United States v. Sawyers

• Decision Date: 23 March 1970
• Docket Number: No. 12872.,12872.
• Parties: UNITED STATES of America, Appellee, v. Burl A. SAWYERS, Vincent J. Johnkoski, Bonn Brown, Alfred W. Schroath, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

423 F.2d 1335 (1970)

UNITED STATES of America, Appellee, v. Burl A. SAWYERS, Vincent J. Johnkoski, Bonn Brown, Alfred W. Schroath, Appellants.

No. 12872.

United States Court of Appeals, Fourth Circuit.

Argued October 7, 1969.

Decided March 23, 1970.

Raymond W. Bergan, Washington, D. C., Stanley E. Preiser, Charleston, W. Va., and Henry Angel, Atlanta, Ga. (Edward Bennett Williams, Harold Ungar and Steven Brodsky, Washington, D. C., on the brief), for appellants.

Charles Ruff, Attorney, Department of Justice (Alfred N. King and Wallace H. Johnson, Attys., Department of Justice, and Milton J. Ferguson, U. S. Atty., on the brief), for appellee.

Before SOBELOFF, and CRAVEN and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge:

Six defendants, Burl A. Sawyers, Vincent J. Johnkoski, Alfred W. Schroath, Bonn Brown, Truman Gore, and William Wallace Barron, were indicted February 14, 1968, under 18 U.S.C.A. § 371 (1966).¹ The one count indictment charged conspiracy to commit bribery in violation of 18 U.S.C.A. § 1952 (1951) (Supp.1969).² A mistrial was granted to defendant Gore when his attorney became ill during trial. Former Governor W. W. Barron was acquitted, and defendants Sawyers, Johnkoski, Schroath, and Brown were convicted. Defendants Brown and Schroath were each fined $10,000 and sentenced to four years imprisonment, while defendants Sawyers and Johnkoski were sentenced to two years each and fined $5,000 and $10,000, respectively. We affirm the convictions.

The indictment charged that Brown and Schroath represented to legitimate business firms that they could be of assistance in obtaining business from the State of West Virginia and would procure state government contracts if paid to do so. Numerous selling firms employed Brown and Schroath and paid substantial sums of money into several corporations established and controlled by Brown and Schroath to receive these payments. It was part of the conspiracy that the Brown and Schroath corporations receiving payments for obtaining state business were to be taken over later by another corporation, which all six defendants would own equally. In this way, the indictment charged that state officials were bribed to grant or cause to be granted favorable contracts to business firms paying for them through Brown and Schroath.

On appeal, ingenious and diligent counsel have taken a shotgun approach to the validity of the trial, asserting that reversible error occurred in 13 respects. So many points of error suggest that none are valid. Even so, we have carefully considered the points assigned, to the extent of preparing a rough draft discussion of each, but upon reflection we think that most of the points do not merit doubling the length of the final opinion to include them. The two points of most interest relate to the so-called "Allen" charge and the asserted question of pretrial publicity.

I. THE ALLEN CHARGE.

Defendants complain about the giving of a "dynamite" or "Allen" charge³ to the jury after that body indicated it was deadlocked. The jury had deliberated for about 15 hours when its foreman sent the following note to the court:

We have a juror that stated: "the judge will get all over those that vote not guilty."

This juror has cursed, made slanderous remarks along with another juror throwing chewings sic gum. These two jurors are sister-in-law sic and want to go home.

The vote is 10 guilty & 2 not guilty.

It is a solid-vote and no one will give.

When the court reconvened after lunch, the jury was brought into the courtroom and given the supplemental charge.⁴

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Defendants contend that this charge was erroneous in several respects: (1) in order to counterbalance the pressure to choose between guilty and not guilty verdicts, a reminder of the burden of proof should have been included in the charge; (2) because the defense rested at the end of the prosecution's case, language in the supplemental charge stating that no better, or more exhaustive, evidence could be produced by either side on a retrial should have been eliminated; (3) because the charge was given in response to the jury note, it confirmed the jury's belief that the judge would "get all over those that vote not guilty;" and (4) language in the charge indicating that the jury might be leisurely was coercive in view of the approaching Labor Day weekend. For these reasons, the defendants urge that the supplemental charge was sufficiently coercive to require a new trial.

