`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Argued October 28, 2020
`
`
`Decided January 5, 2021
`
`No. 19-3074
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`PATRICIA DRISCOLL,
`APPELLANT
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:16-cr-00166-1)
`
`
`
`
`
`Brian W. Stolarz argued the cause and filed the briefs for
`appellant.
`
`
`Peter S. Smith, Assistant U.S. Attorney, argued the cause
`for appellee. With him on the brief were Elizabeth Trosman,
`Chrisellen R. Kolb, Virginia Cheatham, and Kathryn L,
`Rakoczy, Assistant U.S. Attorneys.
`
`
`Before: WILKINS, KATSAS and WALKER, Circuit Judges.
`
`
`
`
`
`
`
`
`

`

`2
`
`Opinion for the Court filed by Circuit Judge WILKINS.
`
`
`
`WILKINS, Circuit Judge: In November 2018, after a four-
`week jury trial, Appellant Patricia Driscoll was convicted of
`two counts of wire fraud, one count of first-degree fraud, and
`two counts of tax evasion. On appeal, Driscoll argues that the
`District Court committed several errors that warrant a new trial
`or dismissal of the indictment. Specifically, she contends that
`the District Court erred in denying her motion for mistrial or
`dismissal based on Brady and Fifth Amendment violations.
`She argues that the District Court should have granted a pretrial
`discovery motion that would have revealed Government
`misconduct. And she argues that the District Court delivered
`multiple coercive anti-deadlock instructions to the jury.
`
` We agree that the anti-deadlock instructions likely
`coerced a unanimous verdict. Accordingly, we vacate
`Driscoll’s convictions and remand for a new trial. As to the
`Brady claim, we find no prejudice, so we affirm the District
`Court’s denial of the motion to dismiss the indictment.
`
`Because we remand for a new trial, we do not address
`Driscoll’s pretrial discovery argument. And for the reasons
`explained below, we do not reach Driscoll’s Fifth Amendment
`argument.
`
`I.
`
`Driscoll is the former president of a nonprofit organization
`in Washington, D.C. On May 22, 2015, ESPN published an
`article detailing fraud allegations against her. The article
`indicated that a former employee of the nonprofit had contacted
`the FBI, and the same employee planned to file an IRS
`whistleblower complaint which might lead to charges of
`embezzlement and fraud against Driscoll.
`
`
`
`

`

`3
`
`The following month, Driscoll participated in a public
`hearing against her ex-husband over the custody of their child.
`During that four-day trial, Special Agent Robert Valdini—an
`IRS criminal investigator—showed up, sat in the courtroom,
`and observed testimony, including testimony from Driscoll
`about her finances. Driscoll approached Valdini and asked
`who he was, and Valdini responded that he was a member of
`the public. Valdini also observed testimony from Tanya Finch,
`a cousin of Driscoll’s ex-husband who also happened to be the
`IRS whistleblower.
`
`Valdini took detailed notes during the custody hearing,
`gathering information for the criminal investigation against
`Driscoll. Valdini had been authorized to attend the hearing by
`an Assistant United States Attorney. And during the first three
`days of the hearing, Valdini prepared memoranda of activity,
`documenting testimony and exhibits relevant to the criminal
`investigation.
`
`On the final day of the custody hearing, Valdini took no
`notes and prepared no memoranda. That day, he connected
`with Driscoll’s ex-husband, along with the ex-husband’s new
`wife and the couple’s custody lawyer. The four of them went
`to lunch together at the request of Driscoll’s ex-husband, who
`offered to provide Valdini information about Driscoll to aid in
`the criminal investigation.
`
`On September 20, 2016, Driscoll was indicted on eight
`counts of fraud and tax evasion. In April 2017, defense counsel
`filed pretrial motions, including a motion for discovery on a
`“parallel proceeding” issue. In that motion, defense counsel
`asked the District Court to authorize discovery on whether the
`Government had used a civil “audit” process to gather
`information for Driscoll’s criminal case. See generally United
`States v. Kordel, 397 U.S. 1, 13 (1970) (“Government may not
`use evidence against a defendant in a criminal case which has
`
`
`
`

