Hale v. United States

Decision Date02 February 1971
Docket NumberNo. 26199,26200.,26199
Citation435 F.2d 737
PartiesEdward Byron HALE, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

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James Garrett, Watkins C. Johnston, Charles E. Porter, Jesse M. Williams, III, Nicholas T. Braswell, III, Rushton, Stakely, Johnston & Garrett, Montgomery, Ala., O. S. Burke, Burke & Burke, Greensboro, Ala., for appellant.

Don Conway, Asst. U. S. Atty., Vernol R. Jansen, Jr., U. S. Atty., Mobile, Ala., for appellee.

Before WISDOM and DYER, Circuit Judges, and KRENTZMAN, District Judge.

Rehearing Denied and Rehearing En Banc February 2, 1971.

KRENTZMAN, District Judge:

This case involves a man who thought he could fool all of the people all of the time. He misled the townspeople for a while, but he did not mislead the jury. Although we do not agree with every ruling or comment made by the trial court below, we find no reversible error and affirm.

Appellant Edward Byron Hale was president of the only bank in Pine Apple, a small community (population 350) in rural Alabama, from 1956 until the closing of the bank on January 31, 1967.

Three indictments were returned against appellant Hale charging him in 20 counts with violations of 18 U.S.C.A. §§ 656 (misapplication by bank officer) and 1005 (false bank entries). Following a jury trial, appellant was found guilty on 10 counts.

Appellant raises numerous allegations of error, only four of which warrant discussion. These we proceed to discuss in the order they were tendered by appellant.

THE SUPPLEMENTAL CHARGE TO THE JURY

The trial of this case continued for almost two weeks. Having been unable to reach a verdict after three hours of deliberation, the jurors were allowed to retire to their homes for the night to report at 9:00 a. m. the next morning for further deliberation and instruction.

Upon the reassembling of the jury the following morning, the trial judge, having first dictated into the record an objection by both sides as to everything he was to say, further charged the jury as to its duties and responsibilities in the case. This additional charge was given on the court's own motion; no request for further instructions had been made by the parties or the jury. The supplemental charge is set out in the margin.1

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At the conclusion of the additional charge, and after the jury retired, appellant objected to the charge. The jury returned shortly thereafter with a verdict finding appellant guilty on 10 counts and innocent on 10 counts.

Appellant claims that the "Allen charge" coerced the jury into reaching a compromise verdict and advances five objections to the charge in support of this contention. In addition, appellant complains of that portion of the supplemental charge which directs the jury to believe either appellant or the government's main witness against him in considering each of the counts.

The Allen charge was authorized as a supplement to the main charge by the United States Supreme Court over 70 years ago. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Since then "it has persisted * * * not so much as an object of commendation as * * * a product of toleration." United States v. Fioravanti, 412 F.2d 407, 415 (3 Cir. 1969), cert. den. sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88. The purpose of the Allen charge is to obtain a verdict. To this end it admonishes the jurors to listen to each other's arguments "with a disposition to be convinced."

Problems arise when the Allen charge is used to coerce the jury into reaching a verdict. Because a coercive charge violates due process, United States v. Brown, 411 F.2d 930 (7 Cir. 1969), courts scrutinize carefully allegations that a trial court in a supplemental charge compelled the jury to return a guilty verdict.2 Recently there have been "unrelenting attacks on the Allen charge," United States v. Hill, 417 F.2d 279, 280 n. 3 (5 Cir. 1969), and several other circuits have severely restricted its use. United States v. Brown, supra; United States v. Fioravanti, supra. The position of this Court was expressed in Thaggard v. United States, 354 F.2d 735, 739 (5 Cir. 1965), cert. den. 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966):

"This court, although sometimes reluctantly, has approved the `Allen\' charge while carefully assuring ourselves that there are not engrafted upon it any partial or one-sided comments. * * * Such a charge, so long as it makes plain to the jury that each member of the jury has a duty conscientiously to adhere to his own honest opinion and avoids creating the impression that there is anything improper, questionable, or contrary to good conscience for a juror to cause a mistrial * * * is still a permissible charge to be given in proper circumstances in this Circuit."

