United States of America v. Karlos A. Clinton

*The Honorable Louis F. Oberdorfer, United States District Judge for
the District of Co lumbia, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0269P (6th Cir.)
File Name: 03a0269p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KARLOS A. CLINTON,
Defendant-Appellant.
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No. 01-5731
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 00-20059—Julia S. Gibbons, District Judge.
Argued: May 9, 2003
Decided and Filed: August 5, 2003
Before: BOGGS and DAUGHTREY, Circuit Judges;
OBERDORFER, District Judge.*
_________________
COUNSEL
ARGUED: Gregory C. Krog, Jr., Memphis, Tennessee, for
Appellant. Paul M. O’Brien, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
2 United States v. Clinton No. 01-5731
ON BRIEF: Gregory C. Krog, Jr., Memphis, Tennessee, for
Appellant. Paul M. O’Brien, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
defendant, Karlos Clinton, was convicted by a jury at a retrial
on two counts of armed robbery, in violation of 18 U.S.C.
§§ 2 and 2113(a), (d), and two counts of carrying, using, or
brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. §§ 2 and 924(c). Clinton’s
first trial had ended in a mistrial when the jury was unable to
reach a verdict despite a supplemental instruction from the
district judge consisting of the Sixth Circuit’s pattern
“dynamite charge,” delivered pursuant to Allen v. United
States, 164 U.S. 492 (1896). During jury deliberations at
Clinton’s second trial before a different district judge, the jury
sent out a note asking whether it could reach a verdict on the
counts related to one robbery and remain hung on the counts
related to the other robbery. In response, the district court
delivered a “modified” Allen charge, described more fully
below. Less than an hour later the jury returned guilty
verdicts on all four counts, and Clinton was ultimately
sentenced to two concurrent terms of 70 months’
imprisonment for each robbery count, a consecutive sentence
of seven years on the first firearms count, and an additional
consecutive sentence of 25 years on the second firearms
count. The defendant now argues on appeal that the modified
Allen charge was unduly coercive and, therefore, requires
reversal. We find no reversible error and affirm.

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No. 01-5731 United States v. Clinton 3
PROCEDURAL AND FACTUAL BACKGROUND
The armed robberies charged in the indictment both
occurred at the same federally-insured credit union,
approximately a month apart. The defendant was identified
as one of the two robbers involved in the offenses by several
victims of both robberies – both from pretrial photo arrays
and in the courtroom – and an expert testified that Clinton’s
fingerprint was found at the scene after one of the robberies.
(The other perpetrator was never identified.) Despite this
evidence, the first jury that heard the case was unable to reach
a verdict, and the second jury also ran into some difficulty.
When the second jury appeared to be hung with regard to one
of the robberies, the district judge delivered the following
supplemental instruction, reproduced here in full:
All right. Ladies and gentlemen, the short answer to
the question is yes, each count must receive a separate
verdict. Any inability to reach judgement on a particular
count does not effect [sic] the jury’s obligation to attempt
to reach a unanimous verdict on all of the other counts.
So, yes, each verdict is separate, and each can be returned
separately.
Having said that, before I send you back to complete
your deliberations, I want to address the question of what
is implied here, which is the concept that you may be
having difficulty with respect to unanimity on one or
more counts. I want to suggest a few thoughts, which
you may desire to consider in your deliberations, along
with the evidence in the case and the instructions that I
have previously given you.
Like all federal criminal cases in this district, this is an
important matter. It is an important matter to the
government, and it is an important matter to the
defendant. The trial has been expensive, and preparation
time and effort are difficult for both the defense and the
prosecution. If you should fail to agree on a verdict as to
4 United States v. Clinton No. 01-5731
any one count, or counts, the case is left open and
undecided as to those counts. And like all cases, it will
still need to be disposed of at some point in time. There
appears to be 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 future jury would have
to be selected in the same manner as you would. We
would have to go through the same process, and they
would be selected from the same source or same group of
individuals. So, there appears no reason to believe that
the case would ever be submitted to twelve men and
women who would be more conscientious, more partial
[sic] or more competent to decide it, or that more or
clearer evidence could be produced on behalf of either
side.