`

`4
`
`been coerced from him under penalty of either giving the
`evidence or suffering a forfeiture of his property.”). The
`Government opposed the motion, arguing that it had already
`provided substantial discovery about the IRS agent involved in
`the case (including a “memorandum and handwritten notes”),
`and calling Driscoll’s request “unfounded.” J.A. 129. In reply,
`Driscoll raised the child custody hearing for the first time as an
`issue warranting discovery. The Government moved to strike
`portions of the reply for raising new issues, but then argued in
`sur-reply that the defense was “not entitled” to further
`discovery. J.A. 174, 183. In August 2017, the District Court
`denied the motion in a minute order.
`
`Trial began on October 17, 2018. Two weeks into trial,
`
`Valdini’s conduct at
`the child-custody hearing—and
`specifically, his lunch with Driscoll’s ex-husband—came to
`light through cross-examination of a Government witness and
`subsequent questioning of the prosecutors by the District
`Court. Government counsel had not been aware of Valdini’s
`lunch outing, but after conferring with agents involved in the
`investigation, the Government disclosed Valdini’s actions to
`the District Court. The District Court ordered the Government
`to produce “detailed, under oath account[s] of everything that
`happened.” J.A. 236.
`
`The following day, the Government submitted affidavits
`from Valdini, two FBI agents, and Tanya Finch. The District
`Court interrupted the trial and held an evidentiary hearing to
`call Valdini and others
`involved
`in
`the child-custody
`proceeding. At the evidentiary hearing, Valdini testified to
`attending Driscoll’s custody trial, misrepresenting his identity
`to Driscoll, and preparing memoranda of activity for each day
`except the last, when he met with Driscoll’s ex-husband and
`others.
`
`
`
`

`

`5
`
`Driscoll moved for a mistrial or dismissal, arguing that 1)
`Valdini’s presence at the child-custody hearing violated her
`Fifth Amendment right against self-incrimination, and 2) the
`Government violated Brady by failing to disclose Valdini’s
`conduct. The District Court denied the motions. On the Fifth
`Amendment claim, the District Court found that Valdini’s
`misrepresentations had not
`lured Driscoll
`into
`self-
`incrimination. She was already on notice of her potential
`criminal liability before the hearing due to the ESPN article,
`and she was testifying at a public proceeding where a transcript
`could be obtained by anyone. Additionally, the District Court
`found no prejudice under Brady because Driscoll’s case-in-
`chief had not begun, and defense counsel could use the
`evidence effectively as impeachment evidence going forward.
`
`Jury deliberations in Driscoll’s trial began on Tuesday,
`November 20. The jury deliberated for approximately 45
`minutes before breaking for Thanksgiving. After returning on
`Monday, November 26, the jury sent a note to the District
`Court at 11:20 am, stating: “We have one person that has his
`mind made up and will not change his mind. What do we do?”
`J.A. 379.
`
`The District Court proposed reading instructions 2.510 and
`2.601(III)(A) from the Criminal Jury Instructions for the
`District of Columbia (i.e., the “Red Book”). While these
`instructions are used in both D.C. local and federal courts, the
`second instruction—known as the anti-deadlock Thomas
`charge—adopts the exact language approved by this Court for
`breaking a deadlocked jury. See United States v. Thomas, 449
`F.2d 1177, 1184 nn.45–46 (D.C. Cir. 1971) (en banc).1
`
`
`1 The Government initially opposed using an anti-deadlock charge,
`arguing that it was too soon to use such an instruction, but defense
`counsel did not object. The Government eventually agreed to the
`
`
`
`

`

`6
`
`The District Court called the jury back into the courtroom
`and read Instruction 2.5102 and Instruction 2.601(III)(A), the
`Thomas charge.3 After reading the Thomas charge, the District
`Court continued:
`
`
`instruction when the District Court decided to strike the words “Anti-
`Deadlock Instruction” from the title.
`2 Red Book Instruction 2.510, “Attitude and Conduct of Jurors in
`Deliberations,” reads as follows: “The attitude and conduct of jurors
`at the beginning of their deliberations are matters of considerable
`importance. It may not be useful for a juror, upon entering the jury
`room, to voice a strong expression of an opinion on the case or to
`announce a determination to stand for a certain verdict. When one
`does that at the outset, a sense of pride may cause that juror to hesitate
`to back away from an announced position after a discussion of the
`case. Furthermore, many juries find it useful to avoid an initial vote
`upon retiring to the jury room. Calmly reviewing and discussing the
`case at the beginning of deliberations is often a more useful way to
`proceed. Remember that you are not partisans or advocates in this
`matter, but you are judges of the facts.”
`3 Red Book Instruction 2.601(III)(A), also known as the Thomas
`charge, reads as follows: “The verdict must represent the considered
`judgment of each juror. In order to return a verdict, it is necessary
`that each juror agree to the verdict. In other words, your verdict must
`be unanimous. It is your duty, as jurors, to consult with one another
`and to deliberate with a view to reaching an agreement, if you can do
`so without violence to individual judgment. Each of you must decide
`the case for yourself but do so only after an impartial consideration
`of the evidence with your fellow jurors. In the course of your
`deliberations, do not hesitate to reexamine your own views and
`change your opinion if convinced it is erroneous. But do not
`surrender honest conviction as to the weight or effect of evidence
`solely because of the opinion of your fellow jurors, or for the mere
`purpose of returning a verdict. You are not partisans. You are
`judges—judges of the facts. Your sole interest should be to reach a
`just verdict from the evidence in the case.”
`
`
`
`

