U.S. v. Evanston

• Decision Date: 05 July 2011
• Docket Number: No. 10–10159.,10–10159.
• Citation: 11 Cal. Daily Op. Serv. 8343,651 F.3d 1080,2011 Daily Journal D.A.R. 9999
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Calvin Bryan EVANSTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

651 F.3d 1080

11 Cal. Daily Op. Serv. 8343

2011 Daily Journal D.A.R. 9999

UNITED STATES of America, Plaintiff–Appellee,

v.Calvin Bryan EVANSTON, Defendant–Appellant.

No. 10–10159.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 2011.Filed July 5, 2011.

Jennifer E. Green, Assistant United States Attorney, Phoenix, AZ, for the plaintiff-appellee.Philip E. Hantel, Phoenix, AZ, for the defendant-appellant.Appeal from the United States District Court for the District of Arizona, G. Murray Snow, District Judge, Presiding. D.C. No. 3:09–cr–08018–GMS–1.Before: ALEX KOZINSKI, Chief Judge, MICHAEL DALY HAWKINS and RONALD M. GOULD, Circuit Judges.

OPINION

HAWKINS, Senior Circuit Judge:

In a case of first impression, we examine whether a district court may, over defense objection and after the administration of an unsuccessful Allen¹ charge, inquire into the reasons for a trial jury's deadlock and then permit supplemental argument focused on those issues, where the issues in dispute are factual rather than legal. We conclude that allowing such a procedure in a criminal trial is an abuse of the discretion accorded district courts in the management of jury deliberations.

I. Facts & Trial Proceedings

Defendant Calvin Bryan Evanston (“Evanston”) was charged with assault resulting in serious bodily injury under 18 U.S.C. §§ 1153 and 113(a)(6) occurring within the Colorado River Indian Tribes reservation in western Arizona. There is no dispute that an assault occurred and that the victim, Evanston's live-in girlfriend, suffered serious bodily injury.² When interviewed, Evanston first claimed he returned home after being away for most of the day, only to find his girlfriend lying on the bed covered in blood. He later changed his story, telling investigators that he came home to see a man leaving the house and his girlfriend partially undressed. Believing she was cheating on him, he slapped her, the unexpected force of the blow spinning her to the ground. On the way down, according to Evanston, her face struck the night stand.³

During a two and one-half day trial, the victim identified Evanston as her assailant and disputed his version of events. There was, she testified, no other man in the house before or during the incident, and her injuries were not the result of a single slap, but rather of Evanston's grabbing her throat, restricting her airways, and hitting her. She remembered Evanston striking her, though she could not remember how many times. She remembered feeling a sharp pain in her face, but could not remember anything that happened between suffering the blow and waking up in the hospital.

After five hours of deliberation over two days, the jury advised that it could not reach a verdict. The district court then gave Ninth Circuit Model Jury Instruction 7.7—commonly referred to as an Allen charge, deadlock instruction, or “dynamite charge” ⁴—and asked the jury to continue to deliberate.

After almost three hours of additional deliberation, the jury again advised that it was deadlocked. At this point, the district court met with counsel outside the presence of the jury and stated: “I'm informed that other judges in this courthouse, when defendants desire it, are perfectly happy to bring in the members of the jury, ascertain the issue on which they are deadlocked, and allow ten more minutes to each side to argue that point and send the jurors back to redeliberate.” While the government welcomed the opportunity to “get to the heart of whatever their ... disagreement is,” Evanston's counsel objected to the proposed process, noting that evidence was closed and that the defense had no desire to reargue or to allow the government to do so.

Noting a reluctance to do so over the defense objection, the district court called the jury back and asked if “the procedure of, without adding additional evidence, identifying particular points and rearguing those points might assist them in resolving the impasse.” The jury agreed and identified two issues: witness credibility and how the victim's injuries were caused. The district court did not permit further elaboration on either point, allow the jury to identify which witness's credibility it questioned, or ask any questions as to the number or nature of the split, but excused the jury to allow counsel to proffer additional arguments in favor or against using the reargument procedure. The defense repeated its earlier objections, arguing that the evidence adduced by the government simply had not met its burden of providing the jury with the answers to its questions.

Despite these renewed objections—and reasoning that the procedure would avoid manifest necessity to declare a mistrial—the district court decided it would allow both sides an opportunity to address the jury on the identified issues. The government presented its supplemental closing argument first, and the defense followed. After two more hours of deliberation, the jury returned a unanimous guilty verdict.

