U.S. v. Noah

Decision Date11 April 1979
Docket NumberNos. 78-1283,s. 78-1283
Citation594 F.2d 1303
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Leon Dudley NOAH, Ronnie Kinsey, and Joseph Corre Lamb, Jr., Defendants- Appellants. to 78-1285.
CourtU.S. Court of Appeals — Ninth Circuit

John S. Obenour, Asst. U. S. Atty. (argued), Seattle, Wash., for the U. S.

David M. Shelton (argued), Irwin Schwartz (argued), Robert L. Butler (argued), Seattle, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before ELY and KILKENNY, Circuit Judges, and FERGUSON, * District Judge.


The appellants, in a jury trial, were convicted of a number of federal crimes. After the jury had begun its deliberations, it was recalled to the courtroom and the district judge made inquiry of the jury as to its numerical division. This was plain error. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). Accord, Jordan v. United States, 22 F.2d 966 (9th Cir. 1927). 1 In Brasfield, Mr. Justice Stone, for a unanimous Court, wrote, in part:

We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.

272 U.S. at 450, 47 S.Ct. at 135, 136.

In the present case, the inappropriate inquiry was not only made once, but was made twice, once on two separate days. Cf. United States v. Seawell, 550 F.2d 1159 (9th Cir. 1977) (giving two so-called Allen charges held erroneous). It is highly significant also that when the first inquiry was addressed to the jury, the appellants and their attorneys were not even present, nor had their attendance been invited, although it is not disputed that they were readily available. See Rule 43 Fed.R.Crim.P.

We do not reach other significant contentions. Because of the circumstances briefly set forth above, the appellants are entitled to a new trial.


KILKENNY, Circuit Judge, dissenting:

This eighteen day trial covering an entire month, with a transcript of testimony consisting of nineteen volumes, in addition to a clerk's record of 490 pages, should not be overturned on what I believe to be harmless error, if any.


It is my considered judgment that the procedural prohibition against a trial judge's asking jurors their numerical standing, as stated in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), did not survive the adoption by the Supreme Court of the Federal Rules of Criminal Procedure.

Brasfield was decided by the United States Supreme Court on November 22, 1926, long prior to September 1, 1945, the effective date of F.R.Crim.P. These rules were authorized by the Act of Congress of June 29, 1940, 54 Stat. 688, and promulgated by the United States Supreme Court by order dated December 26, 1944. They were promulgated and adopted to govern all criminal proceedings thereafter commenced and insofar as just and practicable all proceedings then pending. Rule 59, F.R.Crim.P.

Rule 52(a), F.R.Crim.P., provided and now provides:

"Rule 52. Harmless Error and Plain Error.

(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

My belief that Brasfield can no longer be considered as authoritative and that the act of a judge asking the jury its numerical standing should, at best, be viewed as harmless, is based principally on the ground: (1) that Rule 52(a), F.R.Crim.P., was not in existence at the time of the decision in Brasfield, and (2) that the Ninth Circuit, time after time, has approved the Allen 1 instruction which is far more coercive than the simple inquiry involved in Brasfield. As recently as June 28, 1978, in United States v. Seawell, 583 F.2d 416, 417-418 (CA9 1978), Rehearing and rehearing in banc denied September 27, 1978, cert. denied November 27, 1978, --- U.S. ----, 99 S.Ct. 591, 58 L.Ed.2d 666, we again gave approval to the substance of the Allen instruction. Indeed, the Allen instruction is cited with approval by the Supreme Court as recently as 1972. See Johnson v. Louisiana, 406 U.S. 356, 361-362, 380, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).

