United States v. Williams

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 06-50599

v.  D.C. No.

DAVID DWIGHT WILLIAMS, CR-02-03171-IEG

Defendant-Appellant.



UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 06-50608

v.  D.C. No.

WILLIAM A. STEEL, CR-02-03171-IEG

Defendant-Appellant.



UNITED STATES OF AMERICA,  No. 06-50612

Plaintiff-Appellee,

v.  D.C. No.

CR-02-03171-IEG

TALFORD BROWN,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, District Judge, Presiding

Argued and Submitted

April 8, 2008—Pasadena, California

Filed November 6, 2008

15167

15168 UNITED STATES v. WILLIAMS

Before: William C. Canby, Jr., Andrew J. Kleinfeld, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

UNITED STATES v. WILLIAMS 15171

COUNSEL

Benjamin L. Coleman, Coleman & Balogh LLP, San Diego,

California, for appellant David Williams.

Michael Edmund Burke, San Diego, California, for appellant

William Steel.

15172 UNITED STATES v. WILLIAMS

Brian J. White, San Diego, California, for appellant Talford

Brown.

Stephen Frederick Miller, Assistant United States Attorney,

San Diego, California, for appellee United States.

OPINION

BYBEE, Circuit Judge:

David Williams, William Steel, and Talford Brown appeal

their convictions following a jury trial for conspiracy to inter-

fere with interstate commerce by robbery, conspiracy to pos-

sess cocaine with the intent to distribute, and possession of a

firearm during a drug crime and crime of violence. Williams,

Steel, and Brown argue, inter alia, that there was insufficient

evidence to support their convictions, that their indictment

should have been dismissed because of outrageous govern-

ment conduct, and that the district court should have declared

a mistrial because a juror revealed that she was the lone hold-

out. We hold that there was sufficient evidence to support the

convictions and that the government did not deny the defen-

dants their due process rights by engaging in outrageous con-

duct. Because the district court gave an Allen charge after a

juror disclosed that she was a holdout, we reverse and remand

for a new trial.

I

David Williams, Talford Brown, William Steel, and Evan

Hollingsworth1 were indicted in the Southern District of Cali-

fornia for one count of conspiracy to interfere with commerce

by robbery, see 18 U.S.C. § 1951(a); one count of conspiracy

1

Hollingsworth pleaded guilty to a single count of carrying a firearm

during a drug crime and crime of violence, in exchange for his testimony

at trial and for dismissal of the remaining two counts.

UNITED STATES v. WILLIAMS 15173

to possess cocaine with the intent to distribute, see 21 U.S.C.

§§ 841(a)(1), 846; and one count of carrying a firearm during

a drug crime and crime of violence, see 18 U.S.C.

§ 924(c)(1)(A), (c)(2).

The following account is taken from the evidence intro-

duced at trial. Around August 2002, a man identified only as

“Marty” introduced Williams as a drug dealer to a paid gov-

ernment informant named Tony.2 During that month, Tony

and Williams planned a marijuana sale in New Orleans. Tony

was to provide the marijuana, and Williams was to put Tony

in contact with a buyer. The deal did not go through, but Wil-

liams and Tony continued to negotiate planned drug transac-

tions, including one involving cocaine from Belize and one

involving a ten to fifty kilogram cocaine purchase by Wil-

liams. At some point during their association, Williams con-

fessed to Tony that he had pleaded no contest to and was

wanted for a bank robbery in Texas.

A few days before October 25, 2002, Williams told Tony

about a bank robbery he had planned, and that he needed to

sell a firearm to raise money to rent the getaway car. Williams

already had planned the bank robbery in some detail, having

identified the target bank and recruited someone on the inside

of the bank to help. Williams tried to enlist Tony to be the

getaway driver. Tony relayed this information to Floyd

Mohler, an agent with the Bureau of Alcohol, Tobacco and

Firearms (“ATF”), who proposed that Tony pitch the idea of

robbing a fictitious drug stash house in lieu of robbing the

bank.

2

At trial, Williams denied knowing anything about how to deal drugs

and contended that he had been introduced to Tony in June 2002 because

Williams needed money and Tony could provide him a loan. Many of the

conversations between Williams and Tony were taped, though conversa-

tions describing the drug deals other than the Jamaican marijuana deal,

described infra, were destroyed prior to trial.

15174 UNITED STATES v. WILLIAMS

On October 25, 2002, Tony met Williams and Andy Jauch,

an undercover Drug Enforcement Administration (“DEA”)

agent, at a restaurant and recorded the conversation. During

that meeting, Williams sold a handgun to Tony. Tony told

Williams that the gun was for a man named Enrique, who was

involved in a drug smuggling operation in San Diego and who

was interested in robbing a drug stash house. Williams

informed Tony and Jauch about some Jamaicans in New York

City who wanted to buy a significant quantity (between one

thousand and two thousand pounds) of marijuana. Williams

also supplied many details about his planned bank robbery.

On October 29, 2002, Williams and Tony met with a man

named Wayne, who was affiliated with the Jamaicans in New

York seeking to buy the marijuana. Williams flew to New

York to meet Wayne on November 1, 2002, and had several

recorded telephone conversations with Tony and Wayne.

These conversations concerned only the New York City mari-

juana transaction. Tony met with the Jamaicans later in

November 2002; the Jamaicans were arrested when they

arrived with the money to buy the marijuana.

On November 4, Tony introduced Williams to ATF agent

Harry Penate, who was playing the undercover role of

Enrique Romano. Penate told Williams that he had a job for

Williams, but that Williams could decline it if he wanted.

Penate told Williams that he operated drug stash houses for a

drug smuggling organization, but some of the drug loads

recently had been lost. To compensate for the lost loads, the

drug organization was not paying Penate. Penate said that in

a few days, the stash house would contain one hundred kilo-

grams of cocaine and between fifty and sixty thousand dollars

in currency, guarded only by the two women who count the

money and a single guard with a sawed off shotgun. Penate

told Williams that he wanted to hire someone with a crew to

rob the money and the cocaine. He told Williams that if this

robbery went well, there were two other stash houses that

could be robbed.

UNITED STATES v. WILLIAMS 15175

As the conversation progressed, Penate and Williams dis-

cussed more details about how to conduct the robbery, includ-

ing how to remove the drugs, how many people were in each

house and how many were armed, and whether they would

need to kill anyone. Williams indicated that he had two peo-

ple with whom he could do the job, that he had worked with

them before, and that he and his crew were ready to do the job

immediately. They discussed how they would split the money

and the drugs and how Williams would pay his crew. Wil-

liams indicated that one of the people he planned to use had

recently been involved in a home invasion robbery like the

one Penate had proposed, but had been caught.

