U.S. v. Amaya

• Decision Date: 27 February 1975
• Docket Number: No. 74--2311,74--2311
• Citation: 509 F.2d 8
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Flores AMAYA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 8

509 F.2d 8

UNITED STATES of America, Plaintiff-Appellee, v. Flores AMAYA, Defendant-Appellant.

No. 74--2311.

United States Court of Appeals Fifth Circuit.

Feb. 27, 1975.

Peter Torres, Jr., Warren Weir, San Antonio, Tex., for defendant-appellant.

William S. Sessions, U.S. Atty., Eb Luckel, John M. Pinckney, II, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, GOLDBERG and GODBOLD, Circuit Judges.

GOLDBERG, Circuit Judge:

Defendant Flores Amaya was indicted and tried for conspiring to distribute a quantity of heroin in violation of 21 U.S.C. § 841(a)(1). The trial lasted two days. The jury deliberated for about a half hour at the close of the second day and was then recessed by the judge. At about 9:00 a.m. on the third day the jury reconvened. At about 1:25 p.m. on that day the jury passed a note to the judge which, while unavailable to us, evidently indicated that the jury was deadlocked. In response, the judge sent a letter which read: 'Please continue to review the evidence again, try to reach a verdict and report back to me in one hour.' The jury wrote back to the judge to explain that it had deliberated 'for a few minutes' but decided it could not reach a verdict within the hour. At 2:25 p.m. the judge delivered an Allen charge ¹ as reproduced below. ² The charge is substantially like that given in United States v. Fonseca, 5 Cir. 1974, 490 F.2d 464, save for the following accompanying comment:

. . . you have deliberated from 9:15 today and you deliberated for about 30 minutes yesterday, but we had one jury deliberate under circumstances such as you have expressed here to me for over nine days and they finally reached a verdict. So I'm going to give you an opportunity to reach a verdict . . ..

The judge then dismissed the jury for the day. They reconvened at 9:15 the next morning and sometime between then and 10:40 a.m. they found the defendant-appellant guilty.

On appeal, Amaya contends that the instructions which the judge gave to the jury had the cumulative effect of coercing a verdict. If such was the case, then the instruction was incorrectly given and a mistrial must be declared. Jenkins v. United States, 1965, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957; Powell v. United States, 5 Cir. 1961, 297 F.2d 318. The basis of appellant's attack on the chargelies in the verbiage used.

I.

The first specification of error lies in the trial judge's comment that he wanted the jury to report back to him within an hour as to whether they were able to reach a verdict. Other Circuits have held that the trial judge may not put the jury under any conscious, explicit time demands. United States v. Lansdown, 4 Cir. 1972, 460 F.2d 164, 169 n. 3; Goff v. United States, 10 Cir. 1971, 446 F.2d 623; Burroughs v. United States, 10 Cir. 1966, 365 F.2d 431.

In Burroughs the jury took the case at 5 p.m. and were asked by the judge to 'see if you can't reach a verdict within an hour.' An hour and twenty minutes later the jury came back to the courtroom to inform the judge that they were deadlocked. The judge then gave an Allen charge and asked them to go back and work until 7 p.m.: if they could not reach a verdict by then they would be recessed and would go back to their deliberations in the morning. The jury appears to have reached a verdict that evening. The Tenth Circuit reversed and noted:

But, in any event, it is one thing to recall the jury to beseech them to reason together, and it is quite another to entreat them to strive toward a verdict by a certain time. When these admonitions are considered in their context, they are subject to the clear inference that the judge was unduly anxious to conclude the lawsuit, and we think it entirely reasonable to infer that the jury was aware of his anxiety. This type of verdict-urging on the part of the court tends to undermine the proper function of the common law jury system as contemplated by the Seventh Amendment. We must guard against any such subtle inroads. We think the charge in this case went beyond the permissible limits of the Allen charge as it has been construed and approved by this court. 365 F.2d at 434.

Burroughs is a stronger case for reversal than the one before us. In the present case the time suggestion was not repeated again in conjunction with an Allen charge. Nevertheless, it is reasonable to infer that the jury in the instant case may have taken from the judge's remark that he was anxious to conclude the lawsuit.

The second specification of error lies in the closing comment of the judge that one jury had taken nine days to reach a verdict; and therefore he would continue to give this jury 'an opportunity' to reach a verdict.

