United States of America v. Philip Epps, A/k/a Phillip Epps

UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
No. 24-2542
UNITED STATES OF AMERICA,
Appellant
V.
PHILIP EPPS,
A/K/A PHILLIP EPPS
_____________________________
Appeal from the U.S. District Court, D. Del.
Chief Judge Colm F. Connolly, No. 1:23-cr-00030-001
Before: PORTER, FREEMAN, and CHUNG, Circuit Judges
Argued Oct. 22, 2025; Decided August 21, 2026
_____________________________
OPINION OF THE COURT
FREEMAN, Circuit Judge. When the jury in Phillip
Epps’ criminal trial reported a deadlock, the District Court
gave a supplemental instruction that included the following
language: “I understand you . . .are unable to come to a
unanimous decision, but you have to.” App. 463–64. That

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language was incorrect. But Epps did not lodge an objection,
and the jury later returned a guilty verdict.
Two weeks after the verdict, Epps sought a new trial
because of the flaw in the supplemental instruction. The
District Court granted a new trial, and the government now
appeals. For the reasons that follow, we will REVERSE the
District Court’s order granting Epps a new trial and REMAND
for further proceedings.
I.
In February 2023, police in New Castle, Delaware,
arrested a woman who was selling drugs from a motel room.
A search of her motel room and her person yielded heroin and
fentanyl in packets bearing “Papa Smurf” and “Skull Crusher”
stamps.
That same day, the woman agreed to become a
confidential informant (“CI”) for the police. She told police
that her drug supplier drove a white SUV and would be
delivering more drugs to her at to the motel that evening. She
gave police the phone number the supplier used to
communicate with her (the “Supplier Phone Number”), and
police monitored the CI’s calls as she spoke with a male who
used the Supplier Phone Number and arranged for a delivery
of cocaine, heroin, and fentanyl.
That evening, the male using the Supplier Phone
Number made regular calls to the CI. As police surveillance
units waited near the motel, officers listened to the male give
the CI updated arrival times as read from his GPS. When the
male said he was two minutes away, the surveillance units went

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on high alert. The officers saw a white SUV pull into the
motel’s parking lot at the arrival time the male had predicted.
The CI called the Supplier Phone Number, and the male who
answered said, “I’m here. I will be right in.” App. 109. Police
then approached the white SUV and arrested its only occupant:
Epps.
During the arrest, police seized two iPhones from Epps’
person. One of the iPhones (the “Supplier Phone”) was
associated with the Supplier Phone Number.
Police placed Epps in the back of a police car while they
searched the white SUV. During the search, the police car’s
video camera recorded Epps making the following statements:
Fuck man. I’m going to jail. I’m
in jail. I got locked up, man, that’s
my karma, man. . . .
Oh, my gosh you don’t got the
fucking key [unintelligible] to get
in there. . . .
I’m fucked. They set me up. Got
me out here in Delaware man.
They know where it’s at. They
know it’s right there. They know
it’s there. Fuck. They know it’s
there.
I got to make bail. [Unintelligible]
thirsty [unintelligible] doing crazy

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shit that I ain’t supposed to be
doing.
App. 528–29.
The search recovered Epps’ Pennsylvania identification
card, the lease for his apartment in Pennsylvania, and
registration and insurance cards in Epps’ name for the white
SUV. Police also spotted a “trap”—a locked aftermarket
compartment—in the SUV. After towing the SUV to the
police station, police opened the trap and found two firearms,
ammunition, about $15,000 in cash, a digital scale, assorted
drug paraphernalia, and drugs in a variety of packages. The
smaller packages of drugs bore “Papa Smurf” and “Skull
Crusher” stamps. Testing later revealed that the drugs marked
“Papa Smurf” contained fentanyl and other substances, while
the drugs marked “Skull Crusher” contained fentanyl, cocaine,
methamphetamine, heroin, and other substances.
II.
A grand jury returned an indictment charging Epps with
three counts: (1) possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); (2)
possession of a firearm by a person prohibited, in violation of
18 U.S.C. §§ 922(g)(1) & 924(a)(8); and (3) possession of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A)(i). Epps proceeded to a jury trial
on Count 1 and on the possession and interstate-commerce
elements of Counts 2 and 3.

