Rule 33 New Trials for Deadlock Instructions: Misstatement “You Have to” Requires Undue Coercion and Prejudice in Context

I. Introduction

United States v. Philip Epps (Third Circuit, Aug. 21, 2026) arose from a drug-and-firearms prosecution in the District of Delaware. After a confidential informant arranged a controlled delivery, police arrested Philip Epps at a motel in a white SUV and later found firearms, cash, drug paraphernalia, and stamped drug packages in a concealed “trap” compartment. A jury convicted him on a drug count and found certain elements of firearms counts; the district judge later found remaining elements at a bench trial.

The appellate dispute did not center on the sufficiency of evidence, but on a supplemental deadlock instruction given after the jury reported it was unable to reach unanimity. The instruction included: I understand you . . . are unable to come to a unanimous decision, but you have to. Epps did not object at the time. Two weeks after the verdict he moved for a new trial under Federal Rule of Criminal Procedure 33, arguing the instruction was coercive. The District Court initially denied relief, then later reconsidered sua sponte and granted a new trial “in the interest of justice.” The government appealed.

The Third Circuit’s key issues were: (1) whether Epps invited the instructional error (waiver) or merely failed to object (forfeiture); (2) the proper analytic framework for reviewing a Rule 33 new-trial order predicated on a flawed deadlock/unanimity instruction; and (3) whether the challenged language, in full context, was unduly coercive and prejudicial.

II. Summary of the Opinion

The Third Circuit reversed the order granting a new trial and remanded. It held that the statement “you have to” was a legally incorrect suggestion that a jury must reach a verdict, but the overall charge— including repeated correct unanimity instructions and admonitions not to surrender honest convictions—meant the supplemental instruction, viewed in context, was not unduly coercive.

The court further held that Epps did not invite the error: his agreement to proceed without the model instruction and his counsel’s post-instruction “okay” constituted, at most, forfeiture rather than waiver. Finally, the panel emphasized that even where an instruction is coercive, relief requires a case-specific prejudice assessment; correspondingly, a district court should not grant Rule 33 relief for a flawed unanimity instruction without reviewing prejudice in the full record.

III. Analysis

A. Precedents Cited

  • United States v. Brennan, 326 F.3d 176 (3d Cir. 2003): Supplied the foundational rule that jury instructions are evaluated “not in artificial isolation, but in the context of the overall charge.” The panel used this principle to dilute the effect of the isolated “you have to” phrase by situating it among repeated correct instructions.
  • United States v. Jackson, 443 F.3d 293 (3d Cir. 2006): Provided the Third Circuit’s operative test for coercive supplemental instructions: whether the charge caused the jury to reach a verdict for reasons other than the evidence, i.e., by irrelevant concerns. Jackson also reinforced the “whole-charge” review for supplemental instructions and supplied mitigation language analysis (warnings/reminders can counterbalance problematic phrasing). Jackson functions as the principal doctrinal vehicle for the court’s no-coercion conclusion.
  • United States v. Fioravanti, 412 F.2d 407 (3d Cir. 1969): Anchored two critical propositions: (1) the “three possible decisions” framework—guilty, not guilty, or no verdict due to lack of unanimity—and (2) the “cardinal principle” that a judge may not demand a verdict. Fioravanti also contains the Third Circuit’s extended warning about “the very real treachery of the Allen Charge,” which the panel used as a benchmark for what coercion looks like (pressure on minority jurors to distrust their judgment).
  • Jenkins v. United States, 380 U.S. 445 (1965): Demonstrated that telling jurors “You have got to reach a decision in this case” can warrant a new trial, but only after reviewing “the full context and circumstances.” The panel invoked Jenkins to acknowledge the seriousness of the misstatement while simultaneously emphasizing the context-driven inquiry that ultimately saved the instruction here.
  • United States v. E. Med. Billing, Inc., 230 F.3d 600 (3d Cir. 2000): Served as a contrast case where a supplemental instruction was coercive because it drew jurors toward irrelevant considerations (burdens on the court and parties) and portrayed minority jurors negatively. Importantly, E. Med. Billing supplied the court’s factors for prejudice review (instruction content, strength of evidence, timing, and length of deliberations), which the panel applied (and extended conceptually to Rule 33).
  • United States v. Burley, 460 F.2d 998 (3d Cir. 1972): Another contrast case—coercion found where the instruction suggested a holdout juror should consider the expense and imposition of a new trial. Used to show what “irrelevant concerns” are.
  • Lowenfield v. Phelps, 484 U.S. 231 (1988): Cited in discussing timing and deliberation length considerations in evaluating coercion/prejudice. It signals that not every post-deadlock nudge is unconstitutional; context remains decisive.
  • Gov't of Virgin Islands v. Hernandez, 476 F.2d 791 (3d Cir. 1973): Used, with E. Med. Billing, to contrast cases where the government’s proof was not overwhelming—highlighting that strength of evidence affects prejudice analysis.
  • United States v. Maury, 695 F.3d 227 (3d Cir. 2012) and United States v. Andrews, 681 F.3d 509 (3d Cir. 2012): Offered classic formulations of invited error/waiver in the jury-instruction setting (requesting an instruction can waive later complaint). The panel used these as the starting point before narrowing invited error via Henderson.
  • United States v. Henderson, 64 F.4th 111 (3d Cir. 2023): Central to rejecting the government’s invited-error argument. Henderson distinguishes specific assent after litigation (waiver) from simple acquiescence to an error never in dispute (forfeiture). The panel treated defense counsel’s “okay” as forfeiture, preserving review.
  • United States v. Stewart, 185 F.3d 112 (3d Cir. 1999): Cited for the complementary proposition that a party who objects to an instruction cannot later complain about the failure to give it—illustrating symmetry in instruction-error doctrine.
  • United States v. Savage, 970 F.3d 217 (3d Cir. 2020): Confirmed that Third Circuit Model Jury Instructions are not binding; variance from the model is not necessarily error. This undercut the claim that defense counsel “invited” error by preferring the court’s ad hoc version over the model.
  • United States v. Quiles, 618 F.3d 383 (3d Cir. 2010) and United States v. Kelly, 539 F.3d 172 (3d Cir. 2008): Established the standard of review for Rule 33 orders (abuse of discretion), while clarifying that legal errors are reviewed de novo and constitute an abuse of discretion. These cases enabled the panel to recharacterize the district court’s grant of a new trial as resting on an erroneous legal conclusion about coercion.
  • United States v. Dorsey, 105 F.4th 526 (3d Cir. 2024) and United States v. Olano, 507 U.S. 725 (1993): Cited for the elements of plain-error review under Rule 52(b). Although the panel ultimately declined to decide whether plain-error review must be folded into Rule 33’s “interest of justice” inquiry, these authorities framed the parties’ dispute and reinforced that not every unobjected-to mistake warrants relief.

