Petition for Writ of Certiorari — Christopher D. Martin, Petitioner v. United States

RECORD NO.

Su The

Supreme Court of Che Gnited States

CHRISTOPHER D. MARTIN,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FOR CHRISTOPHER D. MARTIN

Stephen L. Braga*

Emily Mordecai, Third Year Law Student

J. Kain Day, Third Year Law Student

UNIVERSITY OF VIRGINIA SCHOOL OF LAW

Appellate Litigation Clinic

580 Massie Rd., SL-251

Charlottesville, VA 22903

(434) 924-3825

* Counsel of Record for Christopher D. Martin

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477

A Division of Lantagne Duplicating Services

QUESTION PRESENTED

Under the Fifth and Sixth Amendments, criminal defendants have the right

to trial by an impartial jury. To be impartial, a jury must not be coerced into a

verdict. As the opinion below highlights, two splits have developed over when

repeating an Allen charge—an instruction to a potentially deadlocked jury to

continue their deliberations and reconsider each other’s views in good faith—is

coercive. First, courts disagree over whether a second Allen charge is per se

coercive. Following the majority approach, the court below did not adopt a per se

ban. Second, courts that allow multiple Allen charges disagree over whether the act

of repeating an Allen charge increases, decreases, or does not affect juror coercion.

The opinion below furthered this analytical split by suggesting that repeating an

Allen charge decreases juror coercion.

The question presented is whether giving more than one Allen charge results

in improper coercion, violating a criminal defendant’s constitutional right to an

impartial jury.

PARTIES TO THE PROCEEDING

All parties are listed in the Sixth Circuit’s caption.

il

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES 1.0... eccccessseeccceeseccccssesceseesssceeesssceseeensesessenessseseeees li

OPINIONS BELOW ................ccccssssssseccccessseccrensecceceeseceseeesssocccessseseeesssessensesceseenseesseeees 1

JURISDICTION .......... 0... cccccessssscecccenssscccccsssecccecesecccescsseecessseeeeecessceseeessseseeessosseessenes 1

CONSTITUTIONAL PROVISION INVOLVED. ........ cece ceeteesececeeeeeeeeeesceseeeeeeeeee 1

STATEMENT OF THE CASE... eeseeccccesseeccrscseceeceesssceeeecssscesecssssesecssssseeseneeesees 2

I. District Court Proceedings ............cccesccecssseccessseeecescceeeesceseeenscessssseesescssseeessseseees 2

A. The District Court’s Repeated Urges for a Unanimous Verdict............. 2

B. Racial Bullying Inside of the Jury Room.................cccesscssscceeccesceeseceeeseees 3

II. Decision of Court Below... esssecececesssecceccescecsceeeceessscsseccesecssssceseaseessoeseees 4

REASONS FOR GRANTING THE PETITION 100 teeeeeeceeeeenseececeeeeeeeesseerens 5

I. The Circuits and State Courts of Last Resort Are Twice Split on

Whether Repeating an Allen-Charge Affects Coercion .............ccscccsscceesceeesoneees 6

A. Split One: Per Se Test or Totality of the Circumstances Test................ 7

B. Split Two: A Second Allen Charge Increases, Decreases, or Has

No Effect on Coercion............ccccsssessccccnssscceccesescececcesssccccssseceecessscsssssesessees 9

IT. The Sixth Circuit’s Decision Is INCOrrect ................. ees esesseeeeesssceeeeeeesseeeeeeeoeseees 13

III. The Issue Is Important and Recurring ................cccceceescssccsscnsceecesccsccesccescesceees 16

IV. This Case Is an Ideal Vehicle 200... ec ceeesseeeeeeeecceeeeseceneseseneeeeseseeeeceseees 16

CONCLUSION .............ccccccccccesssseccccccccesssseseeccceccsscescecscsessesessceeesssssscesesessscssseusaseeeseeeess 19

APPENDIX TO PETITION FOR WRIT OF CERTIORARI:

Appendix A— Opinion, United States v. Carl L. Robinson (15-4098), Christopher

D. Martin (15-4100), Shane K. Floyd (15-4124),

of the United States Court of Appeals for the Sixth Circuit

Decided September 29, 2017.............ccssscssccssccssccnsccescesccesccsccesseees App-1

lil

Appendix B— Order Denying Petitions for Rehearing En Banc, United

States v. Carl L. Robinson (15-4098), Christopher D. Martin

(15-4100), Shane K. Floyd (15-4124)

of the United States Court of Appeal for the Sixth Circuit

Filed December 5, 2017 ..............cccccsecccsesccessecsescccescccesceeseescsenens App-42

Appendix C — Opinion & Order, United States v. Carl L. Robinson Christopher D.

Martin Shane K. Floyd of the United States District Court for the

Southern District of Ohio, Eastern Division, No. 2:14-CR-126

Filed September 25, 2015 ..........c cc cccccesesscsccceescceeeccecssceesccesseees App-45

Appendix C — Judgment in a Criminal Case, United States v. Christopher D.

