Allen Charge Issues - Jurors, You Can / Must Decide (5/15/13)

In United States v. Walshe, 2013 U.S. App. LEXIS 9149 (10th Cir. 5/6/13), here, an unpublished opinion, the Court dealt with some typical but unexceptional issues in a case involving tax and theft issues.  I thought readers might be interested in the Allen Charge instruction which derives from Allen v. United States, 164 U.S. 492 (1896).  For some background on the Allen charge, see the Wikipedia entry here. The Allen charge is usually given to a jury when it has difficulty reaching a unanimous verdict.  That means that it is given after the jury has deliberated for a while and advised the court it is having difficulty.  The charge comes in several variations, depending on circuit, but essentially tells that jury that they have heard the evidence and should with diligence and care be able to reach a unanimous verdict.  I offer more general material on the Allen charge at the end of this blog entry after presenting the discussion of Walshe.

Here is the example of the Fifth Circuit's pattern Allen charge which is quoted in the Wikipedia entry:

"Members of the Jury:
I'm going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.
This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.
Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.
If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.
Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.
You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty.
You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.
I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you."

One problem with the charge is that, depending upon how it is worded, it can be subtly -- perhaps not so subtly -- coercive to the jury.  And, to the extent that it might be coercive, one would want to avoid giving the charge before it was clear that the jury was having difficulty.  Hence, timing is as noted when the jury deliberates and announces it cannot come to a unanimous verdict.  Some courts, however, encourage the charge to be given in the original charges; hence, if the charge is coercive and the jury is paying attention to all of the original charge, then there are potential problems.  These issues were dealt with in Walshe.  Here's the Court's discussion of Walshe's complaint about the Allen charge.

B. The Allen Charge Was Not Impermissibly Coercive 

Mr. Walshe contends that the modified Allen charge given by the court was impermissibly coercive. As background, after partial deliberation, the jury informed the court that it had not been able to reach a decision on Counts 12-18—the counts involving theft from an employee benefit plan. The Government requested that the court provide the jury with the modified Allen charge contained in Tenth Circuit Pattern Jury Instructions. The defense raised objections to the modified Allen charge, including arguments that the charge was essentially contained in Instruction No. 26 and that the charge would have a "coercive effect." (ROA Vol. II at 918-19.) Accordingly, the court decided to refer the jury to Instruction No. 26 and to read a paragraph from the pattern modified Allen charge that was not included in Instruction No. 26. After bringing the jury to the courtroom, the court said the following: 

Let me advise you that it is not uncommon in the course of jury deliberation to believe that you have reached an impasse; but most often, jurors can get past an impasse.
I will be allowing you to retire again to continue your deliberations. In doing, so I remind you of the provisions in Instruction No. 26. It reads:
It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. You must each evaluate the evidence for yourself but only after impartially considering it with your fellow jurors.
In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you're convinced it is erroneous. However, do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. 

(ROA Vol. II at 922-23.) The court continued by reading to the jury an additional paragraph from the Tenth Circuit pattern Allen charge: 

You should remember that the defendant is presumed innocent and that the Government, not the defendant, has the burden of proof and it must prove the defendant guilty beyond a reasonable doubt. Those of you who believe that the Government has proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the evidence is really convincing enough, given that other members of the jury are not convinced. And those of you who believe that the Government has not proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the doubt you have is a reasonable one, given that other members of the jury do not share your doubt. In short, every individual juror should reconsider his or her own views.  

(ROA Vol. II at 923.) Before excusing the jury to continue its deliberations, the court concluded by saying the following, which also mirrors the pattern modified Allen charge: 

Now, what I've just said is not meant to rush or to pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry.
I'll ask you now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the instructions that I have previously given you. 

(ROA Vol. II at 923.) 

Approximately 53 minutes after receiving these instructions from the court, the jury returned a verdict of guilty on all counts. Subsequently, the court sentenced Mr. Walshe and entered final judgment, and Mr. Walshe timely filed his notice of appeal. 

