Government of Canal Zone v. Fears

• Decision Date: 15 March 1976
• Docket Number: No. 75--1967,75--1967
• Citation: 528 F.2d 641
• Parties: GOVERNMENT OF the CANAL ZONE, Plaintiff-Appellee, v. Judith Sue FEARS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 641

528 F.2d 641

GOVERNMENT OF the CANAL ZONE, Plaintiff-Appellee, v. Judith Sue FEARS, Defendant-Appellant.

No. 75--1967.

United States Court of Appeals, Fifth Circuit.

March 15, 1976.

Henry L. Newell, Balboa, Canal Zone, for defendant-appellant.

Lester Engler, U.S. Atty., Wallace D. Baldwin, Asst. U.S. Atty., Balboa, Canal Zone, for plaintiff-appellee.

Appeal from the United States District Court for the Canal Zone.

Before TUTTLE, GODBOLD and GEE, Circuit Judges.

GEE, Circuit Judge:

This appeal requires us to repay the economic and social contributions of the Canal Zone to the United States by exporting the Allen charge. Finding no merit in Judith Fears' attack on the court's remarks and instructions or in her other arguments, we affirm her conviction for distribution of cocaine and LSD and for possession of marihuana and LSD.

Fears' principal argument is that the trial judge's remarks and instructions pressured the jury into reaching a verdict. She argues that portions of the instructions and other comments, considered both individually and cumulatively, represent impermissible departures from the narrow wording which has been approved by Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and its progeny as a means of bringing about jury unanimity. Our task is to assess the impact of the judge's statements in light of his language and the facts and circumstances which formed their context. Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965). Since no objection was made to any of these statements at trial, we can reverse only if necessary to avoid a clear miscarriage of justice under the 'plain error' rule, Fed.R.Crim.P. 52(b). E.g., United States v. Taylor, 513 F.2d 70 (5th Cir.), cert. denied, --- U.S. ---, 96 S.Ct. 361, 46 L.Ed.2d 281, 44 U.S.L.W. 3280 (1975).

Fears first objects to a portion of the judge's initial instructions. ¹ These remarks had the laudable goal of encouraging the jury to consider all six counts although the judge had just informed them that it was possible for them to return a verdict on less than all counts. Although the remarks could be interpreted as additional pressure to agree, they contain none of the specific vices which this circuit has condemned in the past. See generally United States v. Cheramie, 520 F.2d 325 (5th Cir. 1975). They do not impose time constraints on the jury's deliberations, exhort the minority to reexamine its views in light of the majority's arguments, induce the erroneous perception that jurors have an absolute 'duty to decide,' or suggest that failure to decide would reflect unfavorably on the jury members. Id. at 330--31. The fact that they were made before the jury retired does not increase their coercive impact or automatically make them improper. See Hale v. United States, 435 F.2d 737, 742 (5th Cir. 1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971).

After the jury had deliberated a total of approximately four hours, the judge sent them home for the night. At that time he made additional remarks which Fears asserts were impermissibly coercive. ² These remarks come very close to impermissibly suggesting that the minority reexamine its views and that the jury has a 'duty to decide.' However, they do not reach the rigorous requirement of 'plain error.' They do not explicitly contain the forbidden admonitions. ³

Our conclusion that these remarks are not 'plain error' is reinforced by the events of the following morning. At that time, the judge delivered a full Allen charge, one which was comparable to those previously approved in this circuit and whose substance is not challenged in this appeal. ⁴ Moreover, the judge also reiterated the instructions on lesser-included offenses, entrapment, and 'reasonable doubt.' ⁵ After these instructions, the jury took another one and one-half hours to reach a verdict. Here, as in United States v. Cheramie, supra at 332, subsequent events sufficiently remove the judge's remarks at the end of the first day of deliberation from the classically-improper pattern of a catalytic urging by the judge followed quickly by a jury decision.

Fears does object to the final Allen charge on the theory that it was prematurely delivered before the jury indicated that it was deadlocked. There is no requirement that the jury be deadlocked before a supplemental charge is given. Hale v. United States, supra. Furthermore, the judge in this case had an indication from the jury that it was having difficulty comparable to the indication in United States v. Taylor, supra.

This analysis of the final day of Fears' trial, coupled with the veiled nature of the previous remarks, also convinces us that the cumulative impact of the judge's remarks and charges was not so coercive as to constitute 'plain error.'

In addition to her Allen charge argument, Fears contends that the judge improperly commented on the significance of evidence of previous crimes and that she established entrapment as a matter of law. The judge's remarks during the entrapment instruction about evidence of previous similar offenses are so clearly not 'plain error' that no discussion is necessary. Assuming, without deciding, that Fears met her burden to come forward with evidence sufficient to raise a jury issue on entrapment, our review is directed to determining if enough evidence was presented to enable a reasonably-minded jury to conclude that the defendant was predisposed to deal in contraband. E.g., United States v. Dickens, 524 F.2d 441 (5th Cir. 1975). In addition to hearsay reputation testimony, this jury heard Fears admit that she had previously gotten drugs for friends and that she had regarded the government informer in this case as her friend. This evidence amply supports the jury's...