United States v. Bailey

• Decision Date: 13 June 1973
• Docket Number: No. 72-1799.,72-1799.
• Citation: 480 F.2d 518
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darwin Clark BAILEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

480 F.2d 518 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Darwin Clark BAILEY, Defendant-Appellant.

No. 72-1799.

United States Court of Appeals, Fifth Circuit.

June 13, 1973.

John B. Farese, Ashland, Miss., for defendant-appellant.

H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

PER CURIAM:

The court convened en banc to consider the propriety of the Allen¹ charge. The facts of the case and the charge in question are set out in the panel opinion. United States v. Bailey, 5 Cir., 1972, 468 F.2d 652. We adhere to our decisions approving the Allen charge within the limitations therein delineated. See, e. g., United States v. Sutherland, 5 Cir., 1972, 463 F.2d 641, 647-648; United States v. Williams, 5 Cir., 1971, 447 F.2d 894, 898-900; Posey v. United States, 5 Cir., 1969, 416 F.2d 545, 551-552; Sanders v. United States, 5 Cir., 1969, 415 F.2d 621, 629-632; Thaggard v. United States, 5 Cir., 1965, 354 F.2d 735, 738-739. Cf. Green v. United States, 5 Cir., 1962, 309 F.2d 852, 854-856; Powell v. United States, 5 Cir., 1961, 297 F.2d 318, 319-322, for supplemental charges which went beyond the pale.

The judgment of conviction is affirmed.²

COLEMAN, Circuit Judge (concurring specially):

For the reasons stated in my opinion in Thaggard v. United States, 5 Cir., 1965, 354 F.2d 735, 739, I would, if it were within my power, do away with the Allen charge. Since, however, the Supreme Court of the United States has approved it and after seventy six years has never seen fit to withdraw that approval I consider myself bound by the unchanged views of the High Court.

GOLDBERG, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, and WISDOM, GODBOLD, INGRAHAM and RONEY, Circuit Judges, join (concurring in part and dissenting in part):

I concur in the en banc Court's affirmance of this conviction, but for the reasons stated in the panel opinion, 468 F.2d 652, I must respectfully dissent from the Court's refusal to prohibit further use of the "dynamite charge" in this Circuit. The instant conviction was obtained after the trial judge delivered an Allen charge that the original panel held was in compliance with all requirements heretofore laid down in this Circuit. The panel was nevertheless troubled by the use of the charge, and we expressed a desire to reverse the case. Being bound by precedent, however, we were compelled to affirm the conviction, as we can overrule prior Fifth Circuit cases only when we sit en banc. We have now considered the issue while sitting en banc, and the majority of the Court has refused to put an end to any further use of "this abusable relic." 468 F.2d at 669.

My view of the developing law, which has been greatly aided by the excellent briefs supplied by all parties to this appeal, convinces me that this Court should overrule our prior decisions allowing use of the Allen charge and thereby join the jurisdictions that have abolished this type of jury instruction. E. g., United States v. Thomas, 1971, 146 U.S.App.D.C. 101, 449 F.2d 1177 (en banc); United States v. Fioravanti, 3 Cir. 1969, 412 F.2d 407, cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88; United States v. Brown, 7 Cir. 1969, 411 F.2d 930, cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508. In so doing, I would adopt the persuasive words of Judge Aldisert, who speaking for the Third Circuit in United States v. Fioravanti, supra, wrote:

"After the most careful consideration of the Allen Charge and the context in which it was presented in this case, we have concluded that its use here was not so prejudicial as to deprive appellant of a fair trial and a unanimous verdict based on proof beyond a reasonable doubt.

"Our refusal to reverse this conviction should not be taken to mean that we have tacitly approved of the Charge or that we intend, in the future, to ponder each case on its peculiar facts. On the contrary, we know from the experience in this circuit and from an examination of the experience in others that the use of the Allen Charge is an invitation for perennial appellate review. As the Arizona Supreme Court said when it abolished it in 1959:

`When and wherever its use is called into question it must stand or fall upon the facts and circumstances of each particular case. It has given, and we believe each use will give us, harassment and distress in the administration of justice. No rule of thumb can circumscribe definite bounds of when and where, or under what circumstances it should be given or refused.

* * * * * *

`We are convinced that the evils far outweigh the benefits, and decree that its use shall no longer be tolerated and approved by this court.\' State v. Thomas, 86 Ariz. 161, 342 P.2d 197, 200 (1959).

