9^TH CIRCUIT MODEL INSTRUCTIONS 2000
(Includes Additions and Revisions Through 2007)
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        7.1     Duty To Deliberate
        7.2     Consideration Of Evidence
        7.3     Use Of Notes
        7.4     Jury Consideration Of Punishment
        7.5     Verdict Form
        7.6     Communication With Court
        7.7     Deadlocked Jury
        7.8     Script For Post-Allen Charge Inquiry
        7.9     Specific Issue Unanimity

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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Chapter 278: Duty Of Jury To Deliberate

When you begin your deliberations, you should elect one member of the jury as your foreperson. That person will preside over the deliberations and speak for you here in court.

You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict, whether guilty or not guilty, must be unanimous.

Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.

Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right.

It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

In the ordinary case, a general instruction that the jury's verdict must be unanimous will be sufficient. United States v. Kim, 196 F.3d 1079, 1082 (9th Cir. 1999); United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir. 1983). However, when there is a genuine possibility of jury confusion, a more specific unanimity instruction—directing that the jury must be unanimous as to which facts satisfy particular elements of the crime—may be required. Kim, 196 F.3d at 1082; United States v. Echeverry, 719 F.2d 974, 975 (9th Cir. 1983). See Instruction 7.9 (Specific Issue Unanimity).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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16.8 Juror Note Taking

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Chapter 279: Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict

A verdict form has been prepared for you. [Any explanation of the verdict form may be given at this time.] After you have reached unanimous agreement on a verdict, your foreperson will fill in the form that has been given to you, sign and date it and advise the bailiff that you are ready to return to the courtroom.

The judge may also wish to explain to the jury the particular form of verdict being used.

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Chapter 283: Communication With Jury

If it becomes necessary during your deliberations to communicate with me, you may send a note through the bailiff, signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing, and I will respond to the jury concerning the case only in writing, or here in open court. If you send out a question, I will consult with the lawyers before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone—including me—how the jury stands, numerically or otherwise, on the question of the guilt of the defendant, until after you have reached a unanimous verdict or have been discharged.

The court has a continuing duty to instruct the jury while it is deliberating. McDowell v. Calderon, 130 F.3d 833, 836 (9th Cir. 1997), cert. denied, 118 S. Ct. 1575 (1998).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

Chapter 286: Deadlock

Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you.

As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.

All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.

I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.

You may now retire and continue your deliberations.

Comment

The Committee recommends that a supplemental instruction to encourage a deadlocked jury to reach a verdict should be given with great caution. An earlier form of instruction for a deadlocked jury was approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501 (1896). See also, United States v. Daas, 198 F.3d 1167, No. 98-10490, 2000 WL 1657, *10 (9th Cir. 1999) (citing Instruction 7.6 (Deadlocked Jury), now Instruction 7.7, with approval).

Before giving any supplemental jury instruction to a deadlocked jury, the Committee recommends the court review United States v. Wills, 88 F.3d 704, 716-18 (9th Cir.), cert. denied, 519 U.S. 1000 (1996); United States v. Ajiboye, 961 F.2d 892 (9th Cir. 1992) (approving similar language to this instruction); United States v. Nickell, 883 F.2d 824, 827-29 (9th Cir. 1989); United States v. Seawell, 550 F.2d 1159 (9th Cir. 1977), appeal after remand, 583 F.2d 416 (9th Cir. 1978), cert. denied, 439 U.S. 991 (1978); and §§ 5.5, Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures (1998). See also, United States v. Steele, 298 F.3d 906, 911 (9^th Cir.) cert. denied 123 S. Ct 710 (2002).

Rev. 6/2003 (for 2000 version see below).

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2000 Version

Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you.

As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.

All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.

I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.

You may now retire and continue your deliberations.

The Committee recommends that a supplemental instruction to encourage a deadlocked jury to reach a verdict should be given with great caution. An earlier form of instruction for a deadlocked jury was approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501 (1896). See also United States v. Daas, __F.3d__, No. 98-10490, 2000 WL 1657, *10 (9th Cir. 1999) (citing Instruction 7.6 (Deadlocked Jury), now Instruction 7.7, with approval).

