United States v. Victor HIll

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 1 of 56

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10934

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR HILL,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:21-cr-00143-ELR-CCB-1

____________________

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 2 of 56

2 Opinion of the Court 23-10934

Before ROSENBAUM, NEWSOM, and MARCUS, Circuit Judges.

ROSENBAUM, Circuit Judge:

The notion that “[n]o man is above the law and no man is

below it” 1 is fundamental to our democratic republic’s continuing

viability. That principle applies equally to sheriffs (and other offic-

ers of the law) and detainees. And 18 U.S.C. § 242 vindicates that

principle. It imposes criminal liability on anyone who, under color

of law, willfully deprives another person of their constitutional

rights. Under § 242, a jury convicted Victor Hill, the former Sheriff

of Clayton County, Georgia, of using his position as the Sheriff to

deprive detainees in his custody of their constitutional rights. Hill

now appeals.

Hill oversaw the Clayton County Jail. At that jail, officers

used restraint chairs for “safe containment” of pretrial detainees

“exhibiting violent or uncontrollable behavior.” But six times, Hill

ordered individual detainees who were neither violent nor uncon-

trollable into a restraint chair for at least four hours, with their

hands cuffed behind their backs (or, in one instance, to the sides of

the chair) and without bathroom breaks. Each detainee suffered

injuries, such as “open and bleeding” wounds, lasting scars, or

nerve damage. Based on these events, a jury convicted Hill of six

1 President Theodore Roosevelt, Third Annual Message to Congress (Dec. 7,

1903), https://www.presidency.ucsb.edu/documents/third-annual-message-

16 [https://perma.cc/W6UT-AAEG].

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 3 of 56

23-10934 Opinion of the Court 3

counts of willfully depriving the detainees of their constitutional

right to be free from excessive force, in violation of § 242.

Hill challenges that conviction on three grounds. We reject

each one. First, Hill had fair warning that his conduct was uncon-

stitutional—that is, that he could not use gratuitous force against a

compliant, nonresistant detainee. Second, sufficient evidence sup-

ported the jury’s conclusion that Hill’s conduct had no legitimate

nonpunitive purpose, was willful, and caused the detainees’ inju-

ries. Third, the district court did not coerce the jury verdict but

properly exercised its discretion in investigating and responding to

alleged juror misconduct.

So after careful consideration, and with the benefit of oral

argument, we affirm Hill’s conviction.

I. BACKGROUND

A. Factual Background2

Defendant-Appellant Victor Hill served as Sheriff of Clayton

County, Georgia, from 2005 to 2008 and from 2013 to 2022. As

Sheriff, Hill oversaw the county jail, where pretrial detainees are

incarcerated. Hill characterized the jail, under his supervision, as a

“paramilitary facility” with “a lot of rules” like “in a military boot

camp.”

2 We take these facts from the evidence presented at trial, and we view them

in the light most favorable to the verdict. United States v. Verdeza, 69 F.4th 780,

785 n.1 (11th Cir. 2023).

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 4 of 56

4 Opinion of the Court 23-10934

In his role as Sheriff, Hill received annual use-of-force train-

ings. Consistent with this training, Hill adopted a use-of-force pol-

icy defining “excessive force” as “any force used in excess of the

amount of force reasonably required to establish control over or to

prevent or terminate an unlawful act of violence.”

In 2018, Hill bought restraint chairs for the Clayton County

Jail and established a policy for their use. At trial, the Government

introduced the following photo of a restraint chair:

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 5 of 56

23-10934 Opinion of the Court 5

Hill adopted a general policy for the use of all types of phys-

ical-restraint devices. It provided that a detainee posing a risk of

“actual violence for [himself] or others . . . shall be placed into iso-

lation” first. And it emphasized that only if the detainee “continues

to exhibit physical violence toward staff, [himself], or others”

should he “be placed into restraints.”

Besides this policy, Hill adopted a specific restraint-chair pol-

icy. Under it, the chairs were “for emergencies,” such as “safe con-

tainment of an inmate exhibiting violent or uncontrollable behav-

ior” and preventing “self-injury, injury to others or property dam-

age.” Chair use, the policy continued, could “never be authorized

as a form of punishment.” And when a situation called for chair

use, officers were to remove handcuffs, and detainees were to be

“kept in the restraint chair no longer than four (4) hours unless ex-

igent circumstances exist, i.e., inmates [sic] continued violent be-

havior.” Also under the policy, a detainee had to receive medical

clearance before being put in the chair. Finally, the policy man-

dated regular medical checks and “scheduled exercise periods” for

those who were restrained.

Hill and his deputies used the chair about 600 times. Accord-

ing to Hill, he ordered chair use as a “preventative measure” based

on “pre-attack indicators” and the “totality of [the] circumstances.”

And when Hill ordered chair restraint of a detainee, only Hill could

order his release from the chair, typically after “at least four hours.”

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 6 of 56

6 Opinion of the Court 23-10934

This case concerns Hill’s restraint-chair use on six3 pretrial

detainees in 2019 and 2020. We recount the facts of each arrest and

detention, organized by detainee, below.

1. Raheem Peterkin

In December 2019, Raheem Peterkin was arrested for alleg-

edly pointing a gun at two men outside his apartment and “barri-

cading” himself in the apartment despite officers’ repeated requests

to come outside. According to the arresting officer, during his ar-

rest and booking, Peterkin was never violent, uncontrollable, or

threatening.

After Peterkin arrived at the jail, Hill and specialized security

officers—known as the “Scorpion Response Team” (“SRT”)—

visited Peterkin’s holding cell and questioned Peterkin about his al-

leged offenses. Hill said, “I wish I was there. I would have riddled

your ass with bullets.” And then he told SRT members to “put that

bitch in the chair.”

On Hill’s order, officers strapped Peterkin into a restraint

chair. Peterkin remained there, with his hands cuffed behind his

back, for four hours. While in the chair, Peterkin experienced pain

in his wrist and side. He testified that the pain was “the worst thing

[he] ever felt,” and the restraints left scars on both of his wrists.

3 The indictment charged Hill with seven counts, for seven detainees. But the

jury acquitted Hill of one count: the count related to Joseph Harper. That

acquittal is not before us on appeal.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 7 of 56

23-10934 Opinion of the Court 7

Officers did not allow him to use the restroom, so he was forced to

urinate on himself.

2. Desmond Bailey

In February 2020, officers arrested Desmond Bailey for drug

and firearm possession. While officers were executing a search

warrant, Bailey left his house in a car, requiring officers to follow

him before they could stop and arrest him. The arresting officer

testified that during his arrest and booking, Bailey was never vio-

lent, uncontrollable, or threatening.

In his holding cell at the jail, Bailey told detectives that he did

not want to speak to them without a lawyer present. But several

hours later, Hill, the detectives, and SRT members arrived, and Hill

questioned Bailey about his alleged offenses. Bailey again refused

to answer questions without a lawyer present. Hill replied, “You

think you’re a big badass. Oh, you think you’re a gangster. Put his

ass in the chair.”

On Hill’s order, officers strapped Bailey into a restraint chair.

There Bailey sat, with his hands cuffed behind his back, for six

hours. Bailey described his time in the chair as “horrible” and “ter-

rifying.” He testified that he was in extreme pain and eventually

felt numb. The restraints cause Bailey to suffer “open and bleed-

ing” cuts on both wrists, which required medical treatment and left

scars.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 8 of 56

8 Opinion of the Court 23-10934

3. Joseph Arnold

In February 2020, officers arrested Joseph Arnold for assault-

ing two elderly women during a dispute about who was next in line

at a grocery store, though they did not arrest him until three weeks

after the incident. Following the incident, Hill put Arnold on the

Sheriff’s Department’s “top ten” most wanted list and offered

“$2500 of [his] own money to anyone who would lead authorities

to identify” Arnold. The arresting officer testified that Arnold was

cooperative, non-threatening, and did not resist arrest.

Upon Arnold’s arrival at the jail’s booking area, Hill con-

fronted Arnold. The jury saw an officer’s surreptitious recording

of that interaction. When Arnold, who was handcuffed, asked

whether he was entitled to a fair and speedy trial, Hill responded,

You entitled to sit in this chair, and you’re entitled to get the

hell out of my county and don’t come back. That’s what

you’re entitled to. You sound like a damn jackass. Don’t you

ever put your hand on a woman like that again. You’re for-

tunate that wasn’t my mother or grandma or you wouldn’t

be standing there. Now, sit there and see if you can get some

damn sense in your head.

On Hill’s order, officers strapped Arnold into a restraint

chair. There Arnold remained, with his hands cuffed to the sides

of the chair, for at least four hours. Arnold testified that the re-

straints were “painful and humiliating” and left marks on his wrists

that did not heal for weeks.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 9 of 56

23-10934 Opinion of the Court 9

4. Cryshon Hollins (C.H.)

In April 2020, officers arrested Cryshon Hollins (then 17

years old) for vandalizing his family’s home. Deputy Allen, who

happened to be Hill’s godson, spoke with Hill on the phone, texted

Hill a photo of Hollins handcuffed in the back of the police car, and

had this text message exchange with Hill:

Hill: How old is he?

Allen: 17

Hill: Chair

Again, the arresting officers, as well as officers who were in the jail’s

intake area, testified that Hollins was never violent, uncontrollable,

or threatening.

On Hill’s order, officers strapped Hollins into a restraint

chair immediately upon his arrival at the jail. Hollins cried because

he felt like he was “being tortured,” and he was forced to urinate

on himself. After four to five hours, officers released Hollins from

the chair, and he fell asleep in a holding cell.

An hour later, Hill scolded Hollins for disrespecting Hollins’s

mother and ordered SRT members to strap Hollins into the re-

straint chair. There Hollins sat for another five or six hours, with

his hands cuffed behind his back. Hollins testified that the restraint

felt “like torture” and left visible marks on his wrists and ankles.

