U.S. v. Arney

• Decision Date: 24 April 2001
• Docket Number: No. 00-6187,00-6187
• Citation: 248 F.3d 984
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. DAVID L. ARNEY, DEFENDANT - APPELLANT
• Court: U.S. Court of Appeals — Tenth Circuit

Page 984

248 F.3d 984 (10th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. DAVID L. ARNEY, DEFENDANT - APPELLANT.

No. 00-6187

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 24, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D. Ct. No. CR-99-104-L)

[Copyrighted Material Omitted] Stephen Jones, Stephen Jones & Associates, Enid, Oklahoma, appearing for Appellant.

Joe Heaton, First Assistant United States Attorney (Daniel G. Webber, Jr., United States Attorney, with him on the brief), Office of the United States Attorney, Oklahoma City, Oklahoma, appearing for Appellee.

Before Tacha, Chief Judge, Brorby, and Murphy, Circuit Judges.

Tacha, Chief Judge

Appellant was convicted in a jury trial of four counts of bank fraud. Appellant argues that the district court improperly administered an Allen instruction to the jury, committed reversible error in excluding the testimony of an expert witness, admitted evidence in violation of Rule 404(b) of the Federal Rules of Evidence, and improperly redacted a note attached to an exhibit which was admitted into evidence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. Background

On June 15, 1999, appellant David L. Arney was indicted on four counts of bank fraud. The indictment alleged that, during a four-year period between 1990 and 1993, Mr. Arney submitted to two banks false federal income tax returns reflecting an inflated income in an effort to secure lines of credit.

Mr. Arney did not deny that the tax returns submitted by him to the banks were different from those filed with the IRS. He admitted that, at the time he submitted to the banks the documents that appeared to be federal income tax returns, he had not filed his tax returns. He argued, however, that his intent in delaying the filing of his tax returns was not to defraud the banks, but to maximize his recovery from Koch Oil Company in a previous litigation.¹ While conceding that the documents submitted to the banks appeared to be tax returns but were not, he argued that the information contained in the documents was correct in all material respects. Furthermore, he argued that his delay in filing his federal tax returns was not intended to defraud the banks, but was a strategic decision in the Koch Oil litigation. Finally, he argued that the differences between the information contained in the documents submitted to the banks and the information contained in the federal tax returns that he subsequently filed are the result of a good faith mistake.²

Following various pretrial proceedings, Mr. Arney was tried in October 1999. The jury in that case was unable to agree on a verdict. The district court declared a mistrial.

Mr. Arney's retrial began on December 6, 1999. The jury heard testimony from representatives of both banks and the IRS. In addition, Mr. Arney took the stand in his own defense.

The case went to the jury on December 8. After deliberating for approximately four hours, the jury sent a note stating: "Your Honor, we have been unable to reach a unanimous decision. It does not appear that this will change. What should we do now?" The district court then gave a supplemental Allen instruction and directed the jury to continue deliberating. Approximately one hour later, the jury returned its verdict finding Mr. Arney guilty on all four counts of the indictment.

On appeal, Mr. Arney argues that the district court committed reversible error in four respects: (1) in administering the Allen instruction because it was coercive, (2) in excluding the testimony of Mr. Arney's expert, (3) in admitting evidence presented by the government in violation of Rule 404(b) of the Federal Rules of Evidence, and (4) in redacting a note from Mr. Arney's counsel during the Koch Oil litigation attached to one of Mr. Arney's exhibits.

II. Discussion

A. The Allen Charge

An Allen charge derives its name from the supplemental jury instruction approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501-02 (1896). "The purpose of such a charge is to encourage unanimity (without infringement upon the conscientious views of each individual juror) by urging each juror to review and reconsider the evidence in the light of the views expressed by other jurors, in a manner evincing a conscientious search for truth rather than a dogged determination to have one's way in the outcome of the deliberative process." United States v. Smith, 857 F.2d 682, 683-84 (10th Cir. 1988).

