8TH CIRCUIT MODEL INSTRUCTIONS 2009
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10.    Supplemental Instructions

        10.00    Introductory Comment
        10.01     Response To Questions Necessitating Supplemental Instructions
        10.02     Duty To Deliberate ("Allen" Charge)
        10.03     Return To Deliberations After Polling
        10.04     Partial Verdict

8TH CIRCUIT MODEL INSTRUCTIONS 2009

10.00 SUPPLEMENTAL INSTRUCTIONS
Introductory Comment

This section addresses instructions which may be given after the jury has begun its deliberations.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 285: Supplemental Instructions

MEMBERS OF THE JURY:

I have received a note signed by your foreperson which reads as follows:

"(Insert note.)"

(Insert response.)

[[This] [these] instruction[s] should be taken together with the instructions I previously gave to you. The instructions must be considered as a whole. [Remember that the defendant is presumed to be innocent and this presumption can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.¹]]²

1. This language is recommended if the burden of proof or presumption of innocence is not otherwise covered in the supplemental instruction.

2. This paragraph is recommended if supplemental instructions are given or original instructions are reread.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.07 (5th ed. 2000). See also West Key # Criminal Law 863(1) and (2).

The response to a jury request for supplemental instructions is a matter within the sound discretion of the trial judge. United States v. Skarda, 845 F.2d 1508, 1512 (8th Cir. 1988); United States v. Neiss, 684 F.2d 570, 572 (8th Cir. 1982); United States v. Piatt, 679 F.2d 1228, 1231 (8th Cir. 1982). If a supplemental instruction is given, it must be responsive. "When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13 (1946); United States v. Skarda, 845 F.2d at 1512; United States v. Neiss, 684 F.2d at 572; United States v. Piatt, 679 F.2d at 1231. The discretion of the court goes to the decision to reply and, if a reply is given, whether that reply should refer back to or reread instructions already given or consist of new instructions. A response need not address more than the question specifically requested. United States v. Piatt, 679 F.2d at 1231. Thus, there is no requirement that all instructions be reread. United States v. Piatt, 679 F.2d at 1231; United States v. Humphrey, 696 F.2d 72, 75 (8th Cir. 1982). "[A] trial court is not required to speculate upon the purpose of the jury's inquiry during its deliberations[;] the court, if it chooses to reply, should answer the inquiry within the specific limits of the questions presented." United States v. Neiss, 684 F.2d at 572. See also United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989).

Any supplemental instructions must be impartial. "A trial judge must be painstakingly impartial anytime he communicates with the jury during deliberations. He must insure that any supplemental instructions are accurate, clear, neutral and nonprejudicial." United States v. Skarda, 845 F.2d at 1512. Accuracy may sometimes require a response which correctly states the law rather than a yes or no answer which would not help the jury address the issues it is supposed to decide. See United States v. Felak, 831 F.2d 794, 798 (8th Cir. 1987). If the response is already contained in the jury instructions, a reference to the original charge is all that is necessary. United States v. White, 794 F.2d 367, 370 (8th Cir. 1986) (definition of conspiracy). See also United States v. Hicks, 619 F.2d 752, 758 (8th Cir. 1980) (jury told to consider instructions as a whole in response to inquiry about discrepancy in wording between indictment and instructions).

Generally an instruction setting out the elements of an offense or defining a term therein is considered neutral. If the jury requests a rereading of such an instruction, the court may properly limit its reinstruction to the issues requested, and is not required to also reread instructions setting out the defendant's theory. United States v. Neiss, 684 F.2d at 572; United States v. Skarda, 845 F.2d at 1512 (citing Felak, 831 F.2d at 798 and Humphrey, 696 F.2d at 75).

While not required, the better practice is to remind the jury to consider supplemental instructions in the context of all instructions. Skarda, 845 F.2d at 1512; United States v. Piatt, 679 F.2d at 1231. Likewise reinstruction on reasonable doubt and presumption of innocence, while not required, helps assure impartiality. See, e.g., Piatt, 679 F.2d at 1231.

Where the court has granted a jury's request for specific evidence during deliberations, such as the replaying of a tape recording, it is likewise good practice to caution the jury to consider that evidence in the context of all the evidence. United States v. Koessel, 706 F.2d 271, 275 (8th Cir. 1983).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

MEMBERS OF THE JURY:

I have received a note signed by your foreperson which reads as follows:

"(Insert note.)"

(Insert response.)

[[This] [these] instruction[s] should be taken together with the instructions I previously gave to you. The instructions must be considered as a whole. [Remember that the defendant is presumed to be innocent and this presumption can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.¹]]²

1. This language is recommended if the burden of proof or presumption of innocence is not otherwise covered in the supplemental instruction.

2. This paragraph is recommended if supplemental instructions are given or original instructions are reread.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.07 (5th ed. 2000). See also West Key # Criminal Law 863(1) and (2).

The response to a jury request for supplemental instructions is a matter within the sound discretion of the trial judge. United States v. Skarda, 845 F.2d 1508, 1512 (8th Cir. 1988); United States v. Neiss, 684 F.2d 570, 572 (8th Cir. 1982); United States v. Piatt, 679 F.2d 1228, 1231 (8th Cir. 1982). If a supplemental instruction is given, it must be responsive. "When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13 (1946); United States v. Skarda, 845 F.2d at 1512; United States v. Neiss, 684 F.2d at 572; United States v. Piatt, 679 F.2d at 1231. The discretion of the court goes to the decision to reply and, if a reply is given, whether that reply should refer back to or reread instructions already given or consist of new instructions. A response need not address more than the question specifically requested. United States v. Piatt, 679 F.2d at 1231. Thus, there is no requirement that all instructions be reread. United States v. Piatt, 679 F.2d at 1231; United States v. Humphrey, 696 F.2d 72, 75 (8th Cir. 1982). "[A] trial court is not required to speculate upon the purpose of the jury's inquiry during its deliberations[;] the court, if it chooses to reply, should answer the inquiry within the specific limits of the questions presented." United States v. Neiss, 684 F.2d at 572. See also United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989).

