The White Collar Appeal: Ninth Circuit Vacates Guilty Verdict Due to Coercive Allen Charge

• In a nonprecedential decision, the Ninth Circuit vacated a jury verdict after the district court allowed the jury to review a copy of the indictment after it instructed the jury to continue deliberating but failed to provide a contemporaneous limiting instruction.

• The Court of Appeals held that providing the indictment to a deadlocked jury “effectively highlighted the government’s factual theory of the case and impermissibly coerced a verdict.”

• Sadovsky serves as a reminder that Allen charges can be treacherous territory.  Defendants opposing such instructions should point to Sadovsky and similar cases to persuade the district court not to give the instruction (and preserve all potential issues for appeal).

Background

The case involved an owner and operator of pharmacies charged with healthcare fraud and kickback charges based on alleged participation in a drug diversion scheme.  Before deliberations began, the district court informed the parties that it would provide the jury with a redacted copy of the indictment, over the defendant’s objection.  Despite this determination, the district court forgot to provide the jury with a copy of the indictment.  After a few hours of deliberation, the jury sent a note stating that it was “currently deadlocked and need[ed] instruction from the judge.”  The district court instructed the jury to continue its deliberations and sent the jury home for the day. 

The judge who presided over the trial had a scheduling conflict the following day, so when the jury resumed its deliberations, a new judge presided.  The new judge realized that the jurors had never received the redacted indictment, so she provided it to them at the beginning of the day’s deliberations.  The judge did not provide any instruction to the jurors at that time, nor did it inform the parties that it was sending the indictment back.

About an hour later, the jury sent a note indicating it was deadlocked on only one count.  At that time, the court notified the parties that it had sent the redacted indictment back that morning.  Defense counsel vociferously objected to the court’s decision to do so without consulting the parties, noting its “large concern” that giving the jury the indictment “at this time frame” could cause them to misconstrue the indictment as the court’s “response” to its deadlock note.  A few minutes later, the jury came back with two guilty verdicts, ten acquittals, with one count on which it hung.  Sadovsky later obtained an affidavit from one juror, who said that “[t]he [i]ndictment is what swayed my vote from not guilty to guilty on Counts One and Five.  I … felt pressure to change my vote.”

Holding

In a nonprecedential decision, the Ninth Circuit reversed the district court’s denial of Sadovsky’s motion for a new trial.  The court determined that handing the jury the indictment at such a critical juncture and without providing a contemporaneous limiting instruction that the indictment was not evidence, “effectively highlighted the government’s factual theory of the case and impermissibly coerced a verdict.”  Notably, the court reached this conclusion even though the district court had cautioned the jury at the beginning of deliberations that the indictment was not evidence, but “did not provide those same guardrails contemporaneous with sending the indictment to the jury after the Allen charge.”

Key Takeaways

Interacting with a deadlocked jury is a delicate art.  The Sadovsky court affirmed the principle that an Allen charge—even standing alone—“stands at the brink of impermissible coercion.”  When a court gives an Allen charge, it must be careful in its subsequent communications and interactions to avoid the appearance that it is responding to the jury’s deadlock with materials or information. 

Defendants should object to providing the jury with additional materials once deliberations have begun.  Sadovsky is clear that a deadlocked jury cannot be provided with the indictment—a roadmap of the government’s case—without, at a minimum, providing a contemporaneous instruction that an indictment is not evidence.  But the Allen issue aside, Sadovsky suggests that a district court may err when it provides a deliberating jury with material that is not in evidence without providing contemporaneous limiting instructions.  Sadovsky relies on United States v. Evanston, 651 F.3d 1080, 1088 (9th Cir. 2011), in which the Ninth Circuit vacated a criminal conviction where the district court had allowed the attorneys to provide factual argument after deliberations had begun.  Evanston stands for the principle that the court may provide legal instructions in response to jury communications, but it errs when it permits additional factual argument. 

The juror’s affidavit no doubt affected the Court of Appeals’ decision.  Evidence of prejudice is crucial.  Although the district court held it could not consider the affidavit under Rule 606(b) of the Federal Rules of Evidence—and the Ninth Circuit does not discuss the affidavit in its opinion—it came up multiple times during oral argument before the Court of Appeals.  Showing the court in concrete ways how an Allen charge or other error affected the outcome of the trial must have some impact on a judge, even if the Rules of Evidence say it should not.

Two hours is short enough for a finding of prejudice.  Citing Evanston, the panel stated, “[t]he speed at which the jury resolved its deadlock after receiving the indictment is enough to find prejudice.”  And here, the Court of Appeals found prejudice based on the jury returning its verdicts “just over two hours” after the district court sent back the indictment.  Defense counsel thus should keep track of time when the court interacts with the jury during deliberations.