On November 5, Williams and Tyrone Sprewell met with

Penate and sold him another gun. Sprewell was introduced to

Penate as someone who would be helping with the robbery,

who had done similar things in the past, and who had done

jobs with Williams before. Sprewell was later arrested on an

outstanding warrant when he was pulled over during a traffic

stop.

On November 8, Williams met Penate at a restaurant and

discussed the plan details. He indicated that he intended to kill

the armed guard at the stash house. He told Penate that Spre-

well did not want to participate in the robbery, but that he had

two other guys for the job. Williams said of his crew that

“[t]hey know everything,” including how the money and

drugs would be divided. He said they had done jobs like this

before and that they were pros.

On November 13, Williams met Penate at another restau-

rant near a motel in San Diego (“San Diego motel”) and dis-

cussed the final details of the stash house robbery planned for

the next day. Williams told Penate that the other members of

the crew were following him and that they had brought some

things so they could “handle” themselves. Penate told Wil-

liams that he had rented a room at another motel (“Chula

Vista motel”) five blocks from the stash house in Chula Vista,

15176 UNITED STATES v. WILLIAMS

which they would use to stage the robbery. He also told Wil-

liams that there would be over one hundred kilograms of

cocaine and about $100,000 in cash in the house at the time

of the robbery. Penate rented a minivan for Williams to drive.

Williams said that he had three people involved, two who

knew the plan and one who was just driving the guns and

police radio down.3 After this meeting, they retired to the

room Penate had rented at the San Diego motel, which had

been wired for audio and video recording.

On the morning of November 14, 2002, Penate met Wil-

liams at a room in the San Diego motel. Williams had been

joined by Hollingsworth, Steel, and Brown. Prior to Penate’s

arrival, Williams called Penate and asked him to bring some

breakfast items, as well as potatoes to be used as silencers,

which Penate did.

Penate described to the four men the details of the plan at

this meeting, including how they would enter the house. He

told them if they did not want to participate, they should say

so and “be on your way.” Brown audibly indicated his will-

ingness to participate, and Penate testified that Williams,

Steel, and Hollingsworth nodded their assent.4 Williams,

Steel, Brown, and Hollingsworth then wiped the room free of

fingerprints. While they prepared to leave, Williams asked

Brown, “How many you got?” Brown replied, in an apparent

reference to the number of bullets in his gun, “I will got nine,

but I only need one.”

Penate, the three appellants, and Hollingsworth then left the

San Diego motel to drive to the second motel in Chula Vista.

3

Hollingsworth, who pleaded guilty to a reduced set of charges, was the

third man who drove the guns down but did not know the plan.

4

Portions of audiotape 9A, discussed in more depth infra, recorded one

side of Penate’s conversation with the other agents after he left the first

motel. In a disputed portion of that tape, Penate referred to “one of those

two other dudes who didn’t nod.”

UNITED STATES v. WILLIAMS 15177

Penate drove a blue Ford Explorer; Williams followed in the

rented minivan, then Hollingsworth in a Jaguar sedan. Steel

completed the caravan with Brown as a passenger in a Dodge

Intrepid. All four vehicles pulled into the Chula Vista hotel;

only Williams followed Penate into the rear parking area

where the SWAT team deployed a flash-bang grenade before

arresting Williams. Steel and Brown, in the Dodge Intrepid,

left the Chula Vista hotel shortly after arriving. The Chula

Vista police stopped them as they drove away. The officers

ordered Steel and Brown out of the car and arrested them; a

search of Brown upon his arrest revealed a gun holster on his

waist.

A search of the Intrepid recovered a knife, a blue and red

mask, a gray mask, a piece of paper with handwritten direc-

tions to the San Diego motel, flex ties, a road guard vest, two

cell phones, a black leather wallet with an identification card

belonging to Brown, and three whole potatoes. A later search

recovered two loaded semiautomatic pistols in a compartment

in the center gear box console. One of the weapons was

loaded with six hollow-point copper jacketed bullets; the

other contained seven rounds of hollow-point, hydroshock,

copper jacketed bullets. A search of the Jaguar, which was

also stopped at the Chula Vista motel, recovered a revolver

loaded with hollow point hydraulic bullets, a police scanner,

and three mobile radios from a speaker box. A search of the

minivan recovered a nylon mask, a pair of Nomex gloves, and

a small flashlight.

On November 7, 2003, a jury returned verdicts of guilty on

each of the three counts for each of the three appellants. The

district court denied various pre-trial and post-trial motions

that are the subject of this appeal, including a motion for mis-

trial resulting from a note sent by a juror; a pre-trial motion

to dismiss the indictment for outrageous government miscon-

duct and entrapment, and a post-trial motion to dismiss for

outrageous government misconduct and to enter a judgment

of acquittal under Federal Rule of Criminal Procedure 29. The

15178 UNITED STATES v. WILLIAMS

district court sentenced Williams to 37 months of imprison-

ment on count 1, a concurrent term of 188 months of impris-

onment on count 2, and a consecutive term of 60 months

imprisonment on count 3, to be followed by a period of 5

years of supervised release. The district court sentenced

Brown to a term of 71 months of imprisonment on count 1,

a concurrent term of 27 months imprisonment on count 2, and

a consecutive term of 60 months of imprisonment on count

three, to be followed by a period of 5 years of supervised

release. The district court sentenced Steel to 87 months of

imprisonment on count 1, a concurrent term of 33 months of

imprisonment on count 2, and a consecutive term of 60

months of imprisonment on count 3, to be followed by a

period of 6 years of supervised release.

Williams, Brown, and Steel timely appealed.

II

Williams, Brown, and Steel present several claims for our

review, some of which all three defendants join and some of

which are presented individually. We first address the claims

that, if successful, would result in either a judgment of acquit-

tal or dismissal of the indictment. We then proceed to discuss

the claim that the district court erred in giving an improper

Allen charge after a juror disclosed that she was a holdout.5

A

Williams, Brown, and Steel first argue that the district court

erred in refusing to enter a judgment of acquittal under Fed-

5

Because we conclude that the district court committed reversible error

by giving an improper Allen charge, we need not reach the claims that the

district court erred in failing to give a limiting instruction on Hollings-

worth’s guilty plea, in failing to instruct the jury properly on the elements

of the crime underlying the conspiracy charges, or in improperly admitting

co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E).

