U.S. v. Cheramie

• Decision Date: 03 October 1975
• Docket Number: No. 74-3380,74-3380
• Citation: 520 F.2d 325
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Perry Joseph CHERAMIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 325

520 F.2d 325

UNITED STATES of America, Plaintiff-Appellee, v. Perry Joseph CHERAMIE, Defendant-Appellant.

No. 74-3380.

United States Court of Appeals Fifth Circuit.

Oct. 3, 1975.

Evangeline T. M. Vavrick, New Orleans, La., for defendant-appellant.

Gerald J. Gallinghouse, Stephen A. Mayo, Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Associate Justice, ^* and GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

This case presents a challenge to the district court's intervention during jury deliberation in defendant's trial for violation of the Gun Control Act of 1968, 26 U.S.C. § 5861(d) and (i). While loathe to permit trial judge interference with jury responsibilities, we are careful to preserve the judge's flexibility lest he be no more than a robed mummy presiding at trial. Here we find that the trial judge acted as an active, alert judicial moderator and not as a harmful intermeddler or totally passive observer. He filled the role of curator of justice a task essential to the equitable functioning of our jurisprudential system. We applaud his conduct and affirm his decision.

I. Factual Setting

On the afternoon of March 19, 1973, four detectives with the Lafourche, Louisiana, Parish Sheriff's Office journeyed to the Exile Lounge, situated on Louisiana Highway 24 between Bourg and Larose, for the purpose of arresting defendant Perry Joseph Cheramie on charges of aggravated assault, pandering, operating without a permit, soliciting for prostitution, and kidnapping, and also for the further purpose of executing a search warrant. Finding Cheramie at the bar, the local officers arrested defendant, informing him of the above-enumerated charges and advising him of his constitutional rights. Incident to the arrest, Officer Paul Lirette searched Cheramie, discovering a pen-like object in the upper left pocket of defendant's jumpsuit. Further examination uncovered a live .38 special bullet lodged in the pen's cartridge. Sergeant Lirette testified that after having concluded that the pen was in fact a gun, he asked defendant why he had the weapon. According to the officer, Cheramie responded that he had found "this thing" under the seat of a newly purchased automobile and kept it on his person for protection.

On June 28, 1973, Cheramie was indicted on two counts of violating the Gun Control Act of 1968: first, for knowing possession of an unregistered firearm contrary to the provisions of the Gun Control Act, 26 U.S.C. § 5861(d); and second, for knowing possession of a pen-type firearm not identified by a serial number as required by the Gun Control Act, 26 U.S.C. § 5861(i). After a finding that the defendant was mentally competent to stand trial and after a denial of defendant's motion to suppress, the trial commenced. No evidence was introduced which controverted the officer's testimony as outlined above. The presentation of evidence took only part of the first day. Unable to reach a decision that evening, the court dismissed the jury until the next morning, when, after brief consideration, the jurors returned guilty verdicts on both counts. Subsequently, Cheramie was sentenced to five years imprisonment on each charge, with the second five years suspended.

II. The Challenge to the First Day's Supplemental Charge

Asserting that the jury was unfairly pressured into reaching a verdict, the defendant assigns as error the first supplemental charge given by the district judge. Where it is alleged that a supplemental charge coerced the jury in its decision-making, this court examines not only the language of the additional instruction but also the facts and circumstances which formed the context for the judge's remarks. Jenkins v. United States, 1965, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957; United States v. Bailey, 5 Cir. 1972,468 F.2d 652, 664, aff'd., 1973, 480 F.2d 518 (en banc); Powell v. United States, 5 Cir. 1961, 297 F.2d 318, 322.

The facts comprising the backdrop in the instant case are straightforward. The parties presented their evidence and argument during the first trial day. At 4:30 p. m., the jury began deliberating. Three hours later, responding to a note communicating the jury's inability to reach a unanimous verdict, the judge recalled the twelve jurors and instructed them as follows:

"THE COURT: I have received a note from the jury to the effect that you have not been able to reach a unanimous verdict. I take it that means to either count.

"I don't want to know how the jury stands numerically, but I want to say this to the jury:

"There is no reason to believe that any other jury would be better able to understand this case. That includes the facts and the law, as the Court has given you the law.

"The facts, the Court believes, are relatively simple.

"The Court believes that this case should be decided, if it can be done conscientiously, if the jurors can do so conscientiously.