Of course, these things suggest themselves upon brief
reflection to all of us who have been through this trial,
and I’m sure you have thought of these things, to some
extent, in your deliberation. The reason that I am
mention[ing] them now is because some of them may
have escaped your attention, which has to this point been
fully occupied with an examination of the evidence in the
case. They are matters, which along with other and
perhaps more obvious ones, remind us how desirable it
is for you to unanimously agree upon a verdict, if you
can.
As I told you in the instructions at the close of all the
evidence, you should not surrender your honest
convictions as to the weight of the evidence solely
because of the opinion of other jurors, or for the mere
purpose of returning a verdict. That is not what I am
suggesting.
However, it is your duty as jurors to consult with one
another, and to deliberate with a view to reaching an
agreement, if you can do so without violence to your
individual judgement. Each of you must decide the case

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No. 01-5731 United States v. Clinton 5
for yourselves but you should do so only after
consideration of the evidence in the case with your
fellow jurors. In the course of your deliberations, you
should not hesitate to re-examine your own views and
change your opinion, if convinced it is erroneous.
In order to bring twelve minds to a unanimous result,
you must examine the question submitted to you with
candor and frankness, and with proper deference to and
regards for the opinions of each other. That is to say, in
conferring together, each of you should pay due attention
and respect to the views of the others and listen to each
others’ arguments with a disposition to re-examine your
own views, if appropriate.
If the greater number of you are for conviction on a
given count, each dissenting juror ought to consider
whether a doubt in his or her own mind is truly a
reasonable one, since it makes no effective impression
upon the minds of so many equally honest, equally
conscientious fellow jurors, who bear the same
responsibility, serve under the same oath, and have heard
the same evidence, with, [one] may assume, the same
attention and equal desire to arrive at the truth.
On the other hand, if a majority or even a lesser
number of you are for acquittal, other jurors ought to
seriously ask themselves again, and most thoughtfully,
whether they do not have reason to doubt the correctness
of a judgement, which is not concurred in by many of
their fellow jurors, and whether they should not distrust
the weight and sufficiency of evidence which fails to
convince the minds of several of their fellow jurors
beyond a reasonable doubt.
You are not partisans, you are judges. Judges of the
facts. Your sole interest here is to speak the truth from
the evidence in the case. You are the exclusive judges of
the credibility of all the witnesses, and of the weight and
6 United States v. Clinton No. 01-5731
effect of all the evidence. In the performance of this high
duty, you are at liberty to disregard all comments of both
counsel and court, including, of course, these remarks I
am making now.
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 evidence. But remember also that
after full deliberation and consideration of all the
evidence in the case, it is your duty to agree upon a
verdict, if you can do so without violating your
individual judgement and your cons[cience]. Remember
too 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.
In order to make the decision more practicable, the law
imposes the burden of proof on one party or the other in
all cases. In the present case, the burden of proof is on
the government. Above all, keep constantly in mind that
unless your final conscientious appraisal of the evidence
in this case clearly acquires [sic] it, the accused should
never be exposed to the risk of having to run twice the
ga[u]ntlet of a criminal prosecution, and to endure a
second time the mental, emotional, and financial strain of
a criminal trial.
You may conduct your deliberations as you choose,
but I suggest that you now carefully re-examine and
reconsider all the evidence in the case bearing on the
questions before you. You may be leisurely in your
deliberations, and as leisurely as the occasions may
require, and you shall take all the time that you feel is
necessary. No one is here to rush you to a judgement or
decision in this case.
I am now going to ask you to retire and to continue
your deliberations in such manner as shall be determined

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No. 01-5731 United States v. Clinton 7
by good and conscientious judgement, which I know you
will duly exercise.
And Mr. Foreperson, certainly, if you have any other
questions or any information you want us to provide,
other than the things I have already told you [that] you
should not provide to the Court, we will certainly take
more questions. This is not to say that you can’t ask
questions. I just thought that in light of this question that
was asked and the implications of the question, that these
words would be appropriate at this time.
