# United States v. Victor HIll

> Court of Appeals for the Eleventh Circuit · April 29, 2024 · 99 F.4th 1289

URL: https://www.frixlaw.com/law-library/cases/9964327

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** April 29, 2024
- **Citations:** 99 F.4th 1289
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9964327

## How later opinions describe it (automated extraction)

- reasoning that "where the officer's actions so obviously violate his training on the use of force, a jury may infer that the violation was willful" (cleaned up) (quoting United States v. Brown, 934 F.3d 1278, 1297 (11th Cir. 2019))
- noting that “where [the] officer’s actions so obviously violate his training on the use of force, a jury may infer that the violation was willful” and “[s]uch an inference may be stronger when a defendant repeatedly uses force exceeding that authorized by his training” (citati…

## Opinion text

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
____________________
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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].
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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).
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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:
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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.”
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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.
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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.
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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.
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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
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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
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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.
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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
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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.
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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].
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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
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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.
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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.
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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
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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
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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
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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).
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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.
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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
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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.
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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
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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
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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).
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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
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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).
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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
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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
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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.
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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
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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
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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
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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,
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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
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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
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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
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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
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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.
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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
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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.
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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
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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).
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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.
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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 ).
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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.
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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
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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
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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
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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
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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
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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.
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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
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9964327. Public record. Not legal advice.