United States v. Samuel Dunkel & Co.

• Decision Date: 11 March 1949
• Docket Number: Dockets 21218,No. 169,21219.,170,169
• Citation: United States v. Samuel Dunkel & Co., 173 F.2d 506 (2nd Cir. 1949)
• Parties: UNITED STATES v. SAMUEL DUNKEL & CO., Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

173 F.2d 506 (1949)

UNITED STATES v. SAMUEL DUNKEL & CO., Inc., et al.

Nos. 169, 170, Dockets 21218, 21219.

United States Court of Appeals Second Circuit.

March 11, 1949.

Jay Leo Rothschild, of New York City (Maurice L. Albert, of New York City, on the brief), for appellants Samuel Dunkel & Co., Inc., Sondra Egg Products Corp., Charles Cohen, and Julius Cohen.

Daniel H. Prior, of Albany, N. Y. (George Brussel, Jr., of New York City, on the brief), for appellant Sidney S. Atlas.

L. E. Broome and James W. Knapp, Attys., U. S. Dept. of Justice, both of Washington, D. C. (Irving J. Higbee, U. S. Atty., of Syracuse, N. Y., on the brief), for appellee.

Before L. HAND, Chief Judge, and SWAN and CLARK, Circuit Judges.

CLARK, Circuit Judge.

These long delayed appeals arise out of convictions in September, 1943, on two conspiracy indictments, based on fraudulent wartime sales of dried eggs to a government instrumentality, the Federal Surplus Commodities Corporation. The two corporate defendants and two of the individual defendants were convicted on both indictments — one under 18 U.S.C.A. § 83, for conspiring to defraud the Government by obtaining or aiding to obtain the payment of false claims, and the other under the broader provisions of 18 U.S.C.A. § 88, for conspiring to commit an offense against the United States, to wit, the delivery of rejected dried egg powder, falsely represented to have been tested and accepted in accordance with the contract. The other two individual defendants were convicted only under the § 88 indictment.

After the jury had deliberated for more than twelve hours over a 24-hour period, during which it had several times requested and received further instructions and explanations of the law, it returned to the courtroom; and upon inquiry of the court clerk as to whether or not it had agreed upon a verdict, the following colloquy occurred:

"The Foreman of the Jury: We wish to inform you that we have been unable to reach a satisfactory agreement, after many hours of due deliberations it appears that we will be unable to reach unanimous agreement.

"The Court: Ladies and gentlemen: I am not going to accept the report of the jury now. This has been a long case, with a considerable amount of evidence, with a rather simple and concise question of fact. We all have duties to perform. We must make every honest effort that we can to perform them. May I ask you, Mr. Whitney, I believe it is, without disclosing the way in which the jury stands, can you tell me, are they nearly equally divided as to a question of fact, or is there a majority, a pronounced majority in agreement, with a pronounced minority in disagreement? I think you know what I mean.

"The Foreman of the Jury: There is a majority, very much.

"The Court: I do not believe there is any use repeating my charge to you, that is as clear as I could make it after some thought, and perhaps a repetition might be only confusing. I am going to say something to you:"

Thereupon the court proceeded to state — in nearly literal quotation except for its change of form to direct admonition — the oft-repeated material found in the opinion in Allen v. United States, 164 U.S. 492, at page 501, 17 S.Ct. 154, 41 L.Ed. 528, upon the duty of jurors to agree. Included were the statements that "a dissenting juror or jurors should consider whether his attitude was a reasonable one which made no impression upon the minds of the rest of the jury equally as honest, equally as intelligent as he. * * * It is the duty of each juror to listen with deference to arguments, and with distrust of his own judgment if he finds a large majority of the jury taking a different view of the case from what he does himself."

Upon the retiring of the jury, counsel for the defendants took exception to the instructions just given and said that "if any verdict is reached now it will be a verdict produced by coercion." The court then stated its belief that no exception would be valid unless made in the presence of the jury, but its offer to recall the jury for the purpose was not accepted. The jury continued its deliberations for nearly eight hours more, returning three times to ask questions of the court as to the law. Upon the first occasion the court, after answering the question submitted, stated that a juror had reported that the jury was unable to agree and then went on to urge further consideration, saying, "I do not think that the matters involved are complicated. If these defendants, men and corporations, are innocent, they should be so found. If they are guilty, they should be so found. * * * Approach this task as a task that should be accomplished, a duty to be performed, carefully, quietly, conscientiously; go over the evidence as you remember it. Listen to the arguments of your co-juror. Use your own good common sense in the performance of your duty." Several hours thereafter and after it had returned twice more for instructions, the jury brought in the verdicts upon which the judgments appealed from were entered. The incident narrated furnishes the grounds for the most serious challenge to the convictions presented by the various assignments of error.