Any supplemental instructions must be impartial. "A trial judge must be painstakingly impartial anytime he communicates with the jury during deliberations. He must insure that any supplemental instructions are accurate, clear, neutral and nonprejudicial." United States v. Skarda, 845 F.2d at 1512. Accuracy may sometimes require a response which correctly states the law rather than a yes or no answer which would not help the jury address the issues it is supposed to decide. See United States v. Felak, 831 F.2d 794, 798 (8th Cir. 1987). If the response is already contained in the jury instructions, a reference to the original charge is all that is necessary. United States v. White, 794 F.2d 367, 370 (8th Cir. 1986) [definition of conspiracy]. See also United States v. Hicks, 619 F.2d 752, 758 (8th Cir. 1980) [jury told to consider instructions as a whole in response to inquiry about discrepancy in wording between indictment and instructions].

Generally an instruction setting out the elements of an offense or defining a term therein is considered neutral. If the jury requests a rereading of such an instruction, the court may properly limit its reinstruction to the issues requested, and is not required to also reread instructions setting out the defendant's theory. United States v. Neiss, 684 F.2d at 572; United States v. Skarda, 845 F.2d at 1512 (citing Felak, 831 F.2d at 798 and Humphrey, 696 F.2d at 75).

While not required, the better practice is to remind the jury to consider supplemental instructions in the context of all instructions. Skarda, 845 F.2d at 1512; United States v. Piatt, 679 F.2d at 1231. Likewise reinstruction on reasonable doubt and presumption of innocence, while not required, helps assure impartiality. See, e.g., Piatt, 679 F.2d at 1231.

Where the court has granted a jury's request for specific evidence during deliberations, such as the replaying of a tape recording, it is likewise good practice to caution the jury to consider that evidence in the context of all the evidence. United States v. Koessel, 706 F.2d 271, 275 (8th Cir. 1983).

(For 2006 version see below)

***************************************************************************************************************************

MEMBERS OF THE JURY:

I have received a note signed by your foreperson which reads as follows:

"(Insert note.)"

(Insert response.)

[[This] [these] instruction[s] should be taken together with the instructions I previously gave to you. The instructions must be considered as a whole. [Remember that the defendant is presumed to be innocent and this presumption can be overcome only if the Government proves, beyond a reasonable doubt, each element of the crime charged.1]]2

1. This language is recommended if the burden of proof or presumption of innocence is not otherwise covered in the supplemental instruction.

2. This paragraph is recommended if supplemental instructions are given or original instructions are reread.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.07 (5th ed. 2000). See also West Key # Criminal Law 863(1) and (2).

The response to a jury request for supplemental instructions is a matter within the sound discretion of the trial judge. United States v. Skarda, 845 F.2d 1508, 1512 (8th Cir. 1988); United States v. Neiss, 684 F.2d 570, 572 (8th Cir. 1982); United States v. Piatt, 679 F.2d 1228, 1231 (8th Cir. 1982). If a supplemental instruction is given, it must be responsive. "When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13 (1946); United States v. Skarda, 845 F.2d at 1512; United States v. Neiss, 684 F.2d at 572; United States v. Piatt, 679 F.2d at 1231. The discretion of the court goes to the decision to reply and, if a reply is given, whether that reply should refer back to or reread instructions already given or consist of new instructions. A response need not address more than the question specifically requested. United States v. Piatt, 679 F.2d at 1231. Thus, there is no requirement that all instructions be reread. United States v. Piatt, 679 F.2d at 1231; United States v. Humphrey, 696 F.2d 72, 75 (8th Cir. 1982). "[A] trial court is not required to speculate upon the purpose of the jury's inquiry during its deliberations[;] the court, if it chooses to reply, should answer the inquiry within the specific limits of the questions presented." United States v. Neiss, 684 F.2d at 572. See also United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989).

Any supplemental instructions must be impartial. "A trial judge must be painstakingly impartial anytime he communicates with the jury during deliberations. He must insure that any supplemental instructions are accurate, clear, neutral and nonprejudicial." United States v. Skarda, 845 F.2d at 1512. Accuracy may sometimes require a response which correctly states the law rather than a yes or no answer which would not help the jury address the issues it is supposed to decide. See United States v. Felak, 831 F.2d 794, 798 (8th Cir. 1987). If the response is already contained in the jury instructions, a reference to the original charge is all that is necessary. United States v. White, 794 F.2d 367, 370 (8th Cir. 1986) [definition of conspiracy]. See also United States v. Hicks, 619 F.2d 752, 758 (8th Cir. 1980) [jury told to consider instructions as a whole in response to inquiry about discrepancy in wording between indictment and instructions].

Generally an instruction setting out the elements of an offense or defining a term therein is considered neutral. If the jury requests a rereading of such an instruction, the court may properly limit its reinstruction to the issues requested, and is not required to also reread instructions setting out the defendant's theory. United States v. Neiss, 684 F.2d at 572; United States v. Skarda, 845 F.2d at 1512 (citing Felak, 831 F.2d at 798 and Humphrey, 696 F.2d at 75).

While not required, the better practice is to remind the jury to consider supplemental instructions in the context of all instructions. Skarda, 845 F.2d at 1512; United States v. Piatt, 679 F.2d at 1231. Likewise reinstruction on reasonable doubt and presumption of innocence, while not required, helps assure impartiality. See, e.g., Piatt, 679 F.2d at 1231.

Where the court has granted a jury's request for specific evidence during deliberations, such as the replaying of a tape recording, it is likewise good practice to caution the jury to consider that evidence in the context of all the evidence. United States v. Koessel, 706 F.2d 271, 275 (8th Cir. 1983).

For 2000 version see below

******************************************************************************************************************

2000 Version

10.01 RESPONSE TO QUESTIONS NECESSITATING SUPPLEMENTAL INSTRUCTIONS

MEMBERS OF THE JURY:

I have received a note signed by your foreperson which reads as follows:

"(Insert note.)"

(Insert response.)