`

`7
`
`And we all appreciate that this isn’t easy, this is
`hard work, going through evidence and going
`through the charges, we appreciate that and we
`thank you for that. And we’ll thank you more
`than once for that because we know it’s not
`easy. But it is really important, really important
`to the parties and to the community, to the
`country.
`
`J.A. 390. Defense counsel then objected to the instruction,
`arguing that the additional references to “community” and
`“country” might be taken by jurors to mean “the Government.”
`
`The next day, at 3:15 PM, the jury sent another note
`
`indicating its inability to reach agreement. This time, the note
`read: “One Juror is not following the Judges rules [sic]. He
`already has his mind made up, and he is not basing his decision
`on the facts. Is it possible to request an alternate juror?” J.A.
`393. Defense counsel suggested a voir dire of the holdout
`juror, and the Government suggested the Court speak with the
`jury foreperson. The District Court called the jury back, and
`began by referencing the previous day’s instruction:
`
`Well, yesterday I gave you instructions, follow-
`up instructions to deal with, a note that has some
`similarities to this note, and I stand by that. And
`you have
`those—you’ll have
`that one
`instruction in the book of instructions I’ve
`already given you.4 And I think I addressed the
`issue as to the necessary spirit and approach that
`
`
`4 It appears from the record that the “one instruction” jurors had in
`writing was Instruction 2.510, not the Thomas instruction. See J.A.
`390, 408 (“[T]hey don’t have the Thomas instruction with them.
`They have the first one in their instructions.”).
`
`
`
`

`

`8
`
`it
`take as
`juror must
`each
`deliberations, and I stand by that.
`
`relates
`
`to
`
`J.A. 401. The Court continued:
`
`In my judgment, it is way too premature to be
`requesting an alternate juror.
`
`I hope, and I hope time will show, that
`whichever juror this is, that he or she will
`embrace the spirit and the language that I read
`yesterday and will come around to keeping an
`open mind and discussing with the other jurors
`their position as it relates to the facts that they
`believe have been proven in this case. So that’s
`my answer to the second note.
`
`J.A. 401–02. Defense counsel objected to this instruction,
`arguing that it was effectively an anti-deadlock instruction
`devoid of crucial Thomas language. The District Court
`responded that the instruction functionally included the
`the Thomas
`“second half of
`instruction,” because
`it
`“encourage[d] [the jurors] to follow the letter and the spirit of
`what I read to them yesterday.” J.A. 407.
`
`The following day, the jury sent another note at 4:25 pm
`
`indicating it had reached a partial verdict: “We are unanimous
`on 3 counts and deadlocked on 2 counts.” J.A. 411. At that
`point, the Government and Driscoll both asked the District
`Court to take the partial verdict, and Driscoll moved for a
`mistrial on the remaining counts. The Government did not
`oppose the mistrial motion.
`
`The Court called the jury back and read an instruction
`nearly identical to Red Book 2.601(I), the standard “Initial
`
`
`
`

