Green v. United States

• Decision Date: 02 November 1962
• Docket Number: 18928.,No. 18852,18852
• Citation: 309 F.2d 852
• Parties: Irven GREEN and Robert Benjamin Smith, Appellants, v. UNITED STATES of America, Appellee. Arnold Jack JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

309 F.2d 852 (1962)

Irven GREEN and Robert Benjamin Smith, Appellants, v. UNITED STATES of America, Appellee.

Arnold Jack JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18852, 18928.

United States Court of Appeals Fifth Circuit.

November 2, 1962.

William F. Walsh, Houston, Tex., Zach H. Douglas, Jacksonville, Fla., for Green and Smith.

William Glenn Cone, Jacksonville, Fla., for Johnson.

John L. Briggs and Emmett A. Moran, Asst. U. S. Attys., Jacksonville, Fla., Edward F. Boardman, U. S. Atty., S. D. Fla. (Henry C. Stockell, Jr., Regional Counsel, William P. Crewe, Asst. Regional Counsel, John L. Fowler, Senior Atty., Internal Revenue Service, of counsel, on the brief), for appellee the United States.

Before BROWN, WISDOM and BELL, Circuit Judges.

WISDOM, Circuit Judge.

This is still another case in which the Allen or "dynamite" charge is the focal point of the appeal. We reverse and remand.

The appeals in these cases, here consolidated for decision, present identical questions of law arising from the conviction of the defendants for conspiracy to violate the Internal Revenue Code by conducting moonshining and bootlegging operations. The defendants, Green, Johnson, and Smith, along with seven others, were indicted in the Northern District of Florida. The indictment alleged twenty-three overt acts in furtherance of the conspiracy, twenty-two of which took place in the Southern District of Florida. Although the last act was allegedly committed in the Northern District of Florida, where the indictment was brought, the appellant Smith was not charged with participation in it. Upon application of eight of the defendants, but not including Smith, the district judge ordered the case transferred to the Southern District as to all the defendants.

At the close of the trial, the trial judge refused to charge the jury that in order to convict any defendant, the jury must find beyond a reasonable doubt that the act alleged to have taken place in the Northern District of Florida was in fact committed and that the defendant participated in it. Finally, and of great importance in this case, before the jury retired to consider its verdict, the trial court gave this version of the Allen charge:

"Each juror is to act upou his own judgment and if he entertains a reasonable doubt, it is not required that he surrender his conviction and render a verdict merely because the other jurors entertain no such doubt. Sometimes the jurors, there is a minority one way and a majority the other way and in that event, I think it is my duty to tell you it is the duty of the minority to listen to the argument of the majority with some distrust of their own judgment because the rule is that the majority will have better judgment than the mere minority and more than that, they are just as honest and just as sincere so that each juror if he is in the minority should heed the argument of the majority with some doubt as to his correct position. * * *"

Upon findings of guilty against these three defendants, they prosecuted this appeal.

I.

The Allen or "dynamite" charge¹ is designed to blast loose a deadlocked jury. There is small, if any, justification for its use.² Nevertheless, an old decision of the Supreme Court has upheld the charge as a reminder to jurors that "they should listen, with a disposition to be convinced, to each other's argument." Allen v. United States, 1896, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. This is the outermost limit of its permissible use. There is no justification whatever for its coercive use. The jury system rests in good part on the assumption that the jurors should deliberate patiently and long, if necessary, and arrive at a verdict — if, but only if, they can do so conscientiously. It is improper for the court to interfere with the jury by pressuring a minority of the jurors to sacrifice their conscientious scruples for the sake of reaching agreement.³

In Allen v. United States, 1896, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528, the trial judge charged:

"that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each others argument; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority."

In Powell v. United States, 5 Cir., 1962, 297 F.2d 318, we said that

"It is implicit in the decisions of the Supreme Court dealing with the Allen case, e. g., Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482, and Brasfield v. United States, 1926, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 that the Fourth Circuit was correct in its recent holding in United States v. Rogers, 1961, 289 F.2d 433, 435-37 `that the Allen charge, itself, approaches ultimate permissible limits * * *\' in handling situations similar to that facing the court below."

This Court then went on to hold that a trial judge's addition to the Allen charge of an imputation of stubbornness to the jurors opposing the majority went "beyond the permissible limits to which a court may go in its endeavor to influence the jury towards the rendition of a verdict." Accord, Kesley v. United States, 5 Cir., 1931, 47 F.2d 453. Here, the instruction that

"* * * it is the duty of the minority to listen to the argument of the majority with some distrust of their own judgment because the rule is that the majority will have better judgment than the mere minority * * *"

far exceeds permissible limits. Mark Twain may have been exaggerating it when he said, "Whenever you find that you are on the side of the majority, it is time to reform," but there is no legal rule that the majority of jurors have better judgment than the minority. There is no legal rule that the minority, merely because they are in the minority, should distrust their own judgment. Such an instruction leads a jury to believe that it is the duty of the dissenting jurors to accede to the majority's views without full discussion and without regard to the historical right of a single juror to stick to his conscientious opinions of the case.

None of the "dynamite" charges approved by this Court in criminal cases supports the charge delivered by the court below. The instruction to the jury permitted in Sikes v. United States, 5 Cir., 1960, 279 F.2d 561, was an almost verbatim rendition of the original Allen charge, while the charge in Weathers v. United States, 5 Cir., 1952, 126 F.2d 118, "was ameliorated by such expressions as: `No juror is expected to yield a conscientious conviction he may have upon the evidence. * * * It is your duty, gentlemen of the jury, to agree unless it does violence to your conscience.'" Similarly, in Shipley v. United States, 5 Cir., 1922, 281 F. 134, 136, we pointed out that "the additional charge of the court to the jury as to their duty in endeavoring to reach a verdict fully admonished each juror of his duty, not to agree to any verdict which did not accord with his conscientious convictions * * *." Here, each juror, far from being "fully admonished * * * not to agree to any verdict which did not accord with his conscientious convictions," was informed that he had a duty to "heed the argument of the majority," which "will have better judgment than the mere minority."

In this case the dynamite exploded before there was any reason to think that blasting was necessary: the trial judge gave the charge before the jury retired. Some courts have held that when the Allen charge is incorporated in the initial instructions its coercive effect is minimized. Nick v. United States, 8 Cir., 1941, 122 F.2d 660, 674; State v. Doan, 1947, 225 Minn. 193, 30 N.W.2d 539. Other courts make no such distinction. People v. Chivas, 1948, 322 Mich. 384, 34 N.W. 22; State v. Thomas, 1959, 86 Ariz. 161, 342 P.2d 197. In this case we see no reason to draw a distinction. The vice in the charge was the court's interference with the jury function. No matter when the charge was made, it gave the jury false notions of the validity and...