[[This] [these] instruction[s] should be taken together with the instructions I previously gave to you. The instructions must be considered as a whole. [Remember that the defendant is presumed to be innocent and this presumption can be overcome only if the Government proves, beyond a reasonable doubt, each essential element of the crime charged.1]]2

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 20.07 (4th ed. 1992). See also West Key # Criminal Law 863(1) and (2).

The response to a jury request for supplemental instructions is a matter within the sound discretion of the trial judge. United States v. Skarda, 845 F.2d 1508, 1512 (8th Cir. 1988); United States v. Neiss, 684 F.2d 570, 572 (8th Cir. 1982); United States v. Piatt, 679 F.2d 1228, 1231 (8th Cir. 1982). If a supplemental instruction is given, it must be responsive. "When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13 (1946); United States v. Skarda, 845 F.2d at 1512; United States v. Neiss, 684 F.2d at 572; United States v. Piatt, 679 F.2d at 1231. The discretion of the court goes to the decision to reply and, if a reply is given, whether that reply should refer back to or reread instructions already given or consist of new instructions. A response need not address more than the question specifically requested. United States v. Piatt, 679 F.2d at 1231. Thus, there is no requirement that all instructions be reread. United States v. Piatt, 679 F.2d at 1231; United States v. Humphrey, 696 F.2d 72, 75 (8th Cir. 1982), cert. denied, 459 U.S. 1222 (1983). "[A] trial court is not required to speculate upon the purpose of the jury's inquiry during its deliberations[;] the court, if it chooses to reply, should answer the inquiry within the specific limits of the questions presented." United States v. Neiss, 684 F.2d at 572. See also United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989).

Any supplemental instructions must be impartial. "A trial judge must be painstakingly impartial anytime he communicates with the jury during deliberations. He must insure that any supplemental instructions are accurate, clear, neutral and nonprejudicial." United States v. Skarda, 845 F.2d at 1512. Accuracy may sometimes require a response which correctly states the law rather than a yes or no answer which would not help the jury address the issues it is supposed to decide. See United States v. Felak, 831 F.2d 794, 798 (8th Cir. 1987). If the response is already contained in the jury instructions, a reference to the original charge is all that is necessary. United States v. White, 794 F.2d 367, 370 (8th Cir. 1986) [definition of conspiracy]. See also United States v. Hicks, 619 F.2d 752, 758 (8th Cir. 1980) [jury told to consider instructions as a whole in response to inquiry about discrepancy in wording between indictment and instructions].

Generally an instruction setting out the elements of an offense or defining a term therein is considered neutral. If the jury requests a rereading of such an instruction, the court may properly limit its reinstruction to the issues requested, and is not required to also reread instructions setting out defendant's theory. United States v. Neiss, 684 F.2d at 572; United States v. Skarda, 845 F.2d at 1512, citing Felak, 831 F.2d at 798 and Humphrey, 696 F.2d at 75.

While not required, the better practice is to remind the jury to consider supplemental instructions in the context of all instructions. Skarda, 845 F.2d at 1512; United States v. Piatt, 679 F.2d at 1231. Likewise reinstruction on reasonable doubt and presumption of innocence, while not required, helps assure impartiality. See, e.g., Piatt, 679 F.2d at 1231.

Where the court has granted a jury's request for specific evidence during deliberations, such as the replaying of a tape recording, it is likewise good practice to caution the jury to consider that evidence in the context of all the evidence. United States v. Koessel, 706 F.2d 271, 275 (8th Cir. 1983).

1. This language is recommended if the burden of proof or presumption of innocence is not otherwise covered in the supplemental instruction.

2. This paragraph is recommended if supplemental instructions are given or original instructions are reread.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

Chapter 278: Duty Of Jury To Deliberate

As stated in my instructions, it is your duty to consult with one another and to deliberate with a view to reaching agreement if you can do so without violence to your individual judgment. Of course you must not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinions of other jurors or for the mere purpose of returning a verdict. Each of you must decide the case for yourself; but you should do so only after consideration of the evidence with your fellow jurors.

In the course of your deliberations you should not hesitate to re-examine your own views, and to change your opinion if you are convinced it is wrong. To bring twelve minds to a unanimous result you must examine the questions submitted to you openly and frankly, with proper regard for the opinions of others and with a willingness to re-examine your own views.

Remember that if in your individual judgment the evidence fails to establish guilt beyond a reasonable doubt, then the defendant should have your vote for a not guilty verdict. If all of you reach the same conclusion, then the verdict of the jury must be not guilty. Of course the opposite also applies. If in your individual judgment the evidence establishes guilt beyond a reasonable doubt, then your vote should be for a verdict of guilty and if all of you reach that conclusion then the verdict of the jury must be guilty. As I instructed you earlier, the burden is upon the Government to prove beyond a reasonable doubt every element of the crime[s] charged.

Finally, remember that you are not partisans; you are judges -- judges of the facts. Your sole interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.

You may conduct your deliberations as you choose. But I suggest that you carefully [re]consider all the evidence bearing upon the questions before you. You may take all the time that you feel is necessary.

There is no reason to think that another trial would be tried in a better way or that a more conscientious, impartial or competent jury would be selected to hear it. Any future jury must be selected in the same manner and from the same source as you. If you should fail to agree on a verdict, the case is left open and must be disposed of at some later time.¹

[Please go back now to finish your deliberations in a manner consistent with your good judgment as reasonable persons.]²

1. A more expanded version of this instruction, 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.08 (5th ed. 2000), has been approved by this Circuit. See United States v. Smith, 635 F.2d 716, 722-23 (8th Cir. 1980); United States v. Singletary, 562 F.2d 1058, 1060-61 (8th Cir. 1977); United States v. Hecht, 705 F.2d 976, 979 (8th Cir. 1983).

2. Use this sentence when this charge is being given after deliberations have begun.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.08 (5th ed. 2000); Federal Judicial Center, Pattern Jury Criminal Instructions § 10 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.43 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 7.06 (1999); Ninth Cir. Crim. Jury Instr. 7.1 (1997). See generally West Key # "Criminal Law" 768(3), 865(1), 1174(1).