Turning to the supplemental charge at issue, we note that the first four paragraphs of the charge contain language almost identical to the supplemental charge approved in Thaggard v. United States, supra, 354 F.2d at 738-739 n. 2. We therefore reject appellant's claims of coercion based upon the trial court's statements that the trial had been long and expensive, with retrial to be equally as expensive, and that the case must at some time be decided.

Appellant next contends that the trial court erred when it twice charged the jury that the minority was to consider whether its views were reasonable in view of the majority's opposing views.3 We do not believe that the emphasis given to this portion of the charge was error in the circumstances of the case.4

Appellant's fourth objection to the charge is that the trial court coerced the jury when it said:

"I do not think this is a complicated case. I am not trying to have any effect on your decision. I want you to decide the cases. You decide is he guilty or is he not guilty." (Emphasis supplied.)

In light of the rest of the charge we do not think these words reasonably can be interpreted to mean that the jury was "ordered" to come back with a verdict. The emphasized sentence, stressed by appellant as directly coercive, was preceded by this sentence: "I am not trying to have any effect on your decision." The passage quoted above can only have meant that the jury was to decide the case free of restrictions from anyone. Although we were not present when these words were uttered and the parties disagree as to the tenor in which they were delivered, we think a fair reading of the entire record fails to show that these words affected appellant's substantial rights.

Appellant's fifth attack on the supplemental charge is that it was coercive because it was unnecessary. We disagree. "Whether in any case the Allen charge should be given rests initially in the sound discretion of the trial judge." Powell v. United States, supra, 297 F.2d at 322. When the charge is to be given is also a matter of trial court discretion. Annotation, 100 A.L.R.2d 177, 180 (1965). Some courts hold that the coercive effect is minimized when the Allen charge is given before the jury retires; others make no distinction concerning when the charge is delivered. In Andrews v. United States, 309 F.2d 127, 129 (5 Cir. 1962), we held it "was in no manner erroneous" to give the Allen charge 65 minutes after the jury had begun deliberation. In the case sub judice we share the view of the Tenth Circuit:

"The contention here is that since the Allen instruction was given before the jury had a reasonable opportunity to deliberate or disagree, it was coercive. We have expressed the view that an instruction of this kind is less likely to be coercive if given before the jury has indicated its inability to agree on a verdict; that in this posture of the jury\'s deliberations, it is intended and has the effect of inducing the jury to reason together toward a collective judgment." Burrup v. United States, 371 F.2d 556, 558 (10 Cir. 1967).

We have never said that the Allen charge is to be given in every case where there is a short period of deliberation by the jury. We do say, remembering that the "correctness of the charge must be determined by the consideration of the facts of each case and the exact words used by the trial court," Powell v. United States, supra, that the mere giving of the charge here was not error.

We begin our discussion of appellant's final objection to the supplemental charge by observing that in federal court it is a basic principle that the trial court may comment fairly upon the weight of the evidence, so long as it is made clear to the jury that it is the trier of fact and that the observations of the trial court are in no way binding.

"It is well settled that a federal district judge is not relegated to complete silence and inaction during the course of a criminal jury trial. He must, however, be most careful that his interventions are proper, timely, made in a fair effort to clear unanswered issues, and are not prejudicial to defendant. Many federal decisions recognize the power of the judge, within reasonable limits, to comment on the evidence and to express fair opinions. This privilege, however, has been limited to the point where the trial judge is under a strict duty to direct the jury clearly that they are the sole judges of the facts and are not bound by the judge\'s questions or comments. Matters of fact unmistakably must be left to the jury." Bursten v. United States, 395 F.2d 976, 982-983 (5 Cir. 1968).

We think that the trial court properly cautioned the jury that it alone was the trier of fact. The court began the supplemental charge by telling the jurors they had already been charged correctly on the law. In that earlier charge, the court had said:

"During the course of the trial, I do not wish for you to conclude from anything I have said or in the course of these instructions, at anytime, that I have intended to directly or
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