Plain-Error Barrier to Allen-Charge Challenges: Pattern Tenth Circuit Instruction Not “Plainly” Coercive Without Controlling Authority

1. Introduction

In United States v. Miller (10th Cir. May 28, 2026), the Tenth Circuit affirmed Cody Paul Miller’s conviction for Sexual Abuse of an Incapable Victim under 18 U.S.C. § 2242(2) after he argued that the district court’s supplemental Allen instruction to a divided jury was impermissibly coercive, violating the Fifth Amendment’s due process guarantee and the Sixth Amendment right to an impartial jury and unanimous verdict.

The pivotal issue was not whether the instruction was coercive in the abstract, but whether—given Miller’s failure to object at trial—the alleged error was plain under the second prong of plain-error review. Miller conceded he could not show the error was “clear or obvious” under current law, and the Tenth Circuit agreed. The court therefore affirmed without reaching a deeper merits determination on coercion.

The disposition is an “Order and Judgment” stated to be nonbinding precedent (except under law-of-the-case, res judicata, and collateral estoppel), though it may be cited for persuasive value.

2. Summary of the Opinion

After the jury reported it was “clear on one count” but “strong[ly] division[ed] on the other,” the district court—without objection—delivered almost verbatim Pattern Crim. Jury Instr. 10th Cir. 1.42 (2026), a modified Allen instruction encouraging further deliberations. The jury later returned a split verdict: guilty on § 2242(2), not guilty on § 2242(3).

On appeal, because Miller did not object to the instruction, the court applied plain-error review. Miller conceded he could not satisfy the second prong (plainness). The court accepted that concession and independently held that, in light of the absence of controlling precedent deeming the pattern language coercive—and existing Tenth Circuit approvals of similar language—any error was not “clear or obvious.” The conviction was affirmed.

3. Analysis

3.1 Precedents Cited

A. Standards for jury-deliberation management and Allen charges

  • United States v. Coulter, 57 F.4th 1168 (10th Cir. 2023): framed the general lens—district courts’ management of deliberations (including whether to deliver an Allen instruction) is reviewed for abuse of discretion, and an “improperly coercive” Allen instruction is prohibited. In Miller, Coulter served as the doctrinal gateway to the coercion inquiry, even though plain-error ultimately controlled.
  • United States v. McElhiney, 275 F.3d 928 (10th Cir. 2001): supplied core definitions and history—an Allen instruction encourages unanimity to avoid mistrial; coerciveness is assessed case-by-case. It also tied unanimity to Sixth Amendment principles via United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971).
  • Allen v. United States, 164 U.S. 492 (1896) and United States v. Arney, 248 F.3d 984 (10th Cir. 2001): anchored the instruction’s origin and modern usage (typically supplemental to deadlock).
  • United States v. Cornelius, 696 F.3d 1307 (10th Cir. 2012) (quoting United States v. LaVallee, 439 F.3d 670 (10th Cir. 2006)): provided the canonical four-factor framework to assess coercion:
    1. language of the instruction,
    2. whether presented with other instructions,
    3. timing,
    4. length of subsequent deliberations.
    Although the panel recited these factors, it did not meaningfully apply them because the appeal failed on plainness.

B. Plain-error framework and “plainness” (second prong)

  • United States v. Finnesy, 953 F.3d 675 (10th Cir. 2020) (quoting United States v. McGehee, 672 F.3d 860 (10th Cir. 2012)): set out the first three prongs of plain error (error; plain; affects substantial rights).
  • United States v. Rosales-Miranda, 755 F.3d 1253 (10th Cir. 2014) (quoting McGehee) and United States v. Caraway, 534 F.3d 1290 (10th Cir.2008): supplied the fourth prong (fairness/integrity/public reputation) and emphasized that all four prongs must be met. Rosales-Miranda also supported the panel’s bottom line: failure on any prong is “fatal.”
  • United States v. Koch, 978 F.3d 719 (10th Cir. 2020) (quoting United States v. Salas, 889 F.3d 681 (10th Cir. 2018)): defined “obvious” as contrary to “well-settled law.”
  • United States v. Berryhill, 140 F.4th 1287 (10th Cir. 2025): articulated the ordinary method for “plainness”—look for Supreme Court or Tenth Circuit decisions addressing the issue; error is clear/obvious if contrary to such authority.

