818 F.3d 299
7th Cir.2016Background
- John Smith was convicted by a jury of distributing heroin after four FBI‑organized buys; FBI agents testified about recorded calls, surveillance, searches, and lab results; Smith presented no evidence.
- After closing arguments the court gave the Silvern instruction (encouraging considered judgment and refusing to surrender honest beliefs for unanimity).
- During deliberations the jury sent four notes: requests for the verdict form, a definition clarification (answered by reference to existing instructions), a bullying complaint (court reread Silvern; defense approved), and a juror request to be excused for inability to decide.
- For the fourth note the court, after conferring with counsel, instructed: “Each of you must continue to deliberate.” Defense counsel approved the wording by saying “Perfect.”
- The jury returned guilty verdicts about 20 minutes later; Smith later moved for a new trial arguing the court’s response to the fourth note was coercive and failed to admonish jurors not to surrender convictions.
- The district court denied the motion as untimely and concluded Smith waived the challenge because defense counsel had approved the court’s response; the Seventh Circuit affirmed.
Issues
| Issue | Smith's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the court’s instruction to “continue to deliberate” after a juror asked to be excused was coercive | The response was coercive because it failed to tell jurors not to relinquish honest convictions and pressured a reluctant juror to conform | Waiver: defense counsel approved the language, so Smith cannot challenge it; also a bare admonition to continue is within discretion | Waived: Smith affirmatively approved the response; even without waiver, a bare instruction to continue does not require reversal |
Key Cases Cited
- United States v. Kirklin, 727 F.3d 711 (7th Cir. 2013) (affirmative approval of jury instruction waives challenge)
- United States v. DiSantis, 565 F.3d 354 (7th Cir. 2009) (defendant’s approval of jury instruction constitutes waiver)
- United States v. Ajayi, 808 F.3d 1113 (7th Cir. 2015) (treats affirmatively stated "no objection" as waiver)
- United States v. Degraffenried, 339 F.3d 576 (7th Cir. 2003) (court may simply tell jury to continue deliberating)
- United States v. Coffman, 94 F.3d 330 (7th Cir. 1996) (a bare instruction to keep deliberating does not warrant reversal)