Moreover, we have considered and approved an instruction remarkably similar to that given in Graham's trial. See United States v. Kimmel, 777 F.2d 290 (5th Cir. 1985), cert. denied, 476 U.S. 1104, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986). We considered Franklin and held that although "the Supreme Court and we have struggled often with inferred intent instructions, that given here is clearly acceptable and we are duty bound to follow the law approving its use."
In considering his arguments, we must test the instructions given not against those he requested — for a criminal defendant lacks the right to have his requests adopted word for word — but against the law. United States v. Kimmel, 777 F.2d 290, 292-93 (5th Cir. 1985), cert. denied ___ U.S. ___, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986). We continue to recognize the trial judge's "substantial latitude in tailoring his instructions as long as they fairly and adequately cover the issues presented in the case."
The judge, for instance, instructed the jurors that they “may be as leisurely in [their] deliberations as the occasion may require” and that “no juror is expected to yield a conscientious opinion he or she may have as to the weight or effect of the evidence.” See United States v. Kimmel, 777 F.2d 290, 295 (5th Cir.1985) (upholding Allen charge where “the judge tempered his remarks with reminders that each juror should remain true to his own conscience”). Under the second prong of our Allen charge analysis, this Court evaluates “the ‘totality of the circumstances' surrounding the use of the charge in assessing its coercive effect.”
A trial judge has "substantial latitude in tailoring his instructions as long as they fairly and adequately cover the issues presented by the case." United States v. Kimmel, 777 F.2d 290, 293 (5th Cir. 1985), cert. denied, 476 U.S. 1104, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986) (quoting United States v. Pool, 660 F.2d 547, 548 (5th Cir. 1981)). A trial judge's refusal to deliver a requested instruction is reversible error only if three conditions exist:
Taking the charge as a whole, which in all other respects is correct and adequate, there is little, if any, likelihood such parting words resulted in a "grave miscarriage of justice" or affected the fairness of the proceedings. United States v. Kimmel, 777 F.2d 290, 294 (5th Cir. 1985), cert. denied, 476 U.S. 1104, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986). In Kimmel, 777 F.2d at 294 n. 3, the instructions of the trial court included the very language at issue in this case.
Bottom, 638 F.2d at 787; see also United States v. Cheramie, 520 F.2d 325, 328 (5th Cir. 1975).United States v. Kimmel, 777 F.2d 290, 294 (5th Cir. 1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986).United States v. Fossler, 597 F.2d 478, 484-85 (5th Cir. 1979).
Tompkins v. Cyr, 202 F.3d 770, 784 (5th Cir. 2000); see also United States v. Daniels, 247 F.3d 598, 601 (5th Cir. 2001).United States v. Hunt, 794 F.2d 1095, 1097 (5th Cir. 1986) (quoting United States v. Kimmel, 777 F.2d 290, 293 (5th Cir. 1985)). court abuses its discretion only if "(1) the requested instruction is substantively correct; (2) the requested instruction is not substantially covered in the charge given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs the defendant's ability to effectively present a particular defense."
Tompkins v. Cyr, 202 F.3d 770, 784 (5th Cir. 2000); see also United States v. Daniels, 247 F.3d 598, 601 (5th Cir. 2001).United States v. Hunt, 794 F.2d 1095, 1097 (5th Cir. 1986) (quoting United States v. Kimmel, 777 F.2d 290, 293 (5th Cir. 1985)).United States v. St. Gelais, 952 F.2d 90, 93 (5th Cir. 1992) (citing Hunt, 794 F.2d at 1097).
Winters complains that the district court coerced the jury into finding him guilty by stating that "[i]f you should fail to agree on a verdict as to the remaining counts the case is left open and must be tried again." Winters asserts this claim despite acknowledging that the modified Allen charge given by the court in this case has been explicitly approved by the Fifth Circuit. U.S. v. Kimmel, 777 F.2d 290, 294-295 n. 4 (5th Cir. 1985). Winters further argues that the Allen charge was improper because it was given after the jury had deliberated seven and one half hours and had reached a guilty verdict with respect to defendant Johns.
The implication of the charge as given was that the jury could convict without finding fraudulent intent. United States v. Kimmel, 777 F.2d 290, 293 (5th Cir. 1985), cert. denied, 476 U.S. 1104, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986). b. Deliberate ignorance.