D.C. Circuit Reverses Trial Court Because the Allen Charge, in Context, Was Coercive, But Affirms on Brady Issue (1/6/21)

In United States v. Driscoll, ___ F.3d ___ (D.C. Cir.
1/5/21), here, Driscoll “was convicted of two counts of  wire fraud, one count of first-degree fraud,
and two counts of tax evasion.”  Driscoll
appealed.  The Court of Appeals dealt
with two issue that I summarize here:

First, the Court dealt with a Brady claim that the
Government had not disclosed potentially helpful information to the
defense.  The background was that an ESPN
article disclosed (i) irregularities involving Driscoll with a charitable
organization with which she was affiliated and (ii) that a whistleblower had
disclosed information to the FBI and planned to disclose via whistleblower
complaint to the IRS.  The following
month, there was an unrelated hearing in a child custody proceeding between
Driscoll and her ex-husband.  An IRS Special
Agent (a CI agent) attended to observe the public proceeding.  Driscoll asked the agent who he was, and the
agent responded that he was a member of the public.  While attending, the Special Agent heard the
testimony of a cousin of the ex-husband. 
That cousin happened to be the IRS whistleblower.  The Special Agent took detailed notes and
prepared detailed memoranda for all except the last day (the fifth day). On
that last day, at the request of Driscoll’s ex-husband, the Special Agent went
to lunch with the ex-husband, the ex-husband’s new wife, and the ex-husband’s
custody lawyer.

After indictment, Driscoll’s defense lawyer requested inter
alia discovery of a “parallel proceeding” issue – whether the government (presumably
the IRS) had used the civil audit process to gather information for a criminal
case.  The Court cited United States v.
, 397 U.S. 1, 13 (1970) (“Government may not use evidence against a
defendant in a criminal case which has been coerced from him under penalty of
either giving the evidence or suffering a forfeiture of his property.”).  There seems to be two different claims
embedded in the prior to sentences, but I am not sure the Court articulated it
that way.  Apparently, the claim was
related to the Special Agent’s activities described above did not involve an
IRS civil audit or any coercion except what might be implicit in the Special
Agent not identifying himself truthfully when Driscoll asked who he was.  Most importantly, the prosecutors did not
disclose the Special Agent’s role or information within the time normally required
for Brady disclosures (during the pretrial discovery processes).

The district court held that there was no improper parallel
proceeding or coercion (via luring) and no prejudicial Brady issues, thus
denying motions for mistrial and dismissal of the indictment.  The Court of Appeals affirmed.  The Court summarily dismissed (Slip Op. 9-10)
a Fifth Amendment claim that the Special Agent’s attendance at the custody
hearing violated her Fifth Amendment right because the claim was not properly
developed.  (As best I infer the claim apparently
was that, had the Special Agent properly identified himself, Driscoll may not
have testified by invoking her Fifth Amendment so that the improper
identification lured or coerced her into not exercising her Fifth Amendment
privilege in the custody hearing.)  Then,
turning to the Brady argument (Slip Op. 10-12), the Court also affirmed the
district court’s action because Driscoll had not demonstrated prejudice.  The Special Agent’s actions were disclosed,
albeit not as early as they should have been, but Driscoll’s defense counsel
had adequate opportunity at trial to explore and develop any problems with the
Special Agent’s actions.

Second, the Court of Appeals vacated
and remanded for retrial because the so—called deadlock instructions to the
jury were, in combination, coercive to the jury.
  The deadlock instruction involved was based
on United States v. Thomas, 449 F.2d 1177, 1184 nn.45–46 (D.C. Cir. 1971) (en
banc) which stated the D.C. Circuit’s version of the instruction generally
referred to as the Allen instruction or charge.
The Allen charge is based on Allen v. United States, 164 U.S. 492 (1896)
and is the common term used to describe special jury instructions when a jury
appears to be deadlocked, sometimes referred to as a hung jury.
  Basically, it
is used to encourage the jury to reach the unanimous verdict if it can do
  The problem with the charge is that,
in some contexts, it might be viewed as requiring the jury to reach a unanimous
  It is a balancing act to
encourage the jury without coercing the jury.
In this case, the Court of Appeals held that, in the context in which
the multiple Thomas / Allen charges were given, the charges were coercive.
  The Court of Appeals remanded for new trial.

One interesting aspect of this
issue is that after the second Allen charge, the jury notified the judge that unanimous
agreement had been reached on 3 counts but was deadlocked on the other 2
counts.  The judge then gave another Thomas
/ Allen nudging and the jury returned a verdict for conviction on all counts.

JAT Comments:

I picked the case up from the following article:  Spencer Hsu, U.S. appeals court grants new
trial to former Armed Forces Foundation president in fraud case
(WAPO 1/5/21),
here.  The article gives some background
as follows:

Prosecutors charged that Driscoll reported sham donors and
donations, failed to disclose fundraising commissions she received in addition
to her salary and spent foundation money on personal expenses, including her
own business.

Driscoll resigned in July 2016 after 12 years at the
military charity after media reports alleging mishandling of funds. In a tax
filing, the foundation reported it had “become aware of suspected
misappropriations” by Driscoll totaling about $600,000 from 2006 to 2014.