EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, December 25, 2012

Not a Juror Was Stirring: 5th Circuit Finds No Problem WIth Allen Charge Despite Impending Christmas Holiday

An Allen charge, derived from the Supreme Court's opinion in Allen v. United States, 164 U.S. 492 (1896), is an instruction given by a court to a deadlocked jury to encourage it to continue deliberating until it reachesa verdict. Also referred to as a dynamite charge, a nitroglycerine charge, a shotgun charge, and a third-degree instruction, an Allen charge has been banned by some states, which consider the charge to be unduly coercive. Should the Allen charge also be banned when a major holiday is fast approaching? Should the charge be banned the day before a major holiday? Let's take a look at the recent opinion of the Fifth Circuit in United States v. Montalvo, 2012 WL 4788659 (5th Cir. 2012).

In Montalvo, Damian Montalvo was charged with various drug crimes.

During the course of its deliberation, the jury sent three notes to the district judge indicating that it could not reach a unanimous verdict. After receiving the third note, the district judge issued an Allen charge. That was on Monday, December 20, 2010. The jury continued to deliberate for a few more hours on that day and resumed deliberations the next morning, December 21, less than four full days before Christmas. It then returned a verdict finding Montalvo not guilty on the first five counts, but guilty on Count Six, possessing with intent to distribute more than 1,000 kilograms of marijuana. Montalvo filed a motion for a new trial, which the district court denied.

Montalvo thereafter appealed, claiming that the Allen charge was unduly coercive given the approaching Christmas holiday. As support, he offered

two jurors' affidavits...which state[d] that, although a majority of the jurors initially voted to find Montalvo not guilty on all counts, they compromised to find him guilty as to Count Six after the Allen charge was issued, due in part to concerns about the approaching Christmas holiday.

First, the Fifth Circuit deemed the juror affidavits inadmissible under Federal Rule of Evidence 606(b), which precludes post-verdict jury impeachment unless it relates to extraneous prejudicial information, improper outside influences, or transcription errors.

Second, with regard to the question of whether the timing of the Allen charge was inherently coercive, the Fifth Circuit cited to a prior opinion in which it "denied another Allen charge challenge, observing that '[t]he time of the day was not late. The day was not Friday or the day before a holiday. The weather was not alleged to be inclement.'" Applying this precedent, the court concluded that

Here, although the Christmas holiday season was in progress, the Allen charge was not issued on "the day before a holiday"....Moreover, there appears to be no indication that the jury expressed any concern about the approaching holiday by requesting a recess, and the court transcript indicates that the judge neither mentioned the holiday nor set a time-frame for the jurors to complete their deliberations.

Interesting. So, would an Allen charge on Christmas Eve have been inherently coercive? Would the Allen charge need to have been issued late in the day to be coercive? And what if the judge had mentioned the impending holiday?



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