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After the jury was selected, the District Court gave
preliminary instructions and stated the following about
unanimity:
[Y]our verdict will have to be
unanimous. All of you will have to
agree on it or there will be no
verdict.
In the jury room when you
deliberate, you’ll discuss the case
among yourselves, but, ultimately,
each of you is going to have to
make up your own mind. And this
is a responsibility that you cannot
avoid, and you should do your
best, all right?
App. 25–26. It also instructed the jury that it must decide the
facts based on the evidence presented and apply the law given
by the court to those facts.
Over the course of one full day and into the next
morning, the government presented the evidence summarized
above, plus testimony about the iPhones found on Epps’
person. A forensic analysis showed that the Supplier Phone
was used to exchange the calls that the police monitored
between the CI and her supplier. The Supplier Phone also
contained WhatsApp conversations with third parties about
purchasing large quantities of drug additives—the same
additives that were used in the bags of drugs labeled “Papa
Smurf” and “Skull Crusher.”

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Additionally, the Supplier Phone included a lengthy
WhatsApp conversation with a contact named “Bags.” That
conversation showed that someone using the Supplier Phone
sent Bags the image of a Papa Smurf logo and asked Bags to
print that logo on white bags and ship them to an address in
Pennsylvania. The user wrote, “Also, friend, can we agree that
no one else will be able to use my logo, please?” App. 288. A
government witness testified that stamps on drug packaging
serve as branding that connects the drugs with the trafficker.
Finally, the user of the Supplier Phone sent selfies that
appeared to be photographs of Epps.
Epps presented no evidence in his defense.
During closing arguments, defense counsel argued that
the government had not met its burden of proof. Defense
counsel pointed out that the CI never identified or provided a
description of Epps as her supplier. He also argued that no
physical evidence connected Epps to the guns, drugs, and
money found in the SUV.
When the District Court delivered its final instructions,
it said the following about unanimity: “Whatever your verdict
is, it will have to be unanimous. All of you have to agree on it,
or there will be no verdict.” App. 429. It also instructed that
each juror “will have to make up his or her own mind.” App.
429–30. And it told the jury:
[I]t’s your vote, your individual
vote, and don’t ever change your
mind just because other jurors see
things differently or just to get the

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case over with. It’s important for
you to reach a unanimous
agreement, but only if you can do
so honestly and in good
conscience.
App. 453. It provided printed copies of its final instructions to
the jury.
That afternoon, after just under three hours of
deliberations, the jury informed the District Court that it was
deadlocked. The District Court proposed the following course
of action to the parties: “[W]e bring them in, tell them they are
going to have [to] deliberate. It’s their job. They have to apply
the law to the facts; they’ve taken an oath.” App. 462. Counsel
for both sides agreed with that proposal. Counsel for the
government then noted that Third Circuit Suggested Standard
Criminal Jury Instruction 9.05 is “the instruction [the District
Court] just described” and offered to obtain a copy of that
instruction. The District Court responded that it would read
that instruction if someone provided a copy, but defense
counsel said the District Court’s proposed language was a more
succinct version of the suggested instruction. The District
Court proceeded without the suggested standard instruction.
When the jury returned to the courtroom, the District
Court gave the supplemental instruction that is the subject of
this appeal. Because the language of that instruction is so
important to our decision, we quote it here in full:
All right. I understand you have
a note, and the note is you are

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unable to come to a unanimous
decision, but you have to.
So you know, you all took an oath,
and this has only been a few hours.
We’ve had juries deliberate in this
building for days. We just a [sic]
had a jury deliberate for three days
in a patent case.
This is a criminal case, so I need
you to all go back and do your best,
follow the instructions I gave you.
Focus on the evidence. This is a
court of justice, and you are not to
focus on anything but evidence.
You are supposed to apply your
common sense and your reason,
looking at the evidence and
applying the law as I give you.
Remember, you took an oath. You
may not like the laws that are at
play, but you took an oath. We are
a country that’s guided by law, and
you have to do your best.
You know, we live in a world, and
it’s certainly never been more
divisive at any time in my lifetime,
the country. I take great heart in I
get to see jurors work together,
listen to each other and then do

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their duty, and I’m always
heartened by that. I see it time and
time again. It makes me feel good
about the country because I know
the job can get done.
So you’ve got the time. Be
respectful to each other, listen to
each other, and apply the law to the
facts, the evidence.
Remember, you are not to be
motivated by biases or sympathy
or prejudice of [sic] any kind of
preconceived notions. You are
just to apply the law to the facts.
All right. So we’re here all
afternoon. If we have to, we can
come back, and so those are the
instructions, okay.
Okay. Thank you.
App. 463–65 (emphasis added).
When the jury left the courtroom to resume its
deliberations, counsel for both parties confirmed that they were
“okay” with the supplemental instruction. App. 465.
An hour and a half later, the jury returned a verdict. It
found Epps guilty of Count 1. As to Counts 2 and 3, it found
that Epps possessed one or both of the firearms listed in the

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indictment and that his possession affected interstate
commerce.
Two weeks after the District Court entered the verdict,
Epps filed a motion for a new trial pursuant to Federal Rule of
Criminal Procedure 33. He argued that the District Court’s
supplemental instruction—which he asserted “basically
instructed the jury to continue deliberating until they reached a
verdict”—was unduly coercive. App. 486.
During oral argument on the motion, the District Court
acknowledged its mistake in saying “you have to” reach a
unanimous verdict rather than saying “you have to try” to do
so. App. 507 (emphasis added). The District Court considered
that mistake alongside its prior instructions and the
supplemental instruction as a whole, and it concluded that its
mistake did not force the jury to return a verdict. It denied the
Rule 33 motion on that basis. It then held a bench trial on the
remaining elements of Counts 2 and 3, and it found Epps guilty
of both counts.
Several weeks later, the District Court sua sponte
reconsidered its order on the Rule 33 motion. It explained that,
upon further review of the relevant authority, “the interest of
justice requires a new trial.” App. 3. It therefore vacated its
prior order and granted Epps’ Rule 33 motion. The
government timely appealed.

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III.1
A jury is not required to reach a verdict. When the
District Court said otherwise in its supplemental jury
instruction, that was an incorrect statement of law. But we
review jury instructions “not in artificial isolation, but in the
context of the overall charge.” United States v. Brennan, 326
F.3d 176, 192 (3d Cir. 2003) (citation modified). And, despite
the District Court’s incorrect statement, the overall jury charge
instructed the jury to focus on the evidence and to reach a
verdict based only on the law and the facts. The full
supplemental instruction reminded the jury of that obligation.
So, when we consider the incorrect statement in context, we
are satisfied that it does not support the grant of a new trial
because the jury charge was not unduly coercive. See United
States v. Jackson, 443 F.3d 293, 297–98 (3d Cir. 2006)
(assessing undue coercion by asking whether a charge caused
a jury to reach a verdict for reasons other than the evidence in
the record).
A.
Before turning to the substance of the supplemental
instruction, we dispose of a threshold question: whether Epps
invited any error in the supplemental instruction. He did not.
“Under the invited error doctrine, a defendant cannot
complain on appeal of alleged errors invited or induced by
himself.” United States v. Maury, 695 F.3d 227, 256 (3d Cir.
2012) (citation modified). For instance, when a defendant
1 The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 18 U.S.C. § 3731.

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requests “certain [jury] instructions, he waives the right to
complain of error in such instructions on appeal.” United
States v. Andrews, 681 F.3d 509, 517 n.4 (3d Cir. 2012).2 But
the invited error doctrine only bars appellate review of a jury
instruction where a party “specifically assented to the jury
instruction at issue, an instruction that had been the subject of
litigation.” United States v. Henderson, 64 F.4th 111, 116 (3d
Cir. 2023). It does not apply when a party “simply acquiesced”
to “an error that was never in dispute.” Id. at 117.
Acquiescence to an error constitutes a forfeiture, not a waiver.
Id.; see also id. at 116 (“Waiver is the intentional
relinquishment or abandonment of a known right, while
forfeiture is the failure to make the timely assertion of a right.”
(citation modified)). That forfeiture triggers plain error
review, but it does not preclude review altogether. Id. at 117.
The government argues that Epps invited error when it
“urged the District Court to ad lib its own deadlock instruction”
rather than waiting for the prosecutor to provide a copy of the
model jury instruction to the District Court. Opening Br. 22.
The government insists that this constitutes a waiver that
precluded the District Court from reaching the merits of Epps’
Rule 33 motion.
2 Similarly, if a defendant objects to a certain instruction, he
cannot later complain that the trial court erred by failing to give
it. See United States v. Stewart, 185 F.3d 112, 126–27 (3d Cir.
1999).