In determining whether an Allen charge was impermissibly coercive, "[s]ome of the factors we consider . . . include: (1) the language of the instruction, (2) whether the instruction is presented with other instructions, (3) the timing of the instruction, and (4) the length of the jury's subsequent deliberations." Arney, 248 F.3d 988. We will consider each in turn. 

1. The Language of the Charge 

In considering the language of the Allen charge, "[t]he inquiry in each case is whether the language used by the judge can be said to be coercive, or merely the proper exercise of his common law right and duty to guide and assist the jury toward a fair and impartial verdict." Id. (internal quotation marks omitted). We have held that "the following cautionary language should be incorporated to balance the potential coercive effect of [an Allen] charge." United States v. McElhiney, 275 F.3d 928, 949 (10th Cir. 2001). First, "that no juror should relinquish his or her conscientiously held convictions simply to secure a verdict." Id. And second, "that  [*23] every individual juror should reconsider his or her views, whether in the majority or in the minority." Id. 

In this case, the language that the court read from Instruction No. 26 and the pattern modified Allen instruction was not coercive. Instead, it was evenhanded, it emphasized that jurors should not relinquish their conscientiously held beliefs, n2 and it instructed all jurors to reconsider their views. n3 Indeed, the language was very similar to the language contained in Allen charges that this court has upheld in other cases. See, e.g., United States v. Reed, 61 F.3d 803, 805 (10th Cir. 1995). Accordingly, we conclude that the language at issue in this case was not coercive.
   n2 Mr. Walshe complains that the court omitted language contained in the pattern Allen instruction, "which is designed to maintain individual jurors beliefs and prevent them from caving into pressure." (Aplt. Br. at 21.) But the language the court read from Instruction No. 26 substantially mirrors the omitted language from the pattern Allen instruction. Specifically, Instruction No. 26 informs the jurors: "[D]o not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion  [*24] of your fellow jurors or for the mere purpose of returning a verdict." (ROA Vol. II at 922-23.)
   n3 Mr. Walshe particularly objects to court's admonition that each juror should "reconsider his or her own views." (Aplt. Reply Br. at 12.) But this argument is foreclosed by the court's holding in McElhiney. 275 F.3d at 949 (holding that courts should include in an Allen charge "that every individual juror should reconsider his or her views, whether in the majority or in the minority").  

2. The Timing and Context of the Charge 

"In order to temper the potential coercive effect of an Allen charge, this court has recommended that the instruction be incorporated with the other jury instructions—in other words, that it be given as part of the original jury instructions." McElhiney, 275 F.3d at 942. "In this position, the Allen instruction is less likely to be coercive because (1) it does not stand out or receive particular emphasis and (2) it is given before the jury has reached a deadlock." Id. Nonetheless, "the[e] positioning of the instruction does not by itself establish coercion." Id.; see also United States v. McKinney, 822 F.2d 946, 951 (10th Cir.1987) ("[A]lthough it is a preferred rule of procedure that an Allen instruction be given the jury at the same time as other instructions, it is not a per se rule."). 

In this case, the context and timing of the modified Allen charge indicate that it was not coercive. Much of the language in the charge was contained in written Instruction No. 26, which the jury received with all of the other jury instructions before trial. Although the court did read additional language from the pattern Allen instruction, it instructed the jury to "continue [its] deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the instructions that I have previously given." (ROA Vol. II at 923.) 

Moreover, although the court read a portion of pattern Allen charge for the first time after the jury was deadlocked, in light of the noncoercive language of the instruction, that alone is insufficient to establish that the instruction was coercive. See Reed, 61 F.3d at 804 (rejecting defendant's argument that it was "error for the trial court to give this instruction after the jury had twice announced it could not reach a verdict," because "the Allen charge eventually given was evenhanded; it did not presume that  [*26] the majority favored a guilty verdict; and it emphasized that no juror was expected to yield a conscientious conviction on the evidence"). Thus, the context and timing of the instruction do not indicate that it was coercive. 