During the second restraint, Hill recorded a video of him-

self, Hollins, and Joseph Harper, who was strapped into another

restraint chair in the same room. In that video, among other

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 10 of 56

10 Opinion of the Court 23-10934

things, Hill said, “If I hear about you messing up your mama’s

house again . . . I’m a sit your ass in that chair for sixteen hours

straight . . . I need to hear from both of y’all that y’all not gonna

show y’all’s ass in my county no more.” Hill texted that video to

his girlfriend.

At trial, Hill claimed that he tried to be “convincing” and do

what Hollins’s mother wasn’t “capable of doing.” Hill testified that

“the experience [Hollins] had overall,” and “the discussion [Hill]

had with him, is part of the reason why he’s out of trouble now.”

5. Glen Howell

In April 2020, Glen Howell and Lieutenant Guthrie had a

payment dispute over landscaping work that Howell performed

(unrelated to Guthrie’s employment). One night, Hill called How-

ell to ask why he was “harassing” Guthrie, to which Howell re-

sponded by telling Hill to “go f himself ” and hanging up. Because

Howell didn’t believe the caller was Hill but “thought somebody

was impersonating the Sheriff,” Howell called Hill back via

FaceTime. On that call, Howell said, “Now you work for me,” to

which Hill replied, “I’m coming to get you.” Hill then texted How-

ell and warned Howell not to contact him anymore or Howell

would be arrested for harassing communications. Howell re-

sponded, “So this is Victor Hill correct,” but did not otherwise con-

tact Hill again.

Hill still instructed a deputy to prepare an arrest warrant for

misdemeanor harassing communications. After texting Howell

multiple times about the warrant, Hill sent a fugitive squad two

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 11 of 56

23-10934 Opinion of the Court 11

counties over to arrest Howell. Two days later, after retaining

counsel, Howell turned himself in. Surveillance footage and offic-

ers’ testimony both reflect that Howell was cooperative and com-

pliant during arrest and booking.

After Howell turned himself in, Hill arrived at the jail, ac-

companied by Lieutenant Guthrie. Howell tried to shake Hill’s

hand. But Hill replied, “We’re way past that. You had an oppor-

tunity to fix this before this part.” Hill then ordered deputies to

“put [Howell] in the chair,” and they strapped Howell in with his

hands cuffed behind his back. There Howell sat for at least four

hours. Hill said that he was “going to teach [Howell] a lesson” and

“if [Howell] crossed him or one of his deputies again, it [would] be

the sniper team.”

Howell testified that, while in the chair, he felt the “worst

feeling of [his] life.” Although he “asked for a medic” because he

felt like he was having a “panic attack,” officers “denied [him] a

medic.” The restraints left visible marks on his wrists and caused

his hands to swell. Howell also testified that he still suffers neck,

back, arm, leg, and toe pain and numbness from a pinched nerve,

which affects his ability to work. 4

4 Howell also filed a civil lawsuit against Hill seeking damages under 42 U.S.C.

§ 1983. Howell v. Hill, No. 1:20-cv-02662-WMR (N.D. Ga.). In that case, the

district court denied Hill’s motion for summary judgment on qualified-im-

munity grounds. Hill’s appeal is pending before this Court.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 12 of 56

12 Opinion of the Court 23-10934

6. Walter Thomas

In May 2020, an officer arrested Walter Thomas for speeding

and driving with a suspended license. The arresting officer testified

that Thomas (though crying, cussing, and pleading with the officer

not to take him to jail) was never violent, uncontrollable, or threat-

ening.

In the holding cell at the jail, an officer told Thomas to stand

up and face the wall while Hill approached. When a female officer

told Thomas not to put his head against the wall, Thomas turned

to look at her. SRT members then pinned Thomas against the wall.

Thomas tried to explain that he was there for only a suspended li-

cense, but Hill told him to “shut up” and ordered SRT to strap him

into a restraint chair.

Following Hill’s orders, officers strapped Thomas into the

chair, and there he remained for five or six hours with his hands

cuffed behind his back. While Hill was still present, officers covered

Thomas with a “spitting hood” (even though he had not been spit-

ting) and punched him in the face, which caused a bruised lip.

Thomas cried and urinated on himself several times. And no offic-

ers or nurses came to check on him; indeed, he “had to kick the

door for somebody to come check on” him. He testified, “I never

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 13 of 56

23-10934 Opinion of the Court 13

felt that pain never [sic] before. Like, literally, I wouldn’t wish that

on my worst enemy.”5

B. Procedural History

A federal grand jury indicted Hill for “willfully depriv[ing]”

the detainees of their constitutional “right to be free from the use

of unreasonable force by law enforcement officers amounting to

punishment,” “under color of law” and with resulting “bodily in-

jury.” See 18 U.S.C. § 242. That right derives from the Fourteenth

Amendment’s Due Process Clause. Graham v. Connor, 490 U.S. 386,

395 n.10 (1989). Hill moved to dismiss the indictment. He asserted

that he lacked fair warning that his conduct was criminal. The dis-

trict court denied that motion.

At trial, after the Government rested, Hill moved for a judg-

ment of acquittal. See Fed. R. Crim. P. 29(a). He argued that insuf-

ficient evidence supported the conclusions that (1) his use of the

restraint chair was objectively unreasonable; (2) he acted willfully;

and (3) he caused the detainees’ injuries. The district court denied

that motion. Hill renewed his motion at the close of the defense’s

evidence, but the court again denied that motion. Hill also repeat-

edly moved for a mistrial during jury deliberations, as we discuss

below.

5 Thomas also filed a civil § 1983 lawsuit against Hill.

Thomas v. Hill, 1:22-cv-

3987 (N.D. Ga.). That lawsuit appears to have stalled or been dropped. The

only docket entries include the complaint and summons.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 14 of 56

14 Opinion of the Court 23-10934

1. Jury Deliberations and Verdict

The court submitted the case to the jury, and just after noon,

the jury began its deliberations. Upon request, the court released

the jury for the day around 4:30 p.m.

The next day of deliberations, at around 2:45 p.m., the jury

sent the judge a note. It said that the jury had “agreed on [two]

counts” but was “deadlocked” on the other five.

The Government requested an Allen charge. 6 For his part,

Hill asked the court to take the verdict on the two counts and de-

clare a mistrial on the remaining five counts. The district court

then gave the Eleventh Circuit pattern modified Allen charge. 7 In

delivering that charge, though, the district court omitted the sen-

tence, “The trial has been expensive in time, effort, money, and

emotional strain to both the defense and the prosecution.”

Roughly an hour later, the jury foreperson sent a note asking

how the jury should proceed “if a juror is exhibiting the inability to

understand the [court’s] instructions,” “displaying general confu-

sion with basic words, [and] altering meanings of words to con-

form with personal opinions.” The note did not identify the juror,

describe the juror as a holdout, or claim that the jury was

6 See Allen v. United States, 164 U.S. 492, 501–02 (1896).

7 Judicial Council of the U.S. Eleventh Judicial Circuit, Criminal Pattern Jury

Instruction T5 (Mar. 2022), https://www.ca11.uscourts.gov/sites/de-

fault/files/courtdocs/clk/FormCriminalPatternJuryInstructionsRevised-

MAR2022.pdf [https://perma.cc/WE27-FN36].

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 15 of 56

23-10934 Opinion of the Court 15

deadlocked. The court responded in writing, “We’ve given you the

instructions, and it is up to you to deliberate according to those in-

structions, and work within them to arrive at a verdict.” The jury

deliberated for another half hour before requesting to be released

until the next day because it was “not coming to an agreement.”

The next morning, a juror informed the court that she could

not continue because she was experiencing excruciating back pain.

An alternate juror promptly replaced her. The district court in-

structed the reconstituted jury to “start [its] deliberations anew”

and “disregard entirely any deliberations taking place before [the]

alternate juror was substituted.” The reconstituted jury then be-

gan deliberating.

Later that same morning, the foreperson sent a note “with

questions regarding [a juror the foreperson later identified as Juror

6’s] ability to: (1) answer yes/no questions, (2) acknowledge the law,

[or] (3) be able to understand the instructions.” Another juror

wrote that the same juror ( Juror 6) “appear[ed] to show the begin-

nings of cognitive impairment,” was “unable to understand many

basic English words,” and “literally closed eyes and covered ears”

during deliberations. And Juror 6 allegedly “stated that the Sheriff

[and] the President are above the law and not required to follow the

Constitution.”

In response, the court questioned the foreperson and Juror

6, whom the foreperson identified as the subject of the notes. Ac-

cording to the foreperson, Juror 6 was engaging the other jurors

but was not open to others’ viewpoints and was not applying the

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 16 of 56

16 Opinion of the Court 23-10934

law or the court’s instructions. With Juror 6, the foreperson testi-

fied, “we just have not been able to get anywhere.” The court re-

membered Juror 6, who the court had to “help . . . through voir

dire” and “lead[] . . . in his questions.” Juror 6 told the court that

he had been engaging in deliberations and following the court’s in-

structions, though he had “annoyed people” with his definitions of

“intent and willful.” He also recounted that he had been called “in-

articulate or crazy.” The court declined to dismiss Juror 6, and the

jury resumed deliberations.

Shortly after 4 p.m., the jury sent the court three more notes,

again questioning one juror’s behavior and cognitive abilities. The

first stated that the juror did “not recall a large chunk of testimony,”

would “not respond” to questions, was “having difficulty constru-

ing sentences,” and “was arguing with his notes.” The second

added that the juror “state[d] he [was] biased against the detainees

if they were violent” and “demonstrate[d] difficulty in separating

different events and the order they occurred.” The third and final

note said simply, “We are unable to reach a unanimous decision to-

day. Can we start tomorrow?”

Defense counsel again moved for a mistrial. For its part, the

Government requested that the jury be allowed to resume deliber-

ations the next day. Instead, the court proposed another Allen

charge, to which defense counsel objected. The court released the

jury at 4:25 p.m.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 17 of 56

23-10934 Opinion of the Court 17

The next day, the jury resumed deliberations. Around 1:30

p.m., the court sua sponte gave the jury a modified8 version of the

pattern Allen instruction. The transcript reflects that the court (ap-

parently inadvertently) left out the word “not” in the following por-

tion: “You must also remember that if the evidence fails to establish

guilt beyond a reasonable doubt, the defendant must have your

unanimous verdict of [not] guilty.” The court instructed the jury

to apply the new charge “in conjunction with all the other instruc-

tions [it had] previously given.” Defense counsel objected to the

court’s decision to give the Allen charge but not to the substance of

that charge (as written or read).