Martin of the United States District Court for the Southern District

of Ohio, Eastern Division, No. 2:14-CR-126

Filed October 6, 2015 wo... ccc ccccteccsscceeccesccceccsscescesccssessceenss App-58

iV

TABLE OF AUTHORITIES

CASES

Allen v. United States,

164 U.S. 492 (1896) occ eecccetererenscesecccesseceeceeeeseeeeeeeeeeeesseseseeeeesseeeeeeees

Alleyne v. United States,

133. S. Ct. 2151 (2018) one ecccececccerssssssseccesssseccccessseseececccseceeesesccsecessseses

Duncan v. Loutstana,

391 U.S. 145 (1968) c.cccccccccccccscscecscscscscscecsescscscscssssscssssssesesesssescstsecsacacacassesenees

Epperson v. United States,

A95 A.2d 1170 (D.C. 1985) oe cecessesseseccsssseeccceesssseeseceeceeneeesecesseceeseeees

Fensterer v. State,

A493 A.2d 959 (Del. 1985) ..... eee eccccccceeceeseccecesssecccsensccasseececeseeacseeeeeeeeeeeees

Delaware v. Fensterer,

ATA U.S. 15 (1985) ..cccccccssccesesesesssesesssscesessescsesccacsescacscsesessscssacacsescscsescececsesaeaes

Fields v. State,

487 P.2d 831 (Alaska 1971) oo. ecccccecececcccccceesssestssseseeceeseceeecsssescessees

Gertz v. Robert Welch,

A418 U.S. 823 (197A) ooo ee cceseeseecncceceneesecccceeseseeecccseceseeeeeeseeceeseeeeeseeeeees

Jenkins v. United States,

380 U.S. 445 (1965) 20. cceeeeeetececeeeeceeeecececceeeseeseeesecseeesseseseeseeseeeseesonse

Kersey v. State,

525 S.W.2d 139 (Tenn. 1975)... cccccceecceccescceccescccesccccsccesccceccesccssceeeceess

Lewis v. State,

ADA N.E.2d 107 (nd. 1981) ..cccccscsssssesesessssescscesesecssssececsessacsescatscscsseeseanseeeeeaees

Lowenfield v. Phelps,

A84 U.S. 231 (1988) 200... te ccccecesccsececceecceceesscceeccceeesseeessssseeseseeeseeesesoecsses

Miranda v. Arizona,

384 U.S. 486 (1966) .......... ec cccctseccsecescessceececcsccesccescescesceescesceessesceseesceesseees

Page

Ex Parte Morris,

465 So. 2d 1180 (Ala. 1985)............c ccc ceccccsesccecccescceecsecessccesccesccescesccsecenceeseeeuss 12

Mu'Min v. Virginia,

BOO U.S. 415 (1991) uu... tec cescctesccesccnseccnsceescsenecesceeccescesceceascceseceeesssesecsesesoesss 6

North Carolina v. Pearce,

395 U.S. 711 (1969) ...... ee ec cescccesccecccsssccesccescseeccesceseceesccsseceuscsusccseseusceeconseeoes 14

Pena-Rodriguez v. Colorado,

137 S. Ct. 855 (2017) oo... ec cceccsecceeccsecccesccnsceenceescceccecccsscsessceeccaseceesceecs 3, 5, 18

People v. Gainer,

566 P.2d 997 (Cal. 1977) ........ccccccccsecsssccsescceccncccsscceccescescceccssccsecesccsscessseecesceeseees 10

Tomlinson v. State,

584 So. 2d 48 (Fla. Dist. Ct. App. 1991) 0... ee ceccessccssccceeecsecesecessceeceeescoeees 8

In re Standard Jury Instructions-Contract & Bus. Cases,

116 So. 3d 284 (Fla. 2018)... ecccseescceccsecceeceeccecseescceseccusccsscessessecesceaseeeeses 8

State v. Feliciano,

778 A.2d 812 (Conn. 2001) ..........cccccessccceesccecccesccesccecceseccsccessccasecasecessceescesceeesees 10

State v. Kaiser,

504 N.W.2d 96 (6.D. 1998)... cccccesccsescceeccesccsscceccescccecceeseeeeecasccesscescesceeesens 12

State v. Lewts,

No. A13-1604, 2014 WL 4957142 (Minn. Ct. App. 2014)... ee eec essen seen 13

State v. Watkins,

660 P.2d 1117 (Wash. 1988)...............ccccccecccesccesecesccescescccsccessccessceseseseceescassceescs 8,9

State v. Weidul,

628 A.2d 135 (Me. 1998)... cceccecccccesccceccececceccesccecceescceecccascsescsesesesscescenesees 10

Sullivan v. Loutsiana,

B08 U.S. 275 uu... cccccceccscccsccsccsccsccsccsccesccscessscscssceecceceeceessesseeseescossescsesceecesesceeees 14

Thomas v. State,

T48 So. 2d 970 (Fla. 1999)............ cc ccecsesscccsesccecccesccecceccesseccesceeeecesecenssenseceseeeseeeeces 8

United States v. Ailsworth,

138 F.3d 848 (LOth Cir. 1998) o.oo ce cceccctecceeccesceesceessccesccescceescesecsscees 9, 10

Vi

United States v. Barone,

114 F.3d 1284 (Ast Cir. 1997)............ccccccssscccnsseccccesccecceesceccesssceeesesesssssseancsesees 9,11

United States v. Brown,

A411 F.2d 930 (7th Cir. 1969) ............ccccccesscccnsssecceeecccccessscsceessceceseeeeesseseesessees 9,10

United States v. Cornell,

780 F.3d 616 (4th Cir. 2015) .......... ccc cessccceseccssssccscccesssccccesececesceesceeessseeeseseeseesesens 9

United States v. Davis,

779 F.3d 1305 (11th Cir. 2015) ou... eccccesccccnssseccnssecececesseeeceesceesssscceeesseseneess 9,10

United States v. Fossler,

597 F.2d 478 (Sth Cir. 1979) ...........ccccssecccsscccnsssccnscccnssecccesececssccsscsesescesssseeees 9,11

United States v. Powell,

AGO U.S. 57 (1984) oo... eeccccceccecescccsssccescccsescccsccsssseccusececessccessceeesscessseeseesseses 16