C. Authority on the specific Allen language at issue (and why no “plainness” existed)

  • Gilbert v. Mullin, 302 F.3d 1166 (10th Cir. 2002): cited as an example where the Tenth Circuit rejected an Allen-charge challenge in language emphasizing case importance and urging further deliberations—supporting the panel’s view that similar exhortations are not clearly forbidden.
  • United States v. Rivera, 554 F. App'x 735 (10th Cir. 2014): an unpublished decision expressly validating “the Allen instruction found in the Tenth Circuit pattern jury instructions,” used persuasively to show the pattern instruction is at least within accepted bounds in this circuit. The panel’s accompanying caution on unpublished decisions drew from United States v. Ellis, 23 F.4th 1228 (10th Cir. 2022).
  • United States v. Spradley, 146 F.4th 949 (10th Cir. 2025): mentioned procedurally; it did not establish that the challenged pattern language is plainly erroneous, reinforcing the absence of controlling authority.

D. Concessions on questions of law

  • Leachco, Inc. v. Consumer Prod. Safety Comm'n, 103 F.4th 748 (10th Cir. 2024) and United States v. Cooper, 654 F.3d 1104 (10th Cir. 2011): supported the proposition that courts are not bound by parties’ legal concessions—yet the panel accepted Miller’s concession because it aligned with the law and the record.

3.2 Legal Reasoning

The court’s reasoning turned on issue preservation and the structure of plain-error review. Because Miller did not object when the district court proposed and then delivered the pattern modified Allen instruction, he forfeited ordinary appellate review of coercion and triggered the more demanding plain-error standard.

The decisive move was the court’s application of the second prong: even assuming arguendo that the instruction could be debated as coercive, an error is “plain” only if “clear or obvious under current law.” Relying on Berryhill and Koch, the panel asked: is there controlling authority from the Supreme Court or the Tenth Circuit that makes this pattern language clearly impermissible? The panel found the answer was no—indeed, existing circuit authority had approved similar language (Gilbert v. Mullin) and an unpublished panel had validated the pattern instruction itself (United States v. Rivera).

Thus, regardless of Miller’s policy argument (that mentioning retrial cost and effort could pressure jurors to reach a verdict), the court held the district court did not clearly or obviously err by giving the pattern instruction. With prong two unsatisfied, the appeal necessarily failed.

3.3 Impact

  • Practical effect on litigation strategy: The decision underscores that defendants who believe an Allen instruction is coercive must object contemporaneously. Without an objection, the appellant must show not only error, but error that is clearly foreclosed by existing, settled authority—an especially high bar where a court uses a circuit pattern instruction.
  • De facto insulation of pattern instructions under plain-error review: By emphasizing prior approvals of similar language and the absence of controlling contrary precedent, Miller signals that challenges to the Tenth Circuit’s Pattern Criminal Instruction 1.42 will be difficult to win on plain-error review, even if coercion arguments are colorable.
  • Limited doctrinal reach: Because the court resolved the case on “plainness,” it did not definitively decide whether the challenged language is coercive on preserved review. Future litigants who preserve objections may still litigate coercion under the Cornelius / LaVallee four-factor test.

4. Complex Concepts Simplified

  • Allen instruction (Allen charge): A supplemental instruction given when jurors appear deadlocked, encouraging them to continue deliberating and attempt unanimity—while (properly) reminding them not to surrender sincerely held convictions solely to reach a verdict.
  • “Coercive” Allen charge: An Allen instruction becomes unconstitutional or improper if it pressures jurors—particularly minority holdouts—into abandoning honest judgments (implicating due process and the right to a unanimous, impartial jury).
  • Plain-error review: The stricter appellate standard used when a party failed to object in the trial court. The appellant must prove: (1) error, (2) the error is plain (clear/obvious), (3) it affected substantial rights, and (4) it seriously undermines the fairness/integrity of the proceedings. Failure on any prong ends the claim.
  • “Plainness” (second prong): Usually requires that existing Supreme Court or circuit precedent already makes the error unmistakable. If the law is unsettled—or if circuit law has approved similar conduct—the error typically is not “plain.”
  • Pattern jury instructions: Model instructions published for use by trial courts. They are not statutes, but widespread acceptance of a pattern instruction often makes it harder to claim a trial judge’s use was clearly forbidden—especially on plain-error review.

5. Conclusion

United States v. Miller is primarily a preservation-and-standard-of-review decision: where a defendant fails to object to a modified Allen instruction that tracks Tenth Circuit Pattern Criminal Instruction 1.42, an appellate challenge will likely fail under plain-error review unless controlling precedent clearly deems the specific language coercive. The opinion reinforces that “plainness” demands well-settled, on-point authority—and that prior approvals of comparable Allen language can foreclose relief at prong two, making contemporaneous objections critical for meaningful appellate scrutiny.