Around 2:30 p.m., the jury sent another note asking how to

proceed if a juror stated that “they do not agree with the law in

their opinion and [was] using that opinion to base their vote.” The

court again separately questioned the foreperson, who confirmed

the note was about Juror 6. After that, the court received another

note asking the court to “clarify” the willfulness instruction.

The court again called in Juror 6. He told the court that he

understood the law and was attempting to follow the law and the

court’s instructions, but he thought “there was a passage that can

be taken two different ways.” The court left Juror 6 on the jury.

8 The modifications included the removal of (1) the same sentence we’ve

noted above and (2) the portion encouraging jurors in the minority to reex-

amine their positions.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 18 of 56

18 Opinion of the Court 23-10934

But at defense counsel’s request, the court asked the foreper-

son whether the jury was hopelessly deadlocked, to which the fore-

person responded, “I would not like to make that determination

right at this moment. . . . With further deliberations, it may be we

can get somewhere.”

Around 4:20 p.m., the jury announced it had reached a ver-

dict of guilty on six of the seven counts and not guilty on the sev-

enth (the count involving Harper).

2. Sentencing

The district court determined Hill’s total offense level to be

23 and his Guidelines range to be 46 to 57 months. But it granted

a “significant” downward variance, sentencing Hill to 18 months of

incarceration. In doing so, the court characterized the case as

“novel” and noted that Hill’s behavior did not “involve violence,

assaultive behavior, such as beating, tasing, shooting, et cetera, or

an unlawful arrest.” Neither party challenges Hill’s sentence on

appeal.

II. DISCUSSION

Hill challenges his § 242 conviction on three grounds. First,

Hill claims that he lacked fair warning that his conduct was uncon-

stitutional. Second, he argues that the district court abused its dis-

cretion in questioning a juror about alleged misconduct, giving two

Allen charges to the jury, and omitting one word in the second Allen

charge. Third, Hill asserts that the Government presented insuffi-

cient evidence that his conduct (1) had no legitimate nonpunitive

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 19 of 56

23-10934 Opinion of the Court 19

purpose, (2) was willful, and (3) caused the detainees’ injuries. We

find none of Hill’s challenges availing.

A. Hill had fair warning that his conduct violated the de-

tainees’ constitutional right to be free from excessive

force.

We begin with Hill’s claim that he lacked fair warning that

his actions violated the detainees’ constitutional right to be free

from excessive force. We review de novo whether a defendant had

fair warning that his conduct violated a constitutional right. See

United States v. House, 684 F.3d 1173, 1207 (11th Cir. 2012) (reasoning

that fair warning is a question of law).

Criminal liability attaches under § 242 only if case law pro-

vides the defendant “fair warning” that his actions violated consti-

tutional rights. United States v. Lanier, 520 U.S. 259, 267 (1997).

“[T]he standard for determining the adequacy of that warning [is]

the same as the standard for determining whether a constitutional

right was ‘clearly established’ in civil litigation under § 1983.” Hope

v. Pelzer, 536 U.S. 730, 740 (2002) (citing Lanier, 520 U.S. at 270–71).

We conclude that case law gave Hill “fair warning” that the use of

restraint chairs on compliant, nonresistant detainees inflicted ex-

cessive and thus unconstitutional force.

1. Restraint chairs qualify as “force.”

First, Hill argues that restraint-chair use is not “force” in the

first place, so it could not have been excessive force. In support of

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 20 of 56

20 Opinion of the Court 23-10934

this argument, Hill analogizes restraint chairs to “passive re-

straints” like handcuffs or leg shackles. We are not persuaded.

Even if restraint chairs were “passive restraints,” as Hill con-

tends, we have repeatedly applied the constitutional use-of-force

framework to such restraints. For instance, in Williams v. Burton,

943 F.2d 1572, 1575 (11th Cir. 1991) (per curiam), we characterized

the use of four-point restraints as “force.” And in Gold v. City of

Miami, 121 F.3d 1442, 1446–47 (11th Cir. 1997), we referred to tight

handcuffing for a twenty-minute period as a use of “force.” See also

Rodriguez v. Farrell, 280 F.3d 1341, 1352 (11th Cir. 2002) (same, for

“[p]ainful handcuffing”). In other words, even if a restraint is “pas-

sive,” that does not preclude the conclusion that it constitutes

“force.”

Similarly, in Hope, the Supreme Court noted that prior deci-

sions had clearly established that “handcuffing inmates to cells or

fences for long periods of time” was “punishment.” See 536 U.S. at

742 (quoting Gates v. Collier, 501 F.2d 1291, 1306 (5th Cir. 1974)). To

be sure, “punishment” is not synonymous with “force,” but Hope

demonstrates that even handcuffing may be subject to constitu-

tional analysis in certain circumstances.

Instead of this binding authority, Hill relies on several un-

published cases involving restraint chairs that he claims “focus on

the other violence and not the chair itself as the unlawful use of

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 21 of 56

23-10934 Opinion of the Court 21

force” and therefore “support[] the inference that this Court does

not classify the chair as force.” 9 We disagree.

For starters, of course, those unpublished cases are not bind-

ing on us. See 11th Cir. R. 36-2. But even if they were, they do not

support Hill’s inferential leap.

In none of those cases did we say that restraint-chair use was

not “force.” To the contrary, in one case, we characterized the re-

straint and pre-restraint force “as a single excessive force claim.”

Jacoby, 755 F. App’x at 896. Put differently, that we focused on other,

more egregious displays of force does not compel the conclusion

that we viewed restraint chairs as not “force.” In short, we reject

Hill’s argument that his restraint-chair use was not “force.”

9 See Shuford v. Conway, 666 F. App’x 811, 814, 818–19 (11th Cir. 2016) (revers-

ing grant of qualified immunity where officers used a “Pepperball gun,” Taser,

and other physical force on “uncooperative” and “aggressive[]” detainees be-

fore putting them in restraint chairs); Jacoby v. Mack, 755 F. App’x 888, 891–92,

897 (11th Cir. 2018) (same, where officers pepper sprayed “disruptive” de-

tainee then put him in a restraint chair without adequate decontamination for

eight hours); Coffman v. Battle, 786 F. App’x 926, 930, 935 (11th Cir. 2019) (af-

firming denial of qualified immunity where officer ordered resisting detainee

into a restraint chair, then tased him twice); McNeeley v. Wilson, 649 F. App’x

717, 720, 723 (11th Cir. 2016) (same, where officers sprayed “disobed[ient]”

detainee with chemical agents and then put him in four-point restraints with-

out a decontamination shower); Maldonado v. Unnamed Defendant, 648 F. App’x

939, 945, 955–56 (11th Cir. 2016) (same, where officer put prisoner, who had

violated jail rules, in restraint chair and then broke his finger, kicked him, and

burned him with a lighter).

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 22 of 56

22 Opinion of the Court 23-10934

2. Under clearly established law, Hill’s use of force was excessive.

Next, we consider whether Hill’s use of force was constitu-

tionally excessive. We conclude that, under clearly established law

at the time, it was.

For § 242 (and § 1983) purposes, “a right can be clearly es-

tablished in one of three ways.” Crocker v. Beatty, 995 F.3d 1232,

1240 (11th Cir. 2021). Those methods include “(1) ‘case law with

indistinguishable facts,’ (2) ‘a broad statement of principle within

the Constitution, statute, or case law,’ or (3) ‘conduct so egregious

that a constitutional right was clearly violated, even in the total ab-

sence of case law.’” Id. (quoting Lewis v. City of West Palm Beach,

561 F.3d 1288, 1291–92 (11th Cir. 2009)). In conducting this analy-

sis, “we look to binding decisions of the Supreme Court of the

United States, this Court, and the highest court of the relevant

state”—in this case, Georgia. Glasscox v. City of Argo, 903 F.3d 1207,

1217 (11th Cir. 2018).

Here, a “broad statement of principle,” see Crocker, 995 F.3d

at 1240, within our case law clearly established that the use of force

on compliant, nonresistant detainees is excessive. 10

As the Supreme Court has clarified, a pretrial detainee’s con-

stitutional rights are violated when “the force purposely or

10 The Government also argues that the third alternative applies— that Hill’s

conduct was “so egregious” that no reasonable law-enforcement officer could

have believed it was constitutionally permissible. See, e.g., Smith v. Mattox, 127

F.3d 1416, 1419–20 (11th Cir. 1997). But because we decide this case based on

a broad statement of principle, we need not reach that argument.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 23 of 56

23-10934 Opinion of the Court 23

knowingly used against him was objectively unreasonable.” Kings-

ley v. Hendrickson, 576 U.S. 389, 397 (2015). Force is excessive if it is

“not ‘rationally related to a legitimate nonpunitive governmental

purpose’” or if it “appear[s] excessive in relation to that purpose.”

Id. at 398 (quoting Bell v. Wolfish, 441 U.S. 520, 561 (1979)).

In determining whether Hill’s use of force was objectively

unreasonable, we consider factors including the relationship be-

tween the need for force and the amount of force used, the extent

of the detainees’ injuries, any effort to temper the amount of force,

the severity of the security problem, the threat reasonably per-

ceived by the officer, and whether the detainees were actively re-

sisting. Id. at 397. We also account for jail officials’ “legitimate”

need “to preserve internal order and discipline and to maintain in-

stitutional security.” Bell, 441 U.S. at 546–547.

With these principles in mind, we turn to their application

in our precedent. To be sure, our case law has not addressed the

precise factual circumstances at issue: the use of restraint chairs on

compliant, nonresistant detainees. But fair warning here did not

require an “extreme level of factual specificity.” See Lanier, 520 U.S.

at 268. Rather, even in the absence of “a case directly on point,”

our precedent leaves the unconstitutionality of Hill’s conduct “be-

yond debate.” See White v. Pauly, 580 U.S. 73, 79 (2017) (citation and

internal quotation marks omitted).

