Background
Police arrested Philip Epps after he arrived alone in a white SUV at a Delaware motel where a confidential informant had arranged a drug delivery. Officers recovered two iPhones from Epps, including the phone used to arrange the delivery. A locked compartment in the SUV contained firearms, ammunition, approximately $15,000, drug paraphernalia, and drugs packaged with the same “Papa Smurf” and “Skull Crusher” branding found on drugs seized from the informant.
After nearly three hours of deliberations, the jury reported that it was deadlocked. The District Court gave a supplemental instruction stating, “I understand you . . . are unable to come to a unanimous decision, but you have to.” Neither party objected, and the jury returned guilty findings approximately 90 minutes later. Epps moved for a new trial under Federal Rule of Criminal Procedure 33. The District Court initially denied the motion but later reconsidered sua sponte and granted a new trial in the interest of justice. The government appealed.
The Court’s Holding
The Third Circuit held that the District Court incorrectly told the jury that it had to reach a unanimous decision because a hung jury is a permissible outcome. Epps did not invite that error, however: his counsel merely acquiesced after the instruction was given, which constituted forfeiture rather than intentional waiver.
Reviewing the instruction in the context of the complete jury charge, the court held that the misstatement was not unduly coercive. The District Court had repeatedly told jurors to decide individually, to change no vote merely to end the case, and to reach agreement only honestly and in good conscience. The supplemental instruction also directed jurors to remain respectful and decide the case solely from the evidence and law, without encouraging minority jurors to yield or invoking the expense and burden of another trial.
The court further concluded that the error did not prejudice Epps. Any coercive effect was minimal, and the evidence of guilt was overwhelming. Because the new-trial order rested on an incorrect application of law, the Third Circuit reversed and remanded for further proceedings.
Key Takeaways
- A trial judge may not tell a deadlocked jury that it must reach a verdict, because lack of unanimity and no verdict remain permissible outcomes.
- A flawed supplemental instruction is assessed in full and in the context of the overall jury charge; incorrect language warrants relief only when it is unduly coercive and prejudicial.
- Counsel’s failure to object after an unanticipated instructional misstatement constitutes forfeiture, not invited error or waiver.
Why It Matters
The decision distinguishes an incorrect statement about unanimity from an instruction that actually coerces a verdict. Courts must examine the entire charge, the content and timing of the supplemental instruction, the length of deliberations, the strength of the evidence, and whether improper considerations affected the jury.
It also limits Rule 33 relief for instructional mistakes: a district court abuses its discretion by granting a new trial based on a legal error that, viewed in context, neither unduly coerced the jury nor prejudiced the defendant.