UNITED STATES v. WILLIAMS 15179

eral Rule of Criminal Procedure 29 for insufficiency of the

evidence on various aspects of the charges against them.6

1

Steel and Brown first argue that there was insufficient evi-

dence to convict them of the conspiracy in counts one and two

of the indictment.7 They base their argument on inconsistent

testimony Penate gave concerning whether Steel or Brown

orally assented to the plan to rob the fictitious stash house.

[1] Penate initially testified at trial that during the Novem-

ber 14 meeting at the San Diego motel, he verbally confirmed

with each individual (Williams, Hollingsworth, Steel, and

Brown) that they were “in”—that is, that they agreed to par-

ticipate in the plan to rob the stash house. On cross-

examination, however, he said that Steel gave an oral

response, but later testified, “I don’t believe Steel was verbal

during that whole time,” and that Steel just nodded. Some evi-

6

We review de novo a motion for a judgment of acquittal under Federal

Rule of Criminal Procedure 29, viewing the evidence against the appel-

lants in the light most favorable to the government to determine whether

any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. United States v. Pacheco-Medina, 212

F.3d 1162, 1163 (9th Cir. 2000).

7

Williams joins this claim, arguing that if there was insufficient evi-

dence to convict his co-defendants of conspiracy, then he could not have

been convicted of conspiring with a government agent. It is well-

established law that “the agreement in a conspiracy cannot be established

with evidence that the defendant had an agreement with a government

informer.” United States v. Ching Tang Lo, 447 F.3d 1212, 1225-26 (9th

Cir. 2006) (citing United States v. Escobar de Bright, 742 F.2d 1196,

1198-200 (9th Cir. 1984)). As to Williams,“[t]he question, therefore, is

whether there was sufficient evidence to find a conspiracy with someone

other than government agents and informants.” Id. at 1226. Hollingsworth

pleaded guilty and testified for the government at trial. Hollingsworth’s

testimony therefore provides sufficient evidence for Williams’ conspiracy

conviction; Williams’ contention to the contrary lacks merit. Regardless,

for the reasons that follow, we hold there was sufficient evidence to sup-

port Steel and Brown’s convictions.

15180 UNITED STATES v. WILLIAMS

dence suggested that Steel may not have even nodded.

Penate’s testimony concerning Brown was similarly inconsis-

tent. At a pretrial motion hearing, Penate admitted it was pos-

sible only Williams agreed orally, but, at trial, he testified

only Brown orally assented. Steel and Brown also argue that

their actions after they left the San Diego motel indicate that

they did not agree to the conspiracy because they did not fol-

low the caravan to the Chula Vista motel, where they were

supposed to go, but were pulled over entering the freeway.

Steel and Brown’s argument incorrectly assumes that the only

evidence that could support a conspiracy conviction is evi-

dence of their affirmative agreement to join it. “[A] conspir-

acy may be proven by circumstantial evidence that the

defendants acted together with a common goal.” United States

v. Iriarte-Ortega, 113 F.3d 1022, 1024 (9th Cir. 1997),

amended by United States v. Iriarte-Ortega, 127 F.3d 1200

(9th Cir. 1997). With that standard in mind, there was ample

evidence to convict Steel and Brown of both conspiracy to

commit robbery and conspiracy to possess cocaine with the

intent to distribute.

[2] Evidence supporting the conspiracy to commit robbery

charge included that Steel and Brown met with Williams, the

government agents, and Hollingsworth at the San Diego motel

on November 14 and participated in wiping down fingerprints

in the room. They brought guns with hollow point bullets to

the meeting, and Brown told Williams that, though his gun

had nine rounds of ammunition, “I only need one.” Brown

and Steel rode in the car together from the San Diego motel

to the Chula Vista motel, with Brown wearing a holster that

fit one of the guns later recovered from his car. The search of

their car also revealed flex-ties, workers’ vests, masks, gloves,

a knife, and potatoes to be used as gun silencers. Brown and

Steel claim that they did not drive to the back of the Chula

Vista motel parking lot, but trial testimony was sufficient for

the jury to conclude that they initially drove to the Chula

Vista motel and fled when they saw the police.

UNITED STATES v. WILLIAMS 15181

In addition to this evidence, other evidence supported the

charge of conspiracy to possess cocaine with the intent to dis-

tribute. Williams told Penate on November 13 that “the only

people that know the plan are the two guys,” an apparent ref-

erence to Steel and Brown. Referring to the people who Wil-

liams had recruited to help him with the robbery, Williams

said, “They know that they’re going in, they’re getting paid

to do a job. . . . They know everything.” Williams said to

Penate, “I told [his crew] I was gonna a [sic] touch ‘em back

some later, once I got all the money from Tony. Later on

down the line I said I’m gonna give ya’ll some of the money

on that [the drugs].”

[3] Although some of the trial evidence supported an infer-

ence of not guilty—such as Penate’s inconsistent testimony

concerning who verbally assented to participate in the plan

and the fact that Brown and Steel were not apprehended at the

predesignated meeting location —when viewed in the light

most favorable to the government, there was ample evidence

for a rational jury to conclude beyond a reasonable doubt that

the appellants “acted together with a common goal.” Iriarte-

Ortega, 113 F.3d at 1024.

2

[4] Steel and Brown next argue that there was insufficient

evidence of an effect on interstate commerce or that there was

actually any cocaine at the fictitious stash house. The crux of

these two arguments is that a conspiracy to rob a non-existent

stash house cannot interfere with interstate commerce. We

squarely rejected this argument in United States v. Rodriguez,

360 F.3d 949, 957 (9th Cir. 2004) (“[T]he non-existent status

of the target drug traffickers is inapposite. Impossibility is not

a defense to the conspiracy charge.”), and we summarily

reject it here.

3

[5] Steel and Brown next argue that there was insufficient

evidence of an intent to distribute the cocaine that was the

15182 UNITED STATES v. WILLIAMS

subject of the conspiracy to possess. This argument lacks

merit. The evidence produced at trial was sufficient for a jury

to conclude that Penate told Williams on November 13, 2002,

that there would be one hundred kilograms of cocaine in the

stash house at the time of the planned robbery, and expert tes-

timony established that this was a sufficiently large amount

that it would be intended for distribution. Williams was also

recorded telling Tony that Williams’ crew knew everything

about the plan, including how the drugs and money would be

divided. During a November 8 conversation between Penate

and Williams, Williams said, “I already know that they [Steel

and Brown] [a]re gonna see the [cocaine] so I told them I was

gonna a [sic] touch ‘em back some later, once I got all the

money from Tony. Later on down the line I said I’m gonna

give ya’ll some of the money on that, and they were like it’s

cool. I said the cash, we’re gonna split it up, ya’ll too gonna

get a third.” Viewed in the light most favorable to the govern-

ment, this evidence was sufficient to permit a rational jury to

find that Steel and Brown intended to distribute the cocaine

after they obtained it.