We begin with Hope, the closest Supreme Court case on

point. There, the Court found that prison guards who handcuffed

a prisoner to a hitching post for seven hours as punishment for

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 24 of 56

24 Opinion of the Court 23-10934

“disruptive conduct” committed an “obvious” and “clear violation”

of the Eighth Amendment. Hope, 536 U.S. at 733, 741. The Court

reasoned that, although “[a]ny safety concerns had long since

abated,” the guards “knowingly subjected” the prisoner to “unnec-

essary pain” and “deprivation of bathroom breaks that created a

risk of particular discomfort and humiliation.” Id. at 738. While

Hope arose under the Eighth Amendment,11 it stands for the prop-

osition that restraint, especially prolonged and painful restraint,

without any legitimate penological purpose is constitutionally im-

permissible punishment. See id. at 741.

Our precedent draws an even clearer line—one that Hill’s re-

straint-chair use crossed. As we’ve explained, “force in the pretrial

detainee context may be defensive or preventative—but never pu-

nitive—[so] the continuing use of force is impermissible when a

detainee is complying, has been forced to comply, or is clearly una-

ble to comply.” Piazza v. Jefferson County, 923 F.3d 947, 953 (11th Cir.

2019).

Several cases illustrate that line in practice. First, we found

the use of four-point restraints permissible when a prisoner “posed

a significant security concern” and the restraints inflicted “no actual

11 Excessive-force cases under the Eighth Amendment consider similar factors

as Fourteenth Amendment cases, so they are instructive. See, e.g., Bozeman v.

Orum, 422 F.3d 1265, 1271 (11th Cir. 2005) (“it makes no difference whether

[the victim is] a pretrial detainee or a convicted prisoner because the applicable

standard is the same, so decisional law involving prison inmates applies

equally to cases involving . . . pretrial detainees” (citation and internal quota-

tion marks omitted)), abrogated on other grounds by Kingsley, 576 U.S. 389.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 25 of 56

23-10934 Opinion of the Court 25

injury.” Williams, 943 F.2d at 1575. In Williams, the prisoner was

clearly noncompliant—he committed disciplinary violations and

cursed at, “threatened to kill,” and spat on officers. Id. at 1574. Of-

ficers put the prisoner in four-point restraints for over 28 hours (ex-

cept for “brief intervals for eating, physical exercise, and toilet

use”), with “constant monitoring and examinations by medical per-

sonnel.” Id. at 1574–75. We found that the officers had not violated

the detainee’s constitutional rights. Id. at 1576–77. But we cau-

tioned that “a Fourteenth Amendment violation could occur if . . .

officers continue to use force after the necessity for the coercive

action has ceased.” Id. at 1576.

A decade later, we reiterated that, in any “custodial setting,”

“officials may not use gratuitous force against a prisoner who has

been already subdued or, as in this case, incapacitated.” Skrtich v.

Thornton, 280 F.3d 1295, 1303–04 (11th Cir. 2002), overruled on other

grounds by Pearson v. Callahan, 555 U.S. 223 (2009). In Skrtich, the

officers “used an electronic shield to shock” the prisoner, who fell

to the ground, and then struck him repeatedly, ultimately slam-

ming his head into the wall. Id. at 1299–1300. Even though the

prisoner had a “history of disciplinary problems,” we found that

“no reasonable, similarly situated official” could believe such force

was justified when the prisoner “had been restrained . . . and no

longer posed a threat.” Id. at 1299, 1304.

Next, in a case involving a pretrial detainee specifically, we

held that “[w]hen jailers continue to use substantial force against a

prisoner who has clearly stopped resisting—whether because he

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 26 of 56

26 Opinion of the Court 23-10934

has decided to become compliant, he has been subdued, or he is

otherwise incapacitated—that use of force is excessive.” Danley v.

Allen, 540 F.3d 1298, 1309 (11th Cir. 2008), overruled on other grounds

by Ashcroft v. Iqbal, 556 U.S. 662 (2009). There, the detainee “had a

disagreement” with jail officers and refused to obey orders, so an

officer pepper sprayed him and then left him in a “small, poorly

ventilated cell.” Id. at 1303–04. That use of force, we found, was

unconstitutional. Id. at 1310.

Most recently, we found that repeated taser use on a “mo-

tionless” and “unresponsive” pretrial detainee violated the de-

tainee’s constitutional right to be free from excessive force. Piazza,

923 F.3d at 950, 954. While “non-compliant, [the detainee] had nei-

ther threatened nor attempted to harm the officers,” so, we rea-

soned, “the severity of the problem and the corresponding risk to

the officers in this case were—from the very outset—exceedingly

minimal.” Id. at 954–55. Under these circumstances, taser use was

objectively unreasonable. See id.

Hill contends that Piazza and its precursors do “not apply

with ‘obvious clarity’ to cases involving passive restraint,” or re-

straint chairs specifically. But “we have never suggested that the

longstanding prohibition on a jail officer’s use of force on an inca-

pacitated detainee turns on as fine a point as the particular weapon

deployed.” Id. at 956. Indeed, in rejecting the officers’ qualified-

immunity arguments in Piazza, we said, “it is no answer to say that

Danley involved pepper spray, Skrtich kicks and punches, Williams

four-point restraints, etc.—and that none of those cases concerned

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 27 of 56

23-10934 Opinion of the Court 27

the use of a taser specifically.” Id. In other words, case law need

not confront the type of force at issue if it clearly establishes that

no force would be objectively reasonable under the circumstances.

See id.

And here, precedent clearly established that Hill could not

use force against a compliant, nonresistant detainee. 12 Indeed, the

relevant factors weigh against Hill here: no need for force existed,

the detainees were not “actively resisting,” and Hill could not have

“reasonably perceived” any “threat” from the detainees’ compliant

behavior. See Kingsley, 576 U.S. at 397. Yet Hill still ordered each

detainee into a restraint chair for at least four hours with his hands

cuffed behind his back, without medical observation, and without

bathroom (or other) breaks. Even accepting Hill’s “legitimate . . .

purpose” of maintaining jail security, protracted restraint-chair use

was “excessive in relation to that purpose.” See id. at 398. And con-

trary to Hill’s contentions, four hours in a restraint chair is not “a

de minimis level of imposition with which the Constitution is not

concerned.” See Crocker, 995 F.3d at 1251 (quoting Bell, 441 U.S. at

539 n.21).

12 Though it does not bear on our fair-warning inquiry, we note that several

of our sister circuits have also concluded that, while restraint-chair use may be

proper if a detainee is violent or noncompliant, it is impermissible once the

detainee is compliant or subdued. Compare Blackmon v. Sutton, 734 F.3d 1237,

1242 (10th Cir. 2013) (Gorsuch, J.), and Young v. Martin, 801 F.3d 172, 181 (3d

Cir. 2015), with Howell v. NaphCare, Inc., 67 F.4th 302, 321 (6th Cir. 2023), and

Reynolds v. Wood County, No. 22-40381, 2023 WL 3175467, at *1, 4 (5th Cir.

May 1, 2023) (per curiam) (unpublished).

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 28 of 56

28 Opinion of the Court 23-10934

To be clear, we do not suggest that officers may never use

“passive restraint” if the restrained individual is not actively resist-

ing. We reiterate only the longstanding principle that force, includ-

ing “passive restraint,” is excessive if it is “not ‘rationally related to

a legitimate nonpunitive governmental purpose’” Kingsley, 576 U.S.

at 398 (quoting Bell, 441 U.S. at 561). Officers sometimes have a

“legitimate nonpunitive . . . purpose,” id., for restraining a compli-

ant individual, such as ensuring officer safety when transporting a

pretrial detainee to his arraignment. But here, Hill had no legiti-

mate purpose for ordering compliant, nonresistant detainees who

were in the secure jail environment into restraint chairs for at least

four hours. Hill’s use of force was therefore excessive, and our

precedent gave him fair warning of that fact. See id.; see also Piazza,

923 F.3d at 953.

As a final matter, we briefly address Hill’s invocation of our

recent decision in Myrick v. Fulton County, 69 F.4th 1277 (11th Cir.

2023). Of course, that decision issued after the events here, so it

does not bear on the fair-warning inquiry. But even if it did, Myrick

is not on point.

In Myrick, we found that jail officers’ use of restraints, in-

cluding a restraint chair “to transport” a detainee, did not violate

clearly established law. Id. at 1303–04. That detainee, who had

been diagnosed with substance-induced psychotic disorder, ex-

pressed suicidal thoughts, refused to comply with officers’ com-

mands, and “charged at the officers while screaming, kicking, and

punching.” Id. at 1288–89. Officers tased and pepper-sprayed the

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 29 of 56

23-10934 Opinion of the Court 29

detainee, who continued to resist, before strapping him into a re-

straint chair (along with leg restraints, handcuffs, and a spit mask).

Id. at 1289–90.

Myrick does not help Hill for two reasons. First, the detainee

in Myrick was violently resisting and noncompliant, so the restraint

used did not implicate the general legal principle that force used

against a compliant, nonresistant detainee is excessive. Second, the

officers left the detainee in the restraint chair only briefly before he

became unresponsive. Id. at 1291. Here, by contrast, the detainees

were compliant and nonresistant, yet they were left in the restraint

chair for at least four hours. “[O]bjective reasonableness turns on

the ‘facts and circumstances of each particular case.’” Kingsley, 576

U.S. at 397 (quoting Graham, 490 U.S. at 396). Because Myrick is so

distinguishable, it does not support the conclusion that Hill’s con-

duct was reasonable.

In sum, we conclude that Hill had fair warning that his con-

duct violated the detainees’ Fourteenth Amendment rights to be

free from excessive force. 13 Hill’s first challenge to his conviction

fails.

13 Hill also invokes the rule of lenity. But neither the excessive-force principle

we recount above nor its application to the facts here involves any ambiguity.

