United States v. Silvern

• Decision Date: 07 August 1973
• Docket Number: No. 72-1133.,72-1133.
• Citation: 484 F.2d 879
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold SILVERN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

484 F.2d 879 (1973)

UNITED STATES of America, Plaintiff-Appellee, v.Harold SILVERN, Defendant-Appellant.

No. 72-1133.

United States Court of Appeals, Seventh Circuit.

Reheard May 25, 1973.

Decided August 7, 1973.

James P. Chapman, Chicago, Ill., Thomas P. Sullivan, Peter A. Flynn, Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., William T. Huyck, Arnold Kanter, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and KILEY, FAIRCHILD, CUMMINGS, PELL, STEVENS and SPRECHER, Circuit Judges.

Reheard En Banc May 25, 1973.

SPRECHER, Circuit Judge.

This case has been reheard en banc in an attempt to establish greater certainty in district courts in this Circuit, and to conserve judicial energy by possibly avoiding appeals and retrials, in regard to the giving of the so-called Allen or "dynamite" charge as a supplemental instruction to a deadlocked jury.

The Allen instruction was approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157, 41 L.Ed. 528(1896)¹ and although no court has held that the instruction itself is unconstitutional, it has had a stormy career.²

From 1963 to 1969, the Allen charge, supplemented by a second paragraph advising the jury that the case"must be retried" if the jury failed to reach a verdict, was generally given in this circuit as part of the Manual on Jury Instructions in Federal Criminal Cases (La Buy Instructions), 33 F.R.D. 523, 611(1963).³

In United States v. Brown, 411 F.2d 930, 933-934(7th Cir.1969), we held as follows:⁴

Because the district courts within this Circuit have encountered difficulties in determining what precise language to include in a supplemental charge and when it should be given, it is important for this court to articulate with specificity our standards.In dealing with supplementary instructions, the primary task of an appellate court is to set the standards for the proper conduct of the trial judge faced with a hung jury.We have reconsidered not only the presently approved form of the Allen charge as set forth in the LaBuy Instructions, but the numerous judicial decisions and scholarly literature in this field critical of the Allen charge.We have concluded that it would serve the interests of justice to require under our supervisory power that, in the future, district courts within this Circuit when faced with deadlocked juries comply with the standards suggested by the American Bar Association\'s Trial By Jury publication.These standards specifically provide:

5.4 Length of deliberations; deadlocked jury.

(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:

(i) that in order to return a verdict, each juror must agree thereto;

(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and

(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a).The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

* * * * * *

In order to avoid the potential for prejudice and coercion to which we have referred, district courts in this Circuit are required henceforth to charge deadlocked juries in both criminal and civil cases in a manner consistent with the recommended standards.

Although our 1969 language was designed to produce uniform practices within the circuit, it has not had that result, possibly because of the final words that deadlocked juries be charged "in a manner consistent with the recommended standards."Widespread deviations from and substantial supplements to the ABA standards have been considered to be "consistent with" them and "complying" with them.United States v. DeStefano, 476 F.2d 324(7th Cir.1973).

In this case, the supplemental instruction was exceedingly lengthy and went far beyond the ABA standards.⁵A majority of the court agrees with the panel of this court"under the facts of this case that neither the wording of the supplemental charge containing the ABA recommendations nor the timing and circumstances surrounding the charge violated defendant's constitutional rights" and "no prejudice occurred from the supplemental charge."United States v. Silvern, No. 72-1133(7th Cir.February 27, 1973).The majority also agrees with the panel's disposition of the other issues in the case and we affirm the defendant's conviction.

However in the interest of judicial economy and uniformity, and under our supervisory power, district courts in this circuit are henceforth required to do the following in both civil and criminal cases.

If a supplemental instruction is deemed necessary and provided that the following instruction has been given prior to the time the jury has retired, it may be repeated:⁶

The verdict must represent the considered judgment of each juror.In order to return a verdict, it is necessary that each juror agree thereto.Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment.Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous.But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

You are not partisans.You are judges — judges of the facts.Your sole interest is to ascertain the truth from the evidence in the case.

Experience has now shown that variants in language or supplements or additions serve merely to proliferate appeals.⁷

If in any jury trial tried after thirty (30) days from this opinion a supplemental instruction relating to a deadlock is given other than in the above form, a resulting conviction will be reversed and remanded for a new trial.⁸

In addition, we suggest that the district courts consider whether the need for supplemental instructions may be reduced by sending into the jury room at the time the jury retires either a written copy or a tape recording of, together with equipment to enable the jury to hear, the complete instructions as given by the court.

Affirmed.

PELL, Circuit Judge (concurring in part and dissenting in part).

I concur in the affirmance of the defendant's conviction; however, since the opinion written by Judge Sprecher and approved by the majority of my brethren does establish new law in the Seventh Circuit,¹ I find myself free to record my disagreement with some of that new law.I do so with some reluctance because of my respect for the good judgment of my brothers and because my opinion with regard to the LaBuy-modified Allen charge apparently runs counter to a considerable body of scholarly thought elsewhere.

In all candor, I do not find myself disturbed by the charge given by Judge Austin in the trial below.Apparently the majority of this court is really not too disturbed either because the charge was held not to violate the defendant's constitutional rights and not to be prejudicial.Nevertheless, apparently writing section one of a manual of instructions, the court states that deviation from the precise language of that instruction in the deadlocked jury situation is reversible error.I experience conceptual difficulty, even under our supervisory power, in establishing a standard from which no deviation may occur when we do so in the very case in which we hold that a deviation was neither constitutionally impermissible nor otherwise prejudicial.

My basic feeling is that the matter of writing instructions should remain in the hands of the trial judges.They are the ones at the battle site who are best in the position to judge which instructions are appropriate to the factual issues.Likewise they are best in the position to determine the nature, necessity, and verbiage of instructions to be given in connection with the functional aspects of jury deliberation, including those that may be necessary when it reasonably appears that a jury has reached the status of being deadlocked.If in any instruction the court misstates the law and the effect is prejudicial then, of course, a reversal would ordinarily follow.By prescribing the exact language in which a trial judge may instruct in the deadlocked situation we are, it seems to me, substantially circumscribing the discretionary flexibility needed by the trial judge for effective trial administration.It is one thing to find no error in an instruction which has been given in a trial, thereby putting our tacit approval on it, and an entirely different matter to engage in a priori processes of word fixation.

In considering the desirability in our trial procedures of the giving of an instruction such as the one given by Judge Austin, we should look at it in the context of the occasion in which it is utilized.While we probably should not say as an absolute, necessitas est lex temporis et loci, because our system of justice does not mandatorily...