United States v. Reed,

686 F.2d 651 (8th Cir. 1982) .............cccccccsssecceessscccesscececcessceeseescesessessesosceesenees 9,10

United States v. Robinson,

560 F.2d 507 (2d Cir. 1977), cert. denied, 4385 U.S. 905 (1978)...............eeeee 9,11

United States v. Seawell,

550 F.2d 1159 Oth Cir. 1977) ...........cccsccccsscccssssccnscccccesecccessecceececessseeessesens 7, 8, 15

United States v. Thomas,

AAO F.2d 1177 (D.C. Cir. 1971) ...... ec ecccsssccessseccscccenssscecsscecesceesceceeesscessosenes 9,10

STATUTES

28 U.S.C. § 1254 (2012) ou. cceeeccccssccccescecceesseccccnsccceesssececeessecesescesessseescssssseseanscees 1

28 U.S.C. § 18381 (2012) oo... cesccccccnesseccccceescccceeasseccececsssceesececsesceessscscesenssssseseseneees 2

RULES

Fed. R. Crim. P. 52(b) .............ccscceesccsssccnsccnsccesecenccessecesccescecsseaseseeesscescesscsssceesceasesesesees 17

CONSTITUTION

U.S. Const. amend [onic cccceecceccscesceccsccccestesccccssceccsecsecesccecescecescosscscesseeseesoees 14

V1l

U.S. Const. amend Vu... ccc seccsceccccecssccececcceescsceccsceseecesceceeseseececsecescesccsceese 1,6, 15

US. Const. amend VI ou... eee ceecescececceccscsccsccscsccscsscesscscscescssceceesecescesceesers 1, 4, 6, 16

U.S. Const. amend XIV... ccccececscceccccccsccsccccccscecesccscseccesececccsceceesecessssseesesecees 1,6

OTHER AUTHORITIES

Association For Psychological Scientists Journal (April 20, 2016)................ ec ceeecee ees 19

American Bar Association, ABA Standards for Criminal Justice Discovery

and Trial by Jury, § 15-5.3 to 15-5.4 (8d ed. 1996)... ceccessceecceseeceseceeseceesees 9,10

J. Story, Commentaries on the Constitution of the United States § 924,

(Abr. 1838).............cccccccsecceesccssccescccnsccceccesccesccesccescessccesseceescesceesceesceesceusesenscseescousceeess 14

Wayne F. Foster, Annotation, Instructions 97 A.L.R.3d 96, (2018) ............ ec ceeeceeeeee 11

William Blackstone, CommMmentaries..............ccccccsscsccsccscceccscesceccscesceccscesceccescesceccseeseees 13

Vill

OPINIONS BELOW

The opinion of the Sixth Circuit is reported at 872 F.3d 760 (6th Cir. 2017)

and is reproduced at Petitioner’s Appendix (“Pet. App.”) A, infra. The Sixth Circuit’s

order denying rehearing en banc is unreported and is reproduced at Pet. App. B,

infra. The district court’s order denying Floyd’s motion for a new trial, which

petitioner joined, is unreported. That order, however, is available at 2015 WL

5680390 and is reproduced at Pet. App. C, infra. The district court judgment of

conviction is unreported and is reproduced at Pet. App. D, infra.

JURISDICTION

The Sixth Circuit entered final judgment on September 29, 2017 and denied

rehearing en banc on December 5, 2017. This Court has jurisdiction under 28 U.S.C.

§ 1254 (2012).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution provides in

pertinent part, “[n]o person shall be . . . deprived of life, liberty, or property without

29

due process of law....

The Sixth Amendment to the United States Constitution provides in

pertinent part, “[i]n all criminal prosecutions, the accused shall enjoy the right toa.

.. trial, by an impartial jury... .”

The Fourteenth Amendment to the United States Constitution provides in

pertinent part, “nor shall any State deprive any person of life, liberty, or property

9?

without due process of law....

STATEMENT OF THE CASE

I. District Court Proceedings

The petitioner, Christopher Martin, and two co-defendants were convicted of

federal programs bribery, conspiracy to commit federal programs bribery, and

making materially false statements. Pet. App. 5a—6a. The district court had subject

matter jurisdiction under 28 U.S.C. § 1331 (2012). During the course of the eightday jury trial, the government presented evidence of an alleged kickback scheme

the three co-defendants created in order to embezzle money from a charter school in

Dayton, Ohio. Id. at 2a—5a. The jury deliberated for a total of three days and

ultimately found the three defendants guilty of all charges. Id. at 6a.

A. The District Court’s Repeated Urges for a Unanimous Verdict

Throughout the three days of deliberation, the district court urged the jury to

reach a unanimous verdict five different times. It did so through: two of what the

court below calls “Allen-charge-like instructions,” two full Allen charges, and the

court’s own set of additional comments following the second Allen charge. See Pet.

App. 14a—lda.

1. The court first issued an “Allen-charge-like” comment in response to a

question from the jury about the order in which it should decide

certain issues. Id. at 14a. The court encouraged the jury to resolve the

conspiracy issue first, “because ultimately all of these issues have to be

resolved.” Ibid.

2. After a separate inquiry from the jury asking what to do if it was hung,

the court read its first pattern Allen charge. Ibid.

