7.1 DUTY TO DELIBERATE
When you begin your deliberations, elect one member of the jury as your [presiding juror] [foreperson] who will preside over the deliberations and speak for you here in court.
You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict, whether guilty or not guilty, must be unanimous.
Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right.
It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.
Ordinarily, the "general unanimity instruction suffices to instruct the jury that they must be unanimous on whatever specifications form the basis of the guilty verdict." United States v. Lyons, 472 F.3d 1055, 1068 (9th Cir.2007) (quoting United States v. Kim, 196 F.3d 1079, 1082 (9th Cir.1999)). A specific unanimity instruction is required if it appears that there is a "genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts." Id. (citing United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.1989)) (internal quotation marks omitted). A specific unanimity instruction may also be necessary in certain circumstances to avoid constitutional error. See United States v. Ramirez, 537 F.3d 1075, 1083 (9th Cir.2008) (trial court appropriately instructed jury it must unanimously reject self-defense theory in order to find defendant guilty). For further discussion of when a specific unanimity instruction is needed, see Instruction 7.9 (Specific Issue Unanimity) (Comment only).
7.2 CONSIDERATION OF EVIDENCE—CONDUCT OF THE JURY
Because you must base your verdict only on the evidence received in the case and on these instructions, I remind you that you must not be exposed to any other information about the case or to the issues it involves. Except for discussing the case with your fellow jurors during your deliberations:
Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via email, text messaging, or any Internet chat room, blog, website or other feature. This applies to communicating with your family members, your employer, the media or press, and the people involved in the trial. If you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court.
Do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it; do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own.
The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address. A juror who violates these restrictions jeopardizes the fairness of these proceedings[, and a mistrial could result that would require the entire trial process to start over]. If any juror is exposed to any outside information, please notify the court immediately.
7.3 USE OF NOTES
Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by your notes or those of your fellow jurors.
7.4 JURY CONSIDERATION OF PUNISHMENT
The punishment provided by law for this crime is for the court to decide. You may not consider punishment in deciding whether the government has proved its case against the defendant beyond a reasonable doubt.
7.5 VERDICT FORM
A verdict form has been prepared for you. [Explain verdict form as needed.] After you have reached unanimous agreement on a verdict, your [presiding juror] [foreperson] should complete the verdict form according to your deliberations, sign and date it, and advise the [clerk] [bailiff] that you are ready to return to the courtroom.
7.6 COMMUNICATION WITH COURT
If it becomes necessary during your deliberations to communicate with me, you may send a note through the [clerk] [bailiff], signed by any one or more of you. No member of the jury should ever attempt to communicate with me except by a signed writing, and I will respond to the jury concerning the case only in writing or here in open court. If you send out a question, I will consult with the lawyers before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone—including me—how the jury stands, numerically or otherwise, on any question submitted to you, including the question of the guilt of the defendant, until after you have reached a unanimous verdict or have been discharged.
In United States v. Southwell, 432 F.3d 1050, 1052-53 (9th Cir.2005), the Ninth Circuit noted:
"The necessity, extent and character of additional [jury] instructions are matters within the sound discretion of the trial court." Wilson v. United States, 422 F.2d 1303, 1304 (9th Cir.1970) (per curiam). That discretion is abused, however, when the district court fails to answer a jury’s question on a matter that is not fairly resolved by the court’s instructions. Because it is not always possible, when instructing the jury, to anticipate every question that might arise during deliberations, "the district court has the responsibility to eliminate confusion when a jury asks for clarification of a particular issue." United States v. Hayes, 794 F.2d 1348, 1352 (9th Cir.1986); see also Bollenbach v. United States, 326 U.S. 607, 612-13 (1946) ("When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.").
7.7 DEADLOCKED JURY
Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you.
As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, 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.
All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.
I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.
You may now retire and continue your deliberations.
The Committee recommends caution when considering whether to give a supplemental instruction (sometimes known as an "Allen charge") to encourage a deadlocked jury to reach a verdict. See United States v. Evanston, 651 F.3d 1080, 1085-88 (9th Cir.2011)(extraordinary caution to be exercised when giving an "Allen charge").
