Powell v. United States

• Decision Date: 27 March 1962
• Docket Number: No. 19030.,19030.
• Citation: 297 F.2d 318
• Parties: Huey Augustus POWELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

297 F.2d 318 (1961)

Huey Augustus POWELL, Appellant, v. UNITED STATES of America, Appellee.

No. 19030.

United States Court of Appeals Fifth Circuit.

December 8, 1961.

Rehearing Denied March 27, 1962.

H. Grady Rawls, James W. Taxi Smith, Albany, Ga., for appellant.

William A. Davis, Jr., Asst. U. S. Atty., Macon, Ga., Floyd M. Buford, U. S. Atty., Macon, Ga., for appellee.

Before TUTTLE, Chief Judge, and CAMERON and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

Appellant Powell was indicted jointly with Thurman L. Rentz for violation of certain sections of the Internal Revenue Code of the United States dealing with the manufacture, sale and otherwise handling of distilled spirits, including one count charging conspiracy with Rentz and with others named but not indicted. He was convicted on six counts of the eleven count indictment, including the conspiracy count, and was sentenced to imprisonment. He appeals, specifying that the court below erred in refusing to dismiss certain counts in the indictment, in denying appellant's motion for acquittal upon certain counts, in permitting the United States Attorney to read, during his closing argument, from a written confession Rentz had given, and in giving supplementary charges to the jury which amounted to coercion by the court. We think that the court below did not err in refusing to dismiss the challenged counts of the indictment and in denying appellant's motion for a directed verdict; but we are of the opinion that the court below did commit reversible error in its supplementary charges.

These supplementary charges were given after the jury had retired following the original charge, and the question presented is whether, in so doing, the court below exceeded the limits of the "Allen Charge."¹ The substance of the Allen charge has been approved in a large number of decisions by subordinate federal courts, including several from this Circuit.² The Allen charge is sometimes referred to as the "dynamite charge." In commenting on that nature of the charge, we said, in Silverman, supra, 277 F.2d page 264: "Although it is better practice to avoid supplementary charges, the propriety of such charges rests largely in the discretion of the trial judge. * * * We find that the charge did not blast the jury into action in any way prejudicial to the plaintiffs. * * *"

The appellant argues that the handling of the jury and the wording of the charges based upon the Allen case did, under the circumstances disclosed by the record, have a coercive effect upon the jury.

After the jury had been fully charged by the court, the charge occupying sixteen pages of the printed record, it retired to the jury room at 5:20 P.M. It was brought back before the court fifteen minutes later, at 5:35 P.M., in order that the court might correct an error it had made in its charge, to which action no exception was taken. Having retired to its room at 5:46 P.M., the jury returned to the courtroom at 7:00 P.M. to request that the court give it some more "information on just what created a conspiracy." The court had a portion of its original charge reread to the jury, and inquired of the jury whether it desired to go to supper. But the jury returned to its room at 7:10 P.M., following which appellant excepted to the supplementary charge given by the court.

The jury was called back to the court-room at 10:10 P.M.³ and asked if it had reached a verdict. After receiving a negative answer from the foreman, the court asked if the jury had agreed on a verdict as to any count of the indictment and the foreman again gave a negative reply. It then asked of the foreman, "What seems to be the trouble? Is it a question of law or a question of fact?" The foreman responded: "Question of fact, sir." Thereupon, the court gave to the jury a reasonably accurate paraphrase of the Allen charge. It added some words, however, not embraced within the carefully measured language of the Allen charge or within the purview of any other case called to our attention. The quoted language includes some of the approved Allen charge, but adds additional comments:

"As I said, it is your duty to agree on a verdict in this case if you conscientiously can do so. This case has been fully and completely tried, with able counsel on both sides, presumably with every witness which each side wanted to produce before you, presumably with every question asked every witness that either side wanted to ask. It is all in your laps for decision. Some jury will have to pass upon this case and you twelve men are just as competent as any other jury would be to dispose of it.

"Now let me say this. It is no credit to a juror to stand out in a pure spirit of stubbornness, and I don\'t mean to indicate that any one or more of you are doing that. I don\'t know and I don\'t want to know. But the law says that if that should be the case it is no credit to a juror to stand out in a pure spirit of stubbornness because he has taken a position, and he should not hesitate to change his position if he becomes convinced that the position is erroneous. It is the duty of every juror to consult with every other juror and reach a mutual understanding in the case, if that can be conscientiously done. I do not mean to say that a juror is to give up an abiding conviction in the matter, but it is your duty to reconcile such differences, if any exist, and if it is possible to do so.

"If you follow the principles of law given you by the Court and if you recall the evidence in this case you ought to be able to agree upon a verdict. * * *"

After the jury retired an extensive colloquy was had between court and counsel in which exception was taken by appellant to this supplementary charge of the court.⁴

The jury was returned to the court at 11:46 P.M. and the court asked if a verdict had been reached on the entire case or any of the counts of the indictment. The foreman replied that the jury had agreed on some of the counts. When asked whether he thought it advisable that the jury deliberate any further, the foreman replied: "Sir, it's my opinion that most of us have already gotten pretty dull. That's our thinking there." The court thereupon asked the foreman his opinion about the advisability of going to bed at the hotel and resuming the deliberations on the following day, suggesting that the foreman might desire to confer with the jurors, which the foreman agreed to do. After conferring a while in the judge's chambers, the foreman reported that the jury requested to be given thirty minutes more. Before retiring the foreman asked for further instruction as to count one, the conspiracy count: "do both parties charged have to be a part of that conspiracy?"

The court gave an additional charge on conspiracy in the form of some questions by the foreman and responses by the court. After the jury retired at 12:10 A.M. exceptions were taken to the supplementary charge concerning the ingredients of conspiracy, but we do not reach the question presented thereby. In thirty minutes the jury returned with the verdict outlined above upon which the court entered its judgment.

We find no authority for the portion of the charge where the court below gave it as its opinion that it was not to the credit of a juror to stand out in a pure spirit of stubbornness. The court's disavowal of its intention to indicate that any of the jurors belonged to that class was followed by a statement that "the law says that if that should be the case it is no credit to a juror to stand out in a pure spirit of stubbornness because he has taken a position * * *." The last statement is not supported by any authority which has been called to our attention. It was, moreover, followed by the court's comment: "If you follow the principles of law given you by the court and if you recall the evidence in this case you ought to be able to agree on a verdict."

This last opinion expressed by the court is, in our judgment, a non sequitur. The entire course of the jury's actions indicated that there was sharp divergence of views among its members. There was never any indication of the number of jurors who stood on the opposing sides. Under the circumstances, the court went too far, we think, when it expressed the opinion that, if the jury remembered the evidence and heeded the charge of the court, it ought to be able to agree upon a verdict. That opinion of the court is not supported by any law which is brought before us.

An opinion by Judge Sibley in a case resembling this one, Kesley v. United States, 5 Cir., 1931, 47 F.2d 453,...