U.S. v. LaRiche, s. 76-1577

• Decision Date: 25 April 1977
• Docket Number: Nos. 76-1577,s. 76-1577
• Citation: 549 F.2d 1088
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur LaRICHE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert Joseph BRODY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Adolph Albert DAL PRA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pasquale J. CISTERNINO, Defendant-Appellant. to 76-1580.

Page 1088

549 F.2d 1088

UNITED STATES of America, Plaintiff-Appellee, v. Arthur LaRICHE, Defendant-Appellant.

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

UNITED STATES of America, Plaintiff-Appellee, v. Adolph Albert DAL PRA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Pasquale J. CISTERNINO, Defendant-Appellant.

Nos. 76-1577 to 76-1580.

United States Court of Appeals Sixth Circuit.

Argued Oct. 6, 1976.

Decided Feb. 22, 1977.

Certiorari Denied April 25, 1977.

See 97 S.Ct. 1687.

Jeffrey W. Largent, Cleveland, Ohio (Court-appointed CJA), for defendant-appellant in No. 76-1577.

Elmer A. Giuliani, Cleveland, Ohio, for defendant-appellant in Nos. 76-1578 and 76-1579.

Jeffrey H. Olson, Cleveland, Ohio, for defendant-appellant in No. 76-1579.

Gerald A. Messerman, Gold, Rotatori, Messerman & Hanna, Cleveland, Ohio, for defendant-appellant in No. 76-1580.

Frederick M. Coleman, U.S. Atty., Cleveland, Ohio, Wm. J. Edwards, Kevin P. Connolly, Asst. U. S. Attys., Howard Weintraub, T. George Gilinsky, William G. Otis, Washington, D. C., for plaintiff-appellee.

Before PHILLIPS, Chief Circuit Judge, and CELEBREZZE and LIVELY, Circuit Judges.

CELEBREZZE, Circuit Judge.

Appellants appeal their convictions on various counts of a six-count indictment which charged fifteen individuals with conspiracy and possession of goods stolen from interstate commerce in violation of 18 U.S.C. §§ 2, 371 and 659 (1970). The goods in question were 25,000 pairs of blue jeans stolen from a railroad trailer in Cincinnati, Ohio while en route from Knoxville, Tennessee to Florence, Kentucky. Appellants, and others named in the indictment, were tried jointly before a jury in the Northern District of Ohio, Eastern Division. The trial lasted eight days. The chief witness for the prosecution was Edmund Eugene Flott, an unindicted accomplice, co-conspirator and government informant. It was Flott's testimony which linked each Appellant to the stolen goods. At the close of trial and after receiving instructions from the Court, the jury retired to consider a verdict. Twice during deliberations the jury informed the Court of its inability to reach a verdict and each time the Judge responded with the statement that the "jury will continue its deliberations with a view of arriving at a verdict." Finally, after several hours of deliberation over a four day period, the Judge issued an Allen charge. Within an hour of receiving the supplemental instruction, the jury returned a verdict. Appellant Brody was convicted of possession of goods stolen from interstate commerce as charged in count four of the indictment; Appellants LaRiche and Dal Pra were found guilty of conspiracy to possess goods stolen from interstate commerce as charged in count three of the indictment; and Appellant Cisternino was found guilty of conspiracy to possess stolen goods as charged in count five.

All Appellants join in arguing that the District Court erred in issuing the Allen charge. After the instruction was given, defense counsel uniformly objected to the charge. However, no specific objection was entered as to any particular portion of the charge so we must review the supplemental instructions under the "plain error" standard of Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Billingsley, 474 F.2d 63, 66 (6th Cir. 1973). In United States v. Harris, 391 F.2d 348, 354 (6th Cir. 1968), this Court stated that "(W)e have no criticism with the Allen charge as such. . . . We are of the opinion however that . . . it approaches the limits beyond which a trial court should not venture in urging a jury to reach a verdict." See also United States v. Scott, 547 F.2d 334, 336-337 (6th Cir. 1977). Appellants do not contest the constitutionality of the Allen charge, but contend rather that the charge exceeded the limits established by the Supreme Court in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Specifically, they argue that the charge was defective because it: 1) improperly informed the jury that the case must be disposed of sometime; 2) failed to restate the Government's standard of proof; 3) erroneously informed the jury that their sole function was to find the truth; 4) coerced only a minority favoring acquittal to re-examine its position; and 5) improperly inferred that the failure to reach a verdict reflected unfavorably on the jury. In addition, Appellant Cisternino argues that the Court indirectly commented on his failure to take the stand and testify in his own defense. We find these contentions to be totally without merit.