Less than an hour after receiving this instruction, the jury
returned guilty verdicts on all four counts of the indictment.
DISCUSSION
Normally, we review the decision to give an Allen charge
for abuse of discretion, recognizing that “the presiding
judicial officer is in the best position to decide when to give
the charge.” United States v. Frost, 125 F.3d 346, 373 (6th
Cir. 1997) (citation and internal quotation omitted). The
relevant inquiry is “whether, in its context and under all the
circumstances, [ the charge] . . . was coercive.” Id. (citation
and internal quotation omitted). In this case, however, there
was no objection to the Allen charge at trial, and we therefore
review the defendant’s claim under Rule 52(b) of the Federal
Rules of Criminal Procedure to determine whether there was
plain error. See Frost, 125 F.3d at 373.
Plain error is that which is “clear” or “obvious.” United
States v. Olano, 507 U.S. 725, 734 (1993). To establish plain
error, the defendant must show: (1) that an error occurred,
(2) that it was plain and (3) so seriously affected the
defendant’s substantial rights (4) that it called into question
the fairness, integrity, or public reputation of the proceedings.
See United States v. Vincent, 20 F.3d 229, 234 (6th Cir. 1994)
(citing Olano, 507 U.S. at 732-37). For the reasons set out in
8 United States v. Clinton No. 01-5731
1For example, the D.C. Circuit has mandated use of the American
Bar Association mod el deadlock instructio n. See United States v.
Thomas, 449 F .2d 1 177 , 118 3-86 (D.C . Cir. 19 71)(en banc); United
States v. Strothers, 77 F.3d 138 9, 1391 (D .C.Cir. 1996)(invalidating
district court’s use of the “Alternative B” deadlock charge in the model
jury instructions because it was not the “Alternative A” charge approved
in Thomas). The Seventh Circuit, acting under its supervisory p owers,
devised its own Allen charge in United States v. Silvern, 484 F.2d 879,
882 (7th Cir. 197 3).
this opinion, we conclude that the defendant has not met that
standard in this case.
Well-settled precedent establishes that a criminal defendant
being tried by a jury is entitled to an uncoerced and
unanimous verdict of that body. See Lowenfield v. Phelps,
484 U.S. 231, 241 (1988). The practice of giving a “dynamite
charge,” meant to “blast” a deadlocked jury into rendering a
unanimous verdict, was first approved by the Supreme Court
in Allen v. United States, in which the Court found that
reversal was not warranted based on a supplemental
instruction to the jury that told those jurors who were in the
minority to reconsider their views in light of those held by the
majority. See 164 U.S. at 501-02.
Since Allen, the federal courts of appeal have approved
various supplemental instructions, and many, exercising
supervisory authority, have mandated the use of a particular
instruction.1 In this circuit, while we have generally approved
use of the Sixth Circuit Pattern Instruction, we have never
explicitly mandated the use of that or any instruction to the
exclusion of others. We decline to do so now, although we
take the occasion to express a strong preference for the pattern
instruction and to point out that its use will, in most instances,
insulate a resulting verdict from the type of appellate
challenge that we now face in this case.
The charge given at Clinton’s retrial was modeled closely
on the instruction set out in the Devitt & Blackmar practice

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No. 01-5731 United States v. Clinton 9
manual and repeated in the Committee Commentary to Sixth
Circuit Pattern Jury Instruction 8.04. See E. Devitt & C.
Blackmar, Federal Jury Practice & Instructions (3rd Edition
1977), § 18.14. The opening paragraph addressing the jury’s
specific question is the only relevant respect in which the
district court deviated from the modified Devitt & Blackmar
charge.
Clinton’s primary objection to the charge is the claim that
it improperly created the impression that each juror’s own
view of the evidence did not achieve significance until
“many” or “several” of his fellow jurors shared that view.