As the Ninth Circuit explained in United States v. Berger, 473 F.3d 1080, 1089 (9th Cir.2007):
The term "Allen charge" is the generic name for a class of supplemental jury instructions given when jurors are apparently deadlocked; the name derives from the first Supreme Court approval of such an instruction in Allen v. United States, 164 U.S. 492, 501-02 (1896). 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.
Allen"charges are proper ‘in all cases except those where it’s clear from the record that the charge had an impermissibly coercive effect on the jury.’" United States v. Banks, 514 F.3d 959, 974 (9th Cir.2008) (quoting United States v. Ajiboye, 961 F.2d 892, 893 (9th Cir.1992)).
In assessing the coerciveness of an Allen charge, the Ninth Circuit considers "(1) the form of the instruction, (2) the time the jury deliberated after receiving the charge as compared to the total time of deliberation, and (3) any other indicia of coerciveness." United States v. Freeman, 498 F.3d 893, 908 (9th Cir.2007) (citing United States v. Daas, 198 F.3d 1167, 1179-80 (9th Cir.1999)); see also Warfield v. Alaniz, 569 F.3d 1015, 1029 (9th Cir.2009) (weekend interval between "standard" Allen charge and resumed deliberations "probably would have diluted any coercive effect.")
The form of this instruction is a "neutral form" of the Allen charge, that is, "in a form not more coercive than that in Allen." United States v. Beattie, 613 F.2d 762, 765 (9th Cir.1980); see also United States v. Steele, 298 F.3d 906, 911(9th Cir.), cert. denied, 537 U.S. 1096 (2002). Nonetheless, it is reversible error to give even a neutral Allen charge that has a coercive effect on the jury’s deliberations:
If the trial judge gives an Allen charge after inquiring into the numerical division of the jury, "the charge is per se coercive and requires reversal." Ajiboye, 961 F.2d at 893-94. "Even when the judge ... is inadvertently told of the jury’s division, reversal is necessary if the holdout jurors could interpret the charge as directed specifically at them-that is, if the judge knew which jurors were the holdouts and each holdout juror knew that the judge knew he was a holdout." Id. at 894 (citing United States v. Sae-Chua, 725 F.2d 530, 532 (1984)).
United States v. Williams, 547 F.3d 1187, 1205 (9th Cir.2008) (reversing conviction after neutral Allen charge when "hold-out" juror knew her identity was known by the court). See Evanston, 651 F.3d at 1085-88 (reversible error to allow supplemental closing arguments to deadlocked jury after court has given Allen instruction and inquired as to reason for deadlock).
Before giving any supplemental jury instruction to a deadlocked jury, the Committee also recommends the court review Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures (2013) §§ 5.4 and 5.5.
7.8 SCRIPT FOR POST-ALLEN CHARGE INQUIRY
If the jury indicates that it is deadlocked after an Allen charge is given, the Committee recommends polling the jury to confirm that they "cannot agree on a verdict on one or more counts," Fed. R. Crim. P. 31(b)(3), and, thus, that there is a basis to declare a mistrial. As the Ninth Circuit noted in Brazzel v. Washington, 491 F.3d 976, 982 (9th Cir.2007):
A hung jury occurs when there is an irreconcilable disagreement among the jury members. A "high degree" of necessity is required to establish a mistrial due to the hopeless deadlock of jury members. See Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The record should reflect that the jury is "genuinely deadlocked." Richardson v. United States, 468 U.S. 317, 324-25 (1984) (explaining that when a jury is genuinely deadlocked, the trial judge may declare a mistrial and require the defendant to submit to a second trial); see also Selvester [v. United States], 170 U.S. at 270 ("But if, on the other hand, after the case had been submitted to the jury they reported their inability to agree, and the court made record of it and discharged them, such discharge would not be equivalent to an acquittal, since it would not bar the further prosecution."). . . .
