Sullivan v. United States

Decision Date08 July 1969
Docket NumberNo. 22193.,22193.
PartiesJohn L. SULLIVAN, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Arthur S. Katayama (argued), of Mori & Katayama, Los Angeles, Cal., for appellant.

Dennis Kinnaird (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Jo Ann Dunne, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before HAMLEY and ELY, Circuit Judges, and McNICHOLS, District Judge*.

HAMLEY, Circuit Judge:

John L. Sullivan, employed as the executive chef of a gourmet restaurant, was tried before a jury on a four-count indictment charging wilful attempts to evade and defeat federal income taxes for the years 1960 through 1963. The evidence offered by the Government tended to show that during these years Sullivan received additional unreported income consisting of "kick-backs" by meat, poultry and produce wholesalers from whom defendant purchased foodstuffs for the restaurant. The defense was that these payments were gifts or loans, and therefore not reportable income.

Defendant was acquitted on the two counts involving the years 1960 and 1961, and convicted on the two counts covering the 1962 and 1963 charges. This appeal followed.

Sullivan contends that, with respect to the essential element of wilfulness, the verdicts of guilty are contrary to the weight of the evidence. Accordingly, he urges that the trial court erred in denying the motion for judgment of acquittal, made at the close of the Government's evidence and renewed after the close of all the evidence.

In our opinion the evidence is sufficient to warrant the implicit jury finding of wilfulness.

Defendant argues that the trial court erred in failing to rule immediately upon his motion for judgment of acquittal made at the close of the Government's evidence pursuant to Rule 29(a), Federal Rules of Criminal Procedure. Instead of then ruling upon the motion, the trial court announced that the motion would "stand submitted." The motion was not acted upon until after the verdicts had been returned. At that time this motion, and a similar motion made at the close of all the evidence, were denied.

It is a mandatory requirement of Rule 29(a), that a motion for judgment of acquittal, made at the close of the Government's evidence, be ruled upon before defendant is required to proceed with his evidence. This is indicated by the words of command in Rule 29(a) pertaining to such motions. It is also indicated by the fact that when it was deemed desirable to authorize the trial court to reserve decision on a motion for judgment of acquittal, as in the case of such motions made at the close of all the evidence, the rule expressly so provides. See Rule 29(b). There is no provision for the reservation of decision in motions for judgment of acquittal made at the close of the Government's case. See Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893,897, and concurring opinion of Judge Wright at 898; Jackson v. United States, 5 Cir., 250 F.2d 897, 901. Furthermore, Rule 29(a) does not require a defendant to demand an immediate ruling in order to preclude the trial court from reserving decisions.

But while the failure to rule on this motion before requiring Sullivan to proceed with his case was error, it was not prejudicial because the Government's evidence, as it then stood, was sufficient to support the jury verdict. See Weathers v. United States, 9 Cir., 322 F.2d 566, 568.1

Sullivan urges that the trial court erred in allowing the jury to separate after it began its deliberations.

On June 13, 1967, at 4:50 p. m., after the jury had deliberated for approximately two and a half hours, the trial judge reconvened court. The jury was then admonished in the usual way and permitted to separate for the night.

The Seventh Circuit has taken the position in criminal cases that, once having commenced its deliberations, the jury cannot, over the defendant's objections, be allowed to separate. United States v. Panczko, 7 Cir., 353 F.2d 676, 678; United States v. D'Antonio, 7 Cir., 342 F.2d 667. However, we prefer the rule expressed by the Tenth Circuit in Hines v. United States, 365 F.2d 649, 651, where, after rejecting the Seventh Circuit rule, the court said:

"* * * we hold that the trial court has full discretion in determining whether the jury shall be allowed to separate at any particular time during the course of the trial or thereafter * * *."

In our opinion the trial court did not abuse its discretion in permitting the jury to separate. The practical problems inherent in keeping the jury together were substantial whereas, under the circumstances, the likelihood of the jurors being subjected to improper influences was minimal. Insofar as the record discloses, no improper communication did reach any juror during the period of separation. Counsel for appellant was apparently not concerned about the separation of jurors at the time of the trial for he neither objected to a separation nor asked for a voir dire examination of them when they returned the next morning.

Finally, Sullivan contends that the trial court erred as to the form of the so-called Allen instruction given as a supplemental instruction during the course of the jury's deliberations. Defendant does not argue that it was improper to give an Allen-type instruction at the time the trial court gave this instruction, but only that the instruction actually given was erroneous because of its failure to include certain language contained in the form of Allen instruction set out in Federal Jury Practice and Instructions, Mathes and Devitt, § 15.16, pages 165-167.

The Allen instruction derives its name from Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528. The Supreme Court there held that under the circumstances of that case, the instruction given, designed to encourage a jury to reach a verdict, was not prejudicial error. The substance of the approved instruction, as set out in the Allen opinion, is quoted in the margin.2

An Allen instruction, even in the most acceptable form, approaches the ultimate permissible limits to which a court may go in guiding a jury towards a verdict. See United States v. Rogers, 4 Cir., 289 F.2d 433, 435. In its least objectionable form the Allen instruction has been criticized. The cases are collected in Walsh v. United States, 9 Cir., 371 F.2d 135, dissenting opinion of Judge Browning. Accordingly, variations therefrom in the direction of coercive appeal have been disapproved. See, for example, Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957. And, when found to be in acceptable form, approval has often been less than enthusiastic.3

The frequently expressed criticisms of the Allen instruction have great force. The jurors in our circuit have become increasingly sophisticated, and we now rarely see any indication that they do not perform their duties conscientiously and intelligently. We doubt that it is really any longer advisable to give the Allen instruction at all, and it certainly should be given only when it is apparent to the district judge from the jury's conduct or the length of its deliberations that it is clearly warranted. All judges are expected to take whatever reasonable time is required to insure that their decisions accomplish the utmost quality of justice, and nothing less should be expected or required of juries as they undertake to meet their fact-finding responsibilities.

Nevertheless, this circuit has consistently upheld the giving of such an instruction when it is in a form which is not more coercive than that approved in Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528.4

We turn then to a consideration of the Allen instruction given in this case and, particularly, Sullivan's argument that it was rendered impermissibly coercive by reason of the omission of certain language near the end of the form of Allen instruction contained in Mathes and Devitt, § 15.16.

The Sullivan case was given to the jury, for its deliberation, at about 2:15 p. m. on June 13, 1967. About 4:50 p. m. on that day the jury was allowed to separate for the night, and returned to its deliberations at 9:30 a. m. on June 14, 1967. At approximately 11:30 a. m. of that day, certain instructions on intent were repeated to the jury pursuant to their request. The jury again retired to deliberate at 11:47 a. m., and at noon the jury was excused for lunch. The jury reconvened for further deliberations at 2:00 p. m. At 2:45 p. m. the trial judge announced that the jury had indicated that it was having some difficulty in reaching a verdict. The court then gave the questioned instruction and sent the jury back for further deliberations at 3:00 p. m. The verdict was returned at 4:25 p. m. that afternoon.5

Because of its length, we do not quote the instruction in question. However, if the part defendant contends was improperly omitted had been given, the full instruction would have been substantially the same as that set out in Mathes and Devitt, § 15.16. The part of the Mathes and Devitt instruction which the trial court did not give, and which appears near the end of the Mathes and Devitt form, is quoted in the margin.6

It will be observed that this omitted part contains three observations. The first is a restatement of the "reasonable doubt" instruction that the trial court had already given several times during the course of its general...

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