Government of Virgin Islands v. Hernandez

• Decision Date: 03 April 1973
• Docket Number: No. 72-1453,72-1454.,72-1453
• Citation: 476 F.2d 791
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. Felix Carrion HERNANDEZ, and Iris Lopez Hernandez, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

476 F.2d 791 (1973)

GOVERNMENT OF the VIRGIN ISLANDS v. Felix Carrion HERNANDEZ, and Iris Lopez Hernandez, Appellants.

Nos. 72-1453, 72-1454.

United States Court of Appeals, Third Circuit.

Argued February 1, 1973.

Decided April 3, 1973.

Arnold M. Selke, Charlotte Amalie, St. Thomas, V. I., Stanley M. Poplow, Philadelphia, for appellants.

Frederick G. Watts, Fred M. Acuff, Appellate Section, Crim. Div., Washington, D. C., for appellee.

Before MARIS, ROSENN, and HUNTER, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

Husband and wife, Felix and Iris Hernandez, were tried to a jury in a joint trial in the District Court for the District of the Virgin Islands and convicted for possession of heroin with intent to manufacture or distribute it, in violation of 19 V.I.C. § 604(a)(1). They appeal from their judgments of conviction, in which Felix Hernandez was sentenced to fifteen years incarceration and his wife to ten to fifteen years.

The entire case against appellants consisted of testimony about, and display to the jury of, a number of items seized by the Narcotics Strike Force in a search of the Hernandez home on November 11, 1971. Heroin seized included 2.08 grams of white powder (35.1% pure) found in one of the wife's housedresses, seven or eight small decks of heroin (8% pure) found scattered around the bathroom, and 32.75 grams (37.1% pure) found floating in the cistern connected with the house. The officers also seized from a dresser drawer in the master bedroom 29.67 grams of a white powder proven to be 6.6% pure methadone. Also found in or on top of the dresser were two spoons —one coated with heroin—some air mail envelopes, a book from which paper had been cut, and numerous small slips of paper.

The Government contended that the quantity of heroin combined with the paraphernalia, such as spoons and paper slips, demonstrated an intent of the appellants to distribute the heroin. Although it did not offer scientific evidence that the seized paper slips were made of the same paper as that in which the decks of seized heroin were wrapped, the Government urged that the papers were of the type used to package heroin. Its expert testified that the heroin found in the cistern could be divisible into 2,000 decks, saleable at $5 each. The only other incriminating evidence was one officer's testimony that he saw Iris Hernandez through a window pouring some white powder into the sink and toilet after officers knocked at her front door.

Appellants raise numerous grounds for reversal of their convictions, the more substantial of which are the assertions that (1) the jury instructions were in plain error because they included an Allen Charge; (2) they were deprived of their right to effective assistance of counsel by being represented by the same attorney; and (3) Iris Hernandez's admission of ownership of a housedress should have been excluded from the evidence because it was made during custodial interrogation absent any Miranda warning. We reverse the convictions.

The fairness of appellants' trial was jeopardized by the inclusion in the jury instructions of a form of the Allen Charge, urging a minority of the jury to give special consideration to the views of the majority in order to avoid a hung jury. The judge instructed in his charge in chief:

If there is disagreement as to the innocence or guilt of both defendants, or either one of them, those in the minority should be willing to reexamine and reevaluate their ideas and exchange their views with the thoughts of those Jurors who constitute the majority.

The same can be said for a disagreement as to whether either one or both of them are guilty of the lesser included offense or guilty of the offense charged in the information. If there is disagreement as to which one it is, again, those in the minority ought to be willing to reexamine and reevaluate their concepts and their ideas with those in the majority to the end that unanimity might be obtained and a verdict returned.

The Allen Charge, originally approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), has created considerable judicial tribulation over the years. In light of the constitutional principle that the judge may not "coerce" the jury in its determination of guilt or innocence, courts have had to determine from time to time whether variations of the Allen Charge, given in many different circumstances, have injected coercion into the fact-finding process. Recognizing the inherent potential of the charge to coerce and the inscrutable problem of determining in each case whether such coercion actually existed, we prospectively banned the use of the Allen Charge in this circuit in United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969), as part of our supervisory authority over the district courts. The District of Columbia and Seventh Circuits have done likewise. United States v. Thomas, 144 U.S.App. D.C. 44, 449 F.2d 1177 (1971); United States v. Brown, 411 F.2d 930 (7th Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970).

One of the coercive elements of the Allen Charge in the form often given is its admonition to the minority jurors to give deference to the views of the majority. United States v. Johnson, 139 U.S.App.D.C. 193, 432 F.2d 626, 633 (1970). The instruction given in the present case includes that element. The minority was told to "reexamine and reevaluate their concepts and their ideas with those in the majority to the end that unanimity might be obtained and a verdict returned." Our prospective ruling in Fioravanti was aimed, among other things, at eliminating such a coercive influence from charges used in the Circuit. 412 F.2d at 416-417.¹

In order to prevent any confusion among the district courts, we explicitly warned in Fioravanti:

Hereafter, in this circuit, trial judges are not to give instructions either in the main body of the charge or in the form of a supplement that direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his. Such an instruction will be deemed error, normally reversible error. Conceivably, in very extraordinary circumstances the error may be found so inconsequential as to avoid the necessity of reversal on appeal. But hereafter this court will not let a verdict stand which may have been influenced by an Allen Charge.

412 F.2d at 420. Finding no such "extraordinary circumstances" in the present case,² although no objection was made to the charge at trial, we find plain error and reverse the convictions on this ground. We reiterate our suggestion in Fioravanti, 412 F.2d at 420 n. 32, that trial judges restrict their jury instructions on the deliberative process to the charge suggested by Mathes and Devitt, "Federal Jury Practice and Instructions," 1965, § 79.01.³

Since we must reverse the convictions, we need not consider all of the alleged errors asserted. Some comment, however, should be addressed to the issue raised concerning the right to the effective assistance of counsel because the appellants must be awarded a new trial. They were represented by the same retained counsel throughout the trial. Although they never requested separate counsel; they now allege they were prejudiced by the joint representation at trial. Prior to trial, a motion for severance had been made and denied. At the time, the prosecutor had requested the court to consider the possibility that joint representation would be prejudicial to the appellants if severance were not granted. Appellants, however, were never apprised by the court of the dangers of joint representation, nor was their counsel asked about possible conflicts of interest in such representation.

The Supreme Court has held that the sixth amendment right to fair and effective assistance of counsel can be abridged when several defendants are represented by one counsel. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Although...