United States v. McDonald, 759 F.3d 220

Defendant Robert E. McDonald was tried pro se with standby counsel and convicted on one count each of securities fraud, wire fraud, and mail fraud after a 10-day jury trial.
After roughly four hours of deliberation over two days, the jury returned guilty verdicts; a subsequent poll revealed juror 11 answered “no” to a guilty verdict, so the poll was stopped and juror 12 was not polled.
At sidebar the court told counsel it would send the jury back to continue deliberating; both sides agreed and the court instructed the jury to continue deliberations “in light of all of the instructions that I have given you.”
The court considered, but declined to give, a full model/modified Allen charge; the defendant (through standby counsel) expressly agreed the longer instruction was unnecessary.
After about an hour more deliberation the jury returned a unanimous guilty verdict; McDonald moved for a new trial arguing the short instruction was coercive, the district court denied the motion, and McDonald appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court’s brief instruction to "continue to deliberate" after a non‑unanimous poll was coercive	Court may send jury back; proper exercise of discretion	McDonald: brief instruction pressured dissenting juror; required a modified Allen charge with admonitions not to abandon sincere beliefs	Held: Not coercive; instruction appropriate in context and affirmed
Whether a modified Allen charge was required when a poll shows a lone dissenter	N/A (prosecution/support for court discretion)	McDonald: entitled to the longer modified Allen charge (exhortations + caveats)	Held: No; not required here because the court did not urge jurors to change views or pressure dissenters
Standard of review where defendant did not timely object to the supplemental instruction	N/A	McDonald: seeks reversal despite lack of timely objection	Held: Review governed by plain‑error standard; even under that test no error was shown

Allen v. United States, 164 U.S. 492 (establishing the classic “Allen” dynamite charge)
Spears v. Greiner, 459 F.3d 200 (2d Cir. 2006) (approving a brief supplemental instruction asking jurors to try to reach a verdict if possible)
United States v. Haynes, 729 F.3d 178 (2d Cir. 2013) (describing characteristics and risks of Allen‑type charges)
United States v. Vargas‑Cordon, 733 F.3d 366 (2d Cir. 2013) (assessing whether a supplemental charge coerces minority jurors)
Smalls v. Batista, 191 F.3d 272 (2d Cir. 1999) (explaining necessity of admonition not to surrender conscientiously held beliefs)
Lowenfield v. Phelps, 484 U.S. 231 (contextual review of jury instructions and coercion risk)