3. After the first pattern Allen charge, the court granted the jury’s

request to adjourn for the day at 5:00 p.m. and added, “I want to be

clear I expect you to continue your deliberations toward a unanimous

verdict.” Id. at 15a.

4. The next day, the jury submitted a note that it felt it could not come to

a unanimous verdict on multiple counts, and the court read aloud the

entire model Allen instruction for a second time. Ibid.

5. Immediately after reading the second Allen charge, the court added its

own comments assuring that its instructions were not meant to hurry

the jury into a verdict. Ibid. The court’s last words to the jury, however,

urged them to “work through it” as “mature adults.” Ibid.

B. Racial Bullying Inside of the Jury Room

Two black jurors in this case initially voted to acquit. Pet. App. 8a. The

foreperson, like the trial court, made it her mission to pressure the jury into a

unanimous verdict. The foreperson ultimately accomplished her mission through

the use of relentless racial bullying.! See id. at 8a—9a.

The jury deliberations in this case were “openly hostile along racial lines.”

Pet. App. 8a. This racial hostility peaked on the third and final day of deliberations,

when the white foreperson openly stated she “[found] it strange that the colored

[jurors] are the only two that can’t see” that the black defendants were guilty. Ibid.

This accusation brought the black jurors to tears and prompted a heated verbal

altercation requiring the court marshal to step in and pacify the jury. Ibid.

Moments later, the foreperson launched yet another racial accusation against the

1 The details of the jury deliberations in this case are contained in post-trial

interviews obtained by the attorney representing the petitioner’s co-defendant. See

Pet. App. 6a—7a. Under a narrow reading of Pena-Rodriguez, the court below

deemed the accounts of racial animus insufficient, on their own, to grant the three

co-defendants a new trial. See id. at 12a (applying Pena-Rodriguez only if racial

hostility motivates “juror’s vote to convict’). The details of this racial bullying are

nevertheless relevant to the factual issue of jury coercion implicated by the

petitioner’s appeal of the Allen question.

two black jurors: that they likely voted to acquit because they felt they “owed

something” to their “black brothers.” Id. at 9a. For a second time, the jury erupted

into a verbal altercation that required the intervention of court officials. Ibid.

These heated verbal altercations and the trial court’s second Allen charge

both occurred just hours before the jury announced its guilty verdict. See Pet. App.

9a (verbal altercations occurred on final day of deliberations); Id. at 15a (second

Allen charge given at approximately 10:00 a.m. and verdict announced at 2:45

p.m.).

II. Decision of Court Below

Over strong dissent, the court below affirmed the convictions of the petitioner

and his co-defendants. Pet. App. 27a. Two particular challenges received a bulk of

the court’s attention. First, the court below considered the foreperson’s racial

bullying “reprehensible,” but insufficient on its own to grant a rehearing or new

trial under Pena-Rodriguez. Id. at 10a—14a. Second, it found the repeated Allen

charges and Allen-charge-like comments permissible under the Sixth Amendment.

Id. at 14a—17a. The petitioner seeks certiorari on the Allen issue.

In condoning the trial court’s repeated urges for a verdict, the majority

declined to use a per se ban on multiple Allen charges. Pet. App. 15a. Instead, it

employed a version of the totality of the circumstances test that considers repeated

Allen charges as a factor decreasing the chances of coercion. Specifically, the court

relied in part on subsequent Allen charges to dismiss the petitioner’s challenge to

the “Allen-charge-like remark” made by the court—that the jury should resolve the

conspiracy count first “because ultimately all of these issues have to be resolved.”

Id. at 14a. According to the majority, any coercion created by the remark did not

matter, because “the district court’s remark was followed by two pattern Allen

charges emphasizing dissenting jurors’ freedom to dissent, curing any coercive

effect.” Id. at 17a.

The dissent disagreed with the majority on both the Pena-Rodriguez issue

and the Allen issue. In its analysis of the Allen issue, the dissent also applied a

totality of the circumstances test, but split from the majority in its classification of

repeated Allen charges. Pet. App. 39a. The dissent rejected the majority’s “curative”

theory and instead held that repeated Allen charges increase the effect of coercion

imposed upon the jury. See ibid. (two subsequent Allen charges did not “cure” any

coercion created by the prior misleading instruction, but rather, “very likely

compounded the coercion’).

Additionally, unlike the majority, the dissent considered both the repeated

Allen charges and the racial bullying within the jury room to be factors relevant to

the question of jury coercion. In the dissent’s view, the “racial animus within the

jury and... the Allen charges . . . operat[ed] in a mutually reinforcing manner [to]

exert{] pressure on the two black jurors who were not prepared to vote for a guilty

verdict.” Pet. App. 40a.

REASONS FOR GRANTING THE PETITION

The case presents a clear, recurring question of constitutional law: do

multiple repetitions of an Allen charge create an increased risk of improper

coercion, violating the Constitution’s guarantee of an impartial jury? The lower

courts are twice split on this question: first, over whether a second Allen charge is

ever permissible and second, over how the act of repeating an Allen charge affects

coercion. One circuit court, three state courts of law resort, and the District of

Columbia Court of Appeals have per se rules against repeating Allen charges. Seven

circuits and several state courts of last resort employ a totality of the circumstances

test. Still, courts employing a totality of the circumstances test treat the act of

repeating an Allen charge in three distinct ways. One state court of last resort and

the American Bar Association treat repetition as a non-factor. Three circuits and

several state courts of last resort treat repetition as tending to increase coercion.

Only the Sixth Circuit, in its opinion below, suggests repetition can decrease

coercion. Federal constitutional rights should not vary based on geography. This

direct appeal presents a clean vehicle for deciding both splits.