3. Length of Subsequent Deliberations 

We will consider "the length of the jury's subsequent deliberations" as a factor in determining if an Allen charge was coercive. Arney, 248 F.3d 988. But even a relatively short period of deliberation following an Allen charge may not necessarily establish that the charge was coercive. See Reed, 61 F.3d at 804-05. 

In this case, after receiving the Allen charge, the jury deliberated for approximately fifty-three minutes before returning a verdict. But in context, this deliberation period does not imply that the jury was coerced. The record indicates that, before it received the Allen charge, the jury had already reached its decision regarding the counts relating to failure to pay withholding tax; thus, it only had to consider the counts relating to theft from an employee benefit plan. And the court specifically instructed the jury that the Allen charge was "not meant to rush or to pressure you into agreeing on a verdict," and the court advised the jury to "[t]ake as much time as you need to discuss things," and that "[t]here is no need to hurry." (ROA Vol. II at 923.) 

Thus, the factors in this case do not indicate that the Allen charge given by the court was coercive. Accordingly, we conclude that the court did not abuse its discretion.

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I now offer some background on the Allen charge generally.  The following is from the Annual Review of Criminal Procedure: III Trials, 40 Geo. L.J. Ann. Rev. Crim. Proc. 515, 594-599 (2011) (some footnotes omitted).

If a jury in federal court indicates that there is a deadlock in returning a verdict, the judge may make reasonable inquiries to determine whether the jury is truly deadlocked but may not inquire into the numerical division of the jury or its deliberative processes. * * * * A judge who concludes that the jury cannot overcome a deadlock may, after informing counsel, declare a mistrial. In Allen v. United States, the Supreme Court approved the trial court's practice of admonishing a deadlocked jury to make a further effort to reach a verdict. n1763 Some circuit courts have either rejected the use of  the Allen charge or adopted modified versions. n1764 Most circuit courts that use the Allen charge or a modified version allow the use of a second Allen charge under certain circumstances. n1765 Any change in an Allen charge must meet the requirement that such instructions not be coercive. n1766 The amount of time the jury deliberates following an Allen charge, although often a factor, will not in itself indicate coercion. n1767

