United States v. Leon Dudley Noah, Ronnie Kinsey, and Joseph Corre Lamb, Jr., Defendants

PER CURIAM:

The appellants, in a jury trial, were convicted of a number of federal crimes. After the jury had begun its deliberations, it was recalled to the courtroom and the district judge made inquiry of the jury as to its numerical division. This was plain error. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). Accord, Jordan v. United States, 22 F.2d 966 (9th Cir. 1927).¹ In Brasfield, Mr. Justice Stone, for a unanimous Court, wrote, in part:

We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.

272 U.S. at 450, 47 S.Ct. at 135, 136.

In the present case, the inappropriate inquiry was not only made once, but was made twice, once on two separate days. Cf. United States v. Seawell, 550 F.2d 1159 (9th Cir. 1977) (giving two so-called Allen charges held erroneous). It is highly significant also that when the first inquiry was addressed to the jury, the appellants and their attorneys were not even present, nor had their attendance been invited, although it is not disputed that they were readily available. See Rule 43 Fed.R.Crim.P.

We do not reach other significant contentions. Because of the circumstances briefly set forth above, the appellants are entitled to a new trial.

REVERSED AND REMANDED.²

1 . The appellee urges the proposition that our decision in Marsh v. Cupp, 536 F.2d 1287 (9th Cir. 1976), would warrant the non-application of the Brasfield rule, which, incidentally, is described in Devitt & Blackmar as “cardinal.” 1 Devitt & Blackmar, Federal Jury Practice and Instructions § 5.22, pp. 161-62 (3rd ed. 1977). Marsh is simply not applicable in the present case. In Marsh the appellant agreed, in open court, that the judge might conduct an inquiry as to the numerical division of the jury. In such circumstances, it was, of course, thoroughly and legally appropriate that the Bras-field principle not be applied.

2 . The majority has, of course, considered the carefully written comments of Judge Kilkenny. While the utmost respect is accorded to those comments, the majority cannot, in the light of Brasñeld, accept Judge Kilkenny’s conclusion. The majority believes that the dissenting opinion’s equation of the Brasñeld rule with the so-called Allen charge is fallacious. It is true that the Brasfíeld Court, in the language that the majority has quoted, used the word “coercive”. Despite this, there is another factor that must be taken into account. This is that the slightest intrusion upon the privacy of a jury’s deliberation should not be allowed and the bar to such intrusion should not, in the majority’s view, be impaired, even to the slightest degree. It is inconceivable to the majority that some of the nine Justices who issued the Brasfield principle did not weigh this consideration.

It warrants reiteration, too, that the present case is unique. The Brasfíeld rule was twice disregarded by the trial judge in the present case, once on each of two separate days, and once in the absence of the accuseds and their attorneys. Even the Allen instruction, involving only a possible “coercive” effect and not the jury’s right of privacy, cannot appropriately be given twice. United States v. Seawell, supra.