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A federal appeals court has affirmed a trial judge’s decision to tell a jury to keep deliberating after a poll showed its verdict was not unanimous.

Robert McDonald was convicted of one count each of securities, wire and mail fraud in July 2011 before Southern District Judge John Koeltl (See Profile). Once the jury’s guilty verdicts were announced, Koeltl had jurors polled as to whether that was indeed their verdict.

The first 10 jurors confirmed the guilty verdict, but when the 11th jury said “no,” Koeltl called a sidebar where both parties agreed with his intention to send them back to resume deliberations. Koeltl relied on a model jury instruction to apply when a jury poll reflects a lack of unanimity. But on appeal, McDonald, now serving 70 months in prison, claimed the judge’s instruction was unduly coercive.

The judge, McDonald said, should have issued a “modified Allen charge” whereby the jury is told to continue deliberations, consult with one another and change their minds if convinced of a different verdict while refusing to surrender their sincerely held convictions.

But on Tuesday, Judge Jose Cabranes (See Profile), Robert Sack (See Profile) and Gerard Lynch (See Profile) of the U.S. Court of Appeals for the Second Circuit upheld the conviction, saying the instruction was not coercive in United States v. McDonald, 12-2056-cr.

“The instruction did not intimate to jurors that all twelve were required reach an agreement,” Sack wrote for the panel. “It asked only that the jury continue deliberations ‘to see whether’ a unanimous verdict were possible.”

McDonald, he said, “was not entitled, in this context, to a further charge counseling jurors to hold fast to their conscientiously held beliefs.”

Assistant U.S. Attorney Arlo Devlin-Brown argued for the government. Steven Brill of Sullivan & Brill argued for McDonald.