U.S. v. Mason, Nos. 80-1131

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before BROWNING, Chief Judge, KENNEDY; KENNEDY
• Citation: 658 F.2d 1263
• Parties: 9 Fed. R. Evid. Serv. 242 UNITED STATES of America, Plaintiff-Appellee, v. Michael Warren MASON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Casey WELSH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mitchell SHIELDS, Defendant-Appellant.
• Docket Number: Nos. 80-1131,80-1145 and 80-1132
• Decision Date: 16 December 1981

Page 1263

658 F.2d 1263 9 Fed. R. Evid. Serv. 242 UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Warren MASON, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
William Casey WELSH, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Mitchell SHIELDS, Defendant-Appellant. Nos. 80-1131, 80-1145 and 80-1132. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Sept. 11, 1980.
Decided Sept. 23, 1981.
Rehearing Denied Dec. 16, 1981.

Page 1264

Albert G. Freeman, Tucson, Ariz., for Welsh.

Robert J. Hooker, Tucson, Ariz., for Mason.

Victoria A. King, O'Meara, Michela & Weber, Tucson, Ariz., for Shields.

Rhonda L. Repp, Asst. U. S. Atty., Tucson, Ariz., argued, for plaintiff-appellee; Michael D. Hawkins, U. S. Atty., Tucson, Ariz., on brief.

Appeal from the United States District Court for the District of Arizona.

Page 1265

Before BROWNING, Chief Judge, KENNEDY, Circuit Judge, and HOFFMAN, ^* District Judge.

KENNEDY, Circuit Judge:

The issue of principal significance in this case is whether the Allen charge given below was correct in its formulation. ¹ We are required to reverse the convictions on this point. The case also presents certain evidentiary and substantive issues, and we defer a detailed recital of the facts until Part II of the opinion, which deals with those other matters.

Appellants Mason, Welsh, and Shields were convicted of conspiracy to distribute cocaine, 21 U.S.C. § 846 (1976), and of actual distribution of cocaine, 21 U.S.C. § 841(a)(1) (1976). Appellants Shields and Welsh were also convicted of using firearms during the commission of a felony, pursuant to 18 U.S.C. § 924(c)(1) (Supp. III 1979).

The appellants had been tried previously, together with a fourth defendant named Johns. The first jury found Johns guilty but could not reach a verdict as to the appellants. The appellants were tried again. The second jury began its deliberations at 3:30 p.m. on the second day of the trial and adjourned at 5:00 p.m. They reconvened at 9:00 a.m. the next morning. At 10:30 a.m., they advised the Marshal they were "having problems" deliberating. The trial judge summoned counsel to the courtroom and gave a modified form of the Allen charge. We set it out in full in Appendix A. Counsel were not informed of the judge's intention to deliver the Allen charge, and each defense counsel objected to it after it was given. After the charge was read, the jurors were sent to lunch. They resumed deliberations at 1:00 p.m. Guilty verdicts, on all counts, were returned an hour and a half later.

I

The Allen charge, while productive of continued comment and debate, is nevertheless an instruction that has been accepted for many years. It must be added, however, that neither the Supreme Court nor various circuits have settled upon a precise formulation for the charge. The court in Allen did not quote the instruction it approved; it merely paraphrased the charge, omitting some portions, embellishing others. Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157-58, 41 L.Ed. 528 (1896). The Allen Court did state that the charge it approved was taken "literally" ² from Commonwealth v. Tuey, 62 Mass. (8 Cush.) 1 (1851). ³ Neither the Supreme Court nor the circuits which permit the charge insist on the Tuey formulation, nor do we.

A supplemental jury charge, such as the Allen charge, can be useful in cases of apparent juror deadlock. It serves to admonish jurors to keep trying. United States v. Beattie, 613 F.2d 762, 766 (9th

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Cir.) (Browning, C. J., concurring), cert. denied, 446 U.S. 982, 100 S.Ct. 2962, 64 L.Ed.2d 838 (1980). It can help obdurate or recalcitrant or even puzzled jurors to adopt a reasoned conclusion. It nevertheless must be used with care and with caution. If the trial court, in its discretion, determines that the case may justify the charge, it is the better practice to include a version of it in the jury's original instructions. See, e. g., United States v. Williams, 624 F.2d 75, 76 (9th Cir. 1980); United States v. Gugliemini, 598 F.2d 1149, 1151 (9th Cir.), cert. denied, 444 U.S. 943, 100 S.Ct. 300, 62 L.Ed.2d 310 (1979); III American Bar Ass'n, Standards for Criminal Justice, Standard 15-4.4 (2d ed. 1980).

