Jacobs v. United States

• Decision Date: 22 June 1960
• Docket Number: No. 16302.,16302.
• Citation: 279 F.2d 826
• Parties: Frank W. JACOBS, Sr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

279 F.2d 826 (1960)

Frank W. JACOBS, Sr., Appellant, v. UNITED STATES of America, Appellee.

No. 16302.

United States Court of Appeals Eighth Circuit.

June 22, 1960.

Sidney M. Glazer, St. Louis, Mo., for appellant.

William C. Dale, Jr., Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before GARDNER, WOODROUGH and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

Frank W. Jacobs, Sr., appellant, was indicted on charges of willfully attempting to evade income taxes for the years 1950, 1951 and 1952 by the filing of fraudulent income tax returns. After a jury trial, in which the government relied upon the net worth theory of proof, appellant was acquitted on the count applicable to the year 1950 and convicted on the counts relating to the years 1951 and 1952. He was sentenced to concurrent terms of imprisonment of five years and was fined $20,000, from which result this appeal is taken.

Appellant urges, first, that the trial court committed error by inquiring as to the division of the jury and in giving an additional charge during the jury's deliberations after the inquiry had elicited the information that the jury was unevenly divided. The court concluded its main charge to the jury at noon of the seventh day of the trial. The jurors were then taken to lunch, subsequent to which they retired. At 5:53 o'clock p. m. on that day the jurors were again brought into court, whereupon the following proceedings transpired:

"The Court: I am going to ask first that no member of the jury volunteer any statements at all, simply answer as succinctly as you can the questions that I may ask you. You haven\'t arrived at a verdict, have you?

A Juror: No sir.

"The Court: Do you think you are near a verdict?

A Juror: No sir.

A Juror: No sir.

"The Court: Are you the foreman?

A Juror: I am.

"The Court: Oh. Mr. Foreman, do you think it possible you are going to arrive at a verdict?

"The Foreman: I doubt very much.

"The Court: Now, let me ask you — I don\'t want anybody to say, I don\'t want you to say, I don\'t want anybody to say how you are divided numerically; but I would like to ask whether there is, whether the division is, the sentiment of the jury, whether it is very largely one-sided, whether or not — I don\'t want anybody to comment how many taking one position or how many another, but are there — is it equal, largely one-sided?

"The Foreman: Can I answer that?

"The Court: Without any numbers.

"The Foreman: Not equally divided.

"The Court: Have you been that way throughout the afternoon?

"The Foreman: Yes sir.

"The Court: That being the case, I want to say this to you at this time: This is an important case; the trial has been long and expensive. The failure to agree upon a verdict will necessitate another trial, probably equally as expensive. In the Court\'s opinion the case would not be tried any better or exhaustively than it has on either side. It is therefore very desirable that you should agree upon a verdict.

"The purpose of a trial is to arrive at a verdict, a just verdict, not a disagreement. It is the duty of a jury to agree upon a verdict, that is the purpose of a trial. It is your duty to adjust your differences of opinion by comparison of views and by discussion of the evidence, having your minds at all times open to the truth as may be impressed upon you by fair argument and a fair presentation of the evidence. Such a method adopted by reasonable men and women, having due regard to the opinions of your fellow jurymen will almost inevitably lead to an agreement and a just verdict. On the other hand, a dogged persistence in a position which will not listen to a fair argument or to the persuasive force of reason is destructive of justice and has no place in the jury box.

"Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own or her own convictions, and not a mere acquiescence in the conclusion of his or her fellows, yet in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; and you are selected in the same manner and from the same source from which any future jury must be. There is no reason to suppose the case will ever be submitted to twelve men and women more intelligent, more impartial, or more competent to decide it; or that more or clearer evidence will be produced on one side or the other. With this in view it is your duty to decide the case if you can conscientiously do so."

Thereafter, counsel for appellant moved for a mistrial on the ground that the court's inquiry followed by the supplemental instruction was improper, which motion was overruled. After further deliberation, the jury returned a verdict finding appellant guilty on two counts and acquitting him on one. It is the contention of appellant that the inquiry and the additional instruction coerced the jury into arriving at a compromise verdict. In so contending, appellant calls attention to the fact that the jury was "not evenly divided", that the view of the minority at that time was so strong that the foreman and one other juror indicated that they were not near a verdict, and that the foreman, in response to the court's question, "do you think it possible you are going to arrive at a verdict", replied, "I doubt very much" and that they had been "that way throughout the afternoon".

The propriety of inquiring of a jury how they stand has been considered by the Supreme Court and the Courts of Appeals, on numerous occasions. In Burton v. United States, 1905, 196 U.S. 283, 305-303, 25 S.Ct. 243, 249, 49 L.Ed. 482, the trial judge inquired of the jurors as follows:

"I would like to ask the foreman of the jury how you are divided. I do not want to know how many stand for conviction, or how many for acquittal, but to know the number who stand the one way and the number who stand another way. I would like the statement from the foreman."

To which the foreman answered:

"Eleven to one."

Thereupon the court instructed the jury further in the language approved by the Supreme Court in Allen v. United States, 1896, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528, which instruction was similar to that used by the trial judge here. In reversing on this and other grounds, the Supreme Court stated:

"We must say in addition, that a practice ought not to grow up of inquiring of a jury, when brought into court because unable to agree, how the jury is divided; not meaning by such question, how many stand for conviction or how many stand for acquittal, but meaning the proportion of the division, not which way the division may be. Such a practice is not to be commended, because we cannot see how it may be material for the court to understand the proportion of division of opinion among the jury. All that the judge said in regard to the propriety and duty of the jury to fairly and honestly endeavor to agree could have been said without asking for the fact as to the proportion of their division; and we do not think that the proper administration of the law requires such knowledge or permits such a question on the part of the presiding judge. Cases may easily be imagined where a practice of this kind might lead to improper influences, and for this reason it ought not to obtain." (Emphasis supplied.) Burton v. United States, supra, at page 307, 25 S.Ct. at page 250, 49 L.Ed. 482.

More recently, in Brasfield v. United States, 1926, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345, the Supreme Court had before it the single question of whether or not prejudicial error had been committed by the trial judge in inquiring of the jury, which had failed to agree, how it was divided numerically, which inquiry elicited the reply by the foreman that it stood 9 to 3 without any indication of which number favored conviction. In forceful language Mr. Justice Stone, speaking for a unanimous court, held the inquiry improper, declaring:

"We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be obtained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measureable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned." (Emphasis supplied.) Brasfield v. United States, supra, 272 U.S. at page 450, 47 S.Ct. at page 135.

In Jordan v. United States, 9 Cir., 1927, 22 F.2d 966, the trial court inquired:

"I am not asking you for a division, Mr. Foreman; but I will ask you: Is the jury about evenly divided? You can answer that yes or no.

"The Foreman: Yes, sir."

The Circuit Court reversed the conviction, relying upon both Burton v. United States, supra, and Brasfield v. United States, supra. In referring to the latter decision, the court stated:

"This language is too plain to admit of further controversy. The court condemned both the form of the inquiry and the inquiry itself, and declared that in all future cases any such inquiry should be regarded as ground for reversal. It is idle to say that to ask a jury `If it is about evenly divided\' does not require it to disclose `the proportion of division of opinion among the jury,\' or `to reveal the nature or extent of its division.\'

"For this error, the judgment is reversed, and the cause is remanded for a new

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