I. The Circuits and State Courts of Last Resort Are Twice Split On Whether

Repeating an Allen-Charge Affects Coercion

The Fifth and Sixth Amendments guarantee criminal defendants the right to

trial by an impartial jury. U.S. CONST. amends. V, VI; Mu'Min v. Virginia, 500 U.S.

415, 489 (1991); see Duncan v. Louisiana, 391 U.S. 145 (1968) Gncorporating

against the states through the Fourteenth Amendment). In Allen v. United States,

164 U.S. 492 (1896), this Court approved of a supplemental jury instruction

directing jurors to reconsider their views. Jenkins v. United States, 380 U.S. 445

(1965), however, requires federal courts to evaluate a single Allen charge under the

totality of the circumstances.” If, based on those circumstances, the jury was

coerced, its verdict cannot stand. To date, this Court has never addressed whether

courts may give a second Allen charge.

Without guidance from this Court, lower courts are twice split on how

repeating an Allen charge effects coercion. First, courts are divided over whether a

second Allen charge is ever appropriate. Second, among the courts that allow a

second Allen charge, there is disagreement over how the act of repeating an Allen

charge affects coercion and what lines should be drawn to ensure an uncoerced jury

verdict.

A. Split One: Per Se Test or Totality of the Circumstances Test

One circuit court of appeal, three state courts of last resort, and the D.C.

Court of Appeals forbid giving a second Allen charge. In Seawell, the Ninth Circuit

relied on its supervisory power to forbid giving a second Allen charge. United States

v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977). The court, while acknowledging

potential over-breadth, reasoned that a per se rule was nevertheless required to

protect defendants’ constitutional rights to an impartial jury. Jd. at 1163 f.n. 8. The

alternative—a totality of the circumstances rule—would require defendants to

overcome “insurmountable problems of proof and appellate review’ to vindicate

their constitutional rights. Ibid. The Ninth Circuit did carve out one exception.

When the jury asks the court to repeat the Allen charge, the court may repeat the

instruction. Id. at 1163.

2 Because Jenkins was based on this Court’s supervisory power, it does not apply to

state courts. See Lowenfield v. Phelps, 484 U.S. 231, 239 n. 2 (1988).

7

One state court of last resort, the Florida Supreme Court, agrees with

Seawell. Tomlinson v. State, 584 So. 2d 48, 45 (Fla. Dist. Ct. App. 1991) (following

Seawell); see Thomas v. State, 748 So. 2d 970, 979 (Fla. 1999) (citing Tomlinson in

dicta); cf. In re Standard Jury Instructions-Contract & Bus. Cases, 116 So. 3d 284,

346 (Fla. 2013) (approving standard deadlock instruction, with reference to

Tomlinson).

Similarly, in Epperson v. United States, 495 A.2d 1170, 1175 (D.C. 1985), the

District of Columbia Court of Appeals held that repeating Allen charges, without

exceptional circumstances, is per se unconstitutional. Going beyond the Ninth

Circuit and the Florida Supreme Court, the Epperson Court did not even

acknowledge that its rule might be over-inclusive. Compare ibid. with Seawell, 550

F.2d at 1163 f.n. 8. The District of Columbia Court of Appeals adopted the same

exception as the Ninth Circuit and added an additional exception when

circumstances “make[] evident [the repeated charge] is not likely to be coercive.”

Epperson, 495 A.2d at 1175-76.

Two state courts of last resort, the Supreme Courts of Indiana and

Washington, follow broader per se rules. Lewis v. State, 424 N.E.2d 107, 111 (nd.

1981); State v. Watkins, 660 P.2d 1117, 1121 (Wash. 1983). In both states, trial

courts are not permitted to give any deadlock instructions. Ibid. In Indiana, they

must “call the jury back into open court...and... reread all instructions given to

them prior to their deliberations.” Lewis, 424 N.E.2d at 111. In Washington, “[a]fter

jury deliberations have begun, the court shall not instruct the jury in such a way as

to suggest the need for agreement, the consequences of no agreement, or the length

of time a jury will be required to deliberate.” Watkins, 660 P.2d at 1121 Gnternal

citations omitted). Even a single Allen charge, therefore, is impermissible. So, a

second Allen charge is clearly forbidden.

By contrast, the First, Second, Fourth, Fifth, Eighth, Tenth, and Eleventh

Circuits,? along with several state courts, apply a totality of the circumstances test

to evaluate whether a second Allen charge is coercive. See, e.g., United States v.

Cornell, 780 F.3d 616, 626 (4th Cir. 2015); United States v. Davis, 779 F.3d 1305,

1313—14 (11th Cir. 2015); United States v. Ailsworth, 138 F.3d 843, 852 (10th Cir.

1998); United States v. Barone, 114 F.3d 1284, 1304 (1st Cir. 1997); United States v.

Reed, 686 F.2d 651, 652-53 (8th Cir. 1982); United States v. Fossler, 597 F.2d 478,

485 (5th Cir. 1979); United States v. Robinson, 560 F.2d 507, 517 (2d Cir. 1977) (en

banc), cert. denied, 435 U.S. 905 (1978).

