United States v. Brown

• Decision Date: 06 June 1969
• Docket Number: No. 16772.,16772.
• Citation: 411 F.2d 930
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roscoe BROWN, also known as Sam, also known as Samuel Morris, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

411 F.2d 930 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Roscoe BROWN, also known as Sam, also known as Samuel Morris, Defendant-Appellant.

No. 16772.

United States Court of Appeals Seventh Circuit.

June 6, 1969.

Joseph E. McHugh, Chicago, Ill., for appellant.

Thomas A. Foran, U. S. Atty., Robert J. Breakstone, Chicago, Ill., for appellee, John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel.

Before HASTINGS, Senior Circuit Judge, and SWYGERT and FAIRCHILD, Circuit Judges.

SWYGERT, Circuit Judge.

This case raises the question whether the trial court erred in giving the so-called Allen charge. Petitioner attacks the constitutionality of the Allen charge in light of the fifth and sixth amendments. It is his claim that the instruction interferes with his right to a fair and impartial jury trial and that it is coercive because it unduly emphasizes the importance of reaching a verdict.

On November 15, 1966 Roscoe Brown, the defendant, was indicted and charged under two separate counts with certain narcotics offenses, namely, violations of 26 U.S.C. §§ 4742(a) and 4705(a). The jury heard the evidence for one full day, November 7, 1967, and about one hour on the morning of the second day, November 8. In light of the fact that no errors have been raised upon this appeal with respect to the sufficiency or nature of the evidence, it is unnecessary to set forth the facts of the case in any detail. Suffice it to say that according to the testimony at trial, three Federal Narcotics agents, Frank J. Boyles, Carl Jackson, and Robert Victoria, indicated that on February 1, 1966 the defendant sold to agent Boyles a quantity of marijuana, and that on April 6, 1966, the defendant delivered to the same agent a package of heroin. The defendant denied both transactions. According to the stipulation of the parties, after the jury was instructed by the district judge, they retired to the jury room at approximately 11:45 a. m. At 4:30 p. m. the same day, the judge, over the general objection of the defendant's counsel, ordered the jury back into open court. The judge reread the instructions he had previously given to the jury and then gave the following further instructions:

In a large proportion of cases, absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusion of others, yet you should examine the questions submitted with proper regard and deference for the opinions of each other, and you should listen to each others\' opinions with a disposition to be convinced.

It is your duty to decide the case if you can conscientiously do so. If a larger number of jurors favor a verdict of guilty, a dissenting juror should consider whether his doubt is a reasonable one when it makes no impression upon the minds of other jurors equally intelligent and impartial who have heard the same evidence.

If, on the other hand, the majority favor a verdict of not guilty, the minority should ask themselves whether they might not reasonably doubt the correctness of their judgment. Likewise, the jurors in the majority favoring a verdict of guilty or of not guilty, should ask themselves whether they might not reasonably doubt the correctness of their judgment when it makes no impression upon the minds of the minority jurors equally intelligent and impartial as they are, and who have heard the same evidence.

If you should fail to agree on a verdict, the case must be retried. Any future jury must be selected in the same manner and from the same source as you have been chosen, and there is no reason to believe that the case would ever be submitted to twelve men and women more competent to decide it, or that the case can be tried any better or more exhaustively than it has been here, or that more or clearer evidence could be produced on behalf of either side.

This supplemental charge encompassed in large part the language approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); it was also in substantial accord with an instruction approved by the District Court for the Northern District of Illinois as part of the Manual on Jury Instructions-Criminal, 33 F.R.D. 523, 611, 612 (1963). Although this contested charge was given at 4:30 p. m., the jury continued its deliberations. The jury's sealed verdict of guilty as to the first count relating to the marijuana charge and not guilty as to the heroin count was opened in court the following morning.

The challenge to this Allen-type charge rests on the defendant's conception of the present contours of the right under the sixth amendment to trial by an impartial jury. Relying on recent decisions of the Supreme Court such as Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the defendant outlines the Court's continuing concern about safeguarding the jury from improper and coercive influences which might create a potential for prejudice against the rights of a defendant. We do not think that substantial interference with the jury's free deliberations so as to have created a prejudicial atmosphere occurred here. Admittedly lacking in this case are the overt coercive elements which were present, for example, in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), where the two principal witnesses for the prosecution, deputy sheriffs, had mingled freely with the sequestered jurors during the period of the trial, driven the jurors from their quarters, and had taken meals to them. In that case, as well as the publicity cases, such as Sheppard v. Maxwell, the Court noted that the objective situation was such that there was a strong possibility that the jurors would be swayed by their personal feelings to accept testimony against the accused without question. We are unable to conclude that the language of the supplemental charge here given when considered in light of its timing interfered with the sixth amendment right of the defendant.

The second contention of the defendant is that the emphasis of the supplemental charge upon the importance of reaching a verdict and not upon an individual juror's voting in accordance with his conscientious conviction is coercive and hence violative of due process. We agree with the defendant that the potential for coercion exists whenever an apparently deadlocked jury is subjected to the psychological impact of a supplemental instruction from the judge that they continue deliberating in a further effort to reach a verdict. The defendant has suggested that a mistrial from a hung jury is a safeguard to liberty.¹ But to fully recognize the importance of a mistrial in our system of criminal justice and to carefully seek avoidance of unconstitutional coercion of the juror's judgment does not necessitate our holding that no form of supplemental instruction is proper. In our opinion, additional instructions, similar to those given in the present case, may serve a beneficial role in the adjudication of cases despite the possibility of rare prejudice to the defendant. The defendant urges that coercion is present whenever the judge recalls the jury after hours of deliberation. We disagree. We think that carefully worded and timed supplemental instructions are not necessarily unfair. Although we have reviewed...