U.S. v. Guglielmini

• Decision Date: 05 February 1979
• Docket Number: 77-3759,Nos. 77-3758,s. 77-3758
• Citation: 598 F.2d 1149
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank GUGLIELMINI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert HERKO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1149

598 F.2d 1149

UNITED STATES of America, Plaintiff-Appellee, v. Frank GUGLIELMINI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Robert HERKO, Defendant-Appellant.

Nos. 77-3758, 77-3759.

United States Court of Appeals, Ninth Circuit.

Feb. 5, 1979.

As Amended on Denial of Rehearing and Rehearing En Banc June 21, 1979.

Anne Flower Cumings (argued), Cumings, Jordan & Morgan, Berkeley, Cal., for Herko.

Floy E. Dawson, Eb F. Luckel, Asst. U. S. Atty., San Francisco, Cal., for the United States.

Paul M. Goorjian, Goorjian & McCabe, San Francisco, Cal., for Guglielmini.

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

Before KILKENNY, TRASK and SNEED, Circuit Judges.

TRASK, Circuit Judge:

This appeal arises out of a conviction for violation on one count of Title 18 U.S.C. § 2314, interstate transportation of stolen property of a value in excess of $5,000. The indictment was returned in January 1977, in the Northern District of California. It charged Robert Herko, Sidney Fried, Frank Guglielmini, ¹ and Joseph DiRodio with having transported three debentures, worth approximately $104,000 each, from New York City to San Francisco, California on January 10, 1977, knowing the same to have been stolen. After certain motions to suppress evidence were denied, the cases of Fried and DiRodio were severed from those of Herko and Guglielmini. Following jury trial beginning April 25, 1977, Fried and DiRodio were found guilty. DiRodio's conviction has been reversed and his case remanded by this court, United States v. DiRodio, 565 F.2d 573 (9th Cir. 1977). The appeal of Fried was affirmed, United States v. Fried, 576 F.2d 787 (9th Cir. 1978). After mistrial in the cases of Herko and Guglielmini, a second trial was commenced on September 12, 1977. A motion for acquittal was denied and the jury returned verdicts of guilty as to both defendants. They appeal.

One of the principal objections made during this trial was the district court's instruction to the jury on the basis of the Allen charge. In Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), the Supreme Court upheld the instructions given by the trial judge during defendant Allen's trial. The pertinent instructions were given to encourage the jury to reach a verdict. The Court said:

"The seventeenth and eighteenth assignments were taken to instructions given to the jury after the main charge was delivered, and when the jury had returned to the court, apparently for further instructions. These instructions were quite lengthy and were, in substance, that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority." 164 U.S. at 501, 17 S.Ct. at 157.

In the present case the language of the charge was as follows:

"Now, it's your duty as jurors to consult with each other and to deliberate with a view toward reaching an agreement in the case if you consciously can do so. Each of you must decide the case for himself or herself. But you should do that only after giving full consideration to the evidence in the case and the views of your fellow jurors. Don't hesitate to reexamine your own views and change your opinions if you are convinced that the view is erroneous. Obviously, you should never surrender an honest conviction as to the weight and effect of the evidence simply to arrive at a verdict, but it is important that from time to time you reconsider your views in the light of the views of your fellow jurors.

"This is a case that's taken some time and effort for counsel and the witnesses and the Court and indeed for you as jurors. There is no reason to believe that the case could ever be better or different than presented and certainly no reason to believe that there is any jury better qualified than this jury to decide the case. So, it is your responsibility if you consciously can do so to arrive at a verdict.

"When I suggest to you that you periodically consider your views, I am doing that in anticipation that it may happen that you reach what appears to be an impass, or it looks as though there may be difficulty in arriving at the verdict, I don't know whether that would be the case here, but if it is, I have some suggestions for you. If you reach a point where some substantial number of you, even though it may not be a majority, have doubts about the proof of the charges, I would think that the balance of the jury would say well, how can it be that I can be so positive about this case, feel that there is no reasonable doubt, when so substantial a number of my fellow jurors equally well intentioned do see a doubt, and at a point like that, consider whether the position that you hold is a real one and whether or not you might not reconsider the propriety of your view.

"Conversely, if only one or two of you feel that there is some doubt about the case, and the vastly larger number of your fellow jurors think that there is no doubt, I would think it appropriate again to reappraise your views. If you see doubts that some view of your fellows can (sic) see, consider whether those doubts are in fact reasonable doubts or whether they are merely imaginative or speculative doubts. But again, as I say, it is your own conscientious determination that is required to be applied to the verdict in the case. But, it is important if you consciously can do so that you do return a verdict." Brief for Appellant at 9.

The greatest impact in the two situations came from the timing of the instruction. In the Supreme Court, the charge was a supplemental one after the jury had returned to the court for further instructions. In this case, the Allen charge was a part of the original instruction. As such, the effect of a direct admonition or command as to a particular portion of the instruction was avoided.

The legal question is whether under the circumstances before us the Allen charge is impermissibly coercive. We believe it is not. Much, if not all, of the coercive effect is diminished or eliminated by the absence of a situation which points a finger at one critical portion of the whole body of the charge apart from the remainder. It is not enough in this situation to rely on the rule that the instructions must be interpreted as a whole. The Allen charge is addressed to the jury as a mandatory admonition and goes to the heart of their responsibility in a particular case.

We have considered the Allen charge a number of times ² and in most situations have allowed its use. But the views of the court have not been unanimous. In United States v. Contreras, 463 F.2d 773 (9th Cir. 1972), we found the giving of the Allen charge to be premature. The jury was not given the Allen charge as part of the original instruction, but had a limited form of the charge read to them after they requested a clarification on some points of law. We found the giving of the Allen charge to be improper because there was no indication that the jury had been deadlocked when the charge was given. United States v. Seawell, 550 F.2d 1159 (9th Cir. 1977) imposed another limitation on the use of the instruction. In Seawell, a modified Allen charge was given and a stalemate still continued. The court thereupon reread the Allen charge and a verdict was reached within the hour. The judgment on that verdict was reversed and remanded for a new trial by a divided court which said:

"A single Allen charge, without more, stands at the brink of impermissible coercion. We believe that the protection of a defendant's right to an impartial jury compels a per se rule. Such a rule is not at odds with prior decisions of this court or other courts of appeals. We conclude that as a sound rule of practice it is reversible error to repeat an Allen charge in a federal prosecution in this circuit after a jury has reported itself deadlocked and has not itself requested a repetition of the instruction." 550 F.2d at 1163 (Footnotes omitted).

On remand and retrial there was a second conviction and a second appeal to a different panel of the court. United States v. Seawell, 583 F.2d 416 (9th Cir. 1978). This court, again divided, pointed out that the "(a)ppellant now seeks a ruling that the giving of the Allen instruction even once, as in this retrial, is error per se." The court declined to do so and held that the Allen charge is proper absent unusual circumstances of coercion. The concurring judge who wrote a brief opinion pointed out the many jurisdictions which had disapproved the Allen charge, See 583 F.2d at 418 nn. 2 and 3, and that his concurrence was one not of approval but one that was compelled by the rule of court that a second panel may not overrule the decision of a prior panel without en banc consideration or absent unusual circumstances.

The decisions of other courts have also not been unanimous. The Supreme Court in Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), cited Allen in its original form with approval. The decision in Allen has been followed in a number of jurisdictions and the charge ultimately upheld when it was given, as here, as...