U.S. v. Taylor

• Decision Date: 16 May 1975
• Docket Number: No. 74-1657,74-1657
• Citation: 513 F.2d 70
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter TAYLOR, Jr., and A. J. Taylor, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 70

513 F.2d 70

UNITED STATES of America, Plaintiff-Appellee, v. Walter TAYLOR, Jr., and A. J. Taylor, Defendants-Appellants.

No. 74-1657.

United States Court of Appeals Fifth Circuit.

May 16, 1975.

Richard A. Hirsch, Arnold D. Levine, Tampa, Fla., for defendants-appellants.

John L. Briggs, U. S. Atty., William H. James, Asst. U. S. Atty., Jacksonville, Fla., Claude Tison, Jr., Asst. U. S. Atty., Tampa, Fla., John F. Conroy, Civil Rights Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Appellants Walter Taylor, Jr. and A. J. Taylor were indicted under 18 U.S.C. § 1584, holding to involuntary servitude, ¹ and 18 U.S.C. § 371, conspiring to violate § 1584. Walter Taylor, Jr. was charged with two substantive counts related to two separate individuals, John Bryant, Jr. and Will Herdges, allegedly held by him to involuntary servitude, and with a conspiracy count related to both Bryant and Herdges. A. J. Taylor was charged jointly with his brother on the conspiracy count and on a substantive count related to Bryant. They were tried jointly. Both men were convicted on the conspiracy count and both were acquitted on the substantive counts related to Bryant. Walter Taylor, Jr., was found guilty on the Herdges substantive count. They jointly appeal their convictions. Having considered their contentions of error in the trial below, we affirm the convictions.

The only assignment of error which is substantial enough to warrant discussion is their contention that the trial judge erred in making certain statements to a deadlocked jury in the nature of a supplemental Allen charge ² and concomitantly giving the jury a time limit within which to reach a verdict, stating to the jury that the consequences of not reaching a unanimous verdict by that deadline would be a mistrial.

The supplemental charge by the trial court ³ was given when, six hours after the jury retired to deliberate, it requested advice from the trial court as to the procedure to follow in the event there was not a unanimous decision. The trial court told the jury that its failure to reach a unanimous decision would result in a mistrial. He indicated his intention to dismiss the jury for the evening and have them return the following morning to deliberate two more hours.

At this point, counsel for the defendants stated unequivocally to the court, "I have no objection to the jury retiring for the evening and returning in the morning." After the jurors were dismissed, however, he moved for a mistrial on the grounds that the jurors had expressed an inability to reach a unanimous verdict; alternatively, if that motion were denied, he "insist(ed) that they (the jury) finish this evening." Counsel never objected to the instructions he now alleges as error, nor did he request curative instructions be given by the trial court. The following morning, the jury returned with its verdict five minutes before the deadline.

Because defense counsel did not object to the charge, our review of this asserted error in the Taylors' trial is limited by the "plain error" rule, Fed.R.Crim.P. 52(b), which is to be invoked "only where the error complained of seriously affects the fairness or integrity of the trial and the appellate court must take notice of it to avoid a clear miscarriage of justice." Moore v. United States, 399 F.2d 318, 319 (5th Cir. 1968), cert. denied, 393 U.S. 1098, 89 S.Ct. 893, 21 L.Ed.2d 789.

The appellants rely upon two cases decided by the Tenth Circuit, Burroughs v. United States, 365 F.2d 431 (10th Cir. 1966), and Goff v. United States, 446 F.2d 623 (10th Cir. 1971), where giving the Allen charge to a deadlocked jury in combination with a time limitation on further deliberations was held to be reversible error. We do not accept the proposition that a time deadline added to an Allen charge is in and of itself reversible error. Every Allen charge situation must be decided upon the particular facts and circumstances of the individual situation. Powell v. United States, 297 F.2d 318, 322 (5th Cir. 1961). Having considered all the circumstances surrounding the supplemental charge here, as well as the charge itself, we find that the plain error rule prohibits our taking cognizance of this allegation of error. Counsel had ample opportunity to object to the deadline procedure and to request curative instructions as to any objectionable portions of the trial court's remarks, Fed.R.Crim.P. 51.

The remaining contentions of error are clearly without merit.

Affirmed.

1 Title 18, U.S.C. § 1584 provides:

Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

2 Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct....