Burrup v. United States, 8507

• Decision Date: 20 February 1967
• Docket Number: No. 8507,8508.,8507
• Citation: 371 F.2d 556
• Parties: John Richard BURRUP and Jay Melvin Burrup, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

371 F.2d 556 (1967)

John Richard BURRUP and Jay Melvin Burrup, Appellants, v. UNITED STATES of America, Appellee.

Nos. 8507, 8508.

United States Court of Appeals Tenth Circuit.

January 13, 1967.

Rehearing Denied February 20, 1967.

William Erickson, Denver, Colo. (Hindry, Erickson & Meyer, Denver, Colo., and Hickey, Rooney & Walton, Cheyenne, Wyo., with him on brief), for appellants.

Leroy V. Amen, Cheyenne, Wyo. (Robert N. Chaffin, U. S. Atty., with him on brief), for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and PICKETT, Circuit Judges.

MURRAH, Chief Judge.

In this criminal appeal the appellants complain for the first time of the trial court's so-called "Allen" instruction to the jury. In the tenor and context in which it was given we do not think the charge was improper. Complaint is also made of the supplemental instructions on fraud, conspiracy and circumstantial evidence. We find no fault with the propriety or correctness of these instructions, and we affirm the judgment.

The pertinent facts are that about four hours after submission,¹ the court voluntarily recalled the jury, and after cautioning them not to disclose how they stood on guilt or innocence, observed they were apparently having a "little difficulty reaching an agreement". The judge then proceeded to give a mild version of the so-called Allen charge, prefaced by the admonition that "The verdict to which a juror agrees must, of course, be his own verdict, the result of his own convictions, not a mere acquiescence in the conclusions of his fellows." At the conclusion of the charge, the foreman of the jury was asked if there were any instructions the jury did not particularly understand. When he answered affirmatively, the jury was told to retire and write out the instructions they wished to have explained. The jury returned with the written request for definitions on fraud, conspiracy and circumstantial evidence. The judge then proceeded to responsively reinstruct on each of these subjects. When the jury was asked if "these instructions help you any", the foreman answered affirmatively, and the court inquired whether they wanted all of the other instructions read by the reporter. The foreman answered negatively. After some further instructions concerning the form of the verdict, the jury returned to its deliberations. Out of the presence of the jury the court inquired if there were any objections or suggestions, and counsel for appellants objected to the giving of "* * * the extra instructions for the reason that, taken out of context, without considering the rest of the instructions, it may be that they did not fully and properly explain the elements of conspiracy or of what fraud is and circumstantial evidence. And I particularly direct attention to the fact that the very last instruction of the Court with reference to circumstantial evidence given originally to the jury was not now given to them, just for the record, so we will have it." No objection was made to the Allen instruction, but since it affects the judge-jury relationship and "* * * cannot be effectively remedied by modification of the judge's charge after the harm has been done", we will take note of it here. Berger v. United States, 10 Cir., 62 F.2d 438, quoting from Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345; and see Burroughs v. United States, 10 Cir., 365 F.2d 431.

Appellants freely concede this court's repeated approval of the Allen instruction to an apparently deadlocked jury, provided the jury is given to understand they are not required to give up their conscientiously held convictions. And see Jenkins v. U. S., 380 U.S. 145, 85 S.Ct. 1059, 13 L.Ed.2d 957. But, the contention here is that since the 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. See Carter v. United States, 10 Cir., 333 F.2d 354; Elbel v. United States, 10 Cir., 364 F.2d 127. We have only recently re-emphasized the "* * * function of the judge to admonish the jury that they should deliberate together in an atmosphere of mutual deference and respect giving due consideration to the views of the others in the knowledge that in the end their verdict must reflect the composite...