c31:Nos. 80-1507 to 80-1509

MERRILL, Circuit Judge,
concurring:
I concur in Judge East’s opinion but would like to add a word respecting the Allen charge.
I find nothing coercive or otherwise objectionable in giving a properly balanced Allen charge before the jury retires to deliberate. It seems to me to be sound advice, given in the abstract, as to how the jurors should handle a problem they are quite likely to encounter in the course of their deliberations. Further, I see nothing coercive or improper in permitting the jurors to have such an “outset Allen charge” in the jury room during deliberations. In neither case is the judge addressing the jury in the context of a deadlock.
It is in that context that the danger of coercion can arise from the giving of the charge. The danger is that the jury might conclude from the language of the charge and the refusal of the judge to accept the jury’s report of deadlock that in the public interest a verdict must be reached. If, given in the context of deadlock, the charge sounds in terms of assistance — of advice as to how the jury might solve the problem it now faces — it is not per se coercive. If coercion exists it must be found not in the fact that the jury was directed to continue to deliberate, but in the language used in so directing it.
In United States v. Seawell, 550 F.2d 1159 (9th Cir. 1977), cert. denied, 439 U.S. 991, 99 S.Ct. 591, 58 L.Ed.2d 666 (1978), we held that when, without having been requested by the jury, the charge is given a second time in response to a second report of deadlock, it does not serve a purpose of assistance or instruction. Repeated at a time when it should still be ringing in the ears of the jurors from its first pronouncement it “becomes a lecture sounding in reproof,” id. at 1163 and is per se coercive. That is not the case before us.

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