So there is nothing “for the rule of lenity to resolve.” See Shular v. United States,

589 U.S. 154, 165 (2020).

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 30 of 56

30 Opinion of the Court 23-10934

B. The evidence sufficiently supported each element of

Hill’s § 242 conviction.

Next, we consider Hill’s challenges to the sufficiency of the

evidence against him. We review de novo the sufficiency of the

evidence, viewing the evidence in the light most favorable to the

Government and drawing all reasonable inferences and credibility

choices in favor of the jury verdict. United States v. Wilson, 788 F.3d

1298, 1308 (11th Cir. 2015). We uphold a verdict “if any reasonable

construction of the evidence would have allowed the jury to find

the defendant guilty beyond a reasonable doubt.” Id. (citation and

internal quotation marks omitted).

Hill asserts that the evidence did not sufficiently show that

his conduct (1) had no legitimate nonpunitive purpose, (2) was will-

ful, and (3) caused the detainees’ injuries. We reject all three claims.

1. Sufficient evidence supported a finding that Hill’s conduct had no le-

gitimate nonpunitive purpose.

First, Hill argues that the evidence failed to sufficiently show

that his restraint-chair use had no “legitimate nonpunitive . . . pur-

pose,” see Kingsley, 576 U.S. at 398, and was thus constitutionally

excessive. Among other purported flaws, Hill points to the Gov-

ernment’s failure to call a law-enforcement expert to opine on

whether an officer in Hill’s position would believe that restraint-

chair use was reasonable.

But the Government need not have presented expert testi-

mony to establish unreasonableness. The lay evidence at trial was

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 31 of 56

23-10934 Opinion of the Court 31

more than enough to allow a jury to reasonably conclude that Hill’s

conduct lacked any legitimate nonpunitive purpose and thus was

constitutionally excessive.

We begin with Hill’s own policy. As a reminder, that policy

allowed the use of restraint chairs for “safe containment of an in-

mate exhibiting violent or uncontrollable behavior,” but it warned

that such use “never be authorized as a form of punishment.”

True, violation of law-enforcement “policies on the use of force

[does] not by itself establish that [Hill’s] actions amounted to exces-

sive force.” United States v. Brown, 934 F.3d 1278, 1296 (11th Cir.

2019). But the policy provided examples of legitimate nonpunitive

purposes for which restraint chairs could be used and expressly pro-

hibited their use as a punishment. So that policy is relevant, espe-

cially if the jury found that the detainees were not “exhibiting vio-

lent or uncontrollable behavior” or otherwise requiring “safe con-

tainment.”

More importantly, multiple officers testified that each de-

tainee was compliant, controllable, and non-violent before officers

placed him into the chair. Yet the undisputed evidence shows that

Hill ordered each detainee into the chair, anyway.

And based on the detainees’ own testimony, a jury reasona-

bly could have concluded that Hill authorized chair use purely as a

form of punishment. For example, the jury knew about Hill’s per-

sonal dispute with Howell and Hill’s statements that he was “going

to teach [Howell] a lesson.” Similarly, the jury knew about Hill’s

advance decision to order Hollins into the chair without any

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 32 of 56

32 Opinion of the Court 23-10934

information about Hollins’s compliance during his arrest. It also

knew about Hill’s choice to film a video of himself with Hollins to

send to his girlfriend. And the jury heard testimony that Hill had

ordered Arnold into the chair because he “got irritated personally.”

Plus, the jury saw a video of Hill ordering Arnold to “sit there and

see if you can get some damn sense in your head.” Finally, the jury

heard testimony that Hill told Peterkin, “I would have riddled your

ass with bullets . . . put that bitch in the chair,” and told Bailey, “Oh

you think you’re a gangster. Put his ass in the chair.” Based on this

evidence, a reasonable jury could have concluded that Hill had no

legitimate purpose in using the restraint chairs on the six individu-

als but only a punitive purpose.

What’s more, Hill’s argument that no expert testimony es-

tablished the unreasonableness of Hill’s conduct ignores that the

defense itself called Deputy Chief Boehrer, the second-in-com-

mand of the Clayton County Sheriff’s Department, who has

worked with that department for 25 years. To be sure, neither

party tendered Boehrer as an expert, but Boehrer has decades of

law-enforcement experience, and both parties asked Boehrer gen-

eral questions on use of force. For instance, on cross, the Govern-

ment asked Boehrer about several “hypothetical” scenarios that

track the facts here. And Boehrer affirmed that no policy or guide-

line consistent with the Constitution would permit use of a re-

straint chair in those circumstances without other “preattack indi-

cators.” Taken together with the other evidence we’ve mentioned,

Boehrer’s testimony also supports the jury’s finding of objective

unreasonableness.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 33 of 56

23-10934 Opinion of the Court 33

In sum, the jury reasonably could have concluded that Hill

had no legitimate nonpunitive purpose for ordering each detainee

into a restraint chair. And the jury was entitled to reject Hill’s tes-

timony that if a detainee “ever did anything that was violent or ag-

gressive, when they get to the jail, even if they are behaving, [he

could] then order them strapped into a restraint chair.” Indeed,

“[b]ecause we recognize that the jury is free to choose between or

among the reasonable conclusions to be drawn from the evidence

presented at trial, our sufficiency review requires only that a guilty

verdict be reasonable, not inevitable, based on the evidence pre-

sented at trial.” United States v. Browne, 505 F.3d 1229, 1253 (11th

Cir. 2007) (citation and internal quotation marks omitted). Here,

it was.

Especially viewing the evidence in the light most favorable

to the Government and drawing reasonable inferences in favor of

the jury verdict, as we must, Hill’s first sufficiency challenge fails.

See Wilson, 788 F.3d at 1308.

2. Sufficient evidence supported a finding that Hill acted willfully.

Hill next argues that insufficient evidence showed that he

“willfully,” see 18 U.S.C. § 242, deprived the detainees of their con-

stitutional rights. This challenge fares no better.

To prove willfulness, the Government must show that Hill

acted “in open defiance or in reckless disregard of a constitutional

requirement which ha[d] been made specific and definite.” Screws

v. United States, 325 U.S. 91, 105 (1945) (plurality opinion). Hill

“need not have been ‘thinking in constitutional terms,’ so long as

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 34 of 56

34 Opinion of the Court 23-10934

his ‘aim was not to enforce local law but to deprive a citizen of a

right and that right was protected by the Constitution.’” Brown,

934 F.3d at 1296 (quoting Screws, 325 U.S. at 106). That purpose

“need not be expressed; it may be reasonably inferred from all the

circumstances.” Screws, 325 U.S. at 106.

We have reasoned that a law-enforcement officer’s “training

in the use of force supports the jury’s finding of willfulness.”

Brown, 934 F.3d at 1296. And “where [the] officer’s actions so obvi-

ously violate his training on the use of force, a jury may infer that

the violation was willful.” Id. at 1297. Such an inference may be

stronger when a defendant repeatedly uses force exceeding that au-

thorized by his training. Cf. House, 684 F.3d at 1202.

Here, sufficient circumstantial evidence established that Hill

acted in “reckless disregard” or “open defiance” of constitutional

requirements and his own policies. See Screws, 325 U.S. at 105. Hill

testified that he had received use-of-force training and adopted use-

of-force policies. Those policies defined “excessive force” as “any

force used in excess of the amount of force reasonably required to

establish control over or to prevent or terminate an unlawful act of

violence.”

As we’ve discussed, the jury reasonably could have con-

cluded that restraint-chair use was not “reasonably required to es-

tablish control over” compliant, nonresistant detainees. Indeed,

the jury reasonably could have found that Hill ordered the detain-

ees into restraint chairs solely to punish them. And if it did, that

conduct “so obviously violate[d]” Hill’s training and clearly

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 35 of 56

23-10934 Opinion of the Court 35

established law—namely, that force can never be used to punish

pretrial detainees—that the jury reasonably could have “infer[red]

that the violation was willful.” See Brown, 934 F.3d at 1297. Based

on this record, we reject Hill’s argument that the jury needed ex-

pert testimony to draw that an inference.

So viewing the evidence in the light most favorable to the

Government and drawing reasonable inferences in favor of the jury

verdict, Hill’s second sufficiency challenge fails. See Wilson, 788 F.3d

at 1308.

3. Sufficient evidence supported a finding that Hill’s use of force caused

the detainees’ injuries.

Finally, Hill argues that, in three ways, the evidence failed to

sufficiently show that his conduct caused the detainees’ injuries.

First, he says that he neither ordered nor foresaw that jail staff

would ignore policy that forbade leaving detainees handcuffed and

without medical attention. Second, Hill theorizes that the detain-

ees’ injuries could have resulted from being handcuffed before ar-

riving at the jail. Third, he asserts that “discomfort from sitting in

a chair for four hours . . . hardly rises to the level of physical pain

that would support a felony conviction.” Again, we conclude that

Hill’s arguments lack merit.

For a § 242 conviction, “bodily injury” includes “(A) a cut,

abrasion, bruise, burn, or disfigurement; (B) physical pain; (C) ill-

ness; (D) impairment of a function of a bodily member, organ, or

mental faculty; or (E) any other injury to the body, no matter how

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 36 of 56

36 Opinion of the Court 23-10934

temporary.” United States v. Myers, 972 F.2d 1566, 1572–73 (11th Cir.

1992) (citations and internal quotation marks omitted).

Setting aside Hill’s specific arguments, the detainees’ testi-

mony and photographs admitted into evidence satisfy this defini-

tion. All detainees testified that they experienced serious physical

pain while in the restraint chair. Under our definition, that is

enough. But the Government also introduced photographic evi-

dence of the detainees’ injuries: the lasting scars on Peterkin’s

wrists and Howell’s wrists, as well as the “open and bleeding”

wounds on Bailey’s wrists. These marks qualify as “cut[s]” or

“other injur[ies] to the body.” See id. Howell also testified that he

continues to suffer neck, back, arm, leg, and toe pain and numbness

from a pinched nerve. So the record evidence easily allowed a rea-

sonable jury to find that the detainees suffered “bodily injury” and

that hours in the restraint chair on Hill’s orders caused that injury.