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The government’s invited error theory is incompatible
with the record.3 Epps did not ask the District Court to make
an incorrect statement. The District Court proposed a deadlock
instruction that was appropriate, and Epps agreed. Epps did
not need to insist that the District Court read a model jury
instruction to avoid any potential misstatement. The District
Court’s subsequent misstatement was not foreseeable.
Moreover, our model jury instructions are suggestions, not
requirements. See United States v. Savage, 970 F.3d 217, 285
n.76 (3d Cir. 2020) (“Our Model Jury Instructions are not
binding on District Courts, . . . and a variance from the model
instruction does not necessarily constitute error.”).
Insofar as the government argues that Epps invited an
error after the District Court gave the supplemental instruction,
it again misses the mark. A party does not “invite, or provoke,
or cause” something after it occurs. See Henderson, 64 F.4th
at 117 (citation modified). So when Epps’ counsel said he was
“okay” with the instruction, App. 465, he “simply acquiesced”
to a supplemental instruction that “was never in dispute,”
Henderson, 64 F.4th at 117. That was a forfeiture, not an
invited error. Id.
B.
We normally review an order granting a Rule 33 motion
for abuse of discretion. United States v. Quiles, 618 F.3d 383,
390 (3d Cir. 2010). But a district court “abuses its discretion
when it makes an error of law,” so our abuse-of-discretion
3 Because there was no invited error here, we do not address
the government’s argument that the invited error doctrine
should apply to post-trial motions in addition to appeals.

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standard “includes review to determine that the discretion was
not guided by erroneous legal conclusions.” United States v.
Kelly, 539 F.3d 172, 181 (3d Cir. 2008) (citation modified).
And our review of a Rule 33 order is de novo “[t]o the extent
that we are reviewing a legal rather than discretionary decision
of the District Court.” Quiles, 618 F.3d at 390.
In addition to the above, two other remedial standards
are relevant to this appeal. One is plain error—the standard we
apply when we review a jury instruction that was not subject
to a timely objection in the district court. Brennan, 326 F.3d
at 192. That standard is prescribed by Federal Rule of Criminal
Procedure 30(d), under which a party who opposes a jury
instruction must object “before the jury retires to deliberate,”
and the failure to do so “precludes appellate review, except as
permitted under Rule 52(b).” Fed. R. Crim. P. 30(d). In turn,
Rule 52(b) states that “[a] plain error that affects substantial
rights may be considered even though it was not brought to the
court’s attention.” Fed. Crim. P. 52(b).4
4 Under the plain error standard, an appellant must show “(1) a
legal error (2) that is plain and (3) that has affected his
substantial rights.” United States v. Dorsey, 105 F.4th 526, 528
(3d Cir. 2024) (citing United States v. Olano, 507 U.S. 725,
732–33 (1993)); see also id. (stating that an error affects
substantial rights if it is prejudicial—i.e., if it “affected the
outcome of the district court proceedings”) (quoting Olano,
507 U.S. at 734). If the appellant satisfies those three
requirements, we have discretion to correct the error if “(4) it
seriously affects the fairness, integrity, or reputation of judicial
proceedings.” Id. (citing Olano, 507 U.S. at 732).

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According to the government, the District Court was
required to apply plain error review when reviewing Epps’
Rule 33 motion, and the District Court’s failure to do so
amounted to an abuse of discretion.5 Opening Br. 23. But that
is not required by Rule 30(d), or at least not directly. By its
terms, Rule 30(d) addresses the standard for “appellate review”
of a jury instruction that was not subject to a timely objection.
Fed. R. Crim. P. 30(d). The Rule says nothing about the
standard a district court must apply to a belated claim of
instructional error, and we need not address that to decide this
case.6
That brings us to the last remedial standard relevant
here: Rule 33’s interest-of-justice standard. Rule 33 permits a
criminal defendant to file a post-verdict motion for a new trial,
either based on newly discovered evidence or for “any other
reason.” Fed. R. Crim. P. 33(b). No matter the basis for a
defendant’s new-trial motion, Rule 33 permits a district court
5 Both parties invoked the plain error standard in the District
Court when Epps sought Rule 33 relief. Epps contends that the
District Court implicitly applied plain error review despite not
mentioning that standard in its decision.
6 Moreover, this is not an appeal of an instructional error. The
appellant here (the government) seeks review of a Rule 33
order. In doing so, it argues that there was no instructional
error. Opening Br. 23–31 (arguing that the supplemental
instruction was not unduly coercive, and thus not erroneous,
when viewed in full and in light of the jury instructions as a
whole).

