U.S. v. Armstrong

Decision Date17 August 1981
Docket NumberNos. 80-1507,s. 80-1507
Citation654 F.2d 1328
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William Todd ARMSTRONG, Kenneth W. Myrick, and Owen K. Stephenson,Defendants-Appellants. to 80-1509.
CourtU.S. Court of Appeals — Ninth Circuit

No appearance for Myrick.

John Burns, Asst. U. S. Atty., San Francisco, Cal., for United States.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL and WRIGHT, Circuit Judges, and EAST, * District Judge.

EAST, District Judge:

The above-named defendants-appellants (Armstrong, Myrick, and Stephenson) appeal their respective judgments of conviction and sentence for federal frauds. We note our jurisdiction under 28 U.S.C. § 1291 and affirm.


Appellants were engaged in a scheme soliciting advance fees for loan guarantee agreements. Myrick and Stephenson were the principals of a trust fund whose assets were to secure the guarantees. Armstrong acted as a finder, charging a fee to put financially troubled people in touch with Myrick and Stephenson. The two trustees would enter into an agreement with the Myrick and Stephenson were tried on 15 counts including mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C. § 1343), inducement to travel interstate in order to defraud (18 U.S.C. § 2314), and giving false information in a loan application (18 U.S.C. § 1014). The two trustees were convicted on all counts. Armstrong was convicted on one count of wire fraud, with the jury being unable to reach a verdict on three other counts. The trial proceeded over the course of four weeks, and the jury spent seven days in a two week period deliberating before returning its partial verdict.

individual, for an additional fee, providing that the trust would guarantee certain loans. The trust's balance sheet was supplied to the individuals to assist in obtaining these loans. The balance sheet, however, listed assets which were overvalued or non-existent. The appellants were indicted based on this activity.

The most significant arguments appellants raise on appeal center on the activities of the jury and the District Court's response. Appellants point to a possible third party threat, to the revelation of the numerical split, to the health of one juror, and to an extra-jury communication in arguing that the District Court erred in not declaring a mistrial on all counts. Further, appellants characterize certain of the court's instructions as Allen charges 1 and claim that it impermissibly twice Allen -charged the jury.

Our careful review of the conduct of the jury and the action of the court reveals a tangled but not reversible course of events. We additionally reject appellants' other assignments of error.


This was a jury of prolific writers. Notes flowed to the court like rainwater in the rain forests. Each note indicated another level of frustration and more incidents of jury turbulence. In the end, the jurors could not resolve all their differences they failed to agree on all counts in spite of eight days of deliberation, and were forced to adjourn, having reached only a partial verdict.

During the seven days of deliberation, there were a number of difficulties. The principal incidents included:

1. After the court instructed the jury, but before deliberations even began, two of the jurors attempted to speak to the court reporter, apparently to tell her that one juror did not want to serve and wished to be dismissed. The court reporter told them not to speak to her but to write a note to the court. The court brought the jury in and asked if any member wished to be excused, but none did.

2. On the fourth day of deliberation, a note was received stating: "This jury is Dead Lock (sic)." Twenty minutes later a second note was received stating: "We are not dead lock (sic) as stated. We have not even voted on all the counts. We have one juror who refused to listen to your instructions." The court did not respond to these notes.

3. The next day a note was received from juror Fletcher that he wanted to go to his brother's funeral in St. Louis. After discussions with counsel, the court decided to allow him to leave on a Friday and return early the following week.

4. On the sixth day of deliberations, the court received a note from juror Gingras stating that her husband had taken two calls the night before which had used obscene language and said: " 'Tell your wife to stop hassling my brother-in-law at court.' " The court did not respond to this letter.

5. The following Tuesday morning, the last day of deliberations, juror Goldstein gave a letter to the court stating that she had a heart condition, that she was worried about the threats to one of the jurors, that juror No. 1 refused to follow the court's instructions, and she wished to be excused 6. Soon after, as the jury went to lunch, the court received another note, this one signed by eight jurors. It stated many complaints about juror Jackson and noted juror Gingras' opinion that he was involved in the phone calls to her. After lunch, the court asked the foreperson if they were deadlocked and he allowed as how they were. Responding to the court's next question, he stated that the jury could return some verdicts. The court then told them to "go back and return a verdict then." Eight minutes later the jury returned guilty verdicts on some counts and no verdicts on others.

for health reasons. The court had the jury brought in, told the jurors they would be discharged soon, and gave the second alleged Allen charge (discussed below). The jury then returned to deliberate. Before lunch, the court asked juror Goldstein about her health, out of the presence of the other jurors. Before the court could stop her, she replied that she felt that the jury could come to a decision that afternoon and that she could remain to finish.

The appellants join in urging four grounds for reversal based on these incidents: the extraneous communication created an unrebutted presumption of prejudice; the revelation of deliberations and numerical split required a mistrial be declared; Goldstein's illness required a mistrial; and the first deadlock note required a mistrial. We consider the question of extraneous communication to be the most serious challenge to the verdict.

The appellants correctly assert that the presence of outside influences upon the jury establishes a presumption of prejudice, rebuttable only by a strong contrary showing by the Government. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954); Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892); United States v. Goliday, 468 F.2d 170, 171-72 (9th Cir. 1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1386, 35 L.Ed.2d 597 (1973). The Government replies that the phone call involved here did not trigger this presumption because it was not an outside influence. It argues that the call was merely part of the intra-jury differences in this case. In determining whether we invoke this presumption, the Government would have us draw a line between outside communications concerning intra-jury matters and those which relate to other matters.

Line drawing often creates artificial, discrete units where in reality a continuum exists. We should not be too quick to subject real situations to overreaching compartmentalization. Doing so only leads us farther down the road to absurdity, grasping more and more illogically for the distinctions which preserve the lines and compartments we initially created with such reverence. It is far more judicially honest to acknowledge the continuum and assert the genuine basis for our decision. In questions about jury incidents, we are ultimately not so concerned with their nature as with the prejudice they may have worked on the fairness of the defendant's trial. See United States v. Klee, 494 F.2d 394 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); Cavness v. United States, 187 F.2d 719 (9th Cir. 1951). Thus, having been presented with facts establishing a jury irregularity, whether or not we speak in terms of the rebuttable presumption of prejudice or of the fairness of the defendants' trial, we reach the same result.

In reviewing decisions on jury incidents, we recognize that the District Court is in a better position than we are to determine whether what happened was prejudicial. United States v. Klee. For this reason, we accord some deference to its decision when applying the abuse of discretion standard.

Of course, a careful look at the source of the jury influence will be a revealing step in evaluating possible prejudice. Here, there was indeed some third party involvement in the telephone calls to juror Gingras. At the least, her husband We find no merit in appellants' other three assignments of error concerning the jury incidents. Mere revelation of the numerical division of a jury, although to be discouraged, does not compel a mistrial. See United States v. Williams, 444 F.2d 108, 109 (9th Cir. 1971). Nor does the illness of a juror necessarily mean that the District Court must declare a mistrial. In the absence of coercion of the juror or jury due to the illness, there is, again, no prejudice. Here, the court apprised itself of Mrs. Goldstein's condition and was convinced, and she agreed, that she could continue for the short additional time it would take to finish the case. We see no reason to challenge the court's conclusion and we find no error. Finally, deference is accorded to the District Court in the timing of declaring a mistrial due to a deadlocked jury. United States v. Cawley, 630 F.2d 1345 (9th Cir. 1980). The jury recanted its first announcement of deadlock 20 minutes after it professed it. At the end of deliberations, the court...

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