It is preferable that an "Allen" type instruction be given as part of the regular final instructions, before the jurors begin their deliberations. United States v. Webb, 816 F.2d 1263, 1266 n.4 (8th Cir. 1987); Potter v. United States, 691 F.2d 1275, 1277 (8th Cir. 1982), and cases cited therein. See Instruction 3.12, supra.

If that has been done, and if the circumstances are appropriate, either the same instruction may be repeated later or this instruction 10.02 may be given if the jury announces difficulty in reaching a verdict. United States v. Singletary, 562 F.2d 1058, 1061 (8th Cir. 1977); United States v. Cortez, 935 F.2d 135, 140 (8th Cir. 1991). See also ABA Standards Relating to Trial by Jury § 5.4.

The language of this instruction covers the essential points of the traditional "Allen" charge, taken from the instruction approved in United States v. Smith, 635 F.2d 716, 722-23 (8th Cir. 1980). Judge Gibson noted in Potter, 691 F.2d at 1277 that "caution . . . dictates . . . that trial courts should avoid substantial departures from the formulations of the charge that have already received judicial approval." This instruction has been approved in United States v. Thomas, 946 F.2d 73 (8th Cir. 1991).

According to the holding in Potter, it would be permissible to give the present instruction as a supplemental charge upon deadlock, in lieu of repeating the paragraphs under the "Second" point in Instruction 3.12, supra.

As to when and in what circumstances a supplemental instruction may be appropriate, see generally Potter v. United States; United States v. Smith, 635 F.2d 716 (8th Cir. 1980). As the Eighth Circuit has repeatedly cautioned, supplemental charges of this nature should be utilized with "great care." United States v. Young, 702 F.2d 133 (8th Cir. 1983); Potter v. United States; United States v. Smith.

It is not necessarily reversible error for the trial court to give a supplemental instruction sua sponte and even without direct announcement by the jury of its difficulty. United States v. Smith. The safe practice, however, would be to give such an instruction only after the jury has directly communicated its difficulty or the length of time spent in deliberations, compared with the nature of the issues and length of trial, and makes it clear that difficulty does exist. A premature supplemental charge certainly could, in an appropriate case, be sufficient cause for reversal.

The trial court may make reasonable inquiries to determine if a jury is truly deadlocked, but may not ask the jury of the nature and extent of its division. Lowenfield v. Phelps, 484 U.S. 231 (1988); Brasfield v. United States, 272 U.S. 448 (1926); United States v. Webb, 816 F.2d at 1266. The fact that the court inadvertently learns the division of the jurors does not, by itself, prevent the giving of a supplemental charge. United States v. Cook, 663 F.2d 808 (8th Cir. 1981); Anderson v. United States, 262 F.2d 764, 773-74 (8th Cir. 1959). Such an instruction can be coercive, however, where the sole dissenting juror is aware that the court knows his identity. United States v. Sae-Chua, 725 F.2d 530 (9th Cir. 1984).

In this Circuit the defendant does not have a right to an instruction that the jury has the right to reach no decision. United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

As stated in my instructions, it is your duty to consult with one another and to deliberate with a view to reaching agreement if you can do so without violence to your individual judgment. Of course you must not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinions of other jurors or for the mere purpose of returning a verdict. Each of you must decide the case for yourself; but you should do so only after consideration of the evidence with your fellow jurors.

In the course of your deliberations you should not hesitate to re-examine your own views, and to change your opinion if you are convinced it is wrong. To bring twelve minds to a unanimous result you must examine the questions submitted to you openly and frankly, with proper regard for the opinions of others and with a willingness to re-examine your own views.

Remember that if in your individual judgment the evidence fails to establish guilt beyond a reasonable doubt, then the defendant should have your vote for a not guilty verdict. If all of you reach the same conclusion, then the verdict of the jury must be not guilty. Of course the opposite also applies. If in your individual judgment the evidence establishes guilt beyond a reasonable doubt, then your vote should be for a verdict of guilty and if all of you reach that conclusion then the verdict of the jury must be guilty. As I instructed you earlier, the burden is upon the Government to prove beyond a reasonable doubt every element of the crime[s] charged.

Finally, remember that you are not partisans; you are judges -- judges of the facts. Your sole interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.

You may conduct your deliberations as you choose. But I suggest that you carefully [re]consider all the evidence bearing upon the questions before you. You may take all the time that you feel is necessary.

There is no reason to think that another trial would be tried in a better way or that a more conscientious, impartial or competent jury would be selected to hear it. Any future jury must be selected in the same manner and from the same source as you. If you should fail to agree on a verdict, the case is left open and must be disposed of at some later time.¹

[Please go back now to finish your deliberations in a manner consistent with your good judgment as reasonable persons.]²

1. A more expanded version of this instruction, 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.08 (5th ed. 2000), has been approved by this Circuit. See United States v. Smith, 635 F.2d 716, 722-23 (8th Cir. 1980); United States v. Singletary, 562 F.2d 1058, 1060-61 (8th Cir. 1977); United States v. Hecht, 705 F.2d 976, 979 (8th Cir. 1983).

2. Use this sentence when this charge is being given after deliberations have begun.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.08 (5th ed. 2000); Federal Judicial Center, Pattern Jury Criminal Instructions § 10 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.43 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 7.06 (1999); Ninth Cir. Crim. Jury Instr. 7.1 (1997). See generally West Key # "Criminal Law" 768(3), 865(1), 1174(1).

It is preferable that an "Allen" type instruction be given as part of the regular final instructions, before the jurors begin their deliberations. United States v. Webb, 816 F.2d 1263, 1266 n.4 (8th Cir. 1987); Potter v. United States, 691 F.2d 1275, 1277 (8th Cir. 1982), and cases cited therein. See Instruction 3.12, supra.