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to “vacate any judgment and grant a new trial if the interest of
justice so requires.” Fed. R. Crim. P. 33(a).
So how do we reconcile these standards in this case?
Following our precedent, we review the District Court’s
Rule 33 order for abuse of discretion and apply de novo review
to the underlying legal conclusions. Quiles, 618 F.3d at 390.
This means we apply de novo review to the legal basis for the
Rule 33 order: the purported undue coercion of the unanimity
instruction. See Jackson, 443 F.3d at 297–98 (reviewing undue
coercion as a question of law). Doing so reveals no undue
coercion when we view the supplemental instruction in full and
in the context of the complete jury charge. See infra Section
III.C.
When the District Court reviewed Epps’ Rule 33
motion, it was correct to apply the interest-of-justice standard
contained within Rule 33. And we need not decide whether the
District Court should have incorporated plain error review into
its interest-of-justice analysis. It suffices to say that the District
Court abused its discretion when it granted a new trial based
on a supplemental instruction that included incorrect language
but was not unduly coercive. See Kelly, 539 F.3d at 181.7
Because the new trial order was based on an incorrect
application of law, it was not in the interest of justice.
7 The outcome of this appeal would be the same even if the
District Court was required to apply plain error review.

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C.
In criminal cases, where any jury verdict must be
unanimous, “[t]here will always be three possible decisions of
the jury: (1) not guilty of any charge; (2) guilty of one or more
counts of the indictment; and (3) no verdict because of a lack
of unanimity.” United States v. Fioravanti, 412 F.2d 407, 416
(3d Cir. 1969). And we have long recognized that “[t]he
possibility of a hung jury is as much a part of our jury
unanimity schema as are verdicts of guilty or not guilty.” Id.
So when the District Court instructed Epps’ jury that it “ha[d]
to” reach a unanimous verdict, that was an incorrect statement
of law. See id. (“[I]t is a cardinal principle of the law that a
trial judge may not . . . demand[] that [a jury] return a
verdict.”); Jenkins v. United States, 380 U.S. 445, 446 (1965)
(granting a new trial, upon review of the full context and
circumstances, after a district court told a deadlocked jury,
“You have got to reach a decision in this case.”).
But a flawed unanimity instruction only prejudices the
jury if the instruction was “unduly coercive.” Jackson, 443
F.3d at 297. To assess undue coercion, we review the
challenged instruction “in its context and under all the
circumstances.” Jenkins, 380 U.S. at 446. And when the
problem was in a supplemental instruction, “we review the
supplemental instruction . . . not in artificial isolation, but in
the context of the overall charge.” Jackson, 443 F.3d at 297
(citation modified). We deem a supplemental instruction
unduly coercive only if it “caused the jury to be influenced by
concerns irrelevant to their task and reach[] its subsequent
verdict for reasons other than the evidence presented to it.” Id.
(citation modified).

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Here, the supplemental instruction was not unduly
coercive. The record shows that the District Court was not
trying “to blast a hung jury into verdict” when it gave the
supplemental instruction. Id. (citation modified). Instead, the
District Court made a misstatement after repeatedly giving the
jury correct instructions about unanimity.
In its preliminary instructions on the first day of trial,
the District Court told the jury that there would be no verdict
absent unanimous agreement. That implicitly acknowledged
the possibility that the jury would return “no verdict because
of a lack of unanimity.” Fioravanti, 412 F.2d at 416. And on
the second (and last) day of trial, the District Court’s final
charge again included a correct statement about unanimity:
“Whatever your verdict is, it will have to be unanimous.” App.
429.
In both its preliminary and final instructions, the District
Court said each juror would need to make up his or her own
mind. In the final charge, the District Court said, “[I]t’s your
vote, your individual vote, and don’t ever change your mind
just because other jurors see things differently or just to get the
case over with. It’s important for you to reach a unanimous
agreement, but only if you can do so honestly and in good
conscience.” App. 453. The District Court also repeatedly told
the jury that it must make its decision based solely on the
evidence presented during trial.
A few hours after giving the final jury charge, the
District Court made its incorrect statement about unanimity.
But it did not make that statement in isolation. The
supplemental instruction also repeated correct messaging,
reminding the jury: “[Y]ou’ve got the time. Be respectful to