The relevant portion of the charge read as follows:
On the other hand, if a majority or even a lesser number
of you are for acquittal, other jurors ought to seriously
ask themselves again, and most thoughtfully, whether
they do not have reason to doubt the correctness of a
judgement, which is not concurred in by many of their
fellow jurors, and whether they should not distrust the
weight and sufficiency of evidence which fails to
convince the minds of several of their fellow jurors
beyond a reasonable doubt.
In contrast, the Sixth Circuit Pattern Jury Instruction 9.04
reads as follows:
(1) Members of the jury, I am going to ask that you
return to the jury room and deliberate further. I realize
that you are having some difficulty reaching unanimous
agreement, but that is not unusual. And sometimes after
further discussion, jurors are able to work out their
differences and agree.
(2) Please keep in mind how very important it is for you
to reach unanimous agreement. If you cannot agree, and
if this case is tried again, there is no reason to believe
that any new evidence will be presented, or that the next
10 United States v. Clinton No. 01-5731
twelve jurors will be any more conscientious and
impartial than you are.
(3) Let me remind you that it is your duty as jurors to
talk with each other about the case; to listen carefully
and respectfully to each other’s views; and to keep an
open mind as you listen to what your fellow jurors have
to say. And let me remind you that it is your duty to
make every reasonable effort you can to reach unanimous
agreement. Each of you, whether you are in the majority
or the minority, ought to seriously reconsider your
position in light of the fact that other jurors, who are just
as conscientious and impartial as you are, have come to
a different conclusion.
(4) Those of you who believe that the government has
proved the defendant guilty beyond a reasonable doubt
should stop and ask yourselves if the evidence is really
convincing enough, given that other members of the jury
are not convinced. And those of you who believe that
the government has not proved the defendant guilty
beyond a reasonable doubt should stop and ask
yourselves if the doubt you have is a reasonable one,
given that other members of the jury do not share your
doubt. None of you should hesitate to change your mind
if, after reconsidering things, you are convinced that
other jurors are right and that your original position was
wrong.
(5) But remember this. Do not ever change your mind
just because other jurors see things differently, or just to
get the case over with. As I told you before, in the end,
your vote must be exactly that – your own vote. As
important as it is for you to reach unanimous agreement,
it is just as important that you do so honestly and in good
conscience.

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No. 01-5731 United States v. Clinton 11
(6) What I have just said is not meant to rush or pressure
you into agreeing on a verdict. Take as much time as
you need to discuss things. There is no hurry.
(7) I would ask that you now return to the jury room and
resume your deliberations.
In addition to contending that the reference to a “numerosity
requirement” rendered the instruction given in this case
unduly coercive, the defendant also challenges the charge
because it emphasized the expense of the trial.
In response, the government contends that the Devitt &
Blackmar charge was approved by this court in United States
v. Giacalone, 588 F.2d 1158 (6th Cir. 1978). There, in
affirming the defendant’s conviction over his objection that
the modified Allen charge coerced the jury into finding him
guilty, we observed:
While it is true that we have held that any variation upon
the precise language approved in Allen imperils the
validity of the trial, we observe that the trial judge’s
statement roughly follows the instruction contained in 1
E. Devitt & C. Blackmar, Federal Jury Practice and
Instructions, § 18.14 (3d ed. 1977), an instruction
implicitly approved by the Supreme Court in Kawakita
v. United States, 343 U.S. 717 (1952).
Id. at 1166-67 (citation and internal quotation omitted). The
government asserts that this explicit approval of a charge very
similar to the one used by the district court here forecloses
any finding of error, plain or otherwise.
The defendant, on the other hand, argues that, although
Giacalone approved a charge that “roughly follow[ed]” the
Devitt & Blackmar charge, it did not set out the charge itself
and thus cannot be taken as authority to approve a reference
to the cost of a retrial. In addition, the defense argues that
Giacalone’s reliance on Kawakita is misplaced because the
12 United States v. Clinton No. 01-5731
Supreme Court in Kawakita did not discuss or explicitly rule
on the Allen charge at issue. Of course, we are not at liberty
to second-guess Giacalone’s reliance on Kawakita because of
circuit precedent establishing that a published decision of the
court is binding on subsequent panels unless an “inconsistent
decision of the United States Supreme Court requires
modification of the decision or this Court sitting en banc
overrules the prior decision.” United States v. Smith, 73 F.3d
1414, 1418 (6th Cir. 1996) (citation omitted).