If that has been done, and if the circumstances are appropriate, either the same instruction may be repeated later or this instruction 10.02 may be given if the jury announces difficulty in reaching a verdict. United States v. Singletary, 562 F.2d 1058, 1061 (8th Cir. 1977); United States v. Cortez, 935 F.2d 135, 140 (8th Cir. 1991). See also ABA Standards Relating to Trial by Jury § 5.4.

The language of this instruction covers the essential points of the traditional "Allen" charge, taken from the instruction approved in United States v. Smith, 635 F.2d 716, 722-23 (8th Cir. 1980). Judge Gibson noted in Potter, 691 F.2d at 1277 that "caution . . . dictates . . . that trial courts should avoid substantial departures from the formulations of the charge that have already received judicial approval." This instruction has been approved in United States v. Thomas, 946 F.2d 73 (8th Cir. 1991).

According to the holding in Potter, it would be permissible to give the present instruction as a supplemental charge upon deadlock, in lieu of repeating the paragraphs under the "Second" point in Instruction 3.12, supra.

As to when and in what circumstances a supplemental instruction may be appropriate, see generally Potter v. United States; United States v. Smith, 635 F.2d 716 (8th Cir. 1980). As the Eighth Circuit has repeatedly cautioned, supplemental charges of this nature should be utilized with "great care." United States v. Young, 702 F.2d 133 (8th Cir. 1983); Potter v. United States; United States v. Smith.

It is not necessarily reversible error for the trial court to give a supplemental instruction sua sponte and even without direct announcement by the jury of its difficulty. United States v. Smith. The safe practice, however, would be to give such an instruction only after the jury has directly communicated its difficulty or the length of time spent in deliberations, compared with the nature of the issues and length of trial, and makes it clear that difficulty does exist. A premature supplemental charge certainly could, in an appropriate case, be sufficient cause for reversal.

The trial court may make reasonable inquiries to determine if a jury is truly deadlocked, but may not ask the jury of the nature and extent of its division. Lowenfield v. Phelps, 484 U.S. 231 (1988); Brasfield v. United States, 272 U.S. 448 (1926); United States v. Webb, 816 F.2d at 1266. The fact that the court inadvertently learns the division of the jurors does not, by itself, prevent the giving of a supplemental charge. United States v. Cook, 663 F.2d 808 (8th Cir. 1981); Anderson v. United States, 262 F.2d 764, 773-74 (8th Cir. 1959). Such an instruction can be coercive, however, where the sole dissenting juror is aware that the court knows his identity. United States v. Sae-Chua, 725 F.2d 530 (9th Cir. 1984).

In this Circuit the defendant does not have a right to an instruction that the jury has the right to reach no decision. United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989).

(For 2006 version see below)

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As stated in my instructions, it is your duty to consult with one another and to deliberate with a view to reaching agreement if you can do so without violence to your individual judgment. Of course you must not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinions of other jurors or for the mere purpose of returning a verdict. Each of you must decide the case for yourself; but you should do so only after consideration of the evidence with your fellow jurors.

In the course of your deliberations you should not hesitate to re-examine your own views, and to change your opinion if you are convinced it is wrong. To bring twelve minds to a unanimous result you must examine the questions submitted to you openly and frankly, with proper regard for the opinions of others and with a willingness to re-examine your own views.

Remember that if in your individual judgment the evidence fails to establish guilt beyond a reasonable doubt, then the defendant should have your vote for a not guilty verdict. If all of you reach the same conclusion, then the verdict of the jury must be not guilty. Of course the opposite also applies. If in your individual judgment the evidence establishes guilt beyond a reasonable doubt, then your vote should be for a verdict of guilty and if all of you reach that conclusion then the verdict of the jury must be guilty. As I instructed you earlier, the burden is upon the Government to prove beyond a reasonable doubt every element of the crime[s] charged.

Finally, remember that you are not partisans; you are judges -- judges of the facts. Your sole interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.

You may conduct your deliberations as you choose. But I suggest that you carefully [re]consider all the evidence bearing upon the questions before you. You may take all the time that you feel is necessary.

There is no reason to think that another trial would be tried in a better way or that a more conscientious, impartial or competent jury would be selected to hear it. Any future jury must be selected in the same manner and from the same source as you. If you should fail to agree on a verdict, the case is left open and must be disposed of at some later time.1

[Please go back now to finish your deliberations in a manner consistent with your good judgment as reasonable persons.]2

1. A more expanded version of this instruction, 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.08 (5th ed. 2000), has been approved by this Circuit. See United States v. Smith, 635 F.2d 716, 722-23 (8th Cir. 1980); United States v. Singletary, 562 F.2d 1058, 1060-61 (8th Cir. 1977); United States v. Hecht, 705 F.2d 976, 979 (8th Cir. 1983).

2. Use this sentence when this charge is being given after deliberations have begun.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.08 (5th ed. 2000); Federal Judicial Center, Pattern Jury Criminal Instructions § 10 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.43 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 7.06 (1999); Ninth Cir. Crim. Jury Instr. 7.1 (1997). See generally West Key # "Criminal Law" 768(3), 865(1), 1174(1).

It is preferable that an "Allen" type instruction be given as part of the regular final instructions, before the jurors begin their deliberations. United States v. Webb, 816 F.2d 1263, 1266 n.4 (8th Cir. 1987); Potter v. United States, 691 F.2d 1275, 1277 (8th Cir. 1982), and cases cited therein. See Instruction 3.12, supra.

If that has been done, and if the circumstances are appropriate, either the same instruction may be repeated later or this instruction 10.02 may be given if the jury announces difficulty in reaching a verdict. United States v. Singletary, 562 F.2d 1058, 1061 (8th Cir. 1977); United States v. Cortez, 935 F.2d 135, 140 (8th Cir. 1991). See also ABA Standards Relating to Trial by Jury § 5.4.

The language of this instruction covers the essential points of the traditional "Allen" charge, taken from the instruction approved in United States v. Smith, 635 F.2d 716, 722-23 (8th Cir. 1980). Judge Gibson noted in Potter, 691 F.2d at 1277 that "caution . . . dictates . . . that trial courts should avoid substantial departures from the formulations of the charge that have already received judicial approval." This instruction has been approved in United States v. Thomas, 946 F.2d 73 (8th Cir. 1991).