B. Split Two: A Second Allen Charge Increases, Decreases, or Has No Effect

on Coercion

Among courts that adopt a totality of the circumstances test, courts are

divided over whether repeating an Allen charge increases, decreases, or does not

affect coercion. Several circuits have not reached this question. See, e.g., United

States v. Cornell, 780 F.3d 616, 626 (4th Cir. 2015) (remaining silent on the fact

3 Though the Seventh and D.C. Circuits have not explicitly addressed this question,

both have adopted the ABA’s standards for Allen charges. United States v. Thomas,

449 F.2d 1177, 1185 (D.C. Cir. 1971); United States v. Brown, 411 F.2d 930, 933 (7th

Cir. 1969). Those standards recommend a totality of the circumstances test.

AMERICAN BAR ASSOCIATION, ABA STANDARDS FOR CRIMINAL JUSTICE DISCOVERY AND

TRIAL BY JURY, § 15-5.3 to 15-5.4 (8d ed. 1996) (substantively the same as the 1968

edition).

that an Allen charge was repeated in assessing the totality of circumstances

surrounding its occurrence); United States v. Davis, 779 F.3d 1305, 1313-14 (11th

Cir. 2015) (same); United States v. Atlsworth, 138 F.3d 848, 852 (10th Cir. 1998)

(same); United States v. Reed, 686 F.2d 651, 652-53 (8th Cir. 1982) (same, but

indicating the court generally disfavors giving Allen Charges). Still, decisions that

do reach this question provide two distinct answers and suggest a third—deepening

an already intractable split.

1. At least one court, the Supreme Court of Connecticut, has expressly held

that the act of repeating an Allen charge never affects whether the charges were

coercive. See State v. Feliciano, 778 A.2d 812, 821 (Conn. 2001). To that court, “[ilf

the words are not coercive, then the fact that they are uttered more than once does

not change their character.” [bid.

Though not binding on any court, the American Bar Association’s model Allen

charge adheres to this view. AMERICAN BAR ASSOCIATION, ABA STANDARDS FOR

CRIMINAL JUSTICE DISCOVERY AND TRIAL BY JURY, § 15-5.3 to 15-5.4 (8d ed. 1996)

(ABA Standards). Those Standards recommend the same factors for evaluating the

propriety of the first Allen charge and for evaluating the propriety of repeated

charges. Importantly, two circuits and several states have adopted the ABA

Standards. See, e.g., United States v. Thomas, 449 F.2d 1177, 1185 (D.C. Cir. 1971);

United States v. Brown, 411 F.2d 930, 933 (7th Cir. 1969); Fields v. State, 487 P.2d

831, 842 (Alaska 1971); People v. Gainer, 566 P.2d 997, 1008 (Cal. 1977); State v.

Weidul, 628 A.2d 135, 136 (Me. 1993); Kersey v. State, 525 S.W.2d 139, 144 (Tenn.

10

1975). See generally Wayne F. Foster, Annotation, Instructions urging dissenting

jurors in state criminal case to give due consideration to opinion of majority (allen

charge) -- modern cases, 97 A.L.R.3d 96, 5a (2018) (collecting cases). Because these

states have adopted the ABA Standards, they will likely follow the ABA’s view on

repeated Allen charges.

2. Taking the opposite position, three circuits and several state courts of last

resort view each successive Allen charge as more coercive than the last. The First

Circuit, for example, requires special circumstances to justify a second charge.

United States v. Barone, 114 F.3d 1284, 1304 (1st Cir. 1997). To the First Circuit,

“Ia] successive [Allen] charge tends to create a greater degree of pressure... .” Ibid.

It “exacerbates” coercion problems. Ibid. Therefore, “caution needs to be used before

the modified Allen charge is given for a second time.” Id. at 1305. Normally, that

requires “special circumstances’—over and above “a continued inability .. . to

decide”—to justify repeating the Allen charge. Ibid.

Similarly, the Second Circuit views each successive Allen charge as tending

to increase coercion. United States v. Robinson, 560 F.2d 507, 517 (2d Cir. 1977) (en

banc), cert. denied, 435 U.S. 905 (1978). And the Fifth Circuit has cited the Second

Circuit’s perspective with favor. United States v. Fossler, 597 F.2d 478, 485 (5th Cir.

1979) (adopting the Second Circuit’s test over the Ninth Circuit’s per se rule).

Following these circuits, several state courts of last resort view the act of

repeating an Allen charge as tending to increase coercion. The Supreme Court of

Alabama, for example, has held the “cumulative effect” of multiple statements

11

encouraging the jury to reach a verdict “placed an almost unbearable pressure upon

the dissenting juror.” Ex Parte Morris, 465 So. 2d 1180, 1183 (Ala. 1985). The

Supreme Courts of Delaware and South Dakota have adopted similar views. See

Fensterer v. State, 493 A.2d 959, 967 (Del. 1985) (cautioning courts against the use

of repeated Allen charges), revd on other grounds sub nom. Delaware v. Fensterer,

A74 U.S. 15 (1985); State v. Kaiser, 504 N.W.2d 96, 101 (S.D. 1993) (repeating an

Allen charge increases coercion).

3. Adding further conflict among the circuit courts and state courts of last

resort, the Sixth Circuit’s opinion below counter-intuitively suggests that repeating

an Allen charge may decrease coercion. Pet. App. 17a. At trial, the judge made

several remarks encouraging the jury to reach a verdict and gave two pattern Allen

charges. Id. at 14a—15a. One remark encouraged jurors to resolve a particular count

first “because ultimately all of these issues have to be resolved.” Id. at 14a. On

appeal, the petitioner challenged this comment as impermissibly coercive, but court

below disagreed—in part relying on the trial judge’s two subsequent Allen charges.

Id. at 16a—17a. To the Sixth Circuit, those Allen charges cured any coercive effect of

the trial court’s earlier remarks. Id. at 17a.