n1763 164 U.S. 492, 501-02 (1896) (judge may instruct jurors that absolute certainty not expected and that object of jury system is to obtain unanimous verdict through consideration of others' views); see, e.g., U.S. v. Hernandez-Albino, 177 F.3d 33, 38 (1st Cir. 1999) (no abuse of discretion to give Allen charge only 2 1/2 hours into deliberations because jury continued deliberation for hour after Allen charge and verdict's internal consistency reflected nuanced analysis, thus negating any threat of coercion); U.S. v. Henry, 325 F.3d 93, 106 (2d Cir. 2003) (no abuse of discretion to give Allen charge because jury note indicated deadlock and asked whether jury should continue deliberations); U.S. v. Trala, 386 F.3d 536, 543 (3d Cir. 2004) (no abuse of discretion though judge indicated court prepared to order dinner in response to jury question concerning potential deadlock and jury returned verdict 3 hours later), vacated on other grounds, 546 U.S. 1086 (2006); U.S. v. Hylton, 349 F.3d 781, 788 (4th Cir. 2003) (no abuse of discretion to give Allen charge though judge mentioned costs of retrial because charge not unduly coercive); U.S. v. Fields, 483 F.3d 313, 340 (5th Cir. 2007) (no abuse of discretion to give Allen charge in capital murder trial though jury handed down a unanimous sentence of death approximately 1 hour after receiving the instruction because instruction contained no language suggesting that the result should be obvious to jury and instruction set no time limit on deliberations); U.S. v. Reed, 167 F.3d 984. 989-91 (6th Cir. 1999) (no abuse of discretion to give Allen charge after 6 days of deliberations and allegations of jury misconduct because jury deliberated several more days and delivered both convictions and acquittals); U.S. v. Fouse, 578 F.3d 643, 652-53 (7th Cir. 2009) (no abuse of discretion to give Allen charge 11 hours after deliberations began because, in part, jury indicated it was deadlocked, charge was substantially the same as model instructions, judge did not know the identity of holdout jurors, and charge did not dissuade jurors from returning acquittal on one count); U.S. v. Evans, 431 F.3d 342, 347 (8th Cir. 2005) (no abuse of discretion to give Allen charge 4 hours after deliberations began because jury informed court it was deadlocked, court used Model Jury Instruction, and jury deliberated 5 additional hours following Allen charge in uncomplicated trial); U.S. v. Berger, 473 F.3d 1080, 1089 (9th Cir. 2007) (no abuse of discretion to give Allen charge while meeting informally with jury because judge instructed jurors to hold onto individual beliefs and did not coerce jury to arrive at unanimous verdict); U.S. v. Alcorn, 329 F.3d 759, 764-68 (10th Cir. 2003) (no abuse of discretion to give Allen charge because not coercive and judge indicated jurors should maintain "honest conviction[s]" about evidence); U.S. v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008) (no abuse of discretion to give Allen charge because instruction given only after jury informed court for second time that it was deadlocked and court did not poll jury before giving the charge). But see, e.g., U.S. v. Paniagua-Ramos, 135 F.3d 193, 198 (1st Cir. 1998) (abuse of discretion to give Allen charge because charge contained insufficient language to inform jury of right to fail to agree and coerced jury into conviction though jury had informed judge on 3 prior occasions it was unable to reach verdict); Tucker v. Catoe, 221 F.3d 600, 611 (4th Cir. 2000) (abuse of discretion to give Allen charge because court knew numerical division of jury, charge singled out minority juror and emphasized need for unanimity without instructing that lone holdout permitted by law, and qualification that no juror expected to give up opinion based on reasoning satisfactory to him was not enough to balance overall charge); Weaver v. Thompson, 197 F.3d 359, 365-66 (9th Cir. 1999) (abuse of discretion to give Allen charge because given through bailiff after full day of trial and deliberations and jurors not told they could hold onto their beliefs even if it resulted in hung jury; instead only told they had to be unanimous); U.S. v. Zabriskie, 415 F.3d 1139, 1148 (10th Cir. 2005) (abuse of discretion to give Allen charge because given privately to holdout juror). 

n1764 See, e.g., U.S. v. Hernandez-Albino, 177 F.3d 33, 38 (1st Cir. 1999) (although circuit court refrains from offering definite wording for Allen charge, charge allowed if court instructs both minority and majority to reexamine positions, instruction acknowledges jury has right not to agree, and court reminds jury that burden of proving guilt beyond a reasonable doubt remains with government); Spears v. Greiner, 459 F.3d 200, 204-07 (2d Cir. 2006) (no abuse of discretion to give modified Allen charge without cautionary language because charge not impermissibly coercive and charge did not cause jurors to sacrifice individual opinions to reach result); U.S. v. Graham, 758 F.2d 879, 883 (3d Cir. 1985) (expressly rejecting Allen charge and refusing to let stand verdict "which may have been influenced in any way by an Allen Charge" on grounds that charge directs juror to distrust own judgment); Tucker v. Catoe, 221 F.3d 600, 610-11 (4th Cir. 2000) (granting judges discretion in formulating Allen charge to suit jury but requiring that charge incorporate specific reminder to minority and majority jurors to reconsider views in light of other side; judge may not single out minority jurors; Allen charge found coercive because instructed minority to reconsider position without making similar order to majority and singled out minority juror without instructing that 1 holdout permitted); U.S. v. Allard, 464 F.3d 529, 535 (5th Cir. 2006) (trial court has broad discretion to give modified Allen charge as long as not coercive); U.S. v. Clinton, 338 F.3d 483, 487-88 (6th Cir. 2003) (although circuit has not mandated a specific form of Allen charge, strong preference for Sixth Circuit Pattern Instruction, which directs both majority and minority jurors to reconsider positions and cautions jurors not to surrender their personal convictions merely to achieve consensus by acquiescing to majority opinion); U.S. v. Degraffenried, 339 F.3d 576, 580 (7th Cir. 2003) (no abuse of discretion when court only restates instruction that was given previously to jury and if only given when judge convinced jury reached deadlock); U.S. v. Warfield, 97 F.3d 1014, 1022 (8th Cir. 1996) (no abuse of discretion to use modified Allen instruction because it was nearly identical to 8th Circuit model jury instruction); U.S. v. Nelson, 137 F.3d 1094, 1110 (9th Cir. 1998) (no abuse of discretion to use modified Allen instruction asking jury to attempt to reach unanimous verdict if possible); Gilbert v. Mullin, 302 F.3d 1166, 1174 (10th Cir. 2002) (no abuse of discretion to use modified Allen instruction if not coercive); U.S. v. Chigbo, 38 F.3d 543, 544 n.1, 546 (11th Cir. 1994) (no abuse of discretion to use modified Allen charge, which is not coercive if carefully worded, though jury was polled prior to receiving charge and returned guilty verdict within 15 minutes of hearing instruction); U.S. v. Thomas, 449 F.2d 1177, 1184 n.45, 1187 (D.C. Cir. 1971) (en banc) (adopting, in lieu of other Allen-type charges, American Bar Association standard, which strongly emphasizes no juror should surrender honest convictions). 