The Allen instruction approved in Seawell reminded the jury: (1) of the expense in time, effort and money to both the defense and the prosecution in the event a new trial was necessary; (2) that the case, like all cases, had to be disposed of some time and that there was no reason to believe that another trial would not be as costly to both sides as was the present trial; (3) that a future jury must be selected in the same manner as it was and that there was no reason to believe that the case would ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide the case; (4) that it was their duty to consult with one another and deliberate with a view of reaching a verdict if they could do so without doing violence to their individual conscience; (5) that each of the jurors must decide the case for himself, but that he should do so only after consideration of the evidence in the case with his fellow jurors; (6) that he should not hesitate to reexamine his own views or to change his mind if he is convinced it was originally erroneous; (7) that in order to bring twelve minds to an unanimous verdict, each juror should examine the questions submitted with candor and frankness and with a Proper deference to and regard for the opinions of others. More important, on the issue of numerical divisions, the judge told the jury that "if much the greater number of you are for a conviction, each dissenting juror ought to consider whether a doubt in his or her own mind is a reasonable one, since it makes no effective impression upon the minds of so many equally conscientious fellow jurors who bear the same responsibility under the same oath and have heard the same evidence."

I do not believe the majority would argue that the instruction in Brasfield was as coercive as the one given and approved in Seawell. The contrary is obvious. The instruction given in Seawell, if coercive at all, was far more so than that given in Brasfield. One thing is certain, the decision in Brasfield is diametrically opposed to the decisions in Allen, Seawell and those cited in Seawell. Logically, they cannot be reconciled. I would hold that Allen, approved by the Supreme Court as recently as Johnson v. Louisiana, supra (1972), is the law of the land and that the simple question propounded to the jurors in Brasfield and by the court below should no longer be viewed as reversible error. See Rule 52(a), (b).

True enough, our circuit in Spaugh v. United States, 77 F.2d 720 (CA9 1935), and Jordan v. United States, 22 F.2d 966 (CA9 1927), reversed two criminal convictions in reliance upon Brasfield. Nonetheless, each of these cases was decided prior to the adoption of the Federal Rules of Criminal Procedure and prior to our decisions in Marsh v. Cupp, 536 F.2d 1287 (CA9 1976), Cert. denied 429 U.S. 981, 97 S.Ct. 494, 50 L.Ed.2d 590 (1976), and United States v. Williams, 444 F.2d 108 (CA9 1971).

In Marsh, the Oregon state trial judge, prior to giving a second Allen instruction, inquired as to the numerical split of the jury. Marsh v. Cupp, 392 F.Supp. 1060, 1063 (D.C.Or.1975). The judge was informed that the jury was divided nine-three, the same division as is before us. The Marsh court concluded that Brasfield was not controlling despite the fact that the jury was given the Allen charge on two different occasions. Marsh, supra, 536 F.2d at 1291. In Williams, the court held that the trial court was not precluded from giving the Allen instruction by reason of the fact that the jury had made an unsolicited disclosure of its numerical division. In United States v. Rao, 394 F.2d 354 (CA2 1968), Cert. denied 393 U.S. 845, 89 S.Ct. 129, 21 L.Ed.2d 116 (1968), and Bowen v. United States, 153 F.2d 747 (CA8 1946), Cert. denied 328 U.S. 835, 66 S.Ct. 980, 90 L.Ed. 1611 (1946), the numerical split was volunteered by the jury also. The Williams, Rao and Bowen courts distinguished Brasfield on that ground. In Marsh, however, the inquiry was made by the court.

Logically, I am unable to find a valid distinction between an inquiry by the court as to the numerical standing of a jury and the volunteering of such information by the foreman of the jury. The assumed coercive effect would be upon the minority jurors and this effect would be felt whether the foreman volunteered it or the court requested it. In each instance, the information is revealed in open court. However, in neither instance does the information reveal the standing of the jury on the issue of guilt or innocence. I completely agree with the Marsh v. Cupp district court that the decision in Brasfield was based on the court's supervisory powers in the lower courts and not on constitutional interpretations. The Brasfield court condemned the inquiry as to numerical division on the ground that it, ". . . affects the proper relations of the court to the jury . . ."...

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