Next, we turn to Hill’s three sub-arguments. First, sufficient

circumstantial evidence allowed the jury to reasonably conclude

that Hill foresaw that jail officials would not adhere to the restraint-

chair policy. Hill visited detainees, including Hollins, while they

were in the chair and saw them handcuffed with their hands behind

their back. Hill was also present when officers placed a handcuffed

Howell in the chair. On cross, Hill acknowledged that he did not

order the handcuffs removed. Because Hill had seen multiple de-

tainees handcuffed while in the restraint chair, a jury could reason-

ably infer that Hill foresaw and knew that jail officials would not

follow policy directives to remove handcuffs. On top of that,

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 37 of 56

23-10934 Opinion of the Court 37

though the policy allowed for chair restraint up to four hours, mul-

tiple officers testified that Hill ordered detainees into restraint

chairs for at least four hours. So a jury could reasonably infer that

Hill foresaw that a detainee would remain handcuffed in the chair

for four or more hours at a time, which could lead to physical pain

and injury.

Second, while it is theoretically possible that the detainees

could have sustained wrist injuries from too-tight handcuffs before

arriving at the jail, testimony from multiple detainees rebukes that

theory. Bailey expressly testified that his wrist cuts were from his

time in the chair, not handcuffs during his arrest. Other detainees

testified similarly. So a jury reasonably could have found that the

detainees’ time in the chair—not their prior handcuffing—caused

their injuries.

Third, the evidence rebuffs Hill’s claim that the restrained

detainees experienced mere “discomfort.” For example, Hollins

testified that the pain was “like torture,” and Peterkin called it “the

worst thing [he] ever felt.” The detainees also testified to the pain

of having to hold their urine and ultimately urinate on themselves.

Cf. Hope, 536 U.S. at 738 (noting the “risk of particular discomfort

and humiliation” from denial of bathroom breaks). The jury rea-

sonably could have accepted these detainees’ testimony about the

pain they experienced and rejected Hill’s dismissal of it as mere

“discomfort.”

Viewing the evidence in the light most favorable to the Gov-

ernment and drawing reasonable inferences in favor of the jury

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 38 of 56

38 Opinion of the Court 23-10934

verdict, Hill’s third sufficiency challenge fails. See Wilson, 788 F.3d

at 1308.

C. The district court acted within its discretion in ques-

tioning jurors and giving two Allen charges.

Finally, Hill challenges the district court’s juror questioning

and Allen charges during jury deliberations. We review a district

court’s investigation of alleged juror misconduct during delibera-

tions for abuse of discretion. United States v. Polar, 369 F.3d 1248,

1253 (11th Cir. 2004). We also review a district court’s Allen charge

for abuse of discretion. See United States v. Woodard, 531 F.3d 1352,

1364 (11th Cir. 2008). But when a defendant does not object to the

contents of that charge, we review for plain error. See United States

v. Anderson, 1 F.4th 1244, 1268 (11th Cir. 2021).

Here, we find no merit to the challenge. The district court

found itself in a difficult position, and we conclude that it acted

within the limits of its discretion.

1. The district court did not abuse its discretion in investigating alleged

juror misconduct.

First, the district court acted within its discretion in ques-

tioning the jury foreperson and Juror 6 twice each. The court re-

ceived multiple reports that Juror 6 refused to follow the law, in-

cluding an allegation that Juror 6 “stated that the Sheriff [and] the

President are above the law and not required to follow the Consti-

tution.” And several jury notes claimed that Juror 6 could not or

would not engage in deliberation. The foreperson corroborated

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 39 of 56

23-10934 Opinion of the Court 39

these allegations when called before the court. So the district court

had cause for concern.

When faced with allegations of juror misconduct, a district

court has “broad” investigatory discretion. United States v. Yonn, 702

F.2d 1341, 1344–45 (11th Cir. 1983), cert. denied, 464 U.S. 917 (1983).

Among other courses of proceeding, juror questioning may be

“necessary so as to avoid premature or unjustified dismissal” of a

juror. Polar, 369 F.3d at 1253. Indeed, a “district court is uniquely

situated to make the credibility determinations” related to “a ju-

ror’s motivations and intentions” before taking such action as dis-

missing the juror or declaring a mistrial. United States v. Abbell, 271

F.3d 1286, 1302 (11th Cir. 2001), cert. denied, 537 U.S. 813 (2002).

We have repeatedly found no abuse of discretion on facts

similar to those here. In Polar, for example, we held that the district

court did not abuse its discretion in questioning the foreperson and

another juror after it received notes that the juror “wishe[d] to ab-

stain” from a verdict, “refused to vote,” and “indicated a mistrust

of and bias against the government and the criminal justice sys-

tem.” 369 F.3d at 1251, 1254. We rejected the defendant’s argu-

ment that such questioning was “inherently coercive.” Id. at 1254;

see also United States v. Augustin, 661 F.3d 1105, 1133 (11th Cir. 2011)

(finding no abuse of discretion where, after several complaints

from jurors, the court asked a juror “only general questions that

provided [her] with a sufficient opportunity to repeat or elaborate

on the allegation[s]”); Yonn, 702 F.2d at 1344–46 (same, where dis-

trict court interviewed each juror individually after one juror had

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 40 of 56

40 Opinion of the Court 23-10934

improperly expressed her opinion on the evidence before delibera-

tions).

In fact, we have upheld juror dismissals on facts similar to

those here. For instance, in Abbell, we found no abuse of discretion

when the district court interviewed each juror and then dismissed

a juror who allegedly said she was not going to follow the law and

that the court’s instructions were only advisory. See Abbell, 271 F.3d

at 1303–04; see also United States v. Godwin, 765 F.3d 1306, 1315, 1319

(11th Cir. 2014) (same, after other jurors complained that the juror

“simply disagree[d] with what the law is” and was following his

own opinion “over the rules”). Of course, the district court did not

dismiss Juror 6, so we express no opinion on whether it had suffi-

cient cause to do so. But this precedent further favors the conclu-

sion that the district court did not abuse its discretion.

The district court acted consistently with our precedent’s di-

rectives. The court assured Juror 6 that he was “not in trouble.”

See Yonn, 702 F.2d at 1345. And rather than confronting Juror 6 with

the specific allegations, the court asked him “only general ques-

tions” like whether he was engaging in deliberations and following

the court’s instructions. See Augustin, 661 F.3d at 1133. Our case

law does not require a district court to declare a mistrial at the first

sign of jury conflict. Cf. United States v. Davis, 779 F.3d 1305, 1314

(11th Cir. 2015) (“declaring a mistrial can impose a cost not just in

time and resources but in the quality of justice . . . [s]o it is best not

to declare a mistrial too soon”). Nor does it require a district court

to sit back and do nothing in the face of “specific, consistent, and

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 41 of 56

23-10934 Opinion of the Court 41

credible” evidence that a juror is not engaging in deliberations or

following the law. See Godwin, 765 F.3d at 1318.

To be sure, it was unusual for the district court to ask Juror

6 essentially the same questions twice, including once after the

court gave the reconstituted jury an Allen charge. 14 But none of the

district court’s questions were coercive—even Hill does not argue

that they were. And the court expressly told Juror 6 not to “go too

far in[to] what [the jury] discussed.” Nor was the questioning in

and of itself coercive. Though unusual for good reason, we cannot

conclude on this record that the district court’s conduct constituted

an abuse of discretion.

So we conclude that, especially in the interest of avoiding

either a mistrial or a juror dismissal, the district court did not abuse

its discretion in investigating the claims against Juror 6. See Yonn,

702 F.2d at 1344.

2. The district court did not abuse its discretion in giving two Allen

charges.

Second, the district court acted within its discretion when

giving both Allen charges. Like Hill, we focus on the second Allen

charge. And for the sake of argument, we adopt Hill’s characteri-

zation of the Allen charges as “successive,” though technically the

reconstituted jury received only one Allen charge. Again, the dis-

trict court told the jury to “start its deliberations anew,” and we

14 As we discuss below, this was the reconstituted jury’s first Allen charge, not,

as Hill contends, simply a second Allen charge.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 42 of 56

42 Opinion of the Court 23-10934

have no reason to believe the jury did not follow that instruction.

To the contrary, “[w]e have obediently followed and repeated the

Supreme Court’s direction that we presume juries follow their in-

structions.” United States v. Roy, 855 F.3d 1133, 1186–87 (11th Cir.

2017) (en banc).

A district court has “broad discretion” with respect to Allen

charges “but must not coerce any juror to give up an honest belief.”

Davis, 779 F.3d at 1312. We will conclude that “a district court has

abused its discretion in giving a modified Allen charge only if the

charge was inherently coercive.” Woodard, 531 F.3d at 1364. To

determine coerciveness, “we consider the language of the charge

and the totality of the circumstances under which it was delivered.”

Id. And we have “never adopted a per se rule against successive Allen

charges;” rather, “what counts is not the number of instructions

but the overall circumstances and risk of coercion.” Davis, 779 F.3d

at 1313.

At the outset, any challenge to the language of the Allen

charge fails, as we have “approved” the Eleventh Circuit pattern Al-

len instruction, including with “minor wording changes,” “on nu-

merous occasions.” Anderson, 1 F.4th at 1269, 1271 (quoting United

States v. Bush, 727 F.3d 1308, 1320 (11th Cir. 2013)).

Hill must rely, then, on the totality of the circumstances.

The relevant circumstances include (1) the length of the delibera-

tions; (2) the number of times the jury reported being deadlocked;

(3) whether the court was aware of the numerical split when it in-

structed the jury to continue deliberating; and (4) the time between

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 43 of 56

23-10934 Opinion of the Court 43

the court’s final instruction and the jury’s verdict. Brewster v. Hetzel,

913 F.3d 1042, 1053 (11th Cir. 2019). 15 We discuss each below.

As to the length of the deliberations, we begin by clarifying

how long that period lasted. Hill contends that the jury deliberated

for four days. But that collapses the original and reconstituted ju-

ries. The original jury deliberated for roughly a day and a half,

while the reconstituted jury deliberated for two days.

Hill is right that the “[t]he risk of coercion increases as delib-

erations run longer.” Davis, 779 F.3d at 1314. And a two-day period

is considerably longer than other cases in which we have found Al-

len charges to not be coercive. See, e.g., Anderson, 1 F.4th at 1252

(three-and-a-half hours); Bush, 727 F.3d at 1317–1319 (roughly five

hours); Davis, 779 F.3d at 1312 (“just over six hours”); Woodard, 531

F.3d at 1359–60 (seven hours). But this factor, standing alone, does

not render the district court’s second Allen charge coercive. See

Brewster, 913 F.3d at 1053 (“eleven hours over two days . . . is not an

inordinate amount of time”).

Next, we turn to the number of deadlock reports. The re-

constituted jury never reported that it was deadlocked, hopelessly

or otherwise. To be sure, before one juror was replaced, the

15 We note Brewster’s distinct procedural posture, as we applied de novo re-

view to the district court’s denial of the defendant’s 28 U.S.C. § 2254 habeas

petition. 913 F.3d at 1053. Here, by contrast, we review for abuse of discre-

tion. See Woodard, 531 F.3d at 1364. That said, because Hill relies heavily on

Brewster and because we find its articulation of the relevant factors useful, we

work within that portion of its framework here.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 44 of 56

44 Opinion of the Court 23-10934

original jury reported that it had “agreed on [two] counts” but was

“deadlocked” on the other five. And later, the reconstituted jury

sent a note stating that it was “unable to reach a unanimous deci-

sion today” (emphasis added). But at no time did the reconstituted

jury say it could not reach a verdict at all. To the contrary, when

the court asked whether the jury was hopelessly deadlocked, the

foreperson responded, “I would not like to make that determina-

tion right at this moment. . . . With further deliberations, it may

be we can get somewhere.”

We have found no coercion even when the jury did report

deadlock. See Anderson, 1 F.4th at 1252 (jury sent a note stating that

it could not reach a verdict); Davis, 779 F.3d at 1312 (jury reported

deadlock before and after Allen charge); Woodard, 531 F.3d at 1359

(jury declared that it was “hung” and “[would] not come to a unan-

imous decision”); but see Brewster, 913 F.3d at 1047–48 (finding co-

ercion where jurors sent six notes “stating that they could not reach

a verdict,” including one expressing “no possibility of resolve”).

This factor, then, does not support finding that the Allen charge was

coercive.

Turning to the jurors’ numerical split, we find that the rec-

ord doesn’t show that the court knew this information before it

gave the Allen charge. In fact, during the court’s second question-

ing of the foreperson, the court directed her not to share “the nu-

merical breakdown” of the jurors’ votes. To be sure, the district

court knew that Juror 6 was the subject of the jury’s notes and fore-

person’s concerns, but it did not know (nor do we) that Juror 6 was

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 45 of 56

23-10934 Opinion of the Court 45

the sole “holdout” juror on all (or any particular) counts. Indeed,

the jury returned a not-guilty verdict on the count involving Har-

per. And we have no information about whether any of the other

jurors, at any point in the deliberations, leaned towards a not-guilty

verdict on any of the other counts. In any case, the record here

doesn’t provide a sufficient basis to conclude that this factor favors

a finding of coercion. See Lowenfield v. Phelps, 484 U.S. 231, 234–35,

241 (1988) (finding no coercion when trial court polled the jurors

as to whether “further deliberations [would] enable [them] to ar-

rive at a verdict,” effectively revealing an 11-to-1 split, and then gave

a supplemental instruction); but see Brewster, 913 F.3d at 1047 (find-

ing coercion where the jury revealed an 11-to-1 split twice).

Finally, we consider the time between the court’s final in-

struction and the jury’s verdict. The jury deliberated for nearly

three hours after the second Allen charge before it reached its ver-

dict. We have repeatedly found no coercion even with shorter pe-

riods between charge and verdict. See Davis, 779 F.3d at 1313 (just

over two hours); Anderson, 1 F.4th at 1271 (an hour and a half );

United States v. Rey, 811 F.2d 1453, 1458–60 (11th Cir. 1987) (same);

United States v. Bailey, 468 F.2d 652, 664 (5th Cir. 1972) (same), aff’d

en banc, 480 F.2d 518 (5th Cir. 1973); 16 Bush, 727 F.3d at 1319 (47

minutes); United States v. Scrus, 583 F.2d 238, 239–41 (5th Cir.

1978) (48 minutes, at nearly 11:30 p.m.); but see Brewster, 913 F.3d at

16 All Fifth Circuit decisions issued before October 1, 1981, are binding prece-

dent in this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.

1981) (en banc).

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 46 of 56

46 Opinion of the Court 23-10934

1056 (finding coercion when “only 34 minutes” elapsed between

the final charge and verdict). This substantial three-hour period

contradicts any suggestion that a holdout juror was “forced to roll

over without engaging in further conscientious deliberation.” See

Anderson, 1 F.4th at 1271.

The other circumstances here likewise fail to indicate coer-

cion. So we conclude that the district court did not abuse its dis-

cretion in giving two Allen charges.

3. The district court’s inadvertent omission of “not” in the Allen charge

was harmless.

Finally, we address Hill’s claim that the misread Allen charge

was itself coercive. As we’ve explained, the transcript indicates that

the district court misstated the law when it instructed the jury that

“if the evidence fails to establish guilt beyond a reasonable doubt,

the defendant must have your unanimous verdict of guilty.” It

should have said “not guilty.” But on this record, that error does

not entitle Hill to relief.

Because Hill failed to object to the contents of the Allen

charge (either as written or read), we review for plain error. See

Anderson, 1 F.4th at 1268. On plain-error review, Hill must prove

that (1) error occurred, (2) that error was plain, and (3) it affected

Hill’s substantial rights. United States v. Malone, 51 F.4th 1311, 1319

(11th Cir. 2022). Only if Hill can satisfy all three prongs do we then

have discretion to correct the error if it “(4) seriously affected the

fairness of the judicial proceedings.” Id.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 47 of 56

23-10934 Opinion of the Court 47

Hill can satisfy the first and second prongs here, but not the

third. As to the third, an error affects a defendant’s substantial

rights if it “affect[s] the outcome of the district court proceedings.”

Id. (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). Here,

we know that the omission of “not” did not lead the jury to convict

Hill when it would have otherwise acquitted because the jury, in

fact, acquitted Hill of the count relating to Harper.

But on top of that, the weight of the evidence here, as we’ve

already discussed, was substantial, and the court’s other correct in-

structions made it clear to the jury that it must find Hill not guilty

if it concluded that the evidence failed to establish guilt beyond a

reasonable doubt. In this respect, the district court had already

given an Allen charge and correctly read the phrase “not guilty.”

And the court’s legal instructions at the beginning and end of the

trial, which the jury took into the deliberation room, recited the

correct legal standard.

At bottom, then, the court’s plain error in leaving out the

word “not” did not “affect[] the outcome” of Hill’s trial. See id.; cf.

also United States v. Gold, 743 F.2d 800, 822 (11th Cir. 1984) (holding

that an “inadvertent[]” addition of “not,” especially “in the context

of the charge as a whole,” was “clearly harmless beyond a reason-

able doubt”); United States v. Mills, 704 F.2d 1553, 1558 (11th Cir.

1983) (finding no prejudice from a “single slip of the tongue by the

trial judge” where the record was otherwise “replete” with correct

instructions on the burden of proof ).

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 48 of 56

48 Opinion of the Court 23-10934

Since Hill cannot satisfy the third requirement, we do not

get to the fourth prong of plain-error review. See Malone, 51 F.4th

at 1319. And Hill’s challenge to the district court’s second Allen

charge fails.

III. CONCLUSION

For the reasons we’ve discussed, Hill had fair warning that

his conduct was unconstitutional, the evidence was sufficient to

convict, and the district court did not coerce the verdict. We affirm

Hill’s conviction on all counts.

AFFIRMED.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 49 of 56

23-10934 MARCUS, J., Concurring 1

MARCUS, Circuit Judge, Concurring:

I concur fully in the Court’s opinion. I have no doubt Sheriff

Hill had fair warning that he violated the constitutional rights of

six detainees when he ordered them strapped into a painful re-

straint chair for four or more hours for no legitimate reason asso-

ciated with maintaining safety and good order in a county jail. I

also agree that the evidence was more than sufficient to sustain the

jury’s verdicts. And I am satisfied that the district court judge acted

within her considerable discretion when she questioned Juror 6

two times during the course of the jury’s deliberations. I write sep-

arately, however, to highlight the substantial dangers inherent in

singling out a juror for judicial inquiry, particularly doing so twice

within a relatively short time frame.

Dealing with allegations of juror misconduct is an extraor-

dinarily difficult and dangerous undertaking for any trial judge. A

defendant’s right to a trial by an impartial jury is a “fundamental

reservation of power in our constitutional structure.” United States

v. Brown, 996 F.3d 1171, 1183 (11th Cir. 2021) (en banc) (quoting

Blakely v. Washington, 542 U.S. 296, 306 (2004)); see U.S. CONST.

amend. VI. So, when there are allegations that a juror cannot be

impartial, or that he refuses to follow the court’s instructions, or

that he refuses to deliberate with the other members of the jury,

or, perhaps, that he has considered extrinsic evidence beyond the

trial record, a district judge must take these claims seriously. See

United States v. Caldwell, 776 F.2d 989, 998 (11th Cir. 1985) (“The

more serious the potential jury contamination, . . . the heavier the

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 50 of 56

2 MARCUS, J., Concurring 23-10934

burden to investigate.”); United States v. Harris, 908 F.2d 728, 734

(11th Cir. 1990) (same); United States v. Bradley, 644 F.3d 1213, 1278–

79 (11th Cir. 2011) (noting that “we would expect the district court

to take . . . measures in investigating the potential prejudice to the

defendants” where there were “troubling” allegations that two ju-

rors had prejudged the defendants’ guilt). We have sustained the

power of the trial judge to investigate allegations of misconduct by

questioning jurors precisely in order to “avoid premature or unjus-

tified dismissal.” United States v. Polar, 369 F.3d 1248, 1253 (11th Cir.

