U.S. v. Brokemond, No. 90-9176

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before ANDERSON; HILL
• Citation: 959 F.2d 206
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher BROKEMOND, Defendant-Appellant.
• Docket Number: No. 90-9176
• Decision Date: 24 April 1992

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959 F.2d 206 UNITED STATES of America, Plaintiff-Appellee,
v.
Christopher BROKEMOND, Defendant-Appellant. No. 90-9176. United States Court of Appeals, Eleventh Circuit. April 24, 1992.

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Tony L. Axam, Atlanta, Ga., for defendant-appellant.

Amy D. Levin, Michael O'Leary, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.

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

Before ANDERSON, Circuit Judges, HILL ^*, Senior Circuit Judge, and YOUNG ^**, Senior District Judge.

HILL, Senior Circuit Judge:

Appellant Brokemond appeals his conviction in the district court of conspiracy to possess and distribute and attempted possession and distribution of one kilogram of cocaine.

Appellant raises two issues for this court's consideration. First, appellant argues that a supplemental instruction given to the jury by the district court judge violated appellant's constitutional right to a fair trial by coercing the jury to return a guilty verdict. Second, appellant claims that the district court's sentencing of appellant under Federal Sentencing Guidelines was not supported by an adequate factual foundation and thus denied appellant his constitutional rights of equal protection and due process.

Our ruling in Watson v. Alabama, 841 F.2d 1074 (11th Cir.1988), instructs that the judge's supplemental instruction was not coercive. Regarding the application of Federal Sentencing Guidelines, appellant failed to raise his first objection before the district court and is precluded from doing so for the first time on appeal. Appellant's second objection fails because a sufficient factual foundation supports the district

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judge's determination, which was not erroneous.

Although appellant does not raise the issue, we find the district judge's procedure at sentencing in conformity with our ruling in United States v. Jones, 899 F.2d 1097, 1103, cert. denied, --- U.S. ----, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990), requiring the solicitation of fully articulated objections following the imposition of sentence.

AFFIRMED

I. The Supplemental Instruction

After receiving the initial charge and instructions from the judge, and several hours into their deliberations, the jury returned to the courtroom and indicated that they had reached a verdict. A verdict form was presented to the judge, which showed that the jury had not reached a unanimous verdict. ¹ After the jury returned to the courtroom, the following exchange took place:

The Court: Be seated, please. Members of the jury, I understand you've reached a verdict.

Foreperson: I didn't hear what you said.

The Court: Have you reached a verdict?

Foreperson: Yes, sir.

The Court: All right, I'm sorry you didn't understand the Court. You have to reach a unanimous agreement on each of these three counts. You didn't understand that?

Foreperson: Yes, sir, we did.

The Court: Well, I'll have to ask you to return to the jury room and resume your deliberations. We'll get you a new verdict form. You may now retire back to the jury room.

R. 2-3-141-42.

No objections were raised after the supplemental instructions. Seventy minutes after the above colloquy took place, the jury returned with a unanimous guilty verdict.

Appellant argues that the supplemental instruction coerced the jury into returning the guilty verdict. ² The applicable standard of review is whether under the totality of the circumstances the trial judge's instruction to the jury was coercive. Lowenfeld v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 550, 98 L.Ed.2d 568 (1988); Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965). We do not view the single instruction in isolation, but rather in light of the overall charge. Watson v. Alabama, 841 F.2d 1074, 1076 (11th Cir.1988). We decide whether the "instruction by itself so infected the entire trial that the resulting conviction violated due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).

This matter is controlled by our ruling in Watson v. Alabama, supra, a case involving nearly identical circumstances in which we ruled that a nearly identical supplemental instruction given to a jury was not coercive. ³ In Watson, we noted that the

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judge's initial charge to the jury was thorough, extensive and correct and that the supplemental instruction only reemphasized the requirement of unanimity. See 841 F.2d at 1076. The same reasoning applies here.

Appellant concedes that the district judge's initial charge to the jury was complete and thorough. The charge emphasized the presumption that the defendant was innocent and the government's burden of proof beyond a reasonable doubt. R. 3-109, 110, 116-18, 120, 122. The requirement of unanimity in reaching a verdict was clearly put before the jury and repeated twice during the initial charge. R. 3-123, 124. The original charge made it clear that no juror was required to give up his or her sincerely held belief regarding appellant's innocence or guilt. ⁴ R. 3-123.

The reemphasis of the unanimity requirement in the supplemental instruction was merely a reiteration of that part of the initial charge. In no way did the supplemental instruction suggest to the jury which verdict it should return. Nor is there any evidence that the court precluded appellant from raising any objection to the instruction at the time it was given. Viewing the supplemental instruction in light of the totality of the overall charge, which was correct in all respects, we find that it was not coercive and thus not a violation of appellant's constitutional rights. ⁵

Appellant also claims that because the numerical split of the jury was revealed to the judge when he first examined the verdict form, the subsequent supplemental instruction was inherently coercive and a mistrial should have been declared. Inquiry made by the court regarding the numerical split of a divided jury is grounds for reversal. See Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). However, no such judicial inquiry was made here; the numerical split was disclosed to the judge by the foreperson without any solicitation by the judge. Unsolicited disclosure of the jury's division by a juror is not by itself grounds for a mistrial. See United States v. Norton, 867 F.2d 1354, 1365 (11th Cir.1989).

Appellant relies upon case law in which courts have found coercion to...