In United States v. Hernandez-Guardado, 228 F.3d 1017 (9th Cir.2000), the court noted that in determining whether to declare a mistrial because of jury deadlock, relevant factors for the district court to consider "include the jury’s collective opinion that it cannot agree, the length of the trial and complexity of the issues, the length of time the jury has deliberated, whether the defendant has objected to a mistrial, and the effects of exhaustion or coercion on the jury." Id. at 1029 (citing United States v. Cawley, 630 F.2d 1345, 1348-49 (9th Cir.1980)). "The most critical factor is the jury’s own statement that it is unable to reach a verdict." Cawley, 630 F.2d at 1349. "Without more, however, such a statement is insufficient to support a declaration of a mistrial." Hernandez-Guardado, 228 F.3d at 1029. "On receiving word from the jury that it cannot reach a verdict, the district court must question the jury to determine independently whether further deliberations might overcome the deadlock." Id.
A suggested script for this purpose follows:
"To the [Presiding Juror] [Foreperson]: In your opinion, is the jury [[hopelessly deadlocked] [unable to agree on a verdict]] [as to one or more counts]?"
"To all jurors: If any of you disagree with the [Presiding Juror’s] [Foreperson’s] answer, please tell me now."
If the response to the first question is "yes," then ask:
"Is there a reasonable probability that the jury can reach a unanimous verdict if sent back to the jury room for further deliberation?"
If the response is "no," then ask the entire panel the following:
"[To all jurors]: Without stating where any juror stands, do any of you believe there is a reasonable probability that the jury can reach a unanimous verdict if sent back to the jury room for further deliberation?"
See also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 5.5 (2013).
7.9 SPECIFIC ISSUE UNANIMITY
Ordinarily, the "general unanimity instruction suffices to instruct the jury that they must be unanimous on whatever specifications form the basis of the guilty verdict." United States v. Lyons,472 F.3d 1055, 1068 (9th Cir.2007) (quoting United States v. Kim, 196 F.3d 1079, 1082 (9th Cir.1999)).
Nonetheless, a specific unanimity instruction is required if it appears that there is a "genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts." Id. (citing United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.1989)) (internal quotation marks omitted); compare United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.1983) (finding that unanimity instruction regarding specific conspiracy should have been given in light of proof of multiple conspiracies) with Kim, 196 F.3d 1079 (no abuse of discretion to refuse to give specific unanimity instruction when the defendant was charged with a single crime based on a single set of facts and where prohibited acts were merely alternative means by which the defendant may be held criminally liable for the underlying substantive offense). Thus, the Committee recommends the court consider the need for a specific unanimity instruction to avoid juror confusion if (1) the evidence is factually complex, (2) the indictment is broad or ambiguous, or (3) the jury’s questions indicate that it may be confused. See Anguiano, 873 F.2d at 1319-21. When the evidence establishes multiple conspiracies, failure to give a specific unanimity instruction may be plain error and the court may have a duty to sua sponte give the instruction requiring the jurors to unanimously agree on which conspiracy the defendant participated in. United States v. Lapier, ___F.3d___, 2015 WL 4664689 (9th Cir. August 7, 2015) (failure to give specific unanimity instruction was plain error because half of jury could have found defendant guilty of joining one conspiracy while other half of jury could have found defendant guilty of joining second, completely independent conspiracy).
A specific unanimity instruction may also be necessary to avoid constitutional error. For example, when self-defense is at issue, a jury must unanimously reject the defense in order to convict. United States v. Ramirez, 537 F.3d 1075, 1083 (9th Cir.2008) (approving instruction that included specific unanimity within the self-defense instruction consistent with this instruction and Instruction 6.8 (Self-Defense)); see also Richardson v. United States, 526 U.S.813 (1999) (continuing-criminal-enterprise prosecution requires unanimity as to the specific violations that make up a "continuing series of violations"); but see United States v. Nobari, 574 F.3d 1065, 1081 (9th Cir.2009) (although unanimity is required to reject an affirmative defense, a specific unanimity instruction is not required for most affirmative defenses).
A specific unanimity instruction is not required, however, to distinguish an aiding-and-abetting theory of liability from the underlying substantive crime. United States v. Garcia, 400 F.3d 816, 820 (9th Cir.2005). Nor is one required as to a particular false promise in a mail fraud case or as to a particular theory of liability underlying a "scheme to defraud" so long as jurors are unanimous that the defendant committed the underlying substantive offense. Lyons, 472 F. 3d at 1068-69. Likewise, jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime in a prosecution for an attempt to commit a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.2010). Further, when a defendant is charged with "a single continuous act of possession," jurors need not reach unanimous agreement on the pieces of evidence they find persuasive in establishing that possession. United States v. Ruiz, 710 F.3d 1077, 1081-82 (9th Cir. 2013); see also United States v. Mancuso, 718 F.3d 780, 792-93 (9th Cir. 2013).
