D.C. Circuit Reverses Trial Court Because the Allen Charge, in Context, Was Coercive, But Affirms on Brady Issue (1/6/21)

In United States v. Driscoll, ___ F.3d ___ (D.C. Cir. 1/5/21), here, Driscoll “was convicted of two counts of  wire fraud, one count of first-degree fraud, and two counts of tax evasion.”  Driscoll appealed.  The Court of Appeals dealt with two issue that I summarize here:

First, the Court dealt with a Brady claim that the Government had not disclosed potentially helpful information to the defense.  The background was that an ESPN article disclosed (i) irregularities involving Driscoll with a charitable organization with which she was affiliated and (ii) that a whistleblower had disclosed information to the FBI and planned to disclose via whistleblower complaint to the IRS.  The following month, there was an unrelated hearing in a child custody proceeding between Driscoll and her ex-husband.  An IRS Special Agent (a CI agent) attended to observe the public proceeding.  Driscoll asked the agent who he was, and the agent responded that he was a member of the public.  While attending, the Special Agent heard the testimony of a cousin of the ex-husband.  That cousin happened to be the IRS whistleblower.  The Special Agent took detailed notes and prepared detailed memoranda for all except the last day (the fifth day). On that last day, at the request of Driscoll’s ex-husband, the Special Agent went to lunch with the ex-husband, the ex-husband’s new wife, and the ex-husband’s custody lawyer.

After indictment, Driscoll’s defense lawyer requested inter alia discovery of a “parallel proceeding” issue – whether the government (presumably the IRS) had used the civil audit process to gather information for a criminal case.  The Court cited United States v. Kordel, 397 U.S. 1, 13 (1970) (“Government may not use evidence against a defendant in a criminal case which has been coerced from him under penalty of either giving the evidence or suffering a forfeiture of his property.”).  There seems to be two different claims embedded in the prior to sentences, but I am not sure the Court articulated it that way.  Apparently, the claim was related to the Special Agent’s activities described above did not involve an IRS civil audit or any coercion except what might be implicit in the Special Agent not identifying himself truthfully when Driscoll asked who he was.  Most importantly, the prosecutors did not disclose the Special Agent’s role or information within the time normally required for Brady disclosures (during the pretrial discovery processes).

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."