U.S. v. Scott

• Decision Date: 07 January 1977
• Docket Number: No. 76-1805,76-1805
• Citation: 547 F.2d 334
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick Michael SCOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 334

547 F.2d 334

UNITED STATES of America, Plaintiff-Appellee, v. Patrick Michael SCOTT, Defendant-Appellant.

No. 76-1805.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 30, 1976.

Decided Jan. 7, 1977.

Kent W. Mudie, Roach, Twohey, Maggini & Brady, Grand Rapids, Mich. (Court-appointed CJA), for defendant-appellant.

Frank S. Spies, U. S. Atty., Grand Rapids, Mich., for plaintiff-appellee.

Before WEICK, McCREE and LIVELY, Circuit Judges.

McCREE, Circuit Judge.

Patrick Michael Scott appeals from his conviction for violation of 18 U.S.C. § 871, which forbids knowing and willful threats to take the life of the President or Vice President of the United States. After a four-day jury trial, Scott was convicted on the first count of the information, based on threats allegedly made on June 20, 1975, but acquitted on the second count, charging threats uttered on July 5, 1975.

In this appeal, Scott contends that the trial court's supplemental instruction ¹ to the jury about its inability to reach a unanimous verdict was erroneous, and that the court erroneously permitted the government to call a rebuttal witness to testify about incriminating statements allegedly made by appellant without notice to defense counsel sufficient to allow him to prepare cross-examination.

Because we conclude that the trial court's supplemental charge went beyond the exceedingly narrow bounds within which we have confined the use within this circuit of the "Allen charge" ² to break a jury deadlock, we reverse. It is therefore unnecessary for us to decide whether the government's disclosure of the rebuttal witness' expected testimony was timely and whether the trial should have been continued to allow preparation for cross-examination.

I. The Objection was Timely

We are faced at the outset with the government's contention that we cannot consider Scott's objection to the supplemental instruction because the objection was not timely made. When the jury, which had been deliberating more than eight hours, sent a note to the judge requesting "advice" about "some division of thinking among the jury," counsel agreed, off the record as appellant's counsel concedes, that the judge would decide upon the content of an instruction in his own discretion. That agreement was insufficient to waive objection to an incorrect charge, because "(c)ounsel had the right to assume when he agreed to the giving of supplemental instructions that the judge would not go beyond the conventional version of the Allen charge." United States v. Harris, 391 F.2d 348, 355 (6th Cir. 1968).

The government argues, however, that defendant waived his objection because he failed to object immediately after the instruction had been given. However, the record reveals the following. When the jury reported its division and requested further advice, its foreman replied to the court's inquiry that the division pertained to only one count. Thereupon, the court told the jury to try to reach a verdict on the count about which there was agreement, after which it could go to dinner before resuming deliberations on the remaining count. When the jury returned within fourteen minutes and reported verdicts on both counts, counsel immediately objected. In the peculiar circumstances of this case, we conclude that Scott did not waive his objection to the supplemental instruction by failing to "(object) thereto before the jury retire(d) to consider its verdict" on the count about which they had not yet agreed. F.R.Crim.P., Rule 30.

II. The Instruction was Unduly Coercive

As we have observed, eighty years ago the Supreme Court approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), a charge employed to encourage the jury to reach a verdict in a case which had already been tried twice. That charge carefully balanced the obligation of each juror to consider carefully the arguments of the other jurors about the proper verdict and the obligation of each juror to vote his conscience, and not simply to acquiesce in the opinions of the others. 164 U.S. at 501, 17 S.Ct. 154.

Since that decision, there has been heated debate about the continued propriety of the Allen charge. See, e. g., Note, Due Process, Judicial Economy and the Hung Jury: A Reexamination of the Allen Charge, 53 Va.L.Rev. 123 (1967). See also the thorough analysis of the impact of jury instructions upon the small group dynamics operating within a jury in Note, On Instructing Deadlocked Juries, 78 Yale L.Rev. 100 (1968). Every circuit except the Fifth has either forbidden the use of the instruction or required trial judges to hew closely to the language used in the original Allen charge. See the exhaustive survey in United States v. Bailey, 468 F.2d 652, 667-668 (5th Cir. 1972).

Our own circuit has determined that the wording approved at the turn of the century represents, at best, "the limits beyond which a trial court should not venture in urging a jury to reach a verdict . . . ." United States v. Harris, 391 F.2d 348, 354 (6th Cir. 1968). Any variation upon the precise language approved in Allen imperils the validity of the trial. Chief Judge Aldrich explained in United States v. Flannery, 451 F.2d 880 (1st Cir. 1971), why such a rigid rule is required:

This charge has been called the dynamite charge. Like dynamite, it should be used with great caution, and only when absolutely necessary. There was no call for the court to employ it, sua sponte, when the jury had been deliberating only three hours, and had reported no difficulties in agreeing. . . . The caution required dictates also that trial courts should avoid substantive departures from the formulations of the charge that have already received judicial approval. Such departures impose on appellate courts the almost impossible task of weighing the prejudicial impact of a variation of the approved charge. And in all events, the court should be careful to include all those elements of the original charge designed to ameliorate its coercive effect, and to avoid language which might heighten it.

451 F.2d at 883. ³

The charge that we consider in this appeal both omitted necessary limitations and included additional comments which probably heightened the coercive effect. For example, at no point in the supplemental charge did the trial judge remind the jurors that no one of them should surrender an honest conviction about the case simply because other jurors disagreed. Although jurors should consider each others' arguments carefully, and should try to agree, nevertheless, a defendant has a right to rely on the fact that an ultimate jury disagreement is a permissible result of a trial. The reminder that no juror should merely acquiesce in the majority opinion is therefore one of the most important parts of the Allen charge.

The government relies on the fact that the trial judge included in his original charge to the jury an instruction about the right of each juror to disagree with the majority. However, an earlier reference to the importance of individual jurors' consciences is inadequate to balance a later, powerful instruction intended to produce a verdict.

Also impermissibly coercive was the statement that, because a retrial would have a high priority on the court's docket, juror intransigence would cause further delay in the commencement of trial of a civil case scheduled for the following week. The judge told the jury that the civil litigants had been waiting for four years for a trial, and that it would have to be postponed if the jury could not agree. He also referred to the hectic trial schedule to which he was already committed. These remarks could be understood by the jury as an admonishment to reach a verdict in order to get the case out of the way, for the sake of a harried judge and long-suffering civil parties.

We...