B. Legal Reasoning

1. No invited error: acquiescence is forfeiture, not waiver

The government’s threshold strategy was to prevent merits review by characterizing the defense’s conduct as invited error. The panel rejected this by applying United States v. Henderson: invited error requires specific assent to an instruction that was “the subject of litigation.” Here, the district court proposed an appropriate course (“deliberate; it’s their job”), both sides agreed, and the later misstatement (“but you have to”) was not foreseeable. Defense counsel’s post hoc “okay” could not “invite” something after it occurred; it amounted to forfeiture at most.

2. How Rule 33 review interacts with instruction-error standards

The court clarified the appellate posture: the government was appealing a Rule 33 order, not directly raising an instructional-error claim. Under United States v. Quiles and United States v. Kelly, the Third Circuit reviews a new-trial grant for abuse of discretion but examines underlying legal conclusions de novo. The “legal basis” for the Rule 33 order here was the conclusion that the supplemental instruction was unduly coercive—a legal question the panel treated de novo (relying on United States v. Jackson).

The panel declined to decide whether a district court must incorporate plain error (Rules 30(d) and 52(b)) into Rule 33’s “interest of justice” analysis, noting Rule 30(d) speaks to “appellate review.” But the court held it unnecessary to resolve that broader doctrinal question because, even under Rule 33’s more flexible standard, granting a new trial based on a non-coercive instruction is legal error and therefore an abuse of discretion.

3. The core rule: incorrect “must reach a verdict” language is not enough—context, coercion, and prejudice control

The panel squarely held that “you have to” was an incorrect statement of law because hung juries are part of the unanimity framework (United States v. Fioravanti) and a judge may not demand a verdict (Fioravanti; Jenkins v. United States). But the dispositive question was whether the instruction was unduly coercive under United States v. Jackson and Jenkins’s context-and-circumstances command.

Applying whole-charge review (United States v. Brennan; Jackson), the panel emphasized:

  • The district court repeatedly delivered correct unanimity principles before the deadlock note: “All of you will have to agree on it or there will be no verdict,” and “don’t ever change your mind just because other jurors see things differently or just to get the case over with.”
  • The supplemental instruction, apart from the misstatement, reinforced proper deliberative duties: focus on evidence, apply the law, avoid bias/sympathy/prejudice.
  • Unlike coercive instructions in United States v. E. Med. Billing, Inc. and United States v. Burley, it did not invoke burdens of retrial, costs, inconvenience, or disparage minority jurors.

