United States v. Seawell 550 F.2d 1159

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 Assuming that the second note had superseded the first, the judge had the testimony reread and then indicated to counsel his intention to give a modified Allen charge if the jury remained unable to agree.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 *1161a 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, *1162the 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 permit*1163ting 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

*1164Since 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.

EUGENE A. WRIGHT, Circuit Judge,

concurring and dissenting:

I concur in that portion of the majority opinion which deals with the alleged prein-dictment delay. Appellant has shown neither an intentional device by the prosecution nor substantial prejudice.

With due respect to the views of the majority, I dissent from that portion of the opinion which holds that it was reversible error to repeat the so-called Allen charge under the circumstances of this case. I strongly disagree with the per se rule that is now adopted because I feel that it is an *1165unwarranted intrusion into the area of trial court discretion.1

Consideration of the judge’s role in trial proceedings convinces me that there was no coercion in this case. The trial judge has a duty “to guide the jury by appropriate legal criteria through the maze of facts before it . ” Bollenbach v. United States, 326 U.S. 607, 613, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946). This responsibility has been upon the judge from early times.

In 1901 the Supreme Court stated:

[T]he judge is primarily responsible for the just outcome of the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determination, nor simply ruling on the admissibility of testimony, but one who in our jurisprudence stands charged with full responsibility.

Patton v. Texas and Pacific Railway Company, 179 U.S. 658, 660, 21 S.Ct. 275, 276, 45 L.Ed. 361 (1901).

*1166Indeed, the judge’s duty to guide and direct the jury has been said to be an essential part of the right to trial by jury.2 In Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1899), the Court noted:

The Constitution secures a trial by jury, without defining what that trial is. We are left to the common law to learn what it is that is secured. [When the Constitution was adopted the] trial by jury was . a trial of an issue of fact by twelve men, under the direction and superintendence of the court. This direction and superintendence was an essential part of the trial.

Id. at 15-16, 19 S.Ct. at 586, quoting from United States v. Bags of Merchandise (1863), 2 Sprague, 85-88. (Emphasis added.) As stated in Devitt, E. & Blackmar, C., 1 Federal Jury Practice and Instructions § 5.01 at 95 (1970): “In the last analysis, [the trial judge] must guide.”

This is the duty the trial judge performed in this case. Appellant’s trial lasted several days and the jurors were confronted with the testimony of 22 witnesses and a case built entirely on circumstantial evidence. It was the trial judge’s “duty to guide, direct and assist the jury toward an intelligent understanding of the legal and factual issues . . .” Elbel v. United States, 364 F.2d 127, 134 (10th Cir. 1966), cert. denied, 385 U.S. 1014, 87 S.Ct. 726, 17 L.Ed.2d 550 (1967). It was also “his inescapable duty to guide and assist them in their search for truth . . . [t]he paramount consideration [being], of course, that the jury be given to understand that they should not compromise their conscientious convictions on the facts.” Id. at 136.3

The judge in this case did not unreasonably undertake to fulfill this duty. He believed that a second Allen charge would help the jury arrive at a fair and impartial verdict. In the event that he had misjudged them, however, he was careful to note before giving the charge:

I remind you that it is not my practice to require a jury to deliberate beyond the point of fatigue, you do not have to deliberate any further than six-thirty tonight. If you’re not able to arrive at a verdict, then we’ll not go further tonight and you’ll simply not have to.

[Reporter’s Transcript at 751.]

Additionally, within the Allen charge itself was the language:

Remember, at all times, that no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of the evidence.

[Reporter’s Transcript at 754.] Thus, no attempt was made to compromise the jurors’ conscientious convictions.

Other indicia aside from the judge’s conduct also indicate that the giving of the second charge was not coercive. Notably, the jury deliberated another 50 minutes after the second charge before returning a verdict. In other cases, the return of a verdict within a shorter time after a single Allen charge has been found not coercive. Bryan v. Wainwright, 511 F.2d 644, 646 (5th Cir.), cert. denied, 423 U.S. 837, 96 S.Ct. 63, 46 L.Ed.2d 55 (1975) (17 minutes); United States v. Stollings, 501 F.2d 954, 956 (4th Cir. 1974) (30 minutes); United States v. *1167Hynes, 424 F.2d 754, 757 (2nd Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970) (5 minutes).

Nor was the total time of jury deliberation, approximately eight and one-half hours, so disproportionate to the task before the jury as to require this court to find that it was an abuse of discretion not to find the jury “hopelessly deadlocked,” and to declare a mistrial. As stated in United States v. Goldstein, 479 F.2d 1061, 1069 (2nd Cir.), cert. denied, 414 U.S. 873, 94 S.Ct. 151, 38 L.Ed.2d 113 (1973), the time needed to reach a verdict is a determination “best left to a trial judge” and “difficult to gauge . by appellate judges on a cold record.”

Although it has been observed that the law generally attempts to protect juries from coercive influences,4 I cannot agree that the actions of the judge in this case were coercive or constituted an abuse of discretion.5

In a recent case note dealing with the giving of the Allen charge in a Louisiana state case, it was concluded: .

It is submitted that in view of the split among the circuit courts, a decision by the Supreme Court would be appropriate.

Note, 22 Loyola L.Rev. 667, 675 (1976).

I join in that observation.