Before giving any supplemental jury instruction to a deadlocked jury, the Committee recommends the court review United States v. Wills, 88 F.3d 704, 716-18 (9th Cir.), cert. denied, 519 U.S. 1000 (1996); United States v. Ajiboye, 961 F.2d 892 (9th Cir. 1992) (approving similar language to this instruction); United States v. Nickell, 883 F.2d 824, 827-29 (9th Cir. 1989); United States v. Seawell, 550 F.2d 1159 (9th Cir. 1977), appeal after remand, 583 F.2d 416 (9th Cir. 1978), cert. denied, 439 U.S. 991 (1978); and Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 5.5 (1998)

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Chapter 286: Deadlock

If the jury indicates that it is deadlocked after an Allen charge is given, the Committee recommends asking the foreperson of the jury the following:

"In your opinion, is the jury hopelessly deadlocked?" [If the foreperson's response is, "Yes," then ask the foreperson] "Is there a reasonable probability that the jury can reach a unanimous verdict if sent back to the jury room for further deliberation?" [If the foreperson's response is "No," then ask the following question of the entire panel] "Do you feel there is a reasonable probability that the jury can reach a unanimous verdict if sent back to the jury room for further deliberation?"

You may wish to poll the jury and record their answers, which shall be yes or no. See United States v. See, 505 F.2d 845, 851 (9th Cir. 1974) (finding that "[t]he 'crucial factor' . . . is a statement from the jury that it is 'hopelessly deadlocked.'")

The courts have considered a number of factors in determining whether there has been an abuse of discretion in declaring a deadlocked jury. These include: "(1) a timely objection by defendant, (2) the jury's collective opinion that it cannot agree, (3) the length of the deliberations of the jury, (4) the length of the trial, (5) the complexity of the issues presented to the jury, (6) any proper communications which the Judge has had with the jury, and (7) the effects of possible exhaustion and the impact which coercion of further deliberations might have on the verdict." Arnold v. McCarthy, 566 F.2d 1377,1387 (9th Cir. 1978).

See also Jury Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 5.5 (1998).

9^TH CIRCUIT MODEL INSTRUCTIONS 2000

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Chapter 273 Jury Unanimity As To The Act Or Offense Committed (Duplicity).

"A jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element." Richardson v. United States, 526 U.S.813 (1999) (continuing criminal enterprise prosecution).

The Ninth Circuit has stated that in certain cases, the general instruction regarding jury unanimity is insufficient. See, e.g., United States v. Echeverry, 719 F.2d 974, 975 (9th Cir. 1983) (finding that unanimity instruction regarding specific conspiracy should have been given in light of proof of multiple conspiracies).

The need for unanimity may arise in any case in which there is a "genuine possibility of jury confusion." Echeverry, 719 F.2d at 975. In particular, the potential for jury confusion exists when (1) the evidence is factually complex, (2) there is a discrepancy between the evidence and the indictment, (3) the indictment is broad or ambiguous, (4) the jury's questions indicate that it may be confused, or (5) some other particular factor creates such possibility of confusion. See Richardson, 119 S.Ct. at 1709 (finding that in a continuing criminal enterprise prosecution, there must be unanimity as to the specific violations which make up the "continuing series of violations"); United States v. Kim, 196 F.3d 1079, 1082-83 (9th Cir. 1999) (no abuse of discretion to refuse to give specific unanimity instruction when the defendant was charged with a single crime based on a single set of facts and where prohibited acts were merely alternative means by which the defendant may be held criminally liable for the underlying substantive offense); Jeffries v. Blodgett, 5 F.3d 1180, 1195 (9th Cir.) (juror unanimity required for murder charges), cert. denied, 510 U.S. 1994 (1994); United States v. Anguiano, 873 F.2d 1314, 1319–21 (9th Cir.), cert. denied, 493 U.S. 969 (1989) (multiple drug conspiracies; indicia of juror confusion not present); United States v. Payseno, 782 F.2d 832, 836–37 (9th Cir. 1986) (plain error to fail to give specific unanimity instruction when there was evidence of three separate extortion incidents charged in a single count under the Consumer Credit Protection Act); Echeverry, 719 F.2d at 975 (multiple drug conspiracies; juror questions suggested confusion). But see United States v. Qualls, 172 F.3d 1136, 1138 (9th Cir. 1999) (holding that under Caron v. United States, 524 U.S. 308 (1998), in felon in possession of firearm case, there was no longer a need for jury to agree on which firearm defendant possessed.)

The Committee recommends that when a specific unanimity instruction is necessary to avoid juror confusion, the substantive instruction should be amended to include the phrase " . . .with all of you agreeing [as to the particular fact requiring unanimity]."