U.S. v. Clinton

Decision Date05 August 2003
Docket NumberNo. 01-5731.,01-5731.
Citation338 F.3d 483
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Karlos A. CLINTON, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Gregory C. Krog, Jr., Memphis, Tennessee, for Defendant-Appellant.

Paul M. O'Brien, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Plaintiff-Appellee.


Gregory C. Krog, Jr., Memphis, Tennessee, for Defendant-Appellant.

Paul M. O'Brien, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Plaintiff-Appellee.

Before: BOGGS and DAUGHTREY, Circuit Judges; OBERDORFER, District 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, 17 S.Ct. 154, 41 L.Ed. 528 (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 coerceive and, therefore, requires reversal. We find no reversible error and affirm.


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 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 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 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 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...

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28 cases
  • United States v. Robinson
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 29, 2017
    ...instructions, see Sixth Circuit Pattern Criminal Jury Instruction 9.04, which have been held to be non-coercive, see U.S. v. Clinton , 338 F.3d 483, 489–90 (6th Cir. 2003). Even outside of the pattern language, the court emphasized dissenting jurors' freedom to disagree, explaining after th......
  • Yates v. State
    • United States
    • Court of Special Appeals of Maryland
    • December 22, 2011
    ...and ‘its use will, in most instances, insulate a resulting verdict’ from challenge on appeal.”) (quoting United States v. Clinton, 338 F.3d 483, 488 (6th Cir.2003)), cert. denied, 553 U.S. 1006, 128 S.Ct. 2051, 170 L.Ed.2d 797 (2008); United States v. Reff, 479 F.3d 396, 402 (5th Cir.) (“We......
  • Hardaway v. Burt, CASE NO. 13-13144
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    • U.S. District Court — Eastern District of Michigan
    • May 9, 2016
    ...v. Parke, 741 F.2d 847, 850 (6th Cir.1984), and despite "troubling" references to trial expense and effort, e.g., United States v. Clinton, 338 F.3d 483, 490 (6th Cir. 2003).Hardaway, 655 F.3d at 448. In this case, moreover,the supplemental charge included several remarks that were sufficie......
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    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 27, 2005
    ...the charge, even after the judge asked for objections. Under this circumstance, we review for plain error. Ibid.; United States v. Clinton, 338 F.3d 483, 487 (6th Cir.2003) (reviewing modifications made to the standard text of the charge for plain error because "there was no objection to th......
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1 books & journal articles
  • Trial
    • United States
    • James Publishing Practical Law Books Federal Criminal Practice
    • April 30, 2022
    ...object to an Allen charge, or the court of appeals will review it as plain error [Chapter 1, §§1:24 et seq .]. United States v. Clinton , 338 F.3d 483, 487 (6th Cir. 2003). A general objection to the instructions is not sufficient to avoid plain error review; you must object to specific por......

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