n1765 See, e.g., U.S. v. Barone, 114 F.3d 1284, 1304-05 (1st Cir. 1997) (no abuse of discretion to give second modified Allen charge because it came quickly after first and district court concluded jury had not seriously deliberated after first Allen charge); U.S. v. Crispo, 306 F.3d 71, 77 (2d Cir. 2002) (no abuse of discretion to give second Allen charge because jury did not return a verdict immediately afterwards but continued to deliberate suggesting that instruction was not coercive as to end all discussion); U.S. v. Cropp, 127 F.3d 354, 360 (4th Cir. 1997) (no abuse of discretion to give second Allen charge when jury indicated inability to reach verdict after first because court told jurors in second charge not to give up firmly held convictions and after second charge jury deliberated 7 more hours before returning verdict); U.S. v. Reed, 686 F.2d 651, 652-53 (8th Cir. 1982) (per curiam) (no abuse of discretion to give second Allen charge because given 1 hour after first, defendant did not object to either charge, and jury deliberated for 1 hour after receiving second charge); U.S. v. Ailsworth, 138 F.3d 843, 851-52 (10th Cir. 1998) (no abuse of discretion to give multiple Allen charges though jury received first prior to deliberations, second after 4 days of deliberations, and third after returning partial verdict and announcing deadlock because after third time, jury deliberated 2 additional days but still unable to reach unanimous verdict on last 2 counts). But see, e.g., U.S. v. Fossler, 597 F.2d 478, 485 (5th Cir. 1979) (abuse of discretion to give second Allen charge because jury indicated 3 times over 3 days that it could not reach unanimous verdict, defendant objected to second Allen charge, and jury reached verdict 1 hour after second charge given).
The Ninth Circuit has a per se rule against multiple Allen charges. See U.S. v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977) ("[I]t is reversible error to repeat an Allen charge in a federal prosecution in this circuit after a jury has reported itself deadlocked and has not itself requested a repetition of the instruction."). 