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each other, listen to each other, and apply the law to the facts,
the evidence. Remember, you are not to be motivated by biases
or sympathy or prejudice o[r] any kind of preconceived
notions. You are just to apply the law to the facts.” App. 464–
65. So, unlike cases in which we discerned undue coercion,
the District Court’s supplemental instruction never introduced
improper considerations into the jury’s deliberations. See, e.g.,
United States v. E. Med. Billing, Inc., 230 F.3d 600, 615 (3d
Cir. 2000) (addressing supplemental instruction that “drew the
jurors’ attention to issues irrelevant to their task,” including
“that continued deadlock would unnecessarily burden the
Court and the parties”); United States v. Burley, 460 F.2d 998,
999 (3d Cir. 1972) (finding prejudice to a party where the
court’s supplemental instruction communicated that a
dissenting juror “should consider the expense of a new trial to
the government and [the] imposition upon the time of many
people as a significant factor that could and should persuade
her to change her vote.”).
Nor did the supplemental instruction encourage any
jurors to change their votes or otherwise disparage the views
of any jurors. See Fioravanti, 412 F.2d at 415–20 (discussing
“the very real treachery of the Allen Charge”—a charge that
“direct[s] a juror to distrust his own judgment if he finds a large
majority of the jurors taking a view different from his”); E.
Med. Billing, Inc., 230 F.3d at 613 (granting a new trial where
an instruction “portrayed the minority jurors as holding less
intelligent or reasonable views than the majority jurors” and
“indicated to the jurors that the views held by the minority
merited reexamination”).
Considering all this, the supplemental instruction,
reviewed in full and in context, “did not so prejudice the jury’s

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deliberations such that the jury reached [its] verdict upon
considerations of matters other than the evidence in the
record.” Jackson, 443 F.3d at 298. So it was not unduly
coercive. Id. at 297.
We note, however, that even in cases where we deem a
jury instruction unduly coercive (and where the defendant
made a timely objection), that does not end our inquiry on
appeal. Before we grant a new trial, we must be convinced that
a coercive jury instruction had a prejudicial effect on the
verdict in that particular case. See E. Med. Billing, 230 F.3d at
614. So we review the entire record, including the “coercive
content of the instruction,” the strength of the evidence, the
timing of the challenged instruction, and the subsequent and
total length of the jury’s deliberations. See id. (reviewing these
considerations where the trial court gave a coercive Allen
charge).
Because a prejudice review is required in those
circumstances, it follows that a district court must conduct a
prejudice review before it grants Rule 33 motion based on a
flawed unanimity instruction. After all, justice is not served if
a non-prejudicial error disturbs a jury’s verdict. See Fed. R.
Crim. P. 33(a).
A review of the entire record reinforces that the District
Court’s incorrect statement does not warrant a new trial.
Critically, the supplemental instruction had minimal
coercive content. For the reasons discussed above, any
coercion created by the incorrect statement “was mitigated by
the[] accompanying strong warnings and reminders,” plus
those in the full jury charge. Jackson, 443 F.3d at 298.

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Moreover, the evidence of Epps’ guilt was
overwhelming. Cf. E. Med. Billing, 230 F.3d at 614 (observing
that the government’s evidence at trial was “not
overwhelming”); Gov’t of Virgin Islands v. Hernandez, 476
F.2d 791, 793 & n.2 (3d Cir. 1973) (same). During trial, the
defense was unable to meaningfully impeach the government’s
evidence that Epps was the CI’s drug supplier, that Epps
possessed the drugs and firearms locked in the trap of his white
SUV, and that he came to the CI’s motel to deliver drugs
packaged in his signature “Papa Smurf” and “Skull Crusher”
bags—just like the drugs the CI sold from her motel room
earlier that day.
Although some factors suggest the possibility of
prejudice,8 they carry little weight given the full circumstances
of this case—in particular, the minimal coercive content of the
challenged instruction and the overwhelming evidence of
Epps’ guilt.
We commend the District Court for its careful attention
to the incorrect statement in its supplemental instruction. But
because the jury charge was not unduly coercive and did not
prejudice Epps, we will reverse the District Court’s order
granting a new trial.
8 For instance, the District Court made its incorrect statement
in response to a deadlock note rather than in the main jury
charge, the jury deliberated for nearly three hours before
sending the note, and its subsequent deliberations were
relatively short. See E. Med. Billing, 230 F.3d at 614–15; cf.
Lowenfield v. Phelps, 484 U.S. 231, 240–41 (1988).

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22
* * *
For the above reasons, we will REVERSE the District
Court’s order and REMAND for further proceedings.
Counsel for Appellant
Carly A. Hudson
Jesse S. Wenger [Argued]
OFFICE OF THE U NITED STATES A TTORNEY
Counsel for Appellee
Robert M. Gamburg [Argued]
GAMBURG & BENEDETTO LLC

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