United States v. Glenn Dale Seawell , 550 F.2d 1159 ( 1977 )

MERRILL, Circuit Judge:

The question presented is whether the giving of a second modified Allen charge,¹ in response to a jury’s report of deadlock, has such coercive implications that it should, as a sound rule of practice, be prohibited. We conclude that it has.

Seawell was convicted for armed bank robbery and the use of a firearm hi its commission. He was found to be one of three masked robbers and, specifically, the one who guarded the front door of the bank during the robbery. His trial lasted four and one-half days, from Monday to Friday, in the course of which the jury heard the testimony of twenty-two witnesses. There followed closing arguments and the court’s instructions. The jury then deliberated for two hours on Friday afternoon before recessing for the weekend.

On Monday, two notes were sent to the judge after the jury had deliberated approximately one and one-half hours. The first note said, “[t]he jury is at a ten-to-two impasse. The two state that nothing we can say will convince them otherwise. What course of action should we now take?” The second note, received minutes later, asked that a certain witness’s testimony be read. Assuming that the second note had superseded the first, the judge had the testimony reread and then indicated to counsel his intention to give a modified Allen charge if the jury remained unable to agree.

Ten minutes after resuming deliberations, the jury sent another note indicating a ten-to-two deadlock, and a modified Allen charge was given.² Approximately three and one-half hours later, after some intervening discussion between judge and jury, the judge received another note from the jury which read in part:

“No amount of argument has persuaded their convictions, these are the others who do not agree with the majority of the jurors. We therefore submit to you that we are at an impasse and are not likely to change our minds until fatigue becomes a deciding factor which we believe is neither fair to the defendant or the people.”

The court, after stating that the jury would not in any event have to deliberate later than 6:30 P.M. that night or beyond the point of fatigue, then reread the Allen charge. The jury retired at 4:10 P.M. and the guilty verdict was returned at 5:00 P.M. Timely objections were made by defense counsel.

Problems arising from the inherently coercive effect of the Allen charge have caused other courts of appeals³ and state courts⁴ to prohibit or to restrict severely its use. Nevertheless, the content,⁵ timing⁶ and circumstances surrounding⁷ the Allen charges given here have been upheld by this circuit and we do not now undertake to re-examine those decisions. We have, however, recognized that even in its most acceptable form, the Allen charge “approaches the ultimate permissible limits.” Sullivan v. United States, 414 F.2d 714, 716 (9th Cir. 1969). We conclude that permitting it to be given twice in a federal prosecution would be an unwarranted expansion of its use.

If the charge is to pass muster as instruction on the law there is little need to repeat it save at the jury’s request. (Here, for example, it was repeated three and one-half hours after it was first given. Nothing had intervened to cause the jury to overlook what last had been said to them.) Repetition of the charge, together with rejection of the jury’s second report of deadlock, is almost certain to convey the thought that by failing to come to an agreement — by once again reporting themselves at impasse — the jurors have acted contrary to the earlier instruction as that instruction was properly to be understood. (“Apparently you didn’t listen to what I said before, so I’ll repeat it.”) Given a second time, not at the request of the jury but at the instance of the judge, the charge no longer serves as an instruction; no matter how it may be softened it becomes a lecture sounding in reproof.

Ordinarily, the general test of whether a supplemental jury instruction is in error is to consider all the circumstances to determine if the instruction was coercive. Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965). Pragmatic considerations weigh against the application of this test when an Allen charge is given more than once. A case-by-case determination would provide little, if any, guidance for a trial judge. Defendants would also face insurmountable difficulties in attempting to show prejudice. A single Allen charge, without more, stands at the brink of impermissible coercion. We believe that the protection of a defendant’s right to an impartial jury compels a per se rule.⁸ Such a rule is not at odds with prior decisions of this court⁹ or other courts of appeals.¹⁰ We conclude that as a sound rule of practice it is reversible error to repeat an Allen charge in a federal prosecution in this circuit after a jury has reported itself deadlocked and has not itself requested a repetition of the instruction.¹¹

Since remand for new trial is necessary we deem it advisable to settle an additional question that may again present itself below. Appellant asserts that a delay in his indictment violated his due process guarantees. The robbery occurred on November 18, 1974, and Seawell was arrested December 4, 1974. Nevertheless, Seawell was not indicted until May 28, 1975, more than six months after the bank robbery and five and one-half months after his arrest.