2004). But in investigating misconduct, the judge must tread very

carefully in order to respect the secrecy of the jury’s deliberative

process and to avoid coercing a juror who may be at odds with the

others into giving up his honestly held beliefs or for the sake of

conforming to the majority. See Brown, 996 F.3d at 1186.

It should go without saying that district court judges are best

placed to handle allegations of juror misconduct because they

“deal with jurors on a regular basis, and . . . are in the trenches

when problems arise.” United States v. Dominguez, 226 F.3d 1235,

1246 (11th Cir. 2000). They are therefore particularly well “situated

to make the credibility determinations that must be made” when

faced with an allegation of juror misconduct. United States v. Abbell,

271 F.3d 1286, 1303 (11th Cir. 2001); cf. Owens v. Wainwright, 698

F.2d 1111, 1113 (11th Cir. 1983) (“Appellate courts reviewing a cold

record give particular deference to credibility determinations of a

fact-finder who had the opportunity to see live testimony.”). For

this reason, the trial judge has broad discretion in how to handle

such allegations. See Dominguez, 226 F.3d at 1247. The applicable

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 51 of 56

23-10934 MARCUS, J., Concurring 3

abuse-of-discretion standard means that “there will be occasions in

which we affirm the district court even though we would have gone

the other way had it been our call.” Id. (quoting In re Rasbury, 24

F.3d 159, 168 (11th Cir. 1994)). “The whole point of discretion is

that there is [a] range of options open, which means more than one

choice is permissible.” Id. We will defer to the district court’s su-

perior ability to handle these issues unless we find their choice re-

flects a clear error of judgment. See McMahan v. Toto, 256 F.3d 1120,

1128 (11th Cir. 2001).

The district judge in this case was faced with a particularly

difficult judgment call. During the deliberative process, she had re-

ceived a note from the foreperson of the jury complaining that Ju-

ror 6 was incompetent, that he would not engage in deliberations

with the others, and that he would not follow the court’s instruc-

tions on the law. The trial judge questioned him to discern whether

these allegations were true in whole or in part, and did so faithfully

following our precedent. See Abbell, 271 F.3d at 1304 n.20 (recog-

nizing that a judge may question jurors “to detect and rectify” mis-

conduct). The problem, however, was compounded the next day

when the judge received two more notes signed by the foreperson,

again complaining that Juror 6 was incompetent and that he would

not follow the judge’s instructions.

The universe of options the district judge faced were lim-

ited. She had four choices; none was ideal. First, she could have

declared a mistrial -- the most extreme option -- but understandably

decided that that would be premature, since the reconstituted jury

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 52 of 56

4 MARCUS, J., Concurring 23-10934

had only deliberated for a day and a half. (The trial had lasted eight

days.) Second, she could have dismissed Juror 6 and replaced him

with an alternate -- but a judge can dismiss a juror only if she is sure

there is “no substantial possibility” that he will deliberate according

to instructions, and the juror’s notes, standing alone, almost surely

did not meet this high standard. See id. at 1304. Third, she could

have done nothing. This, too, was an unenviable choice because

the district judge was faced with renewed allegations of serious

misconduct that, if substantiated, would likely have warranted dis-

missal. See id. (affirming dismissal of a juror who indicated she

would not follow the court’s instructions). Finally, the district

court judge could have brought Juror 6 in again, as she did, for ad-

ditional questioning in order to inform her decision about the ap-

propriate course of conduct.

Faced with these unenviable choices, the judge’s decision to

question Juror 6 again was not an abuse of discretion. A district

court judge could well have thought that it was too early to declare

a mistrial and that the dismissal of Juror 6 based solely on the alle-

gations of his fellow jurors was reversible error. See Brown, 996 F.3d

at 1175. So, the judge had two real options: do nothing or carefully

question the juror again. “[O]ur jury system works only when both

the judge and the jury respect the limits of their authority,” and a

juror who refuses to follow the court’s instructions “abdicates his

constitutional responsibility and violates his solemn oath.” Id. at

1184 (quotation marks and citations omitted). The allegations of

misconduct were repeated and they were serious. The greatest

concern was the claim that Juror 6 had told the other jurors he did

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 53 of 56

23-10934 MARCUS, J., Concurring 5

not agree with the law and “w[ould] not consider it.” Indeed, be-

fore Juror 6 was questioned the first time, the most serious allega-

tion of misconduct was that he told the other jurors that “the sher-

iff [and] the president are above the law and not required to follow

the constitution.” Thus, the trial judge was understandably reluc-

tant to allow Juror 6 to continue deliberating without checking

whether the juror actually refused to follow her instructions on the

law. Although Juror 6 had said he was trying to follow the court’s

instructions when the judge first questioned him, the judge acted

within her broad discretion to follow up on the repeated assertions

from the foreperson.

And when the judge did question Juror 6 on each occasion,

she did so with care and tact, doing her best not to penetrate the

jury’s deliberative process, and asking Juror 6 only general ques-

tions that did not suggest he had done anything wrong. See United

States v. Yonn, 702 F.2d 1341, 1345 (11th Cir. 1983) (“[T]he record

reveals the commendable caution exercised by the trial judge in

questioning each juror.”). Under these circumstances, and done

with such care, the judge did not abuse her discretion.

The hard fact of life, however, is that questioning a juror al-

ways comes with risk. See United States v. Thomas, 116 F.3d 606, 620

(2d Cir. 1997) (“[T]he very act of judicial investigation can at times

be expected to foment discord among jurors.”). The more often

you do it, the greater the danger. Among other things, the judge

risks revealing information about the nature and extent of the

jury’s deliberations, which must remain secret to promote the

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 54 of 56

6 MARCUS, J., Concurring 23-10934

jury’s ability to debate freely, robustly, and fully. See United States v.

Symington, 195 F.3d 1080, 1086 (9th Cir. 1999); see also Clark v. United

States, 289 U.S. 1, 13 (1933) (“Freedom of debate might be stifled

and independence of thought checked if jurors were made to feel

that their arguments and ballots were to be freely published to the

world.”). The trial judge also runs the risk of influencing the jury

simply by singling out one of its members for separate inquiry. See

Symington, 195 F.3d at 1086. No matter how careful a judge is, a

questioned juror often will veer into a discussion about the jury’s

deliberations -- as the judge discovered in this case when Juror 6

revealed that the jury’s dispute centered on the meaning of specific

intent and willfulness. 1

Perhaps even more serious is the risk that, in questioning a

juror, the court will inadvertently pressure a dissenting juror into

giving up his honestly held beliefs. When one juror disagrees with

the majority, there is always the danger that the majority will

1 In the judge’s first inquiry of Juror 6, the following colloquy occurred:

[Juror 6]: -- If I may also add?

The Court: Yes, sir.

[Juror 6]: I -- I have annoyed people by going to specific para-

graphs of the document that you gave us, and the specifics of

this case, and under three different passages that related to in-

tent and willful where you’re defining the terms and then --

The Court: Okay.

[Juror 6]: And I --

The Court: I don’t want to go too far in what you discussed.

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 55 of 56

23-10934 MARCUS, J., Concurring 7

mistakenly brand the dissenter incompetent or biased, when he is

in fact simply harboring a reasonable doubt. See Abbell, 271 F.3d at

1302; Thomas, 116 F.3d at 622. To dissent in the face of universal

opposition often requires courage. See United States v. Rey, 811 F.2d

1453, 1460 (11th Cir. 1987) (“In some cases, the duty of a juror is

rigorous. Deliberations can be long, hard and heated. It is each

juror’s duty to stand by his honestly held views; this can require

courage and stamina.”). A dissenting juror is already under consid-

erable pressure to fold, and the judge must take care not to add to

that mix. “The last thing such a minority holdout juror needs is for

the trial judge -- cloaked with the full authority of [her] office -- to

even hint that” the juror should “just reconsider.” Id. A central

feature of our criminal justice system and an important safeguard

of liberty is the right to be free unless convicted by a unanimous

jury. See Brown, 996 F.3d at 1182–83; see also Rey, 811 F.2d at 1460

(“One of the safeguards against the conviction of innocent persons

built into our criminal justice system is that a jury may not be able

to reach a unanimous verdict.”).

Questioning a juror once is risky enough; questioning the

same juror twice is downright dangerous. The risks inherent in this

kind of judicial inquiry are amplified each time the juror is ques-

tioned. And, where the allegations of misconduct have not

changed, there may be diminishing returns in bringing the juror

out again -- after all, the judge has already had the opportunity to

probe the allegations and decide if they are substantiated. Because

the standard for dismissing a juror is so high, limited questioning

and contextual clues will usually suffice to tell a judge that the

USCA11 Case: 23-10934 Document: 60-1 Date Filed: 04/29/2024 Page: 56 of 56

8 MARCUS, J., Concurring 23-10934

standard for dismissal has not been met. See Brown, 996 F.3d at 1186

(“‘A presiding judge faced with anything but unambiguous evi-

dence that a juror [is engaging in misconduct] need go no further

in [her] investigation’ of the alleged misconduct.” (quoting

Thomas, 116 F.3d at 622)).

Because “the twin imperatives of preserving jury secrecy

and safeguarding the defendant’s right to a unanimous verdict from

an impartial jury” are so important, id. (quoting Symington, 195 F.3d

at 1087), sometimes it may be wiser for a judge not to question the

juror. See Symington, 195 F.3d at 1086 (accepting that, “[i]n refrain-

ing from exposing the content of jury deliberations, . . . a trial judge

may not be able to determine conclusively” whether allegations of

juror misconduct are legitimate); see also Brown, 996 F.3d at 1195

(Brasher, J., concurring) (“When disputes arise between jurors, the

default response should be deliberation, not investigation.”).

Sometimes, it may be wiser to “err on the side of too little inquiry

as opposed to too much.” See Abbell, 271 F.3d at 1304 n.20.

Put simply, questioning a juror repeatedly is not a path that

should be taken lightly or without meticulous care. The terrain is

dangerous and the traveler must proceed with great caution.