4

Finally, Williams argues that there was insufficient evi-

dence to convict him of conspiracy to possess cocaine with

the intent to distribute because he demonstrated entrapment as

a matter of law.8

[6] “To establish entrapment as a matter of law, the defen-

dant must point to undisputed evidence making it patently

clear that an otherwise innocent person was induced to com-

8

We review de novo claims of entrapment as a matter of law. United

States v. Sandoval-Mendoza, 472 F.3d 645, 648 (9th Cir. 2006). A verdict

should be affirmed when the jury has been instructed on the elements of

entrapment, as it was here, “unless, viewing the evidence in the govern-

ment’s favor, no reasonable jury could have concluded that the govern-

ment disproved the elements of the entrapment defense.” Id. (quoting

United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th Cir. 2002)).

UNITED STATES v. WILLIAMS 15183

mit the illegal act by trickery, persuasion, or fraud of a gov-

ernment agent.” United States v. Smith, 802 F.2d 1119, 1124

(9th Cir. 1986). This is a subjective inquiry into whether “the

Government’s deception actually implants the criminal design

in the mind of the defendant.” United States v. Russell, 411

U.S. 423, 436 (1973). “Inducement can be any government

conduct creating a substantial risk that an otherwise law-

abiding citizen would commit an offense, including persua-

sion, fraudulent representations, threats, coercive tactics,

harassment, promises of reward, or pleas based on need, sym-

pathy or friendship.” United States v. Davis, 36 F.3d 1424,

1430 (9th Cir. 1994).

[7] The defense of entrapment fails “[i]f the defendant is

predisposed to commit the crime.” Smith, 802 F.2d at 1124.

We use five factors to determine whether a defendant was

predisposed, though no single factor is controlling. See United

States v. Busby, 780 F.2d 804, 807 (9th Cir. 1986). These fac-

tors include:

(1) the character or reputation of the defendant,

including any prior criminal record; (2) whether the

government initially made the suggestion of criminal

activity; (3) whether the defendant engaged in the

criminal activity for profit; (4) whether the defendant

evidenced reluctance to commit the offense that was

overcome by repeated government inducement or

persuasion; and (5) the nature of the inducement or

persuasion supplied by the government.

Smith, 802 F.2d at 1124-25. “[T]he defendant’s reluctance to

engage in criminal activity is the most important.” Id. at 1125.

[8] Williams argues that he was induced as a matter of law

because the government offered him hundreds of thousands to

perhaps more than a million dollars in potential cocaine sales.

But even assuming that Williams was induced to enter the

conspiracy by the lure of substantial financial gain, the gov-

15184 UNITED STATES v. WILLIAMS

ernment proved that he was predisposed to commit the crime.

Williams correctly points out that the question of predisposi-

tion is to be determined prior to the time the government

agent suggested the criminal activity. See United States v.

Poehlman, 217 F.3d 692, 703 (9th Cir. 2000). Even with that

limitation, ample evidence on each of the five Smith factors

supported a jury finding that Williams was predisposed to

commit the crime. First, Williams was a fugitive from justice

for a bank robbery in Texas, he had engaged in previous crim-

inal gun sales, and he had been introduced to Tony as a mid-

dleman drug dealer. There was strong evidence of the latter,

as Williams planned a drug deal involving about $700,000 in

marijuana. The first factor relevant to the determination of his

predisposition, his character and reputation including his prior

criminal record, suggests that he was predisposed to this type

of criminal activity. See Smith, 802 F.2d at 1124-25.

The second factor also supports the conclusion that Wil-

liams was predisposed to commit the robbery. Although the

government initially suggested the stash house robbery, it did

so only after Williams told the agents of his plans to commit

bank robbery, which he concocted entirely on his own. While

the criminal schemes are not identical, they both involve

stealing property with force as well as the use of firearms. See

id.

The third Smith factor counts squarely against Williams. It

is undisputed that Williams engaged in the conspiracy for a

profit, which weighs against an entrapment defense. See id.

[9] The fourth and most important Smith factor does not

support Williams’ argument, either. There is no evidence that

Williams expressed any reluctance about the robbery that

needed to be “overcome by repeated government inducement

or persuasion.” Id. at 1125. The evidence indicated that Wil-

liams was ready and willing at all times to participate in the

robbery. Penate told Williams on more than one occasion that

he could decline the job, but Williams responded: “I’m ready

UNITED STATES v. WILLIAMS 15185

to do it tomorrow! Like I said, all I gotta do is get the car. If

push comes to shove I’ll use my own car.” When Penate told

Williams that he needed an answer by the next day, Williams

stated, “You got your answer right now!” Williams needed no

persuasion from the government agent to enter into this con-

spiracy, which counts heavily against his entrapment argu-

ment.

The fifth Smith factor, the nature of the inducement pro-

vided by the government, also provides no support for Wil-

liams. The stash house robbery was suggested as an

alternative to a bank robbery, which Williams thought would

net a similar amount of money.

[10] Viewing the evidence as a whole in the government’s

favor, a reasonable jury could find that Williams was predis-

posed to commit the crime and therefore the government dis-

proved the elements of entrapment.

****

[11] Accordingly, we affirm the district court’s decision to

deny the appellants’ Rule 29 motions.

B

Williams, Brown, and Steel next argue that the district

court erred in failing to dismiss the indictment due to outra-

geous government conduct.9 They claim the government con-

cocted, directed, and supervised the criminal enterprise from

start to finish, and thus falls within the prohibition on outra-

geous government conduct imposed by the Due Process

Clause of the Fifth Amendment. See United States v. Russell,

9

We review de novo claims of outrageous government conduct, viewing

the evidence in the light most favorable to the government and reviewing

the district court’s factual findings for clear error. United States v.

Gurolla, 333 F.3d 944, 950 (9th Cir. 2003).

15186 UNITED STATES v. WILLIAMS

411 U.S. 423, 431-32 (1973). For the reasons described

below, we reject their argument.10

[12] “ ‘Outrageous government conduct is not a defense,

but rather a claim that government conduct in securing an

indictment was so shocking to due process values that the

indictment must be dismissed.’ ” United States v. Holler, 411

F.3d 1061, 1065 (9th Cir. 2005) (quoting United States v.

Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995)). This claim

requires meeting a “high standard,” id. at 1066, with a show-

ing that “the government’s conduct violates fundamental fair-

ness and is ‘shocking to the universal sense of justice

mandated by the Due Process Clause of the Fifth Amend-

ment.’ ” United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.

2003) (quoting Russell, 411 U.S. at 431-32). We explained in

Gurolla that “[t]his standard is met when the government

engineers and directs a criminal enterprise from start to fin-

ish,” but “is not met when the government merely infiltrates

an existing organization, approaches persons it believes to be

already engaged in or planning to participate in the conspir-

acy, or provides valuable and necessary items to the venture.”

Id. (internal quotation marks and citations omitted).

[13] In United States v. Bonanno, 852 F.2d 434 (9th Cir.

1988), we set forth five factors that, when satisfied, indicate

that the governmental conduct was acceptable. The five fac-

tors are:

(1) the defendant was already involved in a continu-

ing series of similar crimes, or the charged criminal

enterprise was already in process at the time the gov-

10

We assume without deciding that Brown and Steel have standing to

raise this claim, although there is substantial merit to the government’s

argument that only Williams has standing to bring this claim. See United

States v. Bogart, 783 F.2d 1428, 1433 (9th Cir. 1986) (finding that only

defendants to whom the government’s conduct is directed have standing

to raise an outrageous government conduct claim).

UNITED STATES v. WILLIAMS 15187

ernment agent became involved; (2) the agent’s par-

ticipation was not necessary to enable the defendants

to continue the criminal activity; (3) the agent used

artifice and stratagem to ferret out criminal activity;

(4) the agent infiltrated a criminal organization; and

(5) the agent approached persons already contem-

plating or engaged in criminal activity.

Id. at 437-38.

[14] These five factors are all satisfied in this case. First,

the district court found that Williams was already involved in

a continuing series of similar crimes. He had been introduced

to Tony by a third party nearly three months before the stash

house robbery was suggested. Williams was introduced to

Tony as a middleman drug dealer, and Williams planned

major drug deals with Tony from August until October 2002,

including one involving up to two thousand pounds of mari-

juana. Williams initiated several of these drug transactions on

his own. During this time period, Williams told Tony that he

was wanted for a Texas bank robbery to which he pleaded no

contest. Before the stash house robbery was suggested to Wil-

liams, he told Tony about a thoroughly planned bank robbery

he intended to complete with his experienced crew. Williams

indicated that he needed to sell a handgun to raise money to

rent the getaway car for the bank robbery and asked Tony to

be the getaway driver. The next day, Williams actually sold

the gun. As this evidence shows, Williams was involved in

both robberies and drug transactions before Tony suggested

the idea of the stash house robbery.

Williams counters that the district court erred in looking to

criminal activity committed by Williams after he met the con-

fidential informant. This argument is unpersuasive. Compe-

tent evidence showed that Williams was introduced to Tony

as a drug dealer and that Williams readily engaged in plans

to buy and sell drugs with little or no encouragement from the

government informants or agents. The evidence also showed

15188 UNITED STATES v. WILLIAMS

that Williams concocted the bank robbery scheme entirely on

his own, without any help from Tony. The first Bonanno fac-

tor is satisfied.

[15] The second Bonanno factor is also satisfied. Tony’s

participation was not necessary to enable Williams to carry

out the bank robbery or many of the planned drug deals. Wil-

liams already had detailed plans to conduct the robbery, and

he personally negotiated with the Jamaicans in New York for

a very large marijuana transaction.

The last three Bonanno factors are similarly met. Williams

indicated that he had an experienced crew and that they were

ready to help with the bank robbery he had independently

planned—the agents thus “infiltrated a criminal organization.”

Id. at 438. Although the government agents suggested the

stash house robbery to prevent Williams from conducting the

bank robbery, this is best characterized as a “stratagem to fer-

ret out criminal activity,” not outrageous government conduct.

Williams was clearly “already contemplating or engaged in

criminal activity.” Id.

[16] The appellants argue that just because Williams had

planned a bank robbery and had been involved in some

planned drug deals did not mean that he was engaged in a

crime similar to the one proposed by the government agents,

which combined robbery with drug dealing. This argument is

unpersuasive because the stash house robbery is sufficiently

similar to the planned bank robbery that the government’s

substitution of a real bank robbery with a fictitious stash

house robbery does not “violate[ ] fundamental fairness [or]

‘shock[ ] the universal sense of justice mandated by the Due

Process Clause of the Fifth Amendment.’ ” Gurolla, 333 F.3d

at 950 (quoting Russell, 411 U.S. at 431-32). Both crimes

required significant advance planning, the use of force to

deprive persons of property, and the use of firearms, and both

crimes required the participants’ willingness to threaten or

take human life. A stash house robbery differs from a bank

UNITED STATES v. WILLIAMS 15189

robbery only in the type of property to be stolen and the likeli-

hood that the innocent public will be injured during the crime.

The government’s decision to use a sting operation to appre-

hend this group of criminals reduced the risk of violence to

the public and is to be commended, not condemned. Though

perhaps creative, the government’s sting does not violate the

universal sense of justice.11

11

In connection with the outrageous government conduct claim, the

appellants present two additional arguments. First, they argue that the gov-

ernment created a crime of violence, in violation of Justice Powell’s con-

currence in Hampton v. United States, 425 U.S. 484 (1976). Justice Powell

stated: “There is certainly a constitutional limit to allowing governmental

involvement in crime. It would be unthinkable, for example, to permit

government agents to instigate robberies and beatings merely to gather

evidence to convict other members of a gang of hoodlums.” Hampton, 425

U.S. at 493 n.4 (Powell, J., concurring in the judgment) (quoting United

States v. Archer, 486 F.2d 670, 676-77 (2d Cir. 1973)). The government

correctly notes that Justice Powell was referring “to government conduct

that would encourage and condone direct and deliberate harm to others,”

such as if the government prosecuted a defendant for robbery after encour-

aging the defendant to rob a victim. Justice Powell’s concurrence explic-

itly approves the use of sting operations to combat drug offenses. See

Hampton, 425 U.S. at 493 (Powell, J., concurring). Here, the sting opera-

tion not only involved drugs, it was also designed to catch Williams, a

known bank robber and drug dealer, in a conspiracy to perform the types

of acts that he already indicated his willingness to perform and had begun

planning. The government did not instigate a robbery or beating “merely

to gather evidence to convict other members of a gang of hoodlums.” Id.

at 493 n.4. They devised a plan to catch a potentially dangerous group of

robbers in a controlled sting operation.