"We could stay here tonight and work longer, but some of the jurors live out of town. Therefore, I am going to ask all the jurors to come back tomorrow morning and resume their deliberations.

"If at that time the Court can help in any way, in repeating a part of, or all of the charge, I will be glad to do so.

"The jury may now be excused until tomorrow morning at 10:00 o'clock."

The next morning, after the jury had deliberated for less than an hour and in response to an inquiry from that panel, the court gave further instructions on the meaning of the words "unlawfully" and "knowingly." ¹ Again the jurors were dismissed, only to be recalled within minutes. The judge then restated, in a clear and concise manner, the legal proposition that for purposes of the Gun Control Act the defendant's knowledge that his acts violated the law is not a prerequisite to a guilty verdict. ² Shortly thereafter, the jury found Cheramie guilty. Defendant contends that the first day's supplemental instruction, set out above, was prejudicial in that it threatened the jurors "that they would not be dismissed unless a verdict was returned," and coerced the jurors "to return a verdict in order to assure (their) competency to decide 'simple matters.' "

The use of a supplemental charge, usually called an Allen charge, ³ as a means of bringing about jury unanimity has met with much criticism. ⁴ Where the court employs such a supplemental charge, a substantial danger of prejudice results from the possibility that jurors will surrender conscientiously held beliefs in order to accommodate pressure from the bench. The pressure usually arises from the language of the charge which, among other things, may suggest that the minority should reconsider its views, that a verdict should issue within a short period of time, or even that some jurors are misbehaving- by refusing to join in an otherwise unanimous decision. Notwithstanding these perils and reluctant acquiescence by some judges, ⁵ the present validity in the Fifth Circuit of a supplemental charge limited to the confines of previously approved language is unquestionable. United States v. Bailey, 5 Cir. 1973, 480 F.2d 518 (en banc), aff'g. United States v. Bailey, 1972, 468 F.2d 652; United States v. Fonseca, 5 Cir. 1971, 490 F.2d 464, 471, cert. denied, 419 U.S. 1072, 95 S.Ct. 660, 42 L.Ed.2d 668; Posey v. United States, 5 Cir. 1969, 416 F.2d 545, cert. denied, 397 U.S. 946, 90 S.Ct. 965, 25 L.Ed.2d 127, reh. denied,397 U.S. 1031, 90 S.Ct. 1267, 25 L.Ed.2d 544. However, where the trial judge strays from these recognized parameters, this Court unflinchingly acts to correct the error. ⁶ See, e. g., United States v. Amaya, 5 Cir. 1975,509 F.2d 8; Powell v. United States, supra; Green v. United States, 5 Cir. 1962, 309 F.2d 852. As we stated in Amaya,

Where a charge may be plausibly read as more coercive than the standard charge we must hold that the charge was incorrectly given. . . . In the first part, we are unwilling to risk even a small chance of increased and therefore immediately illegitimate jury coercion over that which inheres in the borderline Allen charge merely for the sake of instructional novelty. In the second part, to hold otherwise would turn this Court into a psychologists' symposium with resultant great expenditures of energy and yet necessarily capricious solutions. Cf., United States v. Duke, 5 Cir. 1974, 492 F.2d 693 at 697.

Scrutiny of the record in the instant case convinces us that the district court committed no error. First, unlike Amaya, supra, our review reveals the absence at Cheramie's trial of any improper judicially imposed time constraints. ⁷ In Amaya, the trial court told the jury to report back within an hour as to whether they were able to reach a verdict, conceivably creating among the jurors the perception that they were under a duty to agree quickly on a verdict. Later, the Amaya judge alluded to a trial where the jurors deliberated for nine days. We found it plausible that from this reference the jury might have inferred the threat of an undesired extended stay at the courthouse.

In the present case, the supplemental charge was pronounced only after the first day's deliberations were completed, thus avoiding any immediate time pressure. Moreover, steering clear of any Amaya-like suggestion that the jurors were "in for the duration," the district court judge made no mention of the amount of time that might be required to achieve a unanimous decision. His words could have given the jury no reason to believe that failure to decide swiftly would end in the court's disappropriation or that too leisurely consideration would result in lengthy jury room confinement.

Second, the court in delivering its relatively brief statement skirted what is traditionally the most troublesome feature of the Allen charge the exhortation to the minority to reexamine its views in the light of the majority's...