When a specific unanimity instruction is necessary, the Committee recommends including in the substantive instruction the phrase " . . .with all of you agreeing [as to the particular matter requiring unanimity]." See United States v. Garcia-Rivera, 353 F. 3d 788, 792 (9th Cir.2003) (unanimity instruction "fatally ambiguous" when jury could have understood they were required to decide unanimously only that possession occurred during any of three times enumerated).
7.10 READBACK OR PLAYBACK
If during jury deliberations a request is made by the jury or juror for a readback of a portion or all of a witness’s testimony, and the court in exercising its discretion determines after consultation with legal counsel that a readback should be allowed, the committee recommends the following admonition be given in open court with both sides and the defendant present:
Because a request has been made for a [readback] [playback] of the testimony of [witness’s name] it is being provided to you, but you are cautioned that all [readbacks] [playbacks] run the risk of distorting the trial because of overemphasis of one portion of the testimony. [Therefore, you will be required to hear all the witness’s testimony on direct and cross-examination, to avoid the risk that you might miss a portion bearing on your judgment of what testimony to accept as credible.] [Because of the length of the testimony of this witness, excerpts will be [read] [played].] The [readback] [playback] could contain errors. The [readback] [playback] cannot reflect matters of demeanor [, tone of voice,] and other aspects of the live testimony. Your recollection and understanding of the testimony controls. Finally, in your exercise of judgment, the testimony [read] [played] cannot be considered in isolation, but must be considered in the context of all the evidence presented.
In United States v. Newhoff, 627 F.3d 1163 (9th Cir. 2010), the court underscored the need to take certain precautionary steps when an excerpt or entire testimony of a witness is requested by a deliberating jury. The court endorsed the "general rule" that when such a request is made and the trial court, in exercising its discretion, grants the request after consultation with the parties, it should require the jury to hear the readback in open court, with counsel for the parties and the defendant present after giving the admonition set out above, unless the defendant has waived the right to be present.
7.11 CONTINUING DELIBERATIONS AFTER JUROR IS DISCHARGED AND NOT REPLACED
[One] [some] of your fellow jurors [has] [have] been excused from service and will not participate further in your deliberations. You should not speculate about the reason the [juror is] [jurors are] no longer present.
You should continue your deliberations with the remaining jurors. Do not consider the opinions of the excused [juror] [jurors] as you continue deliberating. All the previous instructions given to you, including the unanimity requirement for a verdict, remain in effect.
The trial court, upon written stipulation by the parties or on its own for good cause, may permit a jury of fewer than 12 persons to return a verdict. Fed. R. Crim. P. 23(b). It may also substitute an alternate juror. See Instruction 7.12 (Resumption of Deliberations After Alternate Juror Is Added).
7.12 RESUMPTION OF DELIBERATIONS AFTER ALTERNATE JUROR IS ADDED
[An alternate juror has] [Alternate jurors have] been substituted for the excused [juror] [jurors]. You should not speculate about the reason for the substitution.
You must start your deliberations anew. This means you should disregard entirely any deliberations taking place before the alternate [juror was] [jurors were] substituted and consider freshly the evidence as if the previous deliberations had never occurred.
Although starting over may seem frustrating, please do not let it discourage you. It is important that each juror have a full and fair opportunity to explore his or her views and respond to the views of others so that you may come to a unanimous verdict. All the previous instructions given to you, including the unanimity requirement for a verdict, remain in effect.
The court must ensure that the alternate did not discuss the case with anyone after the original jury retired, and it must instruct the reconstituted jury to begin its deliberations "anew." Fed. R. Crim. P. 24(c).
The trial court, upon written stipulation by the parties or on its own for good cause, may permit a jury of fewer than 12 persons to return a verdict. Fed. R. Crim. P. 23(b). See Instruction 7.11 (Continuing Deliberations After Juror Is Discharged and Not Replaced). The court may also substitute an alternate juror. Fed. R. Crim. P. 24(c).