Second, the appellants argue that the government directed the criminal

scheme from start to finish. This argument lacks merit because Williams

was intimately involved in the development of the plan. Williams hatched

the bank robbery scheme entirely on his own, and he participated in the

planning stages of the stash house robbery. He arranged for his crew to

help him, including instructing Hollingsworth to bring a gun and a police

scanner to the motel. He sold weapons to raise money to rent the car for

the robbery, and he repeatedly indicated his willingness to do the job.

Government agents may have “provide[d] valuable and necessary items to

the venture,” Gurolla, 333 F.3d at 950, but that is insufficient to demon-

strate that the government directed the enterprise from start to finish. Id.

15190 UNITED STATES v. WILLIAMS

C

Brown, Williams, and Steel next argue that the indictment

should be dismissed because the prosecution failed to disclose

a portion of audiotape 9A until the very late stages of the trial.

Tape 9A recorded Penate’s side of a conversation with other

agents as he left the San Diego motel to drive to the Chula

Vista motel on November 14. During the prosecution’s clos-

ing rebuttal argument, the government played a portion of

tape 9A. At one point during the segment played, Penate

apparently refers to “one of those other two dudes that didn’t

nod.” The appellants’ attorneys immediately objected that

they had not received a copy of that portion of the tape prior

to trial, that it was exculpatory material that should have been

disclosed under Brady v. Maryland, 373 U.S. 83 (1963), and

that the government should be sanctioned with a dismissal of

the indictment.

The district court agreed that the recorded conversation was

exculpatory and material to the defense because it called into

question whether all of the defendants agreed to participate in

the stash house robbery. Rather than dismiss the indictment,

however, the district court permitted the defense to reopen its

case to question Penate about the recording. Despite this

remedial measure, the appellants argue that the indictment

should be dismissed because the prosecution failed to disclose

it at a time when it was useful at trial.12

[17] The three elements of a Brady violation are: (1) “[t]he

evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching”; (2)

“that evidence must have been suppressed by the State, either

willfully or inadvertently”; and (3) “prejudice must have

ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

12

We review de novo claims of Brady violations. United States v. Dan-

ielson, 325 F.3d 1054, 1074 (9th Cir. 2003).

UNITED STATES v. WILLIAMS 15191

[18] There was some question at trial whether the recording

on tape 9A referred to two defendants who “didn’t nod” or

who “did the nod.” The district court, after listening “to it

over and over,” stated that “it could go either way.” The evi-

dence was ambiguous and supported either interpretation, and

it could have been used to impeach Penate, one of the govern-

ment’s most important witnesses. It therefore satisfies the first

element of a Brady violation because it was exculpatory.

There is no dispute that it also satisfies the second element

because the defense did not receive it until very late in the

trial.

[19] We need not address the third Brady element of preju-

dice, because a new trial is usually the appropriate remedy for

a Brady violation, see United States v. Chapman, 524 F.3d

1073, 1086 (9th Cir. 2008), and we are granting the appellants

a new trial on other grounds. Moreover, a Brady violation jus-

tifies or requires dismissal of the indictment only in cases ris-

ing “to the level of flagrant prosecutorial misconduct.” Id. We

have no difficulty concluding on this record that no such fla-

grant misconduct occurred. The taped segment was ambigu-

ous, and the district court found there was no bad faith in

failing to deliver the tape to the defense in a timely manner.

The record supports that determination. Dismissal of the

indictment therefore is not warranted.13

13

Related to the Brady argument, the appellants argue that the govern-

ment violated their due process rights by presenting Penate’s perjured tes-

timony and that the indictment should therefore be dismissed. We review

this claim for plain error because the appellants did not object to the pre-

sentation of Penate’s testimony at trial. United States v. Geston, 299 F.3d

1130, 1134 (9th Cir. 2002). Although there were inconsistencies in

Penate’s testimony, there was no evidence that the government knowingly

presented false testimony. See id. at 1135 (“It is a prosecutor’s duty to

‘refrain from knowingly presenting perjured testimony and from know-

ingly failing to disclose that the testimony used to convict defendant was

false.’ ” (quoting United States v. Aichele, 941 F.2d 761, 766 (9th Cir.

1991))). The inconsistencies in Penate’s testimony were argued to the jury

as the finder of fact. We reject the appellants’ argument that the indict-

ment should be dismissed on this basis.

15192 UNITED STATES v. WILLIAMS

D

Finally, Williams, Brown, and Steel challenge the district

court’s decision to give a supplemental jury instruction in

response to a juror’s note.14 They argue that the district court

was required to declare a mistrial because the juror’s note

revealed that she was a holdout. We agree.

The jury began deliberating at 9:10 a.m. on November 7,

2003. At about 11:45 a.m. on that same day, the district court

received a note from the foreperson. The note stated, in rele-

vant part: “[C]an a juror send you a note through me without

my seeing it?” About thirty minutes after receiving that note,

the foreperson sent another note saying, “Your Honor, the

juror refuses to proceed until you have responded to her

note.” The district court consulted with the parties and then

sent a note to the jury saying that any juror could send a note

to the court. The district court then received a note from Juror

No. 1. The note said (all spelling as in original):

Judge Gonzales, I disagree with my fellow jurers of

(a) entrapment, (b) conspiracy of possession to dis-

tribution of drugs, concerning David Williams,

Steele, & Brown. I can’t get pass this issue, & feel

the other jurers have already convicted the three

defendants on all accounts. As it stands, my head-

ache is worst and will not be bombarded to change

my opinion. May I please be excused from this case,

as I feel very strong about my decision & could not

face the defendants with the charges the other jurers

are hard on declaring.

14

We review for an abuse of discretion the district court’s decision to

issue a supplemental instruction, but we review de novo claims that a dis-

trict court coerced a jury’s verdict. United States v. Berger, 473 F.3d 1080,

1089 (9th Cir. 2007). In conducting this review, we view the supplemental

instruction as a whole. Lowenfield v. Phelps, 484 U.S. 231, 237 (1988).

UNITED STATES v. WILLIAMS 15193

/s/ [name omitted] Jurer # 1.

P.S. I hate to use the word prejudice, but feel its

presence strong in the room above the law.

The appellants moved for a mistrial, but the district court

instead opted to reread to the jury one of the original jury

instructions, supplementing it with an additional admonition

to treat each juror with respect. The supplemental instruction

said:

I want all of you to discuss the case with your fellow

jurors to reach an agreement if you can do so. Your

verdict, whether guilty or not guilty, must be unani-

mous. Each of you must decide the case for yourself,

but you should do so 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 dis-

cussion persuades you that you should, but do not

come to a decision simply because the other jurors

think it is right.