Evanston appeals that verdict, arguing that the district court's actions in questioning the jurors as to the subject of their deadlock and allowing supplemental argument on those factual issues invaded the jury's role as the sole fact-finder.

II. Standard of Review

As an issue of first impression in this circuit, there is no authority identifying a specific standard for reviewing the decision to allow supplemental argument. Because matters of trial management are typically reviewed for abuse of discretion, United States v. Goode, 814 F.2d 1353, 1354 (9th Cir.1987), including where trial management decisions relate to jury deadlock, see United States v. Berger, 473 F.3d 1080, 1089 (9th Cir.2007), and the only other circuit to address the issue has employed a similar standard, United States v. Ayeni, 374 F.3d 1313, 1314–15 (D.C.Cir.2004), we apply the abuse of discretion standard of review here. Under that standard, “the district judge's discretion should be preserved unless its exercise could deprive the defendant of a constitutional right or otherwise prejudice defendant's case.” Goode, 814 F.2d at 1355. However, “[w]hether a judge has improperly coerced a jury's verdict is a mixed question of law and fact we review de novo.” Berger, 473 F.3d at 1089 (citing Jiminez v. Myers, 40 F.3d 976, 979 (9th Cir.1994)).

III. DiscussionA. Discretion, Coercion, and the Traditional Roles of the Judge and Jury

District courts are accorded substantial discretion in the control of jury deliberations. See, e.g., Bollenbach v. United States, 326 U.S. 607, 612–13, 66 S.Ct. 402, 90 L.Ed. 350 (1946). Nevertheless, because the right to a trial by jury as fact-finder in serious criminal cases is “fundamental to the American scheme of justice,” Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (citation and internal quotation marks omitted), it is a “cardinal principle that the deliberations of the jury shall remain private and secret” in order to protect the jury from improper outside influence, United States v. Olano, 507 U.S. 725, 737, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citation and internal quotation marks omitted). See generally Diane E. Courselle, Struggling with Deliberative Secrecy, Jury Independence, and Jury Reform, 57 S.C. L.Rev. 203 (Autumn 2005). The judge's traditional role in a jury trial is thus limited to arbiter of the law and manager of the trial process, Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933); the jury remains the primary finder of fact and essential check on arbitrary government, see United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); see also U.S. Const. amend. VI; Duncan v. Louisiana, 391 U.S. 145, 151–54, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (discussing historical development of jury trial as fundamental right in America). For these reasons, “[t]he trial judge is ... barred from attempting to override or interfere with the jurors' independent judgment in a manner contrary to the interests of the accused,” Martin Linen Supply Co., 430 U.S. at 573, 97 S.Ct. 1349, and “it is the law's objective to guard jealously the sanctity of the jury's right to operate as freely as possible from outside unauthorized intrusions purposefully made,” Remmer v. United States, 350 U.S. 377, 382, 76 S.Ct. 425, 100 L.Ed. 435 (1956).⁵

Accordingly, and because “[t]he influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received[by the jury] with deference, and may prove controlling[,]” Quercia, 289 U.S. at 470, 53 S.Ct. 698 (internal quotation marks omitted), the court's exercise of discretion in managing deliberations is not without limits. For example, when responding to jury questions or requests during deliberations, every effort must be undertaken to avoid influencing or coercing a jury to reach one verdict over another.⁶See, e.g., Nickell, 883 F.2d at 829 (“In deciding whether to allow the jury to review testimony during deliberations, the court should avoid giving undue emphasis to particular testimony.” (citing United States v. Binder, 769 F.2d 595, 600 (9th Cir.1985))); United States v. Walker, 575 F.2d 209, 214 (9th Cir.1978) (“Because the jury may not enlist the court as its partner in the fact-finding process, the trial judge must proceed circumspectly in responding to inquiries from the jury.”). Cf. Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 38 L.Ed. 841 (1894) (advising that the trial judge must take great care to avoid commenting upon evidence in one-sided manner).

Extraordinary caution must be exercised when acting to break jury deadlock. This is particularly true with respect to the court's actions in giving an Allen charge, which we have recognized as already “stand[ing] at the brink of impermissible coercion.” United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir.1977).⁷ Even...