United States v. Miller

── United States v. Miller ── Court: Court of Appeals for the Tenth Circuit Date: May 28, 2026 Category: General Appellate Case: 24-5108 Document: 72-1 Date Filed: 05/28/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 28, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 24-5108 (D.C. No. 4:23-CR-00241-SJM-1) CODY PAUL MILLER, (N.D. Okla.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT * _________________________________ Before HOLMES, Chief Judge, BACHARACH, and MORITZ, Circuit Judges. _________________________________ Defendant-Appellant Cody Paul Miller seeks to have his conviction for Sexual Abuse of an Incapable Victim in violation of 18 U.S.C. § 2242(2) vacated because he contends that the district court gave an impermissibly coercive Allen charge 1 to the jury which violated his Fifth Amendment due process rights and Sixth Amendment * After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 “An Allen instruction is, in effect, a charge given by a trial court that encourages the jury to reach a unanimous verdict so as to avoid a mistrial.” United States v. McElhiney, 275 F.3d 928, 935 (10th Cir. 2001).  Appellate Case: 24-5108 Document: 72-1 Date Filed: 05/28/2026 Page: 2 right to an impartial jury and unanimous verdict. Because he did not object to the Allen charge in the district court, Mr. Miller requests that we review for plain error. But Mr. Miller concedes he cannot satisfy the second prong of the plain-error standard, i.e., show that the error is clear or obvious. We accept and agree with that concession and affirm the district court’s judgment. I A grand jury indicted Mr. Miller for Sexual Abuse of an Incapable Victim in violation of 18 U.S.C. § 2242(2) and Sexual Abuse of a Person Without Consent in violation of 18 U.S.C. § 2242(3). 2 The case went to trial. After the government and defense rested, the district court instructed the jury. As part of these instructions, the district court made the following statement: Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, don’t hesitate to re-examine your own opinions, and change your mind if you are convinced that you are wrong. But don’t give up your honest beliefs solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. R., Vol. VI, at 391–92 (Trial Tr., dated Jan. 18, 2024). The jury was released for deliberations at 2:35 p.m. on the second day of trial. The jury