Amos v. United States, 73-1819.

• Citation: 496 F.2d 1269
• Decision Date: 15 May 1974
• Docket Number: No. 73-1819.,73-1819.
• Parties: Lucien V. AMOS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

496 F.2d 1269 (1974)

Lucien V. AMOS, Appellant, v. UNITED STATES of America, Appellee.

No. 73-1819.

United States Court of Appeals, Eighth Circuit.

Submitted March 12, 1974.

Decided May 15, 1974.

Rehearing and Rehearing Denied June 4, 1974.

Robert G. Duncan, Duncan & Russell, Gladstone, Mo., for appellant.

Mary A. Schneider, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before GIBSON, BRIGHT and STEPHENSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 4, 1974.

BRIGHT, Circuit Judge.

Lucien V. Amos appeals his conviction on all counts of a 14-count indictment charging him with willfully aiding and assisting in the preparation of false and fraudulent income tax returns of various taxpayers in violation of 26 U.S.C. § 7206(2). He makes these contentions: (1) that the trial judge, Judge Paul X Williams,¹ committed error in coercively questioning one juror during a poll of the jury; (2) that the trial judge erred in permitting the prosecution to introduce evidence showing that prior to the dates covered by the indictment Amos had committed other crimes relating to income tax matters; and (3) that the trial judge erred in instructing the jury. We reject these claims and affirm the conviction.

Although Amos raises no claim of insufficiency of the evidence to support the convictions, we believe it helpful to briefly relate the factual background. Amos is a retired railroad postal service worker, who for several years has engaged in the practice of assisting taxpayers in the preparation of their federal income tax returns. Generally, these taxpayers were wage earners of modest incomes. The evidence disclosed that as to each count, Amos made false claims for deductions from the taxpayers' income. The false deductions ranged from a low of about $500 on the return covered by count one to a high of about $2,700 on the return covered by count four.² In all but one instance, the various taxpayers who signed the returns were unaware of the false deductions. When some of these returns were audited by the Internal Revenue Service, Amos attempted to cover up some false deductions by submitting falsified receipts in support of the deductions.

With this background, we turn to the issues raised on appeal.

I THE JURY POLL

After deliberating for about an hour and fifteen minutes the jury returned with its verdict finding Amos guilty on all counts. The court then proceeded to poll the jury. The eighth juror polled, Mr. Crockett, stated that he did not join in the verdict of guilty as to all counts. Thereupon the following colloquy occurred:

THE COURT. Did you join in the verdict in any of the Counts?

MR. CROCKETT. Yes, sir.

THE COURT. The jury will retire to re-consider its verdicts, then as soon as you have reached unanimous verdicts — return the forms to Mr. Betts jury foreman, there has been a misunderstanding. As soon as you have reached unanimous agreement, now - - - Now, Mr. Foreman, in as much as there are fourteen counts if there is unanimous consent on any counts indicate the ones on which it is unanimous because the Court would be inclined to receive that verdict that is unanimous as to a count; that would leave the jury to consider the ones that are not, am I making myself clear?

MR. BETTS. Yes, sir.

Since the jury had been instructed that its verdict on any one count should not control the verdict on any other count, Judge Williams proceeded to inquire of juror Crockett whether he agreed with his fellow jurors, who had already responded, on any one count. Crockett indicated his disagreement with his fellow jurors' verdict on all counts except as to a guilty verdict on count four. The judge then questioned the remaining four jurors as to whether each agreed with the guilty verdict on count four. Upon receiving affirmative replies, the court announced that it would receive the verdict only on count four and that it would send the jury back to reconsider the remaining counts. At that point, counsel for Amos requested a further poll relating to count four. Accordingly, the court proceeded to repoll the jury on count four. In responding to the court's further query, juror Crockett said, "I don't think the one that prepared the income tax, the preparer, was guilty."

At this point, the trial judge declined to accept any verdict and in part instructed:

Ladies and gentlemen of the jury, none of these verdicts will be received. This is not a unanimous verdict and we cannot receive it.

The jury returned after 25 minutes with another guilty verdict. Again the court polled the jury, but this time all 12 agreed with the foreman's pronouncement of guilt. Thereafter the court further inquired of juror Crockett, who responded as follows:

THE COURT. Now, since we have had the matter of the identity, Mr. Crockett, are you certain you understand?

MR. CROCKETT. I am certain I understand.

THE COURT. You intend to return a verdict of guilty on each of the fourteen counts?

MR. CROCKETT. Yes, sir.

THE COURT. Mr. King Amos\' attorney, do you desire to address any questions to the members of the jury?

MR. KING. No, Your Honor.

Amos now asserts that the interrogation in requiring a juror to disclose his vote in open court on each count and in thereafter directing that the jury retire to reconsider its verdict coerced a verdict in violation of Rule 31(d), Fed.R.Crim.P. which, in pertinent part, reads:

(d) Poll of Jury. When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court\'s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

This rule specifically grants the trial judge a measure of discretion in determining either to require the jury to deliberate further or to grant a mistrial if it appears that the verdict was not unanimous. See United States v. Brooks, 137 U.S.App.D.C. 147, 420 F. 2d 1350, 1353 (1969). In this case, Judge Williams directed that the jury retire for further deliberation after learning that juror Crockett did not concur in the finding of guilt on any of the counts. Whether that ruling constitutes error depends on whether it is likely that the proceedings conducted by the trial court coerced the juror in arriving at his final verdict. Compare United States v. Bendicks, 449 F.2d 313, 315 (5th Cir.1971); Williams v. United States, 136 U.S.App.D.C. 158, 419 F.2d 740, 744-747 (1969) (en banc); United States v. Brooks, supra at 1351-1354 (verdicts sustained as not coerced), with United States v. Sexton, 456 F.2d 961, 964-967 (5th Cir.1972); United States v. McCoy, 139 U.S.App.D.C. 60, 429 F.2d 739, 741-742 (1970); Matthews v. United States, 252 A.2d 505, 506-507 (D.C. Ct.App.1969) (verdicts found to be coerced).³

We need note a distinction between a case where the trial judge interrogates the jury to clarify the confusion engendered by a juror's response to a poll which is inconsistent with the foreman's announcement of the verdict, as in the present case, and one in which the court requires a jury to reveal its decision when no verdict has been returned, as in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). In the latter circumstances, the court's actions will be deemed coercive. But in the former, Rule 31(d) gives the court some latitude in polling of the jury to clear up an apparent confusion. Williams v. United States, 419 F.2d at 746.

Moreover, in evaluating the trial court's polling procedure, since the trial judge is present on the scene, we must pay due deference to his views on whether the recalcitrant juror's ultimate acquiescence in the verdict came freely, without pressure from the court. United States v. Brooks, 420 F.2d at 1353; Jackson v. United States, 128 U.S.App. D.C. 214, 386 F.2d 641, 643 (1967).

Applying these principles, we hold that this record demonstrates that Judge Williams interrogated juror Crockett to dispel any confusion. When juror Crockett on the second interrogation, which was requested by Amos' counsel, indicated an apparent change of mind as to guilt on count four, Judge Williams promptly refused to receive the verdict and directed that the jury resume deliberations, adding this comment:

I hope you are able to arrive at a verdict. If

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