Even if the Allen charge is not given initially, this Circuit permits its use as a supplemental charge. ⁴ United States v. Beattie, 613 F.2d 762, 764 (9th Cir.), cert. denied, 446 U.S. 982, 100 S.Ct. 2962, 64 L.Ed.2d 838 (1980); United States v. Seawell, 583 F.2d 416 (9th Cir.), cert. denied, 439 U.S. 991, 99 S.Ct. 591, 58 L.Ed.2d 666 (1978). We have noted, however, that it "stands at the brink of impermissible coercion," United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977), and that "even in the most acceptable form, (the Allen charge) approaches the ultimate permissible limits to which a court may go ...." Sullivan v. United States, 414 F.2d 714, 716 (9th Cir. 1969).

Given that Allen error calls into question the validity of a jury's verdict, upon which substantial appellate presumptions rely, we must give close scrutiny to the actual charge and the circumstances in which it was given. See Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965) (per curiam); United States v. Moore, 653 F.2d 384, 390 (9th Cir. 1981); United States v. Taylor, 530 F.2d 49, 51 (5th Cir. 1976). One form of scrutiny is embodied in this circuit's rule that the charge will be upheld only if in a form not more coercive than that approved in Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896). Beattie, 613 F.2d at 765; United States v. Handy, 454 F.2d 885, 889 (9th Cir.), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); Sullivan, 414 F.2d at 718. Accordingly, we have held it reversible error to give the charge twice, Seawell, 550 F.2d at 1163, ⁵ and have reversed a conviction when the instruction failed adequately to remind jurors not to surrender their honest and conscientiously held beliefs to the majority's desire for a verdict. Peterson v. United States, 213 F. 920 (9th Cir. 1914). See also Moore, 653 F.2d at 390; Beattie, 613 F.2d at 765; Sullivan, 414 F.2d at 718; Miracle v. United States, 411 F.2d 544 (9th Cir. 1969); Kawakita v. United States, 190 F.2d 506, 527 (9th Cir. 1951), aff'd, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249 (1952); Note, Due Process, Judicial Economy and the Hung Jury: A Reexamination of the Allen Charge, 53 Va. L. Rev. 123, 128-29 (1967). In addition, other factors may indicate the coerciveness of the charge, e. g., the length of deliberations after the charge was given, the total time of jury deliberations in relation to the case's difficulty, as well as any evidence of undue pressure on the jury. Beattie, 613 F.2d at 765-66.

We turn now to the charge in the case before us. The trial court added comments to the Tuey formulation in various respects. First, it stressed the expense of the case in terms of time, effort, and money. We do not interpret this Circuit's rule that any

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supplemental charge may not be more coercive than Allen as preventing any supplementation, and we do not think that the addition of the comments here necessarily made the charge more coercive. The added comments do, however, tip the charge in that direction.

This court has long recognized that injection of fiscal concerns into jury deliberations has potential for abuse. In Peterson v. United States, 213 F. 920 (9th Cir. 1914), this court criticized a charge which began with statements regarding the expense of the trial and then stated that "(t)he government has a right to a verdict without farther (sic ) expenditure of time and money ... and if (the defendants) are innocent they have the right to be acquitted before their means are exhausted." Id. at 924. This instruction was held erroneous because it did not simultaneously stress the fact that "any agreement should not be reached in violation of the honest conviction of any one of the jurors." Id. at 925. See also United States v. Rodgers, 289 F.2d 433, 435 (4th Cir. 1961); Shea v. United States, 260 F. 807, 809-10 (9th Cir. 1919).

The other major supplementation to the charge was the comment that the Supreme Court had approved the instruction. It is really irrelevant for the jury to know that the Supreme Court has approved the instruction. That eminent tribunal no doubt had approved, directly or indirectly, most of the charges given in this case, but the mention of the Supreme Court only with reference to the Allen charge must have given it special weight in the minds of the jury. With respect to the invocation of the Supreme Court's name, the Second Circuit has affirmed a conviction in which that procedure was used, but only when accompanied by a contemporaneous caveat that the trial court was not attempting to coerce minority jurors. United States v. Kenner, 354 F.2d 780 (2d Cir. 1965), cert. denied, 389 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966). The court was careful, however, to state that such a practice was "saved from reversal by the barest of margin, a margin provided ... by the judge's disclaimer of intention to 'coerce' and by his expression of willingness to accept 'the ultimate decision,' whatever it might be." Id. at 784. When this element is added to the calculus, the impact of the present charge is undoubtedly greater than Allen, and thus might be deemed more coercive. ⁶

Our decision, however, need not turn on this point. Here, the judge, after deviating from the charge approved in Allen, made no attempt to counterbalance his excesses by further instructing the minority not to abandon their conscientiously held views merely to secure a verdict. See Kenner, 354 F.2d at 784. Instead, he relied solely on the language of Allen, where this reminder appears only as an introductory clause to a request to examine one's own views in light of others. Since the...