"It is a familiar practice to recall a jury, after they have been in deliberation for any length of time, for the purpose of ascertaining what difficulties they have in the consideration of the case, and of making proper efforts to assist them in the solution of those difficulties." Allis v. United States, 155 U.S. 117, 123, 15 S.Ct. 36, 38, 39 L.Ed. 91. But notions have changed since the days when the jurors were kept without "meat, drink, fire, or candle" until they reached agreement, and, if they were not agreed before the judge was due to move on to the next assizes, were carried with him in a cart.¹ A hung jury is certainly undesirable in the administration of justice, and it is proper for the court to point out the specific disadvantages of a new trial in the case before it. Israel v. United States, 6 Cir., 3 F.2d 743, 745; Shea v. United States, 9 Cir., 260 F. 807; Suslak v. United States, 9 Cir., 213 F. 913, 919. The court may likewise urge dissenting jurors to re-examine their conclusions in the light of the majority view. Allen v. United States, supra. But such statements must not be coercive in effect, for a judge "may advise, and he may persuade, but he may not command, unduly influence, or coerce." Wissel v. United States, 2 Cir., 22 F.2d 468, 471.

Hence each charge must be examined to determine whether or not its effect is to coerce or influence unduly, and a mere formal saving clause alluding to the jury's rights will not suffice to overcome a total effect of coercion. The practice followed here of discussing the dissenting jurors' responsibilities and duties in the language of Allen v. United States, supra, was also employed, in similar form, in United States v. Allis, C.C.Kan., 73 F. 165, 182, affirmed Allis v. United States, supra. As a matter of fact this charge has been often so used. United States v. Winters, 2 Cir., 158 F.2d 674; Bord v. United States, 76 U.S.App. D.C. 205, 133 F.2d 313, certiorari denied 317 U.S. 671, 63 S.Ct. 77, 87 L.Ed. 539; Boehm v. United States, 8 Cir., 123 F.2d 791, 812, certiorari denied 315 U.S. 800, 62 S.Ct. 626, 86 L.Ed. 1200. In Stewart v. United States, 8 Cir., 300 F. 769, some criticism of use of the Allen opinion in this form was expressed. We think, however, as we have previously said, that any jury unable to maintain its individual and collective independence against such a charge, standing by itself, "would have been no better than a sounding board for any judicial whisper." United States v. Olweiss, 2 Cir., 138 F.2d 798, 801, certiorari denied Olweiss v. United States, 321 U.S. 744, 64 S.Ct. 483, 88 L.Ed. 1047. The difficulty here arises because the charge was coupled with an inquiry as to the division of the jury.

The issue of coercion of the jury presented by such an inquiry is one which has divided the federal courts; but it now appears to have been settled by the Supreme Court. In the first of two important cases, Burton v. United States, 196 U.S. 283, 305, 308, 25 S.Ct. 243, 249, 49 L.Ed. 482, the trial judge, before giving the Allen charge, had inquired of the jury reporting a disagreement as to their numerical division, but not as to "how many stand for conviction, or how many for acquittal." The foreman had then stated that the jury stood eleven to one. The Supreme Court, after ordering reversal of the judgment below on other grounds, went on to criticize the practice of inquiring as to the proportion of division of the jury, even without the inquiry as to which way the division might be. Stating that this knowledge was not material, since the judge could have made his charge admonishing the jury to make honest endeavors to agree without asking for the information, the opinion continued: "* * * we do not think that the proper administration of the law requires such knowledge or permits such a question on the part of the presiding judge. Cases may easily be imagined where a practice of this kind might lead to improper influences, and for this reason it ought not to obtain."

After this decision the lower courts divided as to whether the Court's remarks were merely hortatory or whether the criticized inquiry constituted reversible error, and the Supreme Court in the later case of Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345, granted certiorari for the purpose of resolving the conflict. Since here the United States has suggested that the conviction may be sustained because the exact numerical division of the jury was not asked for or divulged, it is important to note the cases cited by the Court as disclosing the conflict. On the one side were cases from the Eighth Circuit reversing convictions for such inquiries preceding the Allen charge. While in one of the cases cited, the exact proportion was elicited, St. Louis &...