`

`9
`
`Instruction to Jury that Indicates It Cannot Agree.”5 The jury
`had been deliberating for approximately 16 hours, and the
`District Court stated that this was “not unusual” given the
`“amount of documents” and witnesses in the case. J.A. 420.
`The District Court further instructed: “As a result, I’m going
`to ask you to continue deliberations in this case tomorrow.
`Keep an open mind about the case, with a view of listening to
`others and expressing your own point of view, to see whether
`you can reach unanimity on these other two counts.” J.A. 420.
`The District Court then reminded jurors twice more to “keep
`an open mind” before sending them home. J.A. 420–21.
`
`The jury reconvened at 10:00 am the following morning.
`
`At 11:10 am, the jury reached a unanimous guilty verdict on all
`five counts.
`
`
`II.
`
` We first address Driscoll’s argument that the District
`Court improperly denied her motions for mistrial and dismissal
`of the indictment. Driscoll contends that the District Court
`erred in denying her motion for mistrial or dismissal because:
`1) Valdini’s presence at her child-custody hearing violated her
`
`5 Red Book Instruction 2.601(I) reads as follows: “Your note
`indicates that you have been unable to reach a unanimous decision at
`this time. [This has been a relatively long trial—longer than many
`trials we have in this courthouse. There were a large number of
`witnesses who testified and a substantial amount of evidence
`received, and I would expect that it would take some time to reach a
`resolution of this matter.] My best judgment is that you have been
`deliberating for a total of about [[insert number] [hours] [days]],
`which is not unusual in cases such as this. As a result, I am going to
`ask that you deliberate further in this case and that you keep an open
`mind about the case with a view to listening to others and expressing
`your own point of view to see whether you can reach a unanimous
`decision. Please resume your deliberations at this time.”
`
`
`
`

`

`10
`
`Fifth Amendment right against self-incrimination, and 2) the
`Government’s failure to disclose Valdini’s improper conduct at
`the child-custody hearing violated its obligations under Brady
`v. Maryland, 373 U.S. 83 (1963).
`
`Driscoll did not develop her Fifth Amendment argument
`until the reply brief, so we do not address it. See Schneider v.
`Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (“It is not
`enough merely to mention a possible argument in the most
`skeletal way . . . . [A] litigant has an obligation to spell out its
`arguments squarely and distinctly . . . .”). As to the Brady
`claim, we agree with the District Court that the non-disclosure
`did not result in prejudice, so we affirm the denial of the
`motions for mistrial or dismissal.
`
`
`
`A.
`
`Typically, this Court reviews the denial of a mistrial or
`new trial for abuse of discretion. United States v. McLendon,
`378 F.3d 1109, 1112 (D.C. Cir. 2004) (citing United States v.
`Gartmon, 146 F.3d 1015, 1027 (D.C. Cir. 1998)); United States
`v. Sitzmann, 893 F.3d 811, 821 (D.C. Cir. 2018) (per curiam)
`(quoting United States v. Johnson, 519 F.3d 478, 487 (D.C. Cir.
`2008)), cert. denied, 140 S. Ct. 1551 (2020). But the question
`of “whether the Government has breached its obligations under
`Brady is a question of law that is reviewed de novo.” United
`States v. Borda, 848 F.3d 1044, 1066 (D.C. Cir. 2017) (citing
`United States v. Emor, 573 F.3d 778, 782 (D.C. Cir. 2009);
`Johnson, 519 F.3d at 488). The remedy for a Brady violation
`is a new trial, but dismissal is an appropriate remedy of last
`resort “where no other remedy would cure prejudice against a
`defendant.” United States v. Pasha, 797 F.3d 1122, 1139 (D.C.
`Cir. 2015).
`
`
`
`

`

`11
`
`“To prove a Brady violation, the movant must demonstrate
`three elements.” Borda, 848 F.3d at 1066. “First, the evidence
`at issue must be favorable to the accused, either because it is
`exculpatory, or because it is impeaching. Second, the evidence
`must have been suppressed by the government, either willfully
`or inadvertently. And third, prejudice must have ensued.”
`Sitzmann, 893 F.3d at 826 (internal citations, brackets, and
`quotation marks omitted). To prove prejudice, “the defendant
`must show that there is a reasonable probability that, had the
`evidence been disclosed to the defense, the result of the
`proceeding would have been different.” Id. (internal quotation
`marks omitted) (quoting United States v. Bagley, 473 U.S. 667,
`682 (1985)). “A new trial will rarely be warranted based on a
`Brady claim where the defendant obtains the information in
`time to use it at the trial.” Borda, 848 F.3d at 1067 (quoting
`United States v. Andrews, 532 F.3d 900, 907 (D.C. Cir. 2008)).
`
`Driscoll’s Brady claim fails because she has not
`
`demonstrated prejudice. The District Court held an evidentiary
`hearing to call Valdini and other witnesses involved in the
`family-court trial. Defense counsel was able to question
`Valdini extensively about his conduct at the child-custody
`hearing—including his lack of notes and memoranda on the
`final day, and his lunch with Driscoll’s ex-husband. All of this
`evidence was disclosed before defense began its case-in-chief,
`and the District Court gave counsel a “wide berth” to use it
`during trial. J.A. 340–41.
`
`The record shows that defense counsel made significant
`use of the evidence to cross-examine Valdini in front of the
`jury. See J.A. 354–55 (“And [they] asked you if you wanted to
`go out to lunch; is that right?”); id. at 359 (“[I]sn’t it true that
`you did not write a memo of activity for the last day?”).
`Defense also recalled Tanya Finch in its case-in-chief and
`questioned her about her biases. The District Court questioned
`
`
`
`