We note, nevertheless, that the majority of Sixth Circuit
cases dealing with Allen charge challenges since Giacalone
have involved the pattern instruction. See, e.g., United States
v. Reed, 167 F.3d 984, 991 (6th Cir. 1999) (approving the use
of the pattern Allen charge and observing that charge was
“properly worded”); Frost, 125 F.3d at 374-75 (noting that
the pattern instruction given in the case “contained language
which this circuit has identified as critical to any Allen
charge: it directed both majority and minority jurors to
reconsider their positions, and it cautioned all jurors not to
surrender their personal convictions merely in order to
achieve consensus by acquiescing in the majority opinion”)
(citations omitted); United States v. Tines, 70 F.3d 891, 896-
97 (6th Cir. 1995) (holding that the use of the pattern Allen
charge was not coercive because it asked both the minority
and majority jurors to reconsider the views of others, and
there was no charge for one side to change its mind).
The conclusion to be drawn from these cases is that while
the pattern instruction has typically been viewed as non-
coercive, it is not the only instruction a district court may use.
The cases cited above base their findings on the content of an
instruction, namely, that it must address both those in the
majority and those in the minority, see United States v.
Harris, 391 F.2d 348, 352-53 (6th Cir. 1968), and that it must
remind the jury that no one should surrender honest beliefs
simply because others disagree, see United States v. Scott,
547 F.2d 334, 337 (6th Cir. 1977). The instruction in this
case included both of the requisite elements. Indeed, the

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No. 01-5731 United States v. Clinton 13
district judge reminded jurors not to surrender their
convictions twice, saying:
As I told you in the instructions at the close of all the
evidence, you should not surrender your honest
convictions as to the weight of the evidence solely
because of the opinion of other jurors, or for the mere
purpose of returning a verdict. That is not what I am
suggesting. . . . 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 evidence.
Although we find problematic the language challenged by
the defendant – that only in the event that “many” or “several
of [their] fellow jurors” are for acquittal should the “other
jurors” reexamine their views – we cannot say that the
instruction rises to the level of plain error, given that it was
accompanied by the statements quoted above. Similarly, the
reference to the cost of a retrial, while troubling, does not, in
this case, render the charge coercive. Although other circuits
have at times found that references to cost contribute to the
coercive effect of a supplemental instruction, see, e.g., United
States v. McElhiney, 275 F.3d 928, 945 (10th Cir. 2001)
(finding that instruction stressing expense of retrial
contributed to coercive effect requiring reversal), we
conclude that because the reference to the expense of a retrial
was only one of several reasons given to encourage the jury
to agree on a verdict, it did not render the charge coercive per
se and cannot be said to constitute plain error. We
nevertheless caution that such a comment could taint an Allen
charge and counsel strongly against its inclusion.
Finally, the district court’s response to the jury’s question
about a partial verdict does not render the supplemental
instruction plain error. Certainly, the court’s statement in this
regard could have been clearer. However, because it was
followed by a charge that reiterated the instruction that jurors
should not surrender their conscientiously held views, we do
not believe it rises to the level of plain error. The district
14 United States v. Clinton No. 01-5731
judge’s seemingly off-hand comment about the jury’s ability
to “disregard” the “comments of both counsel and court” falls
into the same category. It was made in the context of the
instruction to the jury to act as “judges of the facts.”
In sum, the district court’s failure to use the Sixth Circuit
pattern instruction, while risky, did not amount to reversible
error in the context of this case. The instruction included all
the necessary elements of the Allen charge, and it closely
followed an instruction that has received some degree of
approval from this court. Given that, we cannot say that the
error here “seriously affected the fairness, integrity or public
reputation of the proceedings.” Vincent, 20 F.3d at 234
(citing Olano, 507 U.S. at 736-37).
CONCLUSION
For the reasons set out above, we AFFIRM the judgment
of the district court.

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