n1766 See Jenkins v. U.S., 380 U.S. 445, 446 (1965) (per curiam) (appropriate inquiry is whether "in its context and under all the circumstances" modified Allen charge coercive); see, e.g., U.S. v. Vanvliet, 542 F.3d 259, 266-69 (1st Cir. 2008) (no coercion though modified Allen charge regarding reasonable doubt failed to allow for positive belief of defendant's innocence and jury voluntarily revealed its numerical division to court because reasonable doubt instruction was traditional and court both did not know each individual juror's views and admonished jury not to reveal division again); Spears v. Greiner, 459 F.3d 200, 204-07 (2d Cir. 2006) (no coercion though court gave modified Allen charge that failed to include cautionary language because charge did not encourage jurors to listen to other jurors, opposing counsel did not object to instruction, and jury continued deliberating for over a day after charge was given); U.S. v. Fields, 483 F.3d 313, 338-40 (5th Cir. 2007) (no coercion though modified Allen charge did not include protective language reminding jurors not to forego conscientiously held views because charge not coercive or prejudicial and did not suggest obvious result); U.S. v. Brika, 416 F.3d 514, 522 (6th Cir. 2005) (no coercion because modified Allen charge "an accessible explanatory expansion" and not confusing, misleading, or prejudicial); U.S. v. Rodriguez, 67 F.3d 1312, 1319-20 (7th Cir. 1995) (no coercion though court responded to jury note indicating deadlock with supplementary instructive that omitted admonishment against surrendering honest convictions because judge made oral statements urging same), amended by 2002 U.S. App. LEXIS 9597 (7th Cir. 2002); U.S. v. Whatley, 133 F.3d 601, 604 (8th Cir. 1998) (no coercion though Allen charge given without paragraph reiterating prosecution's burden of proof because instructions otherwise correct and complete, and judge directed jurors to deliberate with view toward reaching verdict so long as it could be reached without violating any juror's convictions about ultimate truth of matter); U.S. v. Hernandez, 105 F.3d 1330, 1334 (9th Cir. 1997) (no coercion though modified Allen charge given after 4 1/2 hours of deliberations because Allen charge milder than model used by Ninth Circuit and did not instruct jurors to reexamine and change opinions or to consider questioning correctness of present positions); U.S. v. Arney, 248 F.3d 984, 988 (10th Cir. 2001) (no coercion when modified Allen charge given separately to each juror because separate charges lowered possibility of coercion); U.S. v. Woodward, 531 F.3d 1352, 1364 (11th Cir. 2008) (no coercion when court issued modified Allen charge because charge was carefully formulated to comport with precedents in that jurisdiction). But see, e.g., U.S. v. Manning, 79 F.3d 212, 222-23 (1st Cir. 1996) (coercion when judge responded to jury's indication of deadlock by asking if rereading testimony would help resolve deadlock because instruction coerced jurors into thinking they must deliberate until unanimous verdict reached); U.S. v. Burgos, 55 F.3d 933, 938 (4th Cir. 1995) (coercion when modified Allen charge stated judge not asking jurors to give up firmly held beliefs but asked jurors to "think about it" because such remarks may more strongly influence jurors holding minority view); U.S. v. Robinson, 953 F.2d 433, 436-38 (8th Cir. 1992) (coercion when, in modified Allen charge, judge twice admonished jury minority to yield to majority but never admonished majority to consider yielding to minority and judge gave impression hung jury unpatriotic); U.S. v. McElhiney, 275 F.3d 928, 948 (10th Cir. 2001) (coercion when supplemental Allen charge given because court did not admonish jury regarding conscientiously held convictions and court emphasized desire to have verdict reached because of expense of trial and danger involved in trying case); U.S. v. Strothers, 77 F.3d 1389, 1391 (D.C. Cir. 1996) (coercion when Allen charge given because court issued anti-deadlock charge that omitted required admonition against any juror surrendering his or her honest beliefs still thought to be correct).
The Sixth Circuit has stated that a modified Allen charge must: (1) include the reminder that no juror should merely acquiesce in the majority opinion; (2) not inform jurors that they are required to agree; (3) direct both majority and minority jurors to reconsider their positions; (4) not advise the jury that they are the only ones who can decide the case; and (5) not ask the jury to consider the external effects of their inability to reach a verdict. See U.S. v. Brika, 416 F.3d 514, 521-22 (6th Cir. 2005).
The Eighth and Ninth Circuits have adopted a four-part test for determining the coerciveness of an Allen charge. The court must evaluate: (1) the form of the instruction; (2) the length of deliberation following the Allen charge; (3) the total time of jury deliberations; and (4) indicia of pressure on the jury. See U.S. v. Walrath, 324 F.3d 966, 970 (8th Cir. 2003); U.S. v. Freeman, 498 F.3d 893, 908 (9th Cir. 2007).
The Tenth Circuit has stated that relevant factors to consider in evaluating an Allen charge include: (1) the language of the instruction; (2) whether it was presented with other instructions; (3) the timing of the instruction; and (4) the length of the jury's subsequent deliberations. See Darks v. Mullin, 327 F.3d 1001. 1012, 1016 (10th Cir. 2003).
For a habeas corpus petition challenging an Allen charge, the coercion must rise to the level of a constitutional violation rather than merely to the plain error standard used on direct review. See, e.g., Boyd v. Scott, 45 F.3d 876, 883 (5th Cir. 1994) (per curiam) (no coercion though Allen charge given to deadlocked jury by state trial court after 4 1/2 hours of deliberation advised jurors they should reach agreement if possible but also stated that "verdict must be the verdict of each individual juror and not mere acquiescence" because judge neither gave deadline for decision nor pressured jury to reach verdict in any other way); Williams v. Parke, 741 F.2d 847, 850 (6th Cir. 1984) (no coercion though Allen charge given because court did not single out the minority but simply urged all jurors to consider each other's opinion and position, causing no violation of constitutional rights). 