`

`12
`
`Valdini separately about his surveillance of the child-custody
`hearing.
`
`Driscoll has not persuaded us of a reasonable probability
`that earlier disclosure of this evidence would have changed the
`outcome of her case. She asserts that she was “forced to
`accept” Valdini’s testimony on certain topics. Appellant Br.
`47. Specifically, she argues she was unprepared for Valdini’s
`testimony that he discussed her child-custody case with the
`AUSA and a supervisor before attending the hearing. And she
`asserts that Valdini was untruthful when he testified that he was
`not asked to identify himself at the child-custody hearing by
`court staff—while another witness testified that Valdini was
`asked to identify himself by court staff.
`
`Given the ample opportunity defense counsel had to cross-
`examine Valdini after the evidentiary hearing and to call
`witnesses to impeach Valdini, the argument that Driscoll was
`“forced to accept” answers and could not probe apparent
`contradictions is unpersuasive. We agree with the District
`Court that Driscoll was not prejudiced by the timing of the
`Government’s disclosure of Valdini’s actions. Accordingly,
`we affirm the District Court’s denial of the motions for mistrial
`or dismissal based on Brady.
`
`
`
`III.
`
` We now turn to Driscoll’s argument that the anti-deadlock
`jury instructions were coercive upon the jury. We conclude
`that the instructions likely coerced a unanimous verdict against
`Driscoll. While no single instruction alone may have
`constituted error, “on balance, the events surrounding the
`court’s delivery of the nonstandard instruction[s] suggest a
`substantial propensity for coercive effect.” United States v.
`Yarborough, 400 F.3d 17, 22 (D.C. Cir. 2005).
`
`
`
`

`

`13
`
`
`
`A.
`
`In United States v. Thomas, this Court sought to prevent
`undue coercion on jurors by exercising its supervisory
`authority to mandate the use of standardized language in the
`anti-deadlock instruction given in this Circuit. See 449 F.2d
`1177, 1184–86 (D.C. Cir. 1971) (en banc). We explained that
`“appellate courts should no longer be burdened with the
`necessities and niceties—and the concomitant uncertainties—
`of gauging various Allen-type renditions in terms of the
`coerciveness of their impact.” Id. at 1186. In the years since
`Thomas, we have repeatedly cautioned district courts against
`“expanding on the Thomas script after a jury indicates
`deadlock.” United States v. Lloyd, 515 F.3d 1297, 1305 (D.C.
`Cir. 2008); Yarborough, 400 F.3d at 21 (“Any substantial
`in Thomas
`departure from
`the
`language approved
`is
`presumptively coercive.” (internal quotation marks omitted));
`United States v. Berroa, 46 F.3d 1195, 1197 (D.C. Cir. 1995)
`(“We therefore flatly refuse the district court’s invitation to
`crack open the Pandora’s box Thomas nailed shut.”); United
`States v. Spann, 997 F.2d 1513, 1519 (D.C. Cir. 1993) (“[W]e
`remind the district court judges of the mandate delivered in
`Thomas and that failure to comply therewith may under other
`circumstances lead to reversal.”).
`
`One of the central concerns of the Thomas Court was the
`potential for coercion by “prying individual jurors loose from
`beliefs they honestly have.” Thomas, 449 F.2d at 1182. The
`Thomas charge thus cautions jurors to “consult with one
`another . . . with a view to reaching an agreement,” but “do not
`surrender honest conviction . . . solely because of the opinion
`of your fellow jurors, or for the mere purpose of returning a
`verdict.” Criminal Jury Instructions for D.C. Instruction
`2.601(III)(A). “Any substantial departure from the language
`approved in Thomas is presumptively coercive.” Yarborough,
`
`
`
`

