United States v. Miller – Do It For The Caselaw

Holding: The Tenth Circuit affirmed the conviction because the defendant failed to demonstrate that the district court's use of a modified Allen charge constituted clear or obvious error under the plain-error standard.
Standard: plain-error review
Vote: Unanimous panel decision affirming the district court's judgment.
Practical effect: The decision reinforces the continued validity of the Tenth Circuit's pattern Allen instruction and limits appellate challenges to such charges absent a clear showing of plain error.

The Tenth Circuit affirmed a conviction for sexual abuse after the defendant conceded he could not prove the jury instruction was clearly erroneous. The court held that the district court's use of a modified Allen charge did not constitute plain error under the applicable standard.

Background

A grand jury indicted Cody Paul Miller for sexual abuse of an incapable victim and sexual abuse of a person without consent. After the jury became divided during deliberations, the district court delivered a modified Allen charge encouraging them to reach a unanimous verdict. The jury subsequently returned a guilty verdict on one count and a not guilty verdict on the other. Miller appealed, arguing the instruction was impermissibly coercive.

The court’s reasoning

The court reviewed the district court’s decision for abuse of discretion and applied the plain-error standard because Miller had not objected at trial. The court noted that to succeed, Miller must show an error that is clear or obvious under current law. The court found that neither the Supreme Court nor the Tenth Circuit has established that the specific language in the pattern Allen instruction is plainly erroneous. The court cited prior decisions approving similar language and held that the instruction was not clearly or obviously erroneous.

We accept and agree with that concession and affirm the district court’s judgment.

Order and Judgment, United States v. Miller, No. 24-5108 (10th Cir. May 28, 2026)

What it means going forward

The decision reinforces the continued validity of the Tenth Circuit’s pattern Allen instruction and limits appellate challenges to such charges absent a clear showing of plain error.

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