This circuit has repeatedly urged caution in the use of Allen charges. See, e.g., United States v. Rodriguez-Mejia, 20 F.3d 1090, 1091 (10th Cir. 1994); United States v. Butler, 904 F.2d 1482, 1488 (10th Cir. 1990). "In this circuit an Allen charge can be given if it is not impermissibly coercive." United States v. Porter, 881 F.2d 878, 888 (10th Cir. 1989). We review an Allen charge for coerciveness "in its context and under all the circumstances." Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (internal quotation marks omitted); accord Porter, 881 F.2d at 888 ("In determining whether an Allen instruction is permissible, the Tenth Circuit `has made a case by case examination to determine whether the taint of coercion was present.'" (quoting Munroe v. United States, 424 F.2d 243, 246 (10th Cir. 1970) (en banc))). Some of the factors we consider in making this determination include: (1) the language of the instruction, (2) whether the instruction is presented with other instructions, (3) the timing of the instruction, and (4) the length of the jury's subsequent deliberations. Mason v. Texaco, Inc., 948 F.2d 1546, 1557 (10th Cir. 1991) (factor 4); Porter, 881 F.2d at 888 (factors 1-3).

We turn first to the language of the Allen charge.³ "`[T]he inquiry in each case is whether the language used by the judge can be said to be coercive, or merely the proper exercise of his common law right and duty to guide and assist the jury toward a fair and impartial verdict.'" Porter, 881 F.2d at 889 (quoting United States v. Winn, 411 F.2d 415, 416 (10th Cir. 1969)). Although the district court emphasized that a verdict was "very desirable" and expressed an opinion that the case could not be tried better by either side, the remainder of the instruction properly and clearly emphasized that no "juror should surrender his or her conscientious convictions" and that each juror should consider his or her opinion "with a proper regard and deference to the opinion of [the others.]" Additionally, the charge given to the jury in this case was what we have referred to as a "modified" Allen charge, differing from a traditional Allen charge by asking each juror, rather than only those in the minority, to carefully reconsider the evidence. Id. at 888. By being directed at all jurors rather than only those holding the minority view, a modified Allen charge reduces the possibility of coercion. Lowenfield, 484 U.S. at 237-38; United States v. Reed, 61 F.3d 803, 805 (10th Cir. 1995); Porter, 881 F.2d at 889. We hold that the language of the Allen charge was not coercive, but was a proper exercise of the district court's duty to guide and assist the jury.

Mr. Arney argues that giving the Allen instruction during the course of jury deliberations unduly emphasized the importance of reaching a verdict, thereby coercing the jury. "The use of a supplemental [Allen] charge has long been sanctioned." Lowenfield, 484 U.S. at 237. "This court has previously emphasized that there is no per se rule against giving an Allen charge after a jury has commenced deliberations." Porter, 881 F.2d at 889. Although this court has stated that the preferred practice is to issue an Allen charge prior to jury deliberations along with other jury instructions, id., we have found on numerous occasions that Allen charges given to a jury during its deliberations were not unduly coercive. See, e.g., Reed, 61 F.3d at 805; Butler, 904 F.2d at 1487-88; Porter, 881 F.2d at 889; United States v. McKinney, 822 F.2d 946, 950-51 (10th Cir. 1987); Munroe, 424 F.2d at 247.

In addition to looking to whether an Allen instruction was incorporated with other instructions and given prior to the commencement of jury deliberations, we also look to whether the Allen charge was given before the jury reached an impasse. Porter, 881 F.2d at 889. Mr. Arney argues that the Allen instruction was coercive because it was given after the jury had indicated that it was deadlocked and without any indication from the jury that it could reach a verdict. While we have noted "the inherent danger in this type of instruction when given to an apparently deadlocked jury" and have urged that, if given at all, an Allen charge "be incorporated in the body of the original instructions," we have given this counsel "in the form of a suggestion." Munroe, 424 F.2d at 246 (internal quotation marks omitted). While the preference is that the Allen instruction be given prior to impasse or deadlock, Smith, 857 F.2d at 684, we have not adopted this as a per se rule.

Mr. Arney argues that an Allen instruction given to a deadlocked jury is coercive unless the jury, after receiving the Allen charge, indicates that they are not hopelessly deadlocked. Cf. Porter, 881 F.2d at 889 (noting juror's indication, after receiving Allen instruction, that they could reach verdict indicated they were not hopelessly deadlocked and reduced possibility of coercion). While we agree that such an indication is preferable, we have previously upheld Allen instructions even where the jury has indicated that it could not reach a verdict and the district court did not inquire whether the jury could overcome the impasse. See, e.g., Reed, 61 F.3d at 805; Butler, 904 F.2d at 1487-88; McKinney, 822 F.2d at 950; see also 2A Charles Alan Wright, Federal Practice and Procedure § 502, at 530-31 (3d ed. 2000) ("The court is not required to accept the judgment of a jury that it is hopelessly deadlocked, and...