"Hereafter, in this circuit, trial judges are not to give instructions either in the main body of the charge or in the form of a supplement that direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his. Such an instruction will be deemed error, normally reversible error. Conceivably, in very extraordinary circumstances the error may be found so inconsequential as to avoid the necessity of reversal on appeal. But hereafter this court will not let a verdict stand which may have been influenced in any way by an Allen Charge.

"We predicate our decision on the basis of the potential for prejudice its future use may generate and the profound difficulty in confining its use within just and equitable bounds. Its peccancy comes from its tendency to hurt, from its tendency to erode the jurors\' capacity for meaningful group deliberation with its concomitant arguing, influencing, and exchange of views. As a prophylactic device to eliminate future vexation, our prohibition shall have prospective application only in those jury trials which shall be conducted hereafter.

"The judgment of conviction will be affirmed."

412 F.2d at 419-420 (footnotes omitted).

It is settled that use of the Allen charge does not per se offend the Constitution, but it is also clear that we have the supervisory power to end its use. Our custodial responsibility over the District Courts is not acquitted merely by the interpretation and application of relevant principles of existing law. As the stewards of justice in this Circuit, we are charged with an additional duty to establish and maintain civilized standards of procedure governing the conduct of trials. As the Ninth Circuit has recently pointed out, a springtide of authority bears witness to the irrefutable existence of this supervisory power:

". . . That this court has such supervisory power is hardly deniable. In La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the United States Supreme Court held that `. . . supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system.\' Id. at 259-260, 77 S. Ct. 309. Moreover, this pronouncement by the Nation\'s supreme judicial authority has been reaffirmed by every Court of Appeals, including our own, that has confronted the issue. In a very recent opinion of this court, Guam v. Camacho, 470 F.2d 919 (9th Cir. 1972), Chief Judge Chambers acknowledged the existence of the `supervisory power\' of this court. See also United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177 (1971) (en banc); United States v. Daniels, 446 F.2d 967 (6th Cir. 1971); In re Ellsberg, 446 F.2d 954 (1st Cir. 1971); United States v. Jones, 140 U.S.App.D.C. 70, 433 F.2d 1176 (1970), cert. denied 402 U.S. 950, 91 S.Ct. 1613, 29 L.Ed.2d 120 (1971); Dellinger v. Mitchell, 143 U.S.App.D.C. 60, 442 F.2d 782 (1971); Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), cert. denied, 408 U.S. 942, 92 S.Ct. 2869, 33 L.Ed.2d 766 (1972); United States v. Butera, 420 F.2d 564 (1st Cir. 1970); United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States v. Brown, 411 F.2d 930 (7th Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970); Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc); United States v. Dooling, 406 F.2d 192 (2d Cir. 1969), cert. denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969); Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968); Pea v. United States, 130 U.S.App.D.C. 66, 397 F.2d 627, 637 (1968) (rehearing en banc); ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir. 1967), cert. denied, 390 U.S. 949, 88 S.Ct. 1039, 19 L.Ed.2d 1140 (1968); Government of Virgin Islands v. Lovell, 378 F.2d 799 (3d Cir. 1967); Thomas v. United States, 368 F.2d 941 (5th Cir. 1966); Tate v. United States, 123 U.S.App.D.C. 261, 359 F.2d 245 (1966); United States v. Freeman, 357 F.2d 606 (2d Cir. 1966); Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965); United States v. Inman, 352 F.2d 954 (4th Cir. 1965); Ford v. United States, 122 U.S.App.D.C. 259, 352 F.2d 927 (1965) (en banc); Smith v. Katzenbach, 122 U.S.App.D. C. 113, 351 F.2d 810 (1965); Natural Resources, Inc. v. Wineberg, 349 F.2d 685 (9th Cir. 1965), cert. denied, 382 U.S. 1010, 86 S.Ct. 617, 15 L.Ed.2d 525 (1966); Jones v. United States, 342 F.2d 863, 119 U.S.App.D.C. 284 (1964) (en banc); United States v. D\'Angiolillo, 340 F.2d 453 (2d Cir.), cert. denied, 380 U.S. 955, 85 S.Ct. 1090, 13 L.Ed.2d 972 (1965); United States ex rel. Sturdivant v. New Jersey, 289 F.2d 846 (3d Cir.), cert. denied, 368 U.S. 864, 82 S.Ct. 109, 7 L.Ed.2d 61 (1961); Wildeblood v. United States, 106 U.S.App.D.C. 338, 273 F.2d 73 (1959) (Burger, J.); Delaney v. United States, 199 F.2d 107 (1st Cir. 1952); Helwig v. United States, 162 F.2d 837 (6th Cir. 1947)."

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