In two cases this Circuit has considered the legitimacy of an instruction which intimated to the jury that the judge was prepared to allow their deliberations to continue for days. In Cook v. United States, 5 Cir. 1958, 254 F.2d 871, we reversed and remanded a case in which the trial judge had pressed the foreman to indicate the actual numerical division in the jury and had then said:

Now, you give the Marshal your name and your address and he will send and get your shirts and whatever underclothes you need and your razors, so you can make yourself comfortable. Now, I am not going off and leave you all. I am going home Friday afternoon. If you do not reach a verdict by that time you can call me on Saturday at Brunswick, if you reach a verdict on Saturday. I will be back here Sunday afternoon. I am not trying to threaten you. I am telling you exactly what the Court is going to do.

To which this Court responded:

The mere asking of the question as to the standing of the jury . . . is error per se. In this case that error was aggravated by the suggestion that the jury might be held together through Thursday, Friday, Saturday and Sunday. . . . Within its perogative, the jury must remain as free from any possible influence or coercion, even though unintended, as the trial judge would require that he himself be when sitting as a trier of fact.

In Boyett v. United States, 5 Cir. 1931, 48 F.2d 482, the trial judge told a deadlocked jury that some of the jurors did not want instructions, and were unwilling to follow the instructions supplied by the Court. He then said, 'It does not seem to the Court that there should be any great difficulty in arriving at a verdict in this case.' He added:

Mr. Marshal (addressing the Marshal of the Court): You can prepare supper for this jury and a place for them (to be made comfortable) for the night, and after supper you may permit them to consider their verdict until bedtime, and then permit them to retire until morning, and after they have had breakfast, return them to their jury room for further consideration of their verdict. Be sure and see that they are made comfortable. 48 F.2d at 483--484.

We observed:

(W)hen the jury came into court the second time the judge made it very clear to them that he believed some of them were derelict in their duty and that he intended to punish them by keeping them sequestered indefinitely until they reached a verdict. This tended to intimidate and coerce them. 48 F.2d at 484.

Both of these cases presented far stronger intimations of coercion than does the present case. In each the Court's focus was upon the other element of coercion in the case--the demand for a numerical count or the castigation of jurors unwilling to follow instructions. But in each the Court indicated that it would be unwilling to tolerate coercion by the district court in the form of explicit mention of the possibility of prolonged deliberation.

The instruction in the present case can plausibly be read merely as an indication that the jury should take the time it needs. On this hypothesis, the mention of the nine days is only to quiet qualms that the jury may have that it should rush to a conclusion; for as of yet, it had not taken an exorbitant amount of time. Moreover, the sentence following the 'nine days' comment suggests that the judge was merely giving the jury 'an opportunity to reach a verdict' and was not demanding one from them. On the other hand, the mention of the nine days can also plausibly be read to suggest to the jury that it was 'in for the duration.' Under this hypothesis, the judge was indicating that he would not easily let the jury out of coming to an agreement, and was prepared to have the jurors invest a great amount of time deliberation if some of the jury members chose to be stubborn. This inference of a desire for a verdict is strengthened by the fact that merely an hour before he had suggested to the jury that it try to reach a verdict and report back to him. It is, of course, possible that different jurors reacted in different ways to this charge. For some concern over their indecisiveness may have been quieted while others may have been further aroused by the bleak prospect promised by continued indecision.

This Court, then, is faced with deciding the legitimacy of trial instructions which indubitably go beyond the Allen charge approved in United States v. Bailey, 5 Cir. en banc 1973, 480 F.2d 518, affirming, United States v. Bailey, 1972, 468 F.2d 652 and United States v. Fonseca, 5 Cir. 1974, 490 F.2d 464,--but which exacerbate it in the following manner: (1) they include a single note to the jury suggesting the jury report back in an hour; while suggestive of a deadline, the note here was less coercive than were the instructions in previous 'deadline instruction' cases; (2) they include the 'nine day' reference; this statement is ambiguous and might be read as either a threat to the jury or in mitigation of the jury's pre-existing consciousness of the duration of its deliberations.

We find that the nuances hereabove mentioned are beyond the allowable perimeters of jury instruction.

II.

The Allen charge both deserves and...