n1767 See, e.g., U.S. v. Vanvliet, 542 F.3d 259, 269-70 (1st Cir. 2008) (no coercion though court gave Allen charge after 6 hours of deliberations and jury reached verdict less than 3 hours later); Trala v. U.S., 386 F.3d 536, 543 (3d Cir. 2004) (no coercion though court gave Allen charge after 7 1/2 hours of deliberations and jury reached verdict 3 hours later), vacated on other grounds, Trala v. U.S., 546 U.S. 1086 (2006); U.S. v. Fields, 483 F.3d 313, 340 (5th Cir. 2007) (no coercion though jury returned unanimous death sentence verdict 1 hour after receiving modified Allen charge); U.S. v. Tines, 70 F.3d 891, 896-97 (6th Cir. 1995) (no coercion though court gave Allen charge after 1 1/2 days of deliberations and jury returned partial verdict 6 hours later); U.S. v. Fouse, 578 F.3d 643, 652-53 (7th Cir. 2009) (no coercion though court gave Allen charge after 11 hours of deliberation and jury reached verdict 2 hours later); U.S. v. Aldridge, 413 F.3d 829, 833 (8th Cir. 2005) (no coercion though court gave Allen charge after 2 hours and 20 minutes of deliberations and jury reached verdict 20 minutes later); U.S. v. Freeman. 498 F.3d 893, 908 (9th Cir. 2007) (no coercion though court gave Allen charge after 3 hours of deliberations and jury reached verdict 2 hours later); U.S. v. Ellzey, 936 F.2d 492, 501 (10th Cir. 1991) (no coercion though court gave Allen charge after 4 1/2 hours of deliberations and jury reached verdict 1 1/2 hours later); U.S. v. Chigbo, 38 F.3d 543, 546 (11th Cir. 1994) (no coercion though jury returned verdict 15 minutes after receiving Allen charge). But see, e.g., U.S. v. Mejia, 356 F.3d 470, 477 (2d Cir. 2004) (coercion because jury returned verdict 50 minutes after court gave Allen charge); Tucker v. Catoe, 221 F.3d 600, 612 (4th Cir. 2000) (coercion because jury returned verdict 1 1/2 hours after court gave Allen charge following 10 1/2 hours of deliberations); U.S. v. Webb, 816 F.2d 1263, 1267 (8th Cir. 1987) (coercion because jury returned verdict 15 minutes after court gave Allen charge); Weaver v. Thompson, 197 F.3d 359, 366 (9th Cir. 1999) (coercion because jury returned verdict 5 minutes after court gave Allen charge).