Although the court below did not explicitly hold that the act of repeating an

Allen charge lessens juror coercion, its reasoning requires that conclusion. If two

Allen charges can cure a prior, coercive instruction, then those charges must have a

net-negative coercive effect. That is, the Allen charges were more curative than

12

coercive. If an Allen charge is more curative than coercive, then repeating that

charge should decrease total coercion, at least in some circumstances.

No circuit court or state court of last resort shares the Sixth Circuit’s views.

The Minnesota Court of Appeals, however, has used similar reasoning. In State v.

Lewis, No. A13-1604, 2014 WL 4957142, *11 (Minn. Ct. App. 2014), the trial court

made a similar remark to the jury. There, the court said “you were sworn to give

each side a fair hearing and reach a unanimous verdict,” without telling jurors to

preserve their firmly held beliefs. Ibid. The Court of Appeals, considering whether

this statement was coercive, held that that re-reading the pattern Allen charge

cured any coercive effect. Ibid. Like the Sixth Circuit’s reasoning, this requires

Allen charges to have potential curative effect.

II. The Sixth Circuit’s Decision Is Incorrect

The opinion below holds that multiple Allen charges are not per se coercive

and that, at least in some circumstances, multiple Allen charges may tend to

decrease coercion. Both holdings are flawed.

1. The right to an impartial jury requires a per se rule against giving

more than one Allen charge in a criminal case. Preventing improper judicial

influence over the jury is a core constitutional protection. The Founders recognized

the dangers inherent in “the violence and partiality of judges appointed by the

crown... .” 4 WILLIAM BLACKSTONE, COMMENTARIES *343 (emphasis added). “To

guard against this violence and partiality ..., the common law wisely placed the

strong barrier of trial by jury between the liberties of the people, and the

13

prerogative of the crown.” Alleyne v. United States, 133 S. Ct. 2151, 2169 (2013)

(Roberts, C.J., dissenting) (citing ibid.). Trial by impartial jury serves as a “security

against the prejudices of judges, who may partake of the wishes and opinions of the

government.” J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

§ 924, p. 657 (Abr. 1833) (emphasis added).

When a judge coerces a verdict, he tears down “the strong barrier of trial by

jury.” See Alleyne, 133 S. Ct. at 2169. That judge injects his prejudices into the

jury’s deliberations, usurping the role of the jury. In doing so, the judge violates a

core constitutional right. See Sullivan v. Louisiana, 508 U.S. 275, 277 (‘The [jury

trial] right includes, of course, as its most important element, the right to have the

jury, rather than the judge, reach the requisite finding of guilt.”).

While a_ totality of the circumstances test may protect against

unconstitutional jury coercion in theory, a per se ban of repeated Allen charges is

needed to achieve this protection in practice. In the context of other fundamental

rights, this Court has exercised its power to create bright-line rules. Miranda v.

Arizona, 384 U.S. 486, 467 (1966). This Court has embraced bright-line rules to

protect our nation's most cherished rights, even in light of over-breadth. Gertz v.

Robert Welch, 418 U.S. 323 (1974) (‘[T]here is no constitutional value in false

statements of fact... . [But] [t]he First Amendment requires that we protect some

falsehood in order to protect speech that matters.”); North Carolina v. Pearce, 395

U.S. 711 (1969) (‘In order to assure the absence of [vindictive sentencing], we have

14

concluded that whenever a judge imposes a more severe sentence upon a defendant

after a new trial, the reasons for his doing so must affirmatively appear.”).

Like Miranda, this case cries out for this Court's intervention. Though

parties subjected to a second Allen charge could litigate its propriety under an ad

hoc test, those parties would face “insurmountable problems of proof and appellate

review.” See United States v. Seawell, 550 F.2d 1159, 1163 n.8 (9th Cir. 1977).

These problems of proof would prevent parties from vindicating their constitutional

rights. Just as the Miranda court replaced fact-intensive inquiries with a more

clear-cut rule, this Court should instate a per se ban on multiple Allen charges. See

Miranda, 384 U.S. at 469. Indeed, Miranda is particularly applicable here because,

like the fundamental Fifth Amendment privilege in Miranda, Allen charges

implicate a defendant’s fundamental jury trial right. A per se rule, therefore, is

required to protect defendants’ constitutional rights.

2. The Sixth Circuit's suggestion that multiple Allen charges decrease

coercion is also incorrect. Multiple Allen charges tend to increase coercion. Like a

parent repeating commands to her child, the court repeating an instruction

encouraging the jury to continue deliberating emphasizes the effect of that

instruction. The only effect of an Allen charge is encouraging the jury to come to a

unanimous verdict. And “coercion” is nothing more than improperly strong

encouragement. Repeating an Allen charge, therefore, increases pressure on the

jury to come to a unanimous verdict, pushing the court’s encouragement into the

territory of impermissible coercion. The Sixth Circuit’s curative argument is flawed.

15

III. This Issue Is Important and Recurring

At the founding, the right to trial by impartial jury was critically important

as a check against government oppression. See United States v. Powell, 469 U.S. 57,

65 (1984). That right is no less important today, but the Sixth Circuit’s unique rule

imposes two separate risks on this nation’s Sixth Amendment jurisprudence.

First, it further splinters an already-divided body of case law on the rule for

permissibility of multiple Allen charges. Based on the happenstance of geography

alone, criminal defendants enjoy varying levels of rights against trial court

interference in jury deliberations. The Sixth Circuit’s new rule exacerbates this

arbitrariness. This case presents the court with the opportunity to clarify whether

the right to trial by impartial jury allows repeated Allen charges, and if so, under

what particular circumstances.