To bolster their position defendants point to a second inquiry made by the jury about 15 minutes after the supplemental charge had been given and the jury had retired. The second note sent by the jury read:

If two or more defendants are found guilty and the remaining defendants are declared not guilty, are all defendants considered guilty?

In your last additional charge, you so indicated that each defendant should be voted on separately (as the verdict sheet and reads sic). However, during the trial the impression was conceived that if one was guilty — all were guilty.

After receiving this note the judge informed the jury that it was permissible to find one or more defendants not guilty and two or more guilty, provided that unless two defendants, at least, were found guilty, all had to be acquitted. Record at 1999-2001. Thereafter the jury retired and deliberated about one and a half hours before returning a verdict acquitting former Governor Barron and convicting Sawyers, Johnkoski, Brown, and Schroath.

We think these supplemental charges, under the circumstances of the complexity of the trial and its duration of some two weeks, were not so coercive as to impair the integrity of the verdicts. Previously the trial judge had properly and clearly placed the burden of proof. We think it was not error that he failed to repeat it in his supplemental instructions. Moreover, he was not asked to do so. Under the correct formulation of that burden jurors may arrive at a verdict of not guilty either because they find the facts to be consistent with innocence or because they are unable to determine the facts after conscientious effort. Since the prosecution may obtain a verdict of guilty only if the jury is convinced of the facts alleged beyond a reasonable doubt, whereas the defendant has the double opportunity of findings consistent with innocence or an inability to determine what the truth is, we think some reasonable degree of encouragement to arrive at a verdict is not inherently unfair to defendants.

Because the defendants rested their case without offering evidence, they complain of language in the supplemental charge to the effect that there was no "reason to believe that the case can be tried again better or more exhaustively than it has been, on either side." We perceive nothing unfair in such a comment. Defendants were well represented by competent counsel. Nothing in the record suggests that the trial judge should have assumed that in the event of a retrial the defendants would change their tactics and choose to offer evidence.

The defendants' other two points of error with respect to the Allen charge are simply different formulations of their contention that such a charge is coercive and should be outlawed in this circuit. An examination of the dynamite charge used by the trial judge in this case shows that the court twice included language emphasizing that no juror should surrender his or her conscientious convictions because of the opinions of other jurors or for the mere purpose of returning a verdict. Indeed, to properly balance his instruction, the trial judge charged:

If a majority or even a lesser number of you are for acquittal, other jurors ought to seriously ask themselves again whether they do not have reason to doubt the correctness of a judgment which is not concurred in by many of their fellow jurors, and whether they should not distrust the weight or sufficiency of evidence which fails to convince the minds of several of their fellows to a moral certainty and beyond a reasonable doubt.

There was not the slightest intimation of impatience with the minority, nor any words that could be construed as a threat or even an expression of displeasure. It is not suggested to us that the judge's tone of voice and facial expression (aspects that cannot appear in the record) were other than calm and dispassionate. That he knew of the division may be significant in judging his motivation, especially where he makes inquiry, Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), but not of significance, we think, with respect to potential impact of his supplemental instructions on minority jurors. They always know their minority status, and if fearfully inclined, may presumably suspect a disgruntled judge can find them out.

It is impossible to measure precisely in time units how long a given jury may reasonably be required to deliberate. To require continued deliberation after some 15 hours does not seem to us unreasonable or coercive for a case of this complexity and duration. The documentary evidence alone that was offered to the jury fills three boxes stacked to a height of approximately four feet. The testimony and introduction of the documentary evidence consumed some 12 trial days. Under such circumstances as these, a quick acquiesence to an indication of difficulty in arriving at a verdict would have, we think, been contrary to the district judge's duty to exert every reasonable effort to keep the criminal dockets current.

We are aware that in recent years there has been increasing criticism of Allen type charges. Thaggard v. United States, 354 F.2d 735 (5th Cir. 1966); Green v. United States, 309 F.2d 852, 854 (5th Cir. 1962); Andrews v. United States, 309 F.2d 127, 129 (5th Cir. 1962) (Wisdom dissenting); Huffman v. United States, 297 F.2d 754 (5th Cir. 1962) (Brown dissenting). What fuels the criticism seems to be a composite of two ideas:

(1) That since the

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