U.S. v. Morris, s. 78-1027

Citation612 F.2d 483
Decision Date26 December 1979
Docket NumberNos. 78-1027,s. 78-1027
PartiesUNITED STATES of America, Plaintiff-Appellee, v. L. D. MORRIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Lee JELSMA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Randall Lloyd KEEF, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jana JARVIS, Defendant-Appellant. to 78-1030.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Susie Pritchett, Asst. U. S. Atty., Oklahoma City, Okl. (Larry D. Patton, U. S. Atty. and David A. Poarch, Asst. U. S. Atty., Oklahoma City, Okl., on brief), for plaintiff-appellee.

Raymond Burger, Oklahoma City, Okl. (Gary F. Duckworth of Burger, Wells, Duckworth & Coyle, Oklahoma City, Okl., with him on brief), for defendant-appellant Morris.

Mac Oyler, Oklahoma City, Okl. (Oyler & Smith, Oklahoma City, Okl., on brief), for defendant-appellant Jelsma.

John B. Moorhead, Denver, Colo. (Davis, Moorhead & Ceriani, P. C., Denver, Colo., on brief), for defendant-appellant Keef.

Oscar B. Goodman, Las Vegas, Nev. (Goodman, Oshins, Brown & Singer, Chartered, Las Vegas, Nev., on brief), for defendant-appellant Jarvis.

Before HOLLOWAY, BARRETT and McKAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendants-appellants Morris, Jelsma, Keef, and Jarvis have taken these timely appeals from convictions for violation of 18 U.S.C. § 1955, conducting, financing, managing, supervising, directing or owning all or part of an illegal gambling business involving bookmaking and wagering on sporting events, involving five persons or more. 1 Appellants not only challenge the sufficiency of the evidence to support their convictions, but they also contend the trial judge erred when he refused to repoll the jury after the jury foreman changed his verdict when polled as to a fifth codefendant tried jointly with appellants, Inter alia.

Since the arguments in this case focus largely on a specific subsection of 18 U.S.C. § 1955 we turn first to an examination of the elements of section 1955. 2 The section proscribes participation in an "illegal gambling business." That term is defined in subsection (b)(1) as a gambling business which violates state law 3 and, Inter alia, "involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business." In order to sustain a conviction under § 1955 there must be proof of the involvement of five or more persons. 4 This requirement lies at the heart of appellants' arguments both on the repolling question and the sufficiency of the evidence.

Keeping the requirement of five or more in mind, a brief procedural history will be helpful. The four appellants were indicted on September 6, 1977, along with four other principals and three alleged aiders and abettors. Two other unindicted persons were named in the indictment charging violation of 18 U.S.C. § 1955 from September 1, 1976, to January 15, 1977. Prior to trial the three persons charged only with aiding and abetting were dismissed, and the two unindicted individuals were granted immunity for their testimony. Another defendant, Howard Ward, was not tried with these appellants for medical reasons. Therefore, when trial commenced on October 18, 1977, seven codefendants were present the four appellants here as well as Ronald Presley, Gordon Rickard, and Jack Ritter.

On November 1, in the middle of the tenth day of trial, the jury retired to deliberate. On the morning of the fourth day of deliberation, the jury returned two verdicts, acquitting defendants Rickard and Ritter. After a break for lunch, the jury resumed deliberations in the cases of Presley and the four appellants. Verdicts were returned that afternoon under circumstances which will be described in greater detail below. When the jury was finally excused the four appellants had been found guilty and the trial judge had declared a mistrial in Presley's case. We turn to a discussion of the polling issue first.

I

Each appellant challenges the trial court's denial of counsel's motions to repoll the jury in the unusual circumstances which developed during the returning of the verdicts, claiming that the judge's refusal violated appellants' right to disposition of the charges against them by unanimous verdicts. A careful review of the developments at this point in the trial is of crucial importance, which must be made with the requirement in mind that for conviction the jury had to find that five or more persons were involved in the allegedly illegal gambling business. 5

When the jury returned to the courtroom following deliberations the foreman announced that the jury had reached a verdict. The deputy clerk read the verdicts, which found the appellants and Ronald Presley guilty as charged. The jurors were then individually polled as to their verdicts on Lawrence Lee Jelsma, Luther David Morris, Randall Lloyd Keef, Jana Sue Jarvis, and Ronald Presley.