`

`14
`
`400 F.3d at 21 (internal quotation marks omitted); see also
`Spann, 997 F.2d at 1518 (noting that the “most significant
`[element] to . . . the Thomas court” was the language that “no
`juror should surrender his honest conviction” (internal
`quotation marks omitted)).
`
`Here, over the course of three jury instructions, the District
`Court increasingly strayed from the language of Thomas.
`Taken together, under the circumstances of this case, these
`instructions likely coerced a lone holdout juror to surrender his
`or her honestly held views in favor of a unanimous verdict.
`
`The initial note from the jury indicated that there was a
`holdout: one person had “his mind made up and [would] not
`change his mind.” J.A. 379. The District Court responded to
`this note by reading the Thomas charge, but the District Court
`also added, without advance notice to the parties, improvised
`remarks about the importance of rendering a verdict “to the
`parties and to the community, to the country.” J.A. 390.
`
`Driscoll argues that this add-on language impermissibly
`deviated from Thomas and suggested—by reference to
`“country” and “community”—that the jury had a duty to
`convict. Appellant Br. 59. She correctly cites Yarborough for
`the proposition that “[a]ny substantial departure from the
`language approved in Thomas is presumptively coercive.”
`Yarborough, 400 F.3d at 21 (internal quotation marks omitted).
`But even though the language here departed from Thomas, we
`conclude that this language, in isolation, did not affect
`Driscoll’s substantial rights. See FED. R. CRIM. P. 52(a). The
`District Court shared the language about parties, community,
`and country after reciting the full Thomas instruction and
`thanking jurors for their work. Jury service is always a service
`to
`the parties, community, and
`country, and
`the
`acknowledgment of that fact could not reasonably be taken to
`suggest that a unanimous guilty verdict must be rendered, or
`
`
`
`

`

`15
`
`juror should abandon her views.
`individual
`that an
`Furthermore, the jury remained completely deadlocked after
`this instruction, so the instruction appears to have had no
`coercive effect. See Spann, 997 F.2d at 1518 (holding that “the
`trial judge’s comments” were “probably proscribed under
`Thomas,” but they “had no direct effect on the jury [because]
`. . . they did not break the jury deadlock or cause the guilty
`verdict”).
`
`Driscoll also contends that the District Court should have
`given the initial 2.601(I) instruction or inquired into the “nature
`of” the jury’s deadlock before issuing the Thomas instruction.
`Appellant Br. 58 (citing Barbett v. United States, 54 A.3d 1241,
`1246–47 (D.C. 2012)); id. at 64. But Driscoll encouraged the
`District Court to give the Thomas instruction, so she cannot
`now argue that the order of the instructions or the failure to
`inquire into the nature of the deadlock constituted error.6 See
`United States v. Kanu, 695 F.3d 74, 80 (D.C. Cir. 2012)
`(“[U]nder the invited error doctrine [] a party may not complain
`on appeal of errors that he himself invited or provoked the
`district court to commit.” (quoting United States v. Wells, 519
`U.S. 482, 488 (1997))).
`
`Nonetheless, the District Court’s subsequent instruction
`deviated even further from Thomas. Upon receiving the second
`
`
`6 Although Driscoll waived an objection to the timing of the Thomas
`instruction, she did not waive her objection to the actual language
`used by the Court (e.g., the additional wording about “parties,”
`“community,” and “country”). This is because the District Court did
`not discuss this language in advance with counsel, so Driscoll had no
`opportunity to raise an objection ahead of time. We caution district
`courts to always consult with counsel about the wording of a jury
`instruction before the instruction is given, so that counsel may place
`objections on the record and suggest modifications before the jury
`hears the charge. This practice is far preferable to attempting to
`“unring the bell” after a problematic instruction has been given.
`
`
`
`

