charge was not coercive. See Lowenfield v. Phelps, 484 U.S. at 238. That the jury deliberated for one-and-one-half hours after receiving the instruction is additional evidence that it did not coerce jurors into abandoning their views. See, e.g., United States v. Nichols, 820 F.2d 508, 512 (1st Cir. 1987) (one-hour period not indicative of coercion); United States v. Smith, 635 F.2d 716, 721-722 (8th Cir. 1980) (45-minute period not indicative of coercion); United States v. Bailey, 468 F.2d 652, 664 (1972), aff'd, 480 F.2d 518 (5th Cir. 1973) (en banc) (90-minute period not indicative of coercion); Andrews v. United States, 309 F.2d 127, 130 (5th Cir. 1962) (25-minute period not indicative of coercion). Compare Lowenfield v. Phelps, 484 U.S. at 240 (30-minute period raised "possibility of coercion"). In addition, as the court of appeals correctly held, even if the district court had erred in suggesting that the case would be retried, given the over-all balance of the court's supplemental instruction, its insistence that the jurors not abandon their individual judgments, and the time the jury took subsequently in reaching a verdict, that error did not rise to the level of plain error. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS M. GANNON Attorney AUGUST 1990 /1/ In relevant part, the Allen charge was as follows, Pet. App. 11: Now I'm also going to give you this following instruction and I would appreciate your listening carefully. I am going to ask that you continue your deliberations in an effort to agree upon a verdict and dispose of this case and I have a few additional comments that I would like for you to consider as you do so. This is an important case. The trial has been expensive in time, effort and money to both the defense and the prosecution. If you should fail to agree on a verdict, the case is left open and must be tried again. Obviously, another trial would only serve to increase the cost to both sides and there is no reason to believe that the case can be tried again by either side better or more exhaustively than it has been tried before you. Any further jury must be selected in the same manner from the same source as you were chosen and there is no reason to believe that the case could ever be submitted to 12 men and women more conscientious or impartial or more competent to decide it, or that more or clearer evidence could be produced. If a substantial majority of your number are for a conviction, each dissenting juror ought to consider whether a doubt in his or her own mind is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are for acquittal, the other jurors ought seriously to ask themselves again and most thoughtfully whether they do not have a reason to doubt the correctness of a judgment which is not shared by several of your fellow jurors and whether they should distrust the weight and sufficiency of evidence which fails to convince several of their fellow jurors beyond a reasonable doubt. Remember at all times that no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of the evidence, but remember, also, that after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so without surrendering your conscientious conviction. * * * You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt, the accused should have your unanimous verdict of not guilty. You may be as leisurely in your deliberations as the occasion may require and should take all the time which you feel is necessary. I would ask now that you retire once again and continue in your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the instructions that I have previously given to you. /2/ In pertinent part, the colloquy was as follows, Pet. App. 12: THE COURT: * * * Mr. Lucero, would you please stand, sir. Is this your verdict, Mr. Lucero? JUROR LUCERO: Ah, qualifications, yes, sir. THE COURT: All right. I must ask you whether, in fact, you agree and concur in this verdict in its entirety? JUROR LUCERO: Ah, I'll go along with the jury. THE COURT: Well, I need -- I'm sorry, sir, but I must confirm on an individual basis that each of the members of the jury agrees to this verdict, and if you do not personally agree, I would like for you to tell me that. JUROR LUCERO: Just that I went along with the experience and conviction of the majority. I trust in what they believe. THE COURT: Well, then, sir, let me ask you directly again: Is this, in fact, your verdict, Mr. Lucero? JUROR LUCERO: Ahm, with the jury. THE COURT: Okay. Let me ask counsel to approach the bench, if you would, please. You may be seated, Mr. Lucero and Mr. Smith. (Bench conference) THE COURT: Okay. Mr. Lucero, let me ask you to stand again, sir, and let me say this first: It is important that I ascertain that any verdict rendered is the unanimous verdict of the jury and for that reason, we have this process of polling the jury which involves asking each juror separately to confirm concurrence in the verdict. This is not done to single anyone out for purposes of embarrassment and please understand my questioning you is not in that light. If you can, sir, I must ask you to state either yes or no as to whether or not this is your verdict. JUROR LUCERO: Yes. THE COURT: Thank you, Mr. Lucero. You may be seated. /3/ See United States v. Edwards, 469 F.2d 1362, 1366 (5th Cir. 1972) (when polled juror says, "It's my verdict, but I am still in doubt," court says, "All right, it's your verdict"); United States v. Sexton, 456 F.2d 961, 962-963 (5th Cir. 1972) (jury returns guilty verdict after seven minutes of deliberation; polled juror says, "I didn't vote either way"; court says, "Well, is it your verdict?"; juror says yes; jury retires again and returns shortly thereafter with a guilty verdict); United States v. McCoy, 429 F.2d 739, 741 (D.C. Cir. 1970) (when polled juror said, "Yes, with a question mark," court instructed her to answer yes or no; she then answered "yes"); Bruce v. Chestnut Farms-Chevy Chase Dairy, 126 F.2d 224, 224-225 (D.C. Cir. 1942) (jury poll results in chaotic "situation of confusion and misunderstanding" where, inter alia, jurors report verdict for defendant; two polled jurors say "For the plaintiff"; court suggests that they mean for the defendant; counsel for defendant begins questioning juror; plaintiff's counsel moves for a mistrial; trial court says, "Don't interrupt me now, I am going to continue with the poll"; and juror finding for plaintiff twice attempts to address court, but is told "This is not the time for that."). The other cases cited by petitioner are even more remote. See United States v. Spitz, 696 F.2d 916, 917 (11th Cir. 1983) (polled juror said "No" when asked if the verdict was hers; court of appeals reverses on the ground that the trial court should not have continued to poll the jury under those circumstances); United States v. Nelson, 692 F.2d 83, 84 (9th Cir. 1982) (polled juror, asked if the verdict was hers, said "No" and "I have doubt on the first three (counts)"; juror also reiterated that she could not vote for guilty after being questioned by trial judge). One decision cited by petitioner supports the result in this case. Sincox v. United States, 571 F.2d 876, 877 (5th Cir. 1978) (polled juror said, "Yes. With reasonable doubt"; error for trial judge to make no further inquiry).