US v. Burch, No. 95-40045-02-SAC.

• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
• Writing for the Court: CROW
• Citation: 928 F. Supp. 1066
• Parties: UNITED STATES of America, Plaintiff, v. Gale F. BURCH, Defendant.
• Docket Number: No. 95-40045-02-SAC.
• Decision Date: 22 May 1996

928 F. Supp. 1066

UNITED STATES of America, Plaintiff,
v.
Gale F. BURCH, Defendant.

No. 95-40045-02-SAC.

United States District Court, D. Kansas.

May 22, 1996.

928 F. Supp. 1067

Bruce W. Simon, Simon & Simon, Kansas City, MO, Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, Michelle Wallace, Kansas City, MO, for defendant.

Gale F. Burch, Lancaster, TX, pro se.

Thomas G. Luedke, Office of United States Attorney, Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

On June 13, 1995, the grand jury returned a two count indictment charging Gerald G. Burch and Gale F. Burch, husband and wife, with conspiracy to possess with intent to distribute 538 pounds of marijuana (Count 1) and possession with intent to distribute 538 pounds of marijuana (Count 2). On October 5, 1996, the court entered a memorandum and order, which, inter alia, denied the defendants' motions to suppress evidence of the search. See United States v. Burch, 906 F.Supp. 592 (D.Kan.1995). In that same memorandum and order the court denied Gale Burch's "Motion to Suppress Statement."

On March 29, 1996, the court entered an order severing Gerald Burch's trial from Gale Burch's trial.¹ On April 22, 1996, trial of Gale Burch commenced. On April 23, 1996, the government rested its case-in-chief. The court denied Gale Burch's motion for judgment of acquittal. Gale Burch did not testify or present any other evidence.

On April 23, 1996, the jury began its deliberations at approximately 4:15 p.m. Having not reached a verdict, the jury recessed at 5:00 p.m. until 9:00 a.m. the next day. Before noon on April 24, 1996, the jury sent a note to the court indicating that it wanted a read back of the testimony of what Trooper Smith "said at the truck while waiting for back up" and Trooper "Hacke's interview with Mrs. Burch." Jury Exhibit # 1. After discussing the issue, counsel and the court agreed to send the following response to the jury's read back request:

Because your request may require a lengthy and burdensome read-back of the requested testimony, the court will consider allowing such a read-back only if you believe and state in further written communications

928 F. Supp. 1068

to the court that the requested testimony is essential to your deliberations and that your collective recall of that testimony is inadequate.

See United States v. Keys, 899 F.2d 983, 988 (10th Cir.) (discussing appropriateness of read backs), cert. denied, 498 U.S. 858, 111 S.Ct. 160, 112 L.Ed.2d 125 (1990).

At approximately 2:50 p.m., the jury sent another note signed by the foreperson. That note stated:

After much deliberation we find that we are not all in agreement over the question of guilty or not guilty.

I do not think the read back of the testimony will change this.

See Jury Exhibit # 2. Another conference was held with counsel to consider a proper response. Over the objection of Gale Burch, the court read an Allen² instruction specifically approved by the Tenth Circuit in United States v. Reed, 61 F.3d 803 (10th Cir. 1995).³ At approximately 3:05 p.m., the court read the instruction to the jury in open court. The jury returned to continue their deliberations.

At approximately 3:40, apparently having reevaluated the need for a read back, the jury sent out another note which stated:

Please secure for us the testimony of Trooper Smith when he takes Mrs. Burch to the back of the rig and holds her there until he drives her into custody.

Please get us testimony from Detective Haak when he interviews Mrs. Birch from jail.

See Jury Exhibit # 3. Another conference was held with counsel. Both the government and the defendant agreed that a read back of the requested testimony was appropriate. The read back of the requested testimony commenced at approximately 3:50 p.m., and lasted for about one hour and ten minutes. Following the read back, the jury returned to their deliberations. At approximately 5:10 p.m., the jury indicated that they had reached a unanimous verdict. The jury found Gale Burch guilty of both counts.

This case comes before the court upon Gale Burch's "Motion for judgment of acquittal, or, in the alternative, for a new trial" (Dk. 148). In her motion, Burch contends that (1) the evidence did not support the jury's verdict and (2) giving the Allen instruction

928 F. Supp. 1069

to the jury after receiving a note indicating that the jurors were deadlocked was coercive. The government opposes Burch's motion

Sufficiency of the Evidence

To review the sufficiency of the evidence supporting a criminal conviction, the court must examine the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Miller, 987 F.2d 1462, 1464 (10th Cir.1993). In reviewing the sufficiency of the evidence, the court must consider both direct and circumstantial evidence, as well as reasonable inferences to be drawn from that evidence. United States v. Davis, 1 F.3d 1014, 1017 (10th Cir.1993) (citing United States v. Fox, 902 F.2d 1508, 1513 (10th Cir.), cert. denied, 498 U.S. 874, 111 S.Ct. 199, 112 L.Ed.2d 161 (1990)).

"`A jury will not be allowed to engage in a degree of speculation and conjecture that renders its finding a guess or mere possibility. Such a finding is infirm because it is not based on the evidence.'" United States v. Jones, 49 F.3d 628, 633 (10th Cir.1995) (quoting Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 521 (10th Cir.1987) (quoting Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1326 (11th Cir.1982))).

The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow from a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts. Jones, 49 F.3d at 632 (quoting Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 895 (3d Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981)). "Additionally, `the essential requirement is that mere speculation be not allowed to do

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