Second, and more importantly, if the Court does not reject the Sixth Circuit’s

new rule now, the rule may serve as “persuasive authority” for the circuits and

states that have not yet adopted a rule on multiple Allen charges. The Sixth

Circuit’s rule is anything but persuasive. It is both illogical and unconstitutional.

See Section II, supra. Now is the ideal time for this court to reject this rule to

prevent it from spreading to states. Otherwise, juror coercion could recur

indefinitely.

IV. This Case Is an Ideal Vehicle

This case presents a clean vehicle for resolving both splits in authority.

Unlike some cases, the decision below discussed both splits in authority. The panel

16

recognized the per se ban on Allen charges used in other circuits, but both the

majority and dissent opted to apply a totality of the circumstances approach. Pet.

App. 15a, 38a—40a. The panel majority and dissent split in their respective

treatments of Allen charges. The dissent followed the approach employed by a

majority of totality-of-circumstances jurisdictions and treated each Allen charge as

more coercive than the last. See id. at 39a. The majority, on the other hand, adopted

a unique “curative” rule that treats each repeated Allen charge as less coercive than

the last. See id. at 17a. The Sixth Circuit’s rule is inconsistent with the vast

majority of pre-existing rules on the subject.

Importantly, this case is a standard criminal appeal. The petitioner in this

case was convicted in federal district court and appealed to the court below. Pet.

App. 2a. Thus, this case does not present any of the procedural complications that

arise in habeas corpus cases.

Significantly, there are no factual disputes about the “Allen charge” facts in

this case and, even under the plain error standard, this Court’s acceptance of

petitioner’s position herein would be outcome determinative of his case. Pet. App.

14a (failing to object at trial); see FED. R. CRIM. P. 52(b). Under the petitioner’s

proposed per se ban on multiple Allen charges, the district court’s second full

reading of the Allen charge violates the rule on its face.

Alternatively, the obviousness of the lower court’s error is apparent even

under a totality of the circumstances rule that treats repeated Allen charges as a

factor indicating coercion. Throughout the deliberation process, the trial court gave

17

a total of two Allen-charge-like instructions, two full Allen charges, and one set of

additional comments immediately following the second charge. Pet. App. 14a—lda.

Under a totality of the circumstances approach where each plea for a verdict is more

coercive than the last, five such pleas certainly pushes this case into the territory of

impermissible coercion.

Finally, plain error reversal is warranted in light of the ample evidence of

jury coercion in this case. In addition to the coercive instructions from the court, the

two jurors who initially voted to acquit the received relentless racial bullying by the

foreperson. Specifically, the foreperson openly stated she “[found] it strange that the

colored [jurors] are the only two that can’t see” that the black defendants were

guilty, and she accused the black jurors of voting to acquit because they felt they

“owed something” to their “black brothers.” Pet. App. 8a—9a. These comments

brought the two black jurors to tears and prompted heated verbal altercations

requiring the attention of court officials. Ibid. This Court has previously identified

racial bias as a “familiar and recurring evil” that risks “systemic injury to the

administration of justice.” Pena-Rodriguez v. Colorado, 137 8. Ct. 855, 868 (2017).

These two jurors had no escape from intense pressure imposed upon them

throughout deliberations. Each time they stepped into the jury box to receive

instructions, the court urged them for a unanimous verdict. Each time they stepped

back into the deliberation room, the foreperson pressured them to change their

votes to guilty. The record in this case reveals a perfect storm of coercion catalyzed

by the court’s repeated “dynamite” charges echoing throughout the jury box. Should

18

this Court reverse the decision below, a new trial will be granted to replace the

petitioner’s coerced conviction with a fair adjudication of his case.

CONCLUSION

It seems self-evident that repeated directives to a hung jury to reach a verdict

creates an increased risk of coercing jurors to follow that directive that is greater

than the risk attendant to a single Allen charge alone. Lest there be any doubt, the

Association for Psychological Science has reported that experiments by a trio of

German psychological scientists “demonstrate that selectively repeating

information in favor of a particular decision alternative changes preference ratings

in favor of this alternative and makes a decision for this alternative more likely.”

“To Be More Persuasive, Repeat Yourself,” Association For Psychological Scientists

Journal (April 20, 2016). If the extreme facts of this case do not set a limit on how

many times a jury can be subjected to Allen charges and related comments, there

will be no limit. The petition for a writ of certiorari should plainly be granted.

19

Respectfully submitted,

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1% sntenamren eeieng rise. seaua a

ws

Stephen L. Braga® ——— a

Emily Mordecai em

J. Kain Day

(Third Year Law Students)

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

Appellate Litigation Clinic

580 Massie Road, SL 251

Charlottesville, VA 22903-1789

434-924-3825

stevebraga@virginia.edu

*Counsel of Record4

March 2, 2018

*Emily Mordecai and J. Kain Day, third-year law students, on brief.

20

RECORD NO.

Su The

Supreme Court of Che Gnited States

CHRISTOPHER D. MARTIN,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

FOR CHRISTOPHER D. MARTIN

Stephen L. Braga*

Emily Mordecai, Third Year Law Student

J. Kain Day, Third Year Law Student

UNIVERSITY OF VIRGINIA SCHOOL OF LAW

Appellate Litigation Clinic

580 Massie Rd., SL-251

Charlottesville, VA 22903

(434) 924-3825

* Counsel of Record for Christopher D. Martin

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477

A Division of Lantagne Duplicating Services

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