According to the holding in Potter, it would be permissible to give the present instruction as a supplemental charge upon deadlock, in lieu of repeating the paragraphs under the "Second" point in Instruction 3.12, supra.

As to when and in what circumstances a supplemental instruction may be appropriate, see generally Potter v. United States; United States v. Smith, 635 F.2d 716 (8th Cir. 1980). As the Eighth Circuit has repeatedly cautioned, supplemental charges of this nature should be utilized with "great care." United States v. Young, 702 F.2d 133 (8th Cir. 1983); Potter v. United States; United States v. Smith.

It is not necessarily reversible error for the trial court to give a supplemental instruction sua sponte and even without direct announcement by the jury of its difficulty. United States v. Smith. The safe practice, however, would be to give such an instruction only after the jury has directly communicated its difficulty or the length of time spent in deliberations, compared with the nature of the issues and length of trial, and makes it clear that difficulty does exist. A premature supplemental charge certainly could, in an appropriate case, be sufficient cause for reversal.

The trial court may make reasonable inquiries to determine if a jury is truly deadlocked, but may not ask the jury of the nature and extent of its division. Lowenfield v. Phelps, 484 U.S. 231 (1988); Brasfield v. United States, 272 U.S. 448 (1926); United States v. Webb, 816 F.2d at 1266. The fact that the court inadvertently learns the division of the jurors does not, by itself, prevent the giving of a supplemental charge. United States v. Cook, 663 F.2d 808 (8th Cir. 1981); Anderson v. United States, 262 F.2d 764, 773-74 (8th Cir. 1959). Such an instruction can be coercive, however, where the sole dissenting juror is aware that the court knows his identity. United States v. Sae-Chua, 725 F.2d 530 (9th Cir. 1984).

In this Circuit the defendant does not have a right to an instruction that the jury has the right to reach no decision. United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989).

For 2000 version see below

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2000 Version

10.02 DUTY TO DELIBERATE ("Allen" Charge)

As stated in my instructions, it is your duty to consult with one another and to deliberate with a view to reaching agreement if you can do so without violence to your individual judgment. Of course you must not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinions of other jurors or for the mere purpose of returning a verdict. Each of you must decide the case for yourself; but you should do so only after consideration of the evidence with your fellow jurors.

In the course of your deliberations you should not hesitate to re-examine your own views, and to change your opinion if you are convinced it is wrong. To bring twelve minds to a unanimous result you must examine the questions submitted to you openly and frankly, with proper regard for the opinions of others and with a willingness to re-examine your own views.

Remember that if in your individual judgment the evidence fails to establish guilt beyond a reasonable doubt, then the defendant should have your vote for a not guilty verdict. If all of you reach the same conclusion, then the verdict of the jury must be not guilty. Of course the opposite also applies. If in your individual judgment the evidence establishes guilt beyond a reasonable doubt, then your vote should be for a verdict of guilty and if all of you reach that conclusion then the verdict of the jury must be guilty. As I instructed you earlier, the burden is upon the Government to prove beyond a reasonable doubt every essential element of the crime[s] charged.

Finally, remember that you are not partisans; you are judges -- judges of the facts. Your sole interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.

You may conduct your deliberations as you choose. But I suggest that you carefully [re]consider all the evidence bearing upon the questions before you. You may take all the time that you feel is necessary.

There is no reason to think that another trial would be tried in a better way or that a more conscientious, impartial or competent jury would be selected to hear it. Any future jury must be selected in the same manner and from the same source as you. If you should fail to agree on a verdict, the case is left open and must be disposed of at some later time.1

[Please go back now to finish your deliberations in a manner consistent with your good judgment as reasonable persons.]2

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 20.08 (4th ed. 1992); Federal Judicial Center, Pattern Jury Criminal Instructions 10 (1988); Fifth Circuit Pattern Jury Instructions: Criminal § 1.43 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 7.06 (1999); Ninth Cir. Crim. Jury Instr. 7.1 (1997). See generally West Key # "Criminal Law" 768(3), 865(1), 1174(1).

It is preferable that an "Allen" type instruction be given as part of the regular final instructions, before the jurors begin their deliberations. United States v. Webb, 816 F.2d 1263, 1266 n.4 (8th Cir. 1987); Potter v. United States, 691 F.2d 1275, 1277 (8th Cir. 1982), and cases cited therein. See Instruction 3.12, supra.

If that has been done, and if the circumstances are appropriate, either the same instruction may be repeated later or this instruction 10.02 may be given if the jury announces difficulty in reaching a verdict. United States v. Singletary, 562 F.2d 1058, 1061 (8th Cir. 1977); United States v. Cortez, 935 F.2d 135, 140 (8th Cir. 1991). See also ABA Standards Relating to Trial by Jury § 5.4.

The language of this instruction covers the essential points of the traditional "Allen" charge, taken from the instruction approved in United States v. Smith, 635 F.2d 716, 722-23 (8th Cir. 1980). Judge Gibson noted in Potter, 691 F.2d at 1277 that "caution . . . dictates . . . that trial courts should avoid substantial departures from the formulations of the charge that have already received judicial approval." This instruction has been approved in United States v. Thomas, 946 F.2d 73 (8th Cir. 1991).

According to the holding in Potter, it would be permissible to give the present instruction as a supplemental charge upon deadlock, in lieu of repeating the paragraphs under the "Second" point in Instruction 3.12, supra.

As to when and in what circumstances a supplemental instruction may be appropriate, see generally Potter v. United States, supra, United States v. Smith, 635 F.2d 716 (8th Cir. 1980). As the Eighth Circuit has repeatedly cautioned, supplemental charges of this nature should be utilized with "great care." United States v. Young, 702 F.2d 133 (8th Cir. 1983); Potter v. United States, supra; United States v. Smith, supra.