In United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971), the Supreme Court stated that:

“ * * * the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.”

We need not decide whether substantial prejudice and intentional delay are required in the disjunctive or conjunctive.¹² Appellant has not even attempted to argue that delay on the part of the United States was an intentional device and we reject his claims of prejudice. His defense was alibi; he claimed he was working at a gasoline station at the time of the robbery. Two witnesses testified that he was there that day but could not place him there at a time that would have made his alibi air-tight. Appellant argues that but for the delay the memories of his witnesses would have been sharper, to his advantage, and that he himself might have remembered other witnesses.

The unsupported claim that memories of some witnesses and the defendant have dimmed does not constitute substantial prejudice in itself. Mere speculation cannot serve as the grounds for a finding of substantial prejudice. See United States v. Griffin, 464 F.2d 1352, 1354-55 (9th Cir. 1972), cert. denied, 409 U.S. 1009, 93 S.Ct. 447, 34 L.Ed.2d 302 (1973); cf. United States v. Finkelstein, 526 F.2d 517, 526 (2d Cir. 1975), cert. denied, Scardino v. United States, 425 U.S. 960, 96 S.Ct. 960, 48 L.Ed.2d 205 (1976). We conclude that appellant’s due process claim based on a delayed indictment is without merit.

Reversed and remanded for a new trial.

1 . The original Allen charge resulted from language in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). See also Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249, reh. denied, 344 U.S. 850, 73 S.Ct. 5, 97 L.Ed. 660 (1952); Lias v. United States, 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505 (1931).

2 . The form of the Allen charge given was:

“The Court wishes to suggest a few thoughts which you may desire to consider in your deliberations, along with the evidence in the case, and all the instructions previously given.

This is an important case. The trial has been expensive in time, and effort, and money, to both the defense and the prosecution. If you should fail to agree on a verdict, the case is left open and undecided. Like all cases it must be disposed of sometime. There appears no reason to believe that another trial would not be costly to both sides. Nor does there appear any reason to believe that the case can be tried again, by either side, better or more exhaustively than it has been tried before you. Any future jurors must be selected in the same manner and from the same source from which you have been chosen. So there appears no reason to believe that the case would ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced on behalf of either side.

Of course, these things suggest themselves, upon brief reflection, to all of us who sat through this trial. The only reason they are mentioned now is because some of them may have escaped your attention, which must have been fully occupied up to this time in reviewing the evidence in the case. They are matters which, along with other and perhaps more obvious ones, remind us how desirable it is that you unanimously agree upon a verdict.

As stated in the instructions given at the time the case was submitted for your decision, you should not surrender your honest convictions as to the weight or the effect of evidence, solely because of the opinion of other jurors, or for the mere purpose of returning a verdict.

However, it is your duty as jurors to consult with one another and 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 you should do so only after a consideration of the evidence in the case with your fellow jurors. And in the course of your deliberations, you should not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous.

In order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor and frankness, and with proper deference to and regard for the opinions of each other. That is to say, in conferring together, each of you should pay due attention and respect to the view of others and listen to each others arguments with a disposition to reexamine your own views.

If much the greater number of you are for a conviction, each dissenting juror ought to consider whether a doubt in his or her own mind is a reasonable one, since it makes no effective impression upon the minds of so many equally honest, equally conscientious fellow jurors, who bear the same responsibility, serve under the same oath, and have heard the same evidence with, we may assume the same attention and equal desire to arrive at the truth. On the other hand, if a majority or even a lesser number of you are for acquittal, other jurors ought seriously to ask themselves again, and most thoughtfully whether they do not have reason to doubt the correctness of a judgment which is not concurred in by many of their fellow jurors, and whether they should not distrust the weight and sufficiency of the evidence, which fails to convince the minds of several of their fellows beyond a reasonable doubt.

You are not partisans, you are judges— judges of the facts. Your sole interest here is to seek the truth from the evidence in the case. You are the exclusive judges of the credibility of all the witnesses and the weight and effect of all the evidence. In the performance of this high duty, you are at liberty to disregard all comments of both Court and counsel, including of course the remarks I am now making.

Remember, at all times, that no juror is expected to yield a conscientious conviction he or she may have as to the weight and effect of the evidence. But remember also that, after full deliberation and consideration of all the evidence in the case, it is your duty to agree upon a verdict, if you can do so without violating your individual judgment and conscience. Remember too, if the evidence in the case fails to establish guilt beyond a reasonable doubt, the accused should have your unanimous verdict of not guilty.

In order to make a decision more practicable, the law imposes the burden of proof upon one party or the other, in all cases. In the present case, the burden of proof is on the Government.

Above all, keep constantly in mind that, unless your final conscientious appraisal of the evidence in the case clearly requires it, the accused should never be exposed to the risk of having to run twice the gauntlet of criminal prosecution; and to endure a second time the mental, emotional, and financial strain of a criminal trial.

You may conduct your deliberations as you choose, but I suggest that you now carefully reexamine and reconsider all the evidence in the case bearing upon the questions before you.

You may be as leisurely in your deliberations as the occasion may require; and you shall take all the time which you may feel is necessary.

You may now retire and continue your deliberations in such manner as shall be determined by your good and conscientious judgment as reasonable men and women.

The jury will be sent to deliberate.”

3 . United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177, 1184-88 (1971); United States v. Fioravanti, 412 F.2d 407, 417 (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, 934 (7th Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970). See also Green v. United States, 309 F.2d 852, 854 n.3 (5th Cir. 1962), but compare with United States v. Bailey, 468 F.2d 652 (5th Cir. 1972).

4 . Many state courts have banned or restricted the use of the Allen charge on the basis of their supervisory powers. See e. g. Fields v. State, 487 P.2d 831, 836 (Alaska 1971); State v. Thomas, 86 Ariz. 161, 342 P.2d 197, 200 (1959); State v. Nicholson, 315 So.2d 639, 641 (La.1975); State v. Martin, 297 Minn. 359, 211 N.W.2d 765, 772 (1973); State v. Randall, 137 Mont. 534, 353 P.2d 1054, 1058 (1960); State v. Marsh, 260 Or. 416, 490 P.2d 491, 503 (1971); Kersey v. State, 525 S.W.2d 139, 144 (Tenn.1975).

At least one state court has found the Allen charge violative of constitutional rights. Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299, 304 (1971).

See also People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601, 609-10 (1972); State v. White, 285 A.2d 832, 838 (Me.1972); State v. Garza, 185 Neb. 445, 176 N.W.2d 664, 666 (1970); Azbill v. State, 88 Nev. 240, 495 P.2d 1064, 1069 (1972); State v. Champagne, 198 N.W.2d 218, 238 (N.D.1972); State v. Ferguson, 84 S.D. 605, 175 N.W.2d 57, 61 (1970).

5 . Sullivan v. United States, 414 F.2d 714, 717-18 (9th Cir. 1969); Dearinger v. United States, 378 F.2d 346, 347 n.2 (9th Cir. 1967); Kawakita v. United States, 190 F.2d 506, 521-28 (9th Cir.), aff’d, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249; reh. denied, 344 U.S. 850, 73 S.Ct. 5, 97 L.Ed. 660 (1952).

6 . The timing of the Allen charge here was similar to that in Dearinger v. United States, 378 F.2d 346, 347 (9th Cir. 1967), where the jury received the case at 3:15 P.M. and the charge was given at 12:45 P.M. the following day, as well as that in Walsh v. United States, 371 F.2d 135, 136 (9th Cir. 1967), where the jury received the case at 11:55 A.M. and the charge was given at 5:45 P.M. the same day. See also Sullivan v. United States, 414 F.2d 714, 71/ (9th Cir. 1969), where the Allen charge was given after approximately five and one-half hours of deliberations over two days. The Sullivan court, however, indicated that it was not deciding whether the timing was appropriate because the issue was not raised by defense counsel. Id. at 717 n.5. Cf. United States v. Contreras, 463 F.2d 773, 774 (9th Cir. 1972), where the Allen charge was premature when given on the second day of deliberations, but before there was an indication of deadlock.

7 . The fact that the jury disclosed its exact numerical division has not, by itself, precluded the use of the Allen charge. United States v. Williams, 444 F.2d 108, 109 (9th Cir. 1971). Contra, Mullin v. United States, 123 U.S.App. D.C. 29, 356 F.2d 368, 370 (1966). It would, however, be reversible error for a trial judge to inquire into the numerical split of a jury before giving an Allen charge. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926).