It is important that you attempt to reach a unanimous

verdict but 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.

I want all of you to treat each other respectfully. I

want all of you to listen to the views of your fellow

jurors. And I want you to consider all of the instruc-

tions that I’ve given to you in addition to this one.

I’ve singled this one out right now because I wanted

to remind you of it, but all the jury instructions are

15194 UNITED STATES v. WILLIAMS

equally important. And so I want you to go back in

that jury room. I want you to treat each other with

respect. I want each of you to talk about your views

about the evidence in the case, and then we’ll see

what happens from there. So you are all excused to

go back into the jury room.

The jury retired to deliberate again, and returned verdicts of

guilty at about 5:00 p.m. on the same day.

Citing United States v. Sae-Chua, 725 F.2d 530 (9th Cir.

1984), the appellants argue that a mistrial was required

because this instruction, given after the district court became

aware that there was a holdout juror, was an improperly coer-

cive Allen charge. The government responds that the supple-

mental instruction was not an Allen charge and that it was not

coercive.

1

The first issue that must be resolved is whether this supple-

mental instruction warrants use of the Allen charge frame-

work. The district court clearly did not intend to give an Allen

charge; indeed, the court specifically stated that it was not

going to give an Allen charge because the jury foreperson had

not sent a note indicating deadlock. However, the determina-

tion of whether an Allen charge has been given does not

depend on whether the parties or the district court thought the

court was giving such a charge. Instead, it depends on the cir-

cumstances under which the supplemental instruction is given

and the content of the instruction.

[20] An Allen charge “is the generic name for a class of

supplemental jury instructions given when jurors are appar-

ently deadlocked.” United States v. Mason, 658 F.2d 1263,

1265 n.1 (9th Cir. 1981). Because “the fundamental question

is whether the jury was improperly coerced, thus infringing

the defendant’s due process rights . . . courts have not hesi-

UNITED STATES v. WILLIAMS 15195

tated to apply an Allen charge analysis . . . where the jury has

not yet reached a deadlock.” Weaver v. Thompson, 197 F.3d

359, 365 (9th Cir. 1999) (citing United States v. Wills, 88 F.3d

704, 716-17 (9th Cir. 1996)). “So long as the defendant has

offered facts that fairly support an inference that jurors who

did not agree with the majority felt pressure from the court to

give up their conscientiously held beliefs in order to secure a

verdict, we must proceed to the Allen charge analysis.” Id.

[21] The facts presented by Williams, Steel, and Brown

clearly “support an inference” that a juror who disagreed with

the majority felt pressure from the court to give up her consci-

entiously held belief. Id. The juror’s note to the judge stated

that she felt “very strong” about her decision and that she dis-

agreed with her fellow jurors, who she felt had already con-

victed the defendants “on all accounts.” She named specific

issues material to the determination of guilt, which she said

she could not “get pas[t].” She also said she “could not face

the defendants” with the charges that the other jurors wished

to sustain. In response to that unambiguously worded note,

the district court instructed the jury to continue deliberating

and for the jurors to consider changing positions “if the dis-

cussion persuades you that you should.” This kind of situation

is the precise type of situation for which the Allen framework

has been developed: Juror No. 1 knew that the judge knew her

position and reasonably—in fact, more than likely—could

have interpreted the supplemental instruction to be directed at

her.

Moreover, the district court’s supplemental instruction

resembled instructions in other cases involving Allen charges

because it “carr[ied a] reminder[ ] of the importance of secur-

ing a verdict and ask[ed] jurors to reconsider potentially

unreasonable positions.” Mason, 658 F.2d at 1265 n.1. For

example, in United States v. Steele, the district court

instructed the jury that they had “the duty to discuss the case

with one another and to deliberate in an effort to reach a unan-

imous verdict if each of you can do so without violating your

15196 UNITED STATES v. WILLIAMS

individual judgment and conscious [sic].” 298 F.3d 906, 910

(9th Cir. 2002). Similarly, the district court in this case said,

“I want all of you to discuss the case with your fellow jurors

to reach an agreement if you can do so. Your verdict, whether

guilty or not guilty, must be unanimous.” The Allen charge in

Steele read:

During your deliberations you should not hesitate to

reexamine your own views and change your opinion

if you are now persuaded that it is wrong. However,

you should not change an honest belief . . . solely

because [of] the opinions of your fellow jurors or for

the mere purpose of returning a verdict. . . . Each of

you should ask yourself whether you should question

the correctness of your present position.

298 F.3d at 910. The district court in this case said, “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 the other jurors think it is right.” We analyzed the

instruction given in Steele as an Allen charge, albeit a “neutral

form” of the Allen charge, which in the circumstances of that

case was not unduly coercive. Id. at 910-11. The supplemental

instruction given in this case is not materially different from

the instruction given in Steele.

[22] We therefore conclude that the district court, although

it did not intend to do so, gave a “neutral form” of the Allen

charge. We now analyze the instruction as an Allen charge.

2

[23] Allen “charges are proper ‘in all cases except those

where it’s clear from the record that the charge had an imper-

missibly coercive effect on the jury.’ ” United States v. Banks,

514 F.3d 959, 974 (9th Cir. 2008) (quoting United States v.

Ajiboye, 961 F.2d 892, 893 (9th Cir. 1992)). If the trial judge

gives an Allen charge after inquiring into the numerical divi-

UNITED STATES v. WILLIAMS 15197

sion of the jury, “the charge is per se coercive and requires

reversal.” Ajiboye, 961 F.2d at 893-94. “Even when the judge

. . . is inadvertently told of the jury’s division, reversal is nec-

essary if the holdout jurors could interpret the charge as

directed specifically at them—that is, if the judge knew which

jurors were the holdouts and each holdout juror knew that the

judge knew he was a holdout.” Id. at 894 (citing United States

v. Sae-Chua, 725 F.2d 530, 532 (9th Cir. 1984)).

Williams, Brown, and Steel principally rely on Sae-Chua to

support their argument that reversal is required because of the

district court’s supplemental instruction. They argue the dis-

trict court knew the identity of the holdout juror (Juror No. 1)

and Juror No. 1 knew the district court knew her identity. In

that situation, any Allen charge is impermissibly coercive and

requires a mistrial. See Sae-Chua, 725 F.2d at 532.