At the outset, we note that instructions to the jury " may not be judged in artificial isolation but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). See also United States v. Lynch, 477 F.2d 924, 925 (6th Cir. 1973). Appellants urge that the instruction that the case "must be disposed of at some point in time" was coercive because it excluded the possibility that the jury could disagree and the case end in mistrial. For support, Appellants cite a number of cases which held it reversible error for an Allen charge to state that the case "must be decided." See Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965); United States v. Harris, 391 F.2d at 356-57; United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971). However, in United States v. Harris, 391 F.2d at 356, we observed that there is "a clear distinction between the statement 'this case must be decided' and 'it must be disposed of some time.' " The latter phrase merely restates the obvious proposition that all cases must come to an end at some point, whether by verdict or otherwise. The "disposed of" language in the charge should also be read in conjunction with the Court's admonition to the jurors to adhere to their individual judgment and conscience in reviewing the evidence presented them. Nor do we believe that the Court's failure to recharge the jury on the Government's burden of proof was plain error. While it may be desirable for a Judge to restate the beyond a reasonable doubt standard in an Allen charge, we doubt that under the circumstances the jury was influenced to disregard clear and explicit instructions on the prosecution's burden of proof in the original charge. ¹ For similar reasons, we reject Appellants' argument that the Court's statement that the jurors "sole interest is to seek the truth from the evidence in the case" somehow distorted the jury's function and diluted the Government's burden of proof. Accord, United States v. Lynch, 477 F.2d at 925. We do not accept Appellants' contention that the Court singled out the minority jurors in its instructions and placed them under undue pressure to conform their views to those of the majority. Appellants concede that this portion of the charge mirrors language approved in Allen v. United States, 164 U.S. at 501, 11 S.Ct. 154. We determine that the District Court's instructions afforded the defendants greater protection than did the charge in Allen because the instructions called on all jurors favoring conviction to rethink their positions, whether in the minority or majority. It would not be reasonable to conclude that the effect of the Court's language was to pressure the minority into acceptance of majority rule, particularly when read together with the instruction that "no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of evidence." Compare United States v. Harris, 391 F.2d at 356. Nor do we find that there was any insult or threat implied in the Court's reference to the possibility of retrial before another jury, as Appellants contend. On the contrary, the tenor of the remarks was complimentary and supportive of the jury's efforts to reach a verdict. Appellant Cisternino claims that the Court's praise concerning both sides' presentation of evidence was, in actuality, "a thinly-veiled and insidious comment on his failure to testify." We do not accept that interpretation. We find no indication in the record that the language used by the Court was intended as a comment on Cisternino's failure to testify or that a jury would naturally assume it to be so. See United States v. Sawyers, 423 F.2d 1335, 1340-41 (4th Cir. 1970). See also United States v. Yamashita, 527 F.2d 954, 956 (9th Cir. 1975); United States v. Banks, 426 F.2d 292, 293 (6th Cir. 1970); Davis v. United States, 357 F.2d 438, 441 (5th Cir. 1966).

As part of the original instructions to the jury, the District Court made the following statement:

Every witness is presumed to speak the truth; however, if you find the presumption of truthfulness to be outweighed as to any witness, you will give the testimony of that witness such credibility, if any, as you may think it deserves.

On previous occasions this Court has condemned the use of similar instructions in the exercise of our supervisory powers. United States v. Maselli, 534 F.2d 1197, 1202-03 (6th Cir. 1976); United States v. Stroble, 431 F.2d 1273, 1278 (6th Cir. 1970). See also United States v. Griffin, 382 F.2d 823, 827 (6th Cir. 1967). In those cases, however, we held that the giving of the instruction is not, in the absence of an objection, plain error so as to require reversal in all cases. United States v. Maselli, 534 F.2d at 1203; United States v. Stroble, 431 F.2d at 1278. See also United States v. Griffin, 382 F.2d at 828. No specific objection was entered by defense counsel to the presumption-of-truthfulness instruction. In Cupp v. Naughten, 414 U.S. at 149, 94 S.Ct. 396, the Supreme Court held that the giving of a presumption-of-truthfulness instruction in a state criminal proceeding was not a per se violation of due process. The Supreme Court noted that the circuit courts which have criticized the use of...