It is not necessarily reversible error for the trial court to give a supplemental instruction sua sponte and even without direct announcement by the jury of its difficulty. United States v. Smith, supra. The safe practice, however, would be to give such an instruction only after the jury has directly communicated its difficulty or the length of time spent in deliberations, compared with the nature of the issues and length of trial, and makes it clear that difficulty does exist. A premature supplemental charge certainly could, in an appropriate case, be sufficient cause for reversal.

The trial court may make reasonable inquiries to determine if a jury is truly deadlocked, but may not ask the jury of the nature and extent of its division. Lowenfield v. Phelps, 484 U.S. 231 (1988); Brasfield v. United States, 272 U.S. 448 (1926); United States v. Webb, 816 F.2d at 1266. The fact that the court inadvertently learns the division of the jurors does not, by itself, prevent the giving of a supplemental charge. United States v. Cook, 663 F.2d 808 (8th Cir. 1981); Anderson v. United States, 262 F.2d 764, 773-74 (8th Cir.), cert. denied, 360 U.S. 929 (1959). Such an instruction can be coercive, however, where the sole dissenting juror is aware that the court knows his identity. United States v. Sae--Chua, 725 F.2d 530 (9th Cir. 1984).

In this Circuit the defendant does not have a right to an instruction that the jury has the right to reach no decision. United States v. Arpan, 887 F.2d 873 (8th Cir. en banc 1989).

1. A more expanded version of this instruction, 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 20.01 (4th ed. 1992), has been approved by this Circuit. See United States v. Smith, 635 F.2d 716, 722-23 (8th Cir. 1980); United States v. Singletary, 562 F.2d 1058, 1060-61 (8th Cir. 1977); United States v. Hecht, 705 F.2d 976, 979 (8th Cir. 1983).

2. Use this sentence when this charge is being given after deliberations have begun.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

FORECITE National™ Materials Related To This Instruction:

287.5 Jury Poll

The poll of the jury shows that there is not a unanimous verdict. Please return to the jury room and continue your deliberations.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.09 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 7.07 (1999); Ninth Cir. Crim. Jury Instr. 7.6 (1997).

Under Rule 31(d), Fed. R. Crim. P., the court has the discretion, when a poll of the jury does not reveal unanimous concurrence in the verdict, to either discharge the jury or direct the jury to continue deliberations. United States v. Williams, 873 F.2d 1102 (8th Cir. 1989); United States v. Johnson, 720 F.2d 519, 521 (8th Cir. 1983). Concurrence means agreeing that the elements of the offense have been proved beyond a reasonable doubt. Reservations of a juror going to extraneous matters, such as the conduct of defense counsel, does not affect the unanimity or certainty of the verdict where the juror agrees that the elements have been proved beyond a reasonable doubt. United States v. Antwine, 873 F.2d 1144 (8th Cir. 1989).

If a jury is sent back for further deliberations it may be instructed on the requirement of unanimity. See Committee Comments, Instructions 3.12 and 10.02, supra.

(For 2008 version see below).

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2008 Version

The poll of the jury shows that there is not a unanimous verdict. Please return to the jury room and continue your deliberations.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.09 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 7.07 (1999); Ninth Cir. Crim. Jury Instr. 7.6 (1997).

Under Rule 31(d), Fed. R. Crim. P., the court has the discretion, when a poll of the jury does not reveal unanimous concurrence in the verdict, to either discharge the jury or direct the jury to continue deliberations. United States v. Williams, 873 F.2d 1102 (8th Cir. 1989); United States v. Johnson, 720 F.2d 519, 521 (8th Cir. 1983). Concurrence means agreeing that the elements of the offense have been proved beyond a reasonable doubt. Reservations of a juror going to extraneous matters, such as the conduct of defense counsel, does not affect the unanimity or certainty of the verdict where the juror agrees that the elements have been proved beyond a reasonable doubt. United States v. Antwine, 873 F.2d 1144 (8th Cir. 1989).

If a jury is sent back for further deliberations it may be instructed on the requirement of unanimity. See Committee Comments, Instructions 3.12 and 10.02, supra.

(For 2006 version see below)

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The poll of the jury shows that there is not a unanimous verdict. Please return to the jury room and continue your deliberations.

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 20.09 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal § 7.07 (1999); Ninth Cir. Crim. Jury Instr. 7.6 (1997).

Under Rule 31(d), Fed. R. Crim. P., the court has the discretion, when a poll of the jury does not reveal unanimous concurrence in the verdict, to either discharge the jury or direct the jury to continue deliberations. United States v. Williams, 873 F.2d 1102 (8th Cir. 1989); United States v. Johnson, 720 F.2d 519, 521 (8th Cir. 1983). Concurrence means agreeing that the elements of the offense have been proved beyond a reasonable doubt. Reservations of a juror going to extraneous matters, such as the conduct of defense counsel, does not affect the unanimity or certainty of the verdict where the juror agrees that the elements have been proved beyond a reasonable doubt. United States v. Antwine, 873 F.2d 1144 (8th Cir. 1989).

If a jury is sent back for further deliberations it may be instructed on the requirement of unanimity. See Committee Comments, Instructions 3.12 and 10.02, supra.

For 2000 version see below

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2000 Version

10.03 RETURN TO DELIBERATIONS AFTER POLLING

The poll of the jury shows that there is not a unanimous verdict. Please return to the jury room and continue your deliberations.

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 20.09 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal § 7.07 (1999); Ninth Cir. Crim. Jury Instr. 7.6 (1997).

Under Rule 31(d), Fed. R. Crim. P., the court has the discretion, when a poll of the jury does not reveal unanimous concurrence in the verdict, to either discharge the jury or direct the jury to continue deliberations. United States v. Williams, 873 F.2d 1102 (8th Cir. 1989); United States v. Johnson, 720 F.2d 519, 521 (8th Cir. 1983), cert. denied, 465 U.S. 1036 (1984). Concurrence means agreeing that the elements of the offense have been proved beyond a reasonable doubt. Reservations of a juror going to extraneous matters, such as the conduct of defense counsel, does not affect the unanimity or certainty of the verdict where the juror agrees that the elements have been proved beyond a reasonable doubt. United States v. Antwine, 873 F.2d 1144 (8th Cir. 1989).