In Sae-Chua, the jury foreperson notified the court on the

second day of deliberations that one juror refused to vote

guilty even though that juror believed the defendant was in

fact guilty. 725 F.2d at 531. The court brought the jury into

the courtroom to poll them about whether they believed fur-

ther deliberations would result in a verdict. Eleven jurors indi-

cated their belief that a verdict could be reached; one juror

indicated that a verdict could not be reached. Id. The court

gave an Allen charge, and the jury returned a guilty verdict

after several more hours of deliberation. Id. Reversing the

verdict because the supplemental instruction was improperly

coercive, we noted that an important consideration is whether

the judge giving the Allen charge “was unaware of the nature

or extent of numerical division.” Id. We reasoned that, in the

circumstances presented in Sae-Chua, “the most rational

inference to be drawn was that the eleven who favored contin-

ued deliberations constituted the majority favoring conviction

and that the one who felt further deliberations would be fruit-

less was the juror to whom the foreman had referred in his

note.” Id. at 532. “Under these circumstances the charge could

only be read by the dissenting juror as being leveled at him.”

15198 UNITED STATES v. WILLIAMS

Id. We found it critical that both the judge and the dissenting

juror knew that the judge was aware of the dissenting juror’s

identity. Id.; see also Ajiboye, 961 F.2d at 894.

In other situations, where the numerical division of the jury

has been disclosed, but the votes of individual jurors has not,

we have not reversed. For example, in United States v.

Changco, 1 F.3d 837 (9th Cir. 1993), the foreperson sent a

note to the court indicating that one juror was holding out. We

upheld the district court’s supplemental instruction telling the

jury not to disclose its numerical division again, urging the

jury to continue deliberating to try to reach a verdict, and

instructing them not to surrender conscientiously-held beliefs.

Id. at 842. Similarly, in United States v. Green, 962 F.2d 938

(9th Cir. 1992), the jury disclosed its numerical division but

“did not indicate that further deliberations would be fruitless.”

Id. at 944. For that reason, we concluded that “a mistrial

would have been premature.” Id. In neither case did the dis-

trict court know how any individual juror had voted.

Although this case is similar to Green and Changco and

different from Sae-Chua in some respects, the core problem

present in Sae-Chua is present here. Unlike in Sae-Chua, the

district court did not poll the jurors before giving the supple-

mental instruction. As in Green, the jury foreperson did not

indicate that further deliberations would be fruitless.15 In fact,

the district court had no indication, from the foreperson or any

other juror, that an actual vote had been taken or what the

results of any vote were, for the juror’s note indicated only

that she “fe[lt] the other jur[o]rs have already convicted the

three defendants on all accounts,” but did not say that a vote

had been taken or what the positions of the other jurors were.

As in Green and Changco, the supplemental instruction given

15

The note from Juror No. 1 did inform the court that at least she did

not feel that further deliberations would be helpful. Juror No. 1 felt

strongly enough about the issue to stop deliberations until the foreperson

sent the note to the court.

UNITED STATES v. WILLIAMS 15199

by the district court in response to the note was a neutral vari-

ety of an Allen charge. It simply encouraged the jurors to

reach a unanimous verdict “only if each of you can do so after

having made your own conscientious decision.” The instruc-

tion is virtually identical to the instruction given in Changco

and Green. See Changco, 1 F.3d at 842; Green, 962 F.2d at

944.

[24] These differences are overshadowed by the most

important consideration: There is no indication in Changco

and Green that the district court knew the identity of the hold-

out jurors when the Allen charge was given.16 But here, after

Juror No. 1 passed her note to the district judge, the district

judge knew the identity of a juror who, in the words of the

juror, “fe[lt] very strong about my decision and could not face

the defendants with the charges the other jur[o]rs are hard on

declaring,” and who indicated that she would “not be bom-

barded to change my opinion.” Juror No. 1 obviously knew

that the court knew her identity. The situation precisely fits

the problem that the Ajiboye court described:17 “Even when

16

Changco is ambiguous as to whether the district judge knew the iden-

tity of the holdout juror at the time the Allen charge was given. In that

case, the note to the court from the foreperson said, “Can’t convince one

person. Don’t know what to do. Set mind before case. She can’t hear well

and is not looking at evidence.” 1 F.3d at 842. Describing a separate inci-

dent with the jury that Changco also appealed, we wrote: “The second

incident arose . . . when an individual juror (the same juror, it turns out,

who was the subject of the first note) passed a note to the judge, claiming

she was being intimidated, harassed and physically threatened by other

jurors.” Id. The Changco court gave no indication as to how it knew that

the same juror was the subject of both notes, but it also did not indicate

that the district judge knew the identity of the holdout at the time of the

supplemental instruction or, importantly, that the holdout juror knew that

the judge knew her identity.

17

In fact, this case presents a stronger argument for application of the

Sae-Chua rule than Sae-Chua itself. In Sae-Chua, we reversed based on

an inference that the juror who felt further deliberations would not be

fruitful was the holdout juror referenced in the foreperson’s note. Here,

there is no doubt about the identity of the holdout juror, or that the juror

knew the district court knew her identity, because the juror sent a note

directly to the district judge.

15200 UNITED STATES v. WILLIAMS

the judge does not inquire but is inadvertently told of the

jury’s division, reversal is necessary if the holdout jurors

could interpret the charge as directed specifically at them—

that is, if the judge knew which jurors were the holdouts and

each holdout juror knew that the judge knew he was a hold-

out.” Ajiboye, 961 F.2d at 894 (citing Sae-Chua, 725 F.2d at

532). Ajiboye and Sae-Chua required the district court to

declare a mistrial in these circumstances.18

[25] That there was no indication here that the jury had

taken a vote or that the foreperson believed that further delib-

erations would not be productive does not change our conclu-

sion. When a juror clearly discloses to the district court that

she disagrees with the rest of the jury and that she cannot

return a different verdict, as Juror No. 1 disclosed here, the

district court cannot give a supplemental instruction instruct-

ing the jury to continue deliberating.19 Ajiboye, 961 F.2d at

894; Sae-Chua, 725 F.2d at 532.

[26] Accordingly, the district court abused its discretion in

denying the appellants’ motion for a mistrial.

III

We REVERSE the judgment of the district court and

REMAND for a new trial.

18

In reaching this conclusion, we are aware of the conscientious effort

that the district court made to avoid a mistrial after a lengthy trial, and we

commend the district court for that effort. In this circumstance, as our

opinion today makes clear, nothing could have prevented a mistrial.

19

The district court is free to give supplemental instructions so long as

the judge does not know the identity of the jurors that are the holdouts.