Sullivan v. United States, No. 22193.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: HAMLEY and ELY, Circuit , and McNICHOLS
• Citation: 414 F.2d 714
• Parties: John L. SULLIVAN, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 22193.
• Decision Date: 08 July 1969

414 F.2d 714 (1969)

John L. SULLIVAN, Appellant,
v.
UNITED STATES of America, Appellee.

No. 22193.

United States Court of Appeals Ninth Circuit.

July 8, 1969.

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

414 F.2d 715

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 * * *."

414 F.2d 716

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...