If a jury is sent back for further deliberations it may be instructed on the requirement of unanimity. See Committee Comments, Instructions 3.12 and 10.02, supra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

10.04 
PARTIAL VERDICT¹

FORECITE National™ Materials Related To This Instruction:

Chapter 286: Deadlock

Members of the jury, if you have reached unanimous agreement as to [some of the defendants]² [and/or] [some of the counts]³, you may return a verdict as to [those defendants] [and/or] [those counts], and then continue deliberating on the others.

If you do choose to return a verdict as to [some of the defendants] [and/or] [some of the counts] now, that verdict will be final. You will not be able to change your minds about it later on.

1. This instruction should be used if the jurors ask about, attempt to return, or otherwise indicate that they have reached a partial verdict. It may also be appropriate after extended deliberations.

2. Omit this language when there is a single defendant.

3. Omit this language when there is a single count.

Rule 31(b) of the Federal Rules of Criminal Procedure permits the return of a verdict at any time during the jury’s deliberation as to any defendant or any count about which it has agreed. See United States v. Haren, 952 F.2d 190, 197 (8^th Cir. 1991). The Eighth Circuit joins all other circuits which have addressed the issue in holding that the practice of taking a partial verdict in a single-defendant case is not per se invalid. United States v. Benedict, 95 F.3d 17, 19 (8^th Cir. 1996).

This instruction is not mandatory, see United States v. Dilapi, 651 F.2d 140, 146-47 (2d Cir. 1981); Rule 31(b) only requires that the district court judge accept a partial verdict upon request, and refrain from instructing the jury that they may not return a partial verdict. See United States v. Burke, 700 F.2d 70, 80 (2d Cir. 1983). Because of prolonged jury deliberation, in its discretion a district court may give the partial verdict instruction, or instruct the jury in an evenhanded, non-coercive manner that it would prefer a unanimous verdict if accomplished without any juror yielding a conscientious conviction which he or she may have. See United States v. Cortez, 935 F.2d 135, 140-42 (8^th Cir. 1991) (citing Allen v. United States, 164 U.S. 492(1896)). See also Instruction 10.02, supra.

(For 2008 version see below).

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2008 Version

Members of the jury, if you have reached unanimous agreement as to [some of the defendants]² [and/or] [some of the counts]³, you may return a verdict as to [those defendants] [and/or] [those counts], and then continue deliberating on the others.

If you do choose to return a verdict as to [some of the defendants] [and/or] [some of the counts] now, that verdict will be final. You will not be able to change your minds about it later on.

1. This instruction should be used if the jurors ask about, attempt to return, or otherwise indicate that they have reached a partial verdict. It may also be appropriate after extended deliberations.

2. Omit this language when there is a single defendant.

3. Omit this language when there is a single count.

Rule 31(b) of the Federal Rules of Criminal Procedure permits the return of a verdict at any time during the jury’s deliberation as to any defendant or any count about which it has agreed. See United States v. Haren, 952 F.2d 190, 197 (8^th Cir. 1991). The Eighth Circuit joins all other circuits which have addressed the issue in holding that the practice of taking a partial verdict in a single-defendant case is not per se invalid. United States v. Benedict, 95 F.3d 17, 19 (8^th Cir. 1996).

This instruction is not mandatory, see United States v. Dilapi, 651 F.2d 140, 146-47 (2d Cir. 1981); Rule 31(b) only requires that the district court judge accept a partial verdict upon request, and refrain from instructing the jury that they may not return a partial verdict. See United States v. Burke, 700 F.2d 70, 80 (2d Cir. 1983). Because of prolonged jury deliberation, in its discretion a district court may give the partial verdict instruction, or instruct the jury in an evenhanded, non-coercive manner that it would prefer a unanimous verdict if accomplished without any juror yielding a conscientious conviction which he or she may have. See United States v. Cortez, 935 F.2d 135, 140-42 (8^th Cir. 1991) (citing Allen v. United States, 164 U.S. 492(1896)). See also, Instruction 10.02, supra.

(For 2006 version see below)

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Members of the jury, if you have reached unanimous agreement as to [some of the defendants]2 [and/or] [some of the counts]3, you may return a verdict as to [those defendants] [and/or] [those counts], and then continue deliberating on the others.

If you do choose to return a verdict as to [some of the defendants] [and/or] [some of the counts] now, that verdict will be final. You will not be able to change your minds about it later on.

1. This instruction should be used if the jurors ask about, attempt to return, or otherwise indicate that they have reached a partial verdict. It may also be appropriate after extended deliberations.

2. Omit this language when there is a single defendant.

3. Omit this language when there is a single count.

Rule 31(b) of the Federal Rules of Criminal Procedure permits the return of a verdict at any time during the jury’s deliberation as to any defendant or any count about which it has agreed. See United States v. Haren, 952 F.2d 190, 197 (8th Cir. 1991). The Eighth Circuit joins all other circuits which have addressed the issue in holding that the practice of taking a partial verdict in a single-defendant case is not per se invalid. United States v. Benedict, 95 F.3d 17, 19 (8th Cir. 1996).

This instruction is not mandatory, see United States v. Dilapi, 651 F.2d 140, 146-47 (2d Cir. 1981); Rule 31(b) only requires that the district court judge accept a partial verdict upon request, and refrain from instructing the jury that they may not return a partial verdict. See United States v. Burke, 700 F.2d 70, 80 (2d Cir. 1983). Because of prolonged jury deliberation, in its discretion a district court may give the partial verdict instruction, or instruct the jury in an evenhanded, non-coercive manner that it would prefer a unanimous verdict if accomplished without any juror yielding a conscientious conviction which he or she may have. See United States v. Cortez, 935 F.2d 135, 140-42 (8th Cir. 1991) (citing Allen v. United States, 164 U.S. 492(1896)). See also, Instruction 10.02, supra.

No 2000 Version