When the judge polled the foreman Mr. Mould as to his verdict on Ronald Presley, the foreman responded, "No, your Honor." (XXII R. 1756). The court then asked Mould whether he "want(ed) to go back to the jury room and consider your verdict further." Id. Foreman Mould responded affirmatively and the judge directed the jury to retire to the jury room to consider "this last verdict." Id.

The defense attorneys then made several motions. Counsel for Presley asked for a mistrial which was denied. Counsel for Morris and Jarvis told the Court "there is some problem with the jury," and requested a mistrial. Counsel for Jelsma joined in, arguing that it was "obvious that that one particular juror (Mould) could hardly express his emotions when he voted guilty." (XXII R. 1757). Counsel for Jelsma then opined further, "He didn't want to vote 'guilty,' it was obvious." Id. The judge overruled the motions, and counsel for Jelsma persisted, "There is no way for the record to reflect that man's reluctance to say 'guilty.' " (XXII R. 1758).

Counsel for Morris and Jarvis then moved that "all verdicts be returned to the jury room for the jury to deliberate on all of the defendants." Id. This motion was denied, and counsel subsequently argued to the judge that reconsideration of all verdicts was required due to the statutory requirement that the jury find five or more persons involved in the alleged illegal gambling business, 18 U.S.C. § 1955(b)(1)(ii). Counsel for Keef then made his mistrial motion, relying on the previously stated grounds and also focussing on the five person requirement:

(T)he five defendants who remain in this case would be eliminated to four. In the event that the jury should reach a verdict, I believe that would be sufficient grounds under the circumstances to award a mistrial.

XXII R. 1758. This motion was overruled.

After overruling this last motion, and upon being notified that the jury had completed its deliberations, the court then called for the jurors to be returned to the courtroom. Counsel for Presley immediately objected to this procedure on the ground that it would coerce the jurors. (XXII R. 1759). His motion was overruled and the jury returned. The court asked foreman Mould whether he had had time to reconsider his earlier answer. Mould responded affirmatively, and the court queried, "And is this your verdict?" Id. Mould replied, "My verdict is 'no'." The court repeated, "(y)our verdict is 'no.' Then are you saying to the Court that you have a hung jury insofar as Presley is concerned?" Mould responded affirmatively. (Id. at 1759).

Immediately after this response, counsel for appellant Jelsma requested the court to poll the jury on all the other defendants. (Id. at 1759). The court then said, "No," and proceeded to declare a mistrial as to defendant Presley, thank the jurors for their hard work, and excuse the jury from further duty. (XXII R. 1759-60). As the judge finished his remarks to the jury, but before the jurors left the courtroom (Id. at 1762), further motions for repolling were made:

Mr. Jackson (counsel for Jelsma): If the court please . . .

Mr. Williams (counsel for Keef): Your Honor . . .

Mr. Jackson: May we approach the bench prior to . . .

Mr. Williams: If the court please, I would like, before the jury leaves, to make a motion that the jury be polled as to . . .

Mr. Jackson: Each defendant.

Mr. Williams: As to each defendant.

The Court: I am not going to do it. We have already done that. The jury is excused. The verdicts have been filed and recorded. The jury is excused. We are not going to go over this any more. This is highly improper.

Mr. Williams: Your Honor, I think it is very, very vital, since five people are required. There is now only four, to understand whether or not other people were considered by them.

The Court: You are out of order. You are excused, Mr. Juror.

Mr. Mould: Judge, could I ask a question?

The Court: Yes.

Mr. Mould: Well, it would be more in the way of an explanation.

The Court: Well, I don't think it is proper to make an explanation. You have said what you . . .

Mr. Jackson: (Interposing) May it please the Court?

The Court: You mean yourself personally?

Mr. Mould: Well, it has to do with what has been taking us so long and . . .

The Court: (Interposing) I don't think this is any of the Court's business. You have had your deliberations. You have returned into open court your decision, and we can't be vacillating in and out, back and forth, Mr. Mould.

Mr. Mould: Well, Your Honor, if the it all hinged

The Court: (Interposing) It doesn't make any difference what it hinged on. You've done your deliberations for what is it, three or four days?

Mr. Jackson: May it please the Court, it all hinged on a numerical count. May it please the Court, due to this juror's early reluctance to respond, I think it is highly unfair to put the burden on these other four defendants, if in fact that's part of the consideration.

The Court: Well

Mr. Mould: Could I explain...

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