`

`16
`
`note stating that a juror was “not following” rules and “ha[d]
`his mind made up,” J.A. 393, the District Court called the jury
`to the courtroom, briefly referenced the previous day’s
`instructions, and then effectively addressed the holdout juror
`directly with an instruction:
`
`I hope, and I hope time will show, that
`whichever juror this is, that he or she will
`embrace the spirit and the language that I read
`yesterday and will come around to keeping an
`open mind . . . .
`
`J.A. 401. While this second instruction reminded the holdout
`juror to “keep[] an open mind,” it eliminated what we have
`described as Thomas’s “most significant” element—“do not
`surrender honest conviction . . . for the mere purpose of
`returning a verdict,” Criminal Jury Instructions 2.601(III)(A);
`see Spann, 997 F.2d at 1518—while calling direct attention to
`the holdout juror.
`
`The Government argues that this second instruction was
`not coercive because the District Court prefaced it by
`reminding jurors of the previous day’s (Thomas) instructions,
`and because the District Court’s language did not suggest a
`juror should change his mind. Gov. Br. 53. We disagree. First,
`the District Court only made cursory mention of the previous
`day’s instructions—not enough to constitute a second Thomas
`charge.7 And second, the District Court called upon the
`holdout juror, in the courtroom, to “come around to keeping an
`open mind” without reminding the juror to maintain “honest
`conviction[s].” Criminal Jury Instructions 2.601(III)(A). An
`individual could have reasonably understood that language to
`
`
`7 Given our finding that this particular combination of instructions to
`the jury was coercive, we need not reach Driscoll’s argument that
`giving additional instructions designed to encourage unanimity
`following the Thomas instruction was per se error.
`
`
`
`

`

`17
`
`mean she should become willing to change her mind,
`notwithstanding her honest convictions. See Thomas, 449 F.2d
`at 1183 (“No juror should be induced to agree to a verdict by a
`fear that a failure . . . to agree will be regarded by the public as
`reflecting upon either his intelligence, or his integrity.”
`(quoting Kesley v. United States, 47 F.2d 453, 454 (5th Cir.
`1931))); see also id. at 1181 (“When efforts to secure a verdict
`from the jury reach the point that a single juror may be coerced
`into surrendering views conscientiously entertained, the jury’s
`province is invaded and the requirement of unanimity is
`diluted.”). The potential for undue coercion was particularly
`acute here, where the judge addressed an individual juror
`directly—in front of all of his or her peers—since the other
`jurors could use the judge’s words to wear down the holdout
`once they returned to the jury room. Cf. Mullin v. United
`States, 356 F.2d 368, 370 (D.C. Cir. 1966) (Burger, J.) (“It
`would have been a precarious undertaking for the Judge to give
`a supplemental charge to consider each other’s views when he
`was already advised that only [a minority of] jurors voted for
`acquittal.”). And indeed, the second jury instruction appeared
`to move the holdout juror: The jury’s third note stated that it
`had reached a unanimous verdict on three counts, remaining
`deadlocked on two.
`
`The District Court’s final instruction was additionally
`coercive. This instruction initially hewed closely to Red Book
`Instruction 2.601(I), but later included additional improvised
`remarks that twice reminded jurors to “keep an open mind.”
`J.A. 420–21. While there is nothing that prevents a District
`Court from reading Instruction 2.601(I) when the jury indicates
`an inability to agree, cf. United States v. Lopesierra-Gutierrez,
`708 F.3d 193, 207–08 (D.C. Cir. 2013) (reviewing for plain
`error), its use can be problematic after the jury formally
`announces a “deadlock,” because the instruction reminds jurors
`to “[k]eep an open mind” while saying nothing about
`maintaining honest convictions. Under the circumstances of
`
`
`
`

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`18
`
`this case, where jurors had deliberated for sixteen hours,
`received prior sets of instructions including the Thomas
`instruction, and continued to report themselves deadlocked, the
`jury should at least have been reminded of the need to maintain
`honest convictions to “insure against even the suggestion of
`juror coercion,” Lloyd, 515 F.3d at 1305—particularly when,
`in the third instruction, jurors were told three separate times to
`“keep an open mind.” In other words, the potential for coercion
`was heightened by the timing of this final instruction. Notably,
`both the Government and Driscoll asked the District Court to
`take a partial verdict rather than issue this last instruction, and
`the Government expressed
`reservations about giving
`Instruction 2.601(I) to the jury at this stage. J.A. 418–19; see
`District Court Tr. Nov. 28, 2018, at 14 (“[I]t’s been our position
`all along that the Court can’t read additional anti-deadlock
`instructions.”).
`
`The Government now argues that this third instruction was
`permissible because “in essence” it reminded jurors to maintain
`their honest convictions. Gov. Br. 56. “We decline the
`government’s invitation to elevate form over function.”
`Yarborough, 400 F.3d at 21. The fact of the matter is that this
`third instruction omitted this critical element, and the
`instruction’s coercive effect is evident from the “fact that the
`jury returned a verdict shortly after.” See id. at 22 (noting that
`a shor