On that basis, the panel concluded the charge did not “blast a hung jury into verdict” and did not cause the verdict to rest on considerations other than the evidence. Therefore, it was not unduly coercive, and Rule 33 relief was not “in the interest of justice.”

4. The opinion’s additional doctrinal emphasis: prejudice review is required

The panel added an important reinforcement: even where a supplemental instruction is unduly coercive (and even when a timely objection exists), a new trial requires a determination that the coercion was prejudicial in the case at hand. Citing United States v. E. Med. Billing, Inc., the court identified relevant record-wide factors: coercive content, strength of evidence, timing, and post-instruction deliberation length.

The court then reasoned from that premise to a procedural expectation in the Rule 33 context: a district court must conduct a prejudice review before granting a Rule 33 motion based on a flawed unanimity instruction, because “justice is not served if a non-prejudicial error disturbs a jury’s verdict.”

C. Impact

This decision is likely to matter most in three recurring areas of federal criminal practice:

  1. Deadlock instruction challenges under Rule 33: The mere presence of “must reach a verdict” language will not automatically justify a new trial. Litigants should expect courts to apply a structured inquiry: (i) context/whole-charge review; (ii) undue coercion under Jackson; and (iii) case-specific prejudice assessment.
  2. Invited error arguments after unobjected-to instructions: The opinion operationalizes United States v. Henderson in a common trial moment: counsel’s “okay” to an instruction, absent prior litigation over the specific disputed language, is forfeiture, not waiver. That keeps review alive and places more weight on substantive coercion/prejudice rather than procedural default labels.
  3. Model instruction practice: By reiterating United States v. Savage, the court signals that deviation from model deadlock instructions is not per se error, yet it also implicitly encourages caution: ad hoc brevity can create avoidable appellate issues (as the district court itself later recognized).

Practically, the opinion may make Rule 33 relief harder to obtain for deadlock-instruction misstatements where the rest of the charge robustly protects juror independence and the record shows strong evidence of guilt. Conversely, it gives defendants a sharper roadmap: identify irrelevant-pressure content (costs, burdens, admonitions targeting minorities), demonstrate compromised juror independence, and tie the instruction to case-specific prejudice using E. Med. Billing factors.

IV. Complex Concepts Simplified

  • Hung jury / “no verdict”: If jurors cannot unanimously agree, the result can be “no verdict.” This is not a failure of the system; it is an accepted outcome embedded in unanimity rules (as emphasized in United States v. Fioravanti).
  • Supplemental deadlock instruction: Additional guidance a judge gives after the jury reports difficulty reaching unanimity. Because the jury is at a sensitive moment, courts scrutinize such instructions for coercion.
  • Allen Charge: A historically used instruction designed to encourage jurors to reach unanimity. The Third Circuit has warned of its “treachery” when it pressures minority jurors to yield to the majority (United States v. Fioravanti).
  • Undue coercion: Pressure that causes jurors to decide based on something other than the trial evidence—such as fear of wasting time, expense, or judicial disapproval (United States v. Jackson; contrasted with United States v. E. Med. Billing, Inc. and United States v. Burley).
  • Rule 33 (“interest of justice”): A post-verdict mechanism permitting a new trial. It is not a tool to correct harmless mistakes; relief requires that the error genuinely undermines the fairness of the verdict.
  • Waiver vs forfeiture (invited error): Waiver is intentional relinquishment; it can bar review. Forfeiture is a failure to object; it usually permits limited review. Under United States v. Henderson, mere acquiescence to an unlitigated error is forfeiture.

V. Conclusion

The Third Circuit held that while telling a deadlocked jury “you have to” reach unanimity is legally wrong, Rule 33 relief depends on whether the instruction, in full context and under all circumstances, was unduly coercive and prejudicial. Because the district court’s overall charge repeatedly protected juror independence and emphasized evidence-based deliberation—and because the supplemental instruction did not inject improper pressures—the court found no undue coercion and reversed the new-trial order.

The decision strengthens a disciplined framework for deadlock-instruction litigation: contextual review (Brennan/Jackson), careful separation of waiver from forfeiture (Henderson), and a required prejudice assessment before disturbing a verdict (E. Med. Billing). In the broader law of jury unanimity, it reaffirms that the possibility of “no verdict” is a core feature of the system—yet not every judicial misstatement at deadlock warrants the extraordinary remedy of a new trial.