8 . A per se rule, such as the one we have adopted here, always poses the risk that it may sweep within its embrace cases which do not warrant its protection. We believe, however, that this “cost” of adopting a per se rule is outweighed by the importance of a defendant’s right to an impartial jury trial and the insurmountable problems of proof and appellate review that a less definite rule would occasion.

9 . In Marsh v. Cupp, 536 F.2d 1287 (9th Cir.), cert. denied, - U.S. -, 97 S.Ct. 494, 50 L.Ed.2d 590 (1976), the petitioner sought a writ of habeas corpus on the ground that it was error to give an Alien charge a second time. We affirmed the denial of the writ by the district court, Marsh v. Cupp, 392 F.Supp. 1060 (D.Or.1975). The holding of Marsh is not applicable to this case for two reasons. First, Marsh does not necessarily decide the propriety of giving the Allen charge twice. The Marsh opinion makes clear that defense counsel did not object when either of the Allen charges was given, and when counsel did move for a mistrial on the basis of the jury instructions, the Allen charges went unmentioned. 536 F.2d at 1291, 1292. Second, Marsh involved a habeas corpus proceeding, and thus the only question that could be before the court was the constitutionality of the Allen charges. When federal courts have prohibited the use of any supplemental Allen charge, however, they have done so on the basis of their supervisory powers. Note, The Allen Charge: Recurring Problems and Recent Developments, 47 N.Y.U.L.Rev. 296, 301 (1972).

10 . On those rare occasions when the use of two Allen charges has been upheld by other courts the second charge was at the request of the jury, United States v. Kahaner, 317 F.2d 459, 484 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 62, 73, 74, 11 L.Ed.2d 65 reh. denied, 375 U.S. 926, 982, 84 S.Ct. 263, 478, 11 L.Ed.2d 169, 429 (1963); White v. United States, 279 F.2d 740, 750 (4th Cir.), cert. denied, 364 U.S. 850, 81 S.Ct. 96, 5 L.Ed.2d 74 (1960); or the first charge was a part of the general jury instructions delivered before the jury had begun its deliberations and thus was not in response to a report of deadlock. United States v. Washington, 144 U.S.App.D.C. 338, 447 F.2d 308, 310 (1970). Moreover, the vitality of these decisions might seriously be questioned. The first two decisions were rendered well before federal courts of appeals began to prohibit the use of the Allen charge and the third decision no longer represents the law of its circuit. See cases cited at n.3.

11 . We do not intimate that after one Allen charge has been given any indication of deadlock must be accepted without question. If an indication of deadlock is ambiguous and the trial judge has reasonable grounds to believe the jury is not in fact deadlocked, then the trial judge may take reasonable steps to assure that the jury is in fact deadlocked. This may include asking the jury to determine carefully whether they are deadlocked, and, if so, to communicate that fact to the trial judge unambiguously. The trial judge may not, however, repeat the Allen charge or ask minority jurors to reexamine their stand.

12 . At times this court appears to have read the requirements of substantial prejudice and intentional delay as being conjunctive. United States v. Cordova, 537 F.2d 1073, 1076 (9th Cir. 1976); United States v. Andros, 484 F.2d 531, 533 (9th Cir. 1973). Other times, this court has been as unclear as to whether the requirements are conjunctive or disjunctive. United States v. Manning, 509 F.2d 1230, 1234 (9th Cir. 1974), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975); United States v. Griffin, 464 F.2d 1352, 1354-55 (9th Cir. 1972), cert. denied, 409 U.S. 1009, 93 S.Ct. 447, 34 L.Ed.2d 302 (1973). On still other occasions, this court has considered the requirements as being disjunctive. United States v. Sand, 541 F.2d 1370, 1373 (9th Cir. 1976); United States v. Erickson, 472 F.2d 505, 507 (9th Cir. 1973). This issue may soon be resolved by the Supreme Court. See United States v. Lovasco, 532 F.2d 59, 61 (8th Cir. 1976), cert. granted, 429 U.S. 884, 97 S.Ct. 233, 50 L.Ed.2d 164 (1976).