*1 App92 2013UT Appellee, Utah, Plaintiff
STATE GINTER, Defendant B.
Thomas Appellant.
No. 20110332-CA. Appeals of Utah.
Court
April 2013.
BACKGROUND
organization
T2 Ginter started an
called
(PMGP)
Money Gifting
Patriot
Program
with
the intent
to create an
monetary
alternative
system using only liberty coins.1 Ginter es
tablished PMGP out of
peo
"concern[ for}
souls,"
ple's
based on his beliefs that
Federal Reserve and Internal Revenue Ser
organizations
vice are criminal
that intend to
establish a
society,"
"cash-less
that Federal
Reserve notes are unconstitutional because
they
gold
silver,
cannot be redeemed for
or
and that the
predicts
Book of Revelation
microchips
implanted
will be
everyone
into
caught in the
society."
"cash-less
The micro
chips,
explained,
he
are "the mark of the
beast," and "those who will take the mark of
the beast
will definitely lose their
soul[s]."
promoted
T3 Ginter
his beliefs and PMGP
hosted,
on a radio show
using
he
pseudo-
nym "Sherlock A. Collins." Samuel Vonn
Harris
listening
night
that show one
in 2008 and "heard
say[
Sherlock ...
] that
you
get
could
silver for
an ounce."
$2
Harris
called the radio station to learn more and
then drove to the
night
station that
same
meet with
explained
Ginter. Ginter
to Har-
get
ris that
in on the deal he
put
had to
(in
down
currency)
$2
standard U.S.
and that
as Harris
money
invested more
and recruited
people
more
program,
into the
he could
"graduate" up
higher
"boards" and earn
greater
returns on his investments.
In the
eight years
seven or
participated
Harris
PMGP,
upwards
$105,975,
he invested
recruited about
people
into
program,
Seppi,
Lori J.
Appellant.
for
and allowed Ginter to live with him for five of
Swallow,
John E.
City
Salt
Ryan
Lake
years.
those
Rounding up, Harris received
Tenney,
Appellee.
D.
for
$3,000
"$250,000
in return-far
from the
home" that Ginter
get
said Harris could
for
Opinion
his initial
investment.
$2
DAVIS, Judge:
14 Ginter
eventually charged
T1 Thomas B.
appeals
Ginter
from
communications fraud
organizing
pyra-
his
deliberations,
convictions for
mid
During jury
communications fraud
scheme.
and or-
ganizing
pyramid
jury verbally
scheme. We reverse
informed the
they
bailiff that
Ginter's сonvictions and remand for further
had "been at
past
a stalemate for the
two
proceedings in
opinion.
accordance with this
they'[d]
hours that
deliberating"
been
verdict,
reviewing
1. "In
light
we view the evi-
from in a
most favorable to the verdict."
Dunn,
(Utah 1993).
dence and all reasonable inferences drawn there-
said, "You
with a note that
responded
they
longer
how much
the bailiff
asked
upon the
the facts based
nothing." The
determine
... do
bailiff must
"sit
have to
advised that
minutes
usually
presented."
Seven
evidence
them
"told
ques
in and continue
go
response
back
to their
court's
they would
*3
talk
[that he]
... but
tion,
guilty verdiet
jury returned with a
the deliberation
the
will
know what
let them
and
judge
appeals.
to the
Ginter
on both counts.
the
court directed
the
response,
happen."
forms
jury dinner order
bring the
bailiff
OF REVIEW
AND STANDARD
ISSUE
communicating
implicitly
goal of
the
de
argues that he was
T5 Ginter
to let them
intend[ ]
"not
did
the court
fair
right
his
to a
later,
process
due
and
p.m.,
prived
7
of
around
hours
About two
gо."
court, stating,
impermissibly
46
to the
trial because
a note
jury sent
the
acquiesce
have been divided
split and
the lone holdout
pressured
a 7-1
are at
"We
entering
jury
the
room.
review this
way
majority's position.3
since
We
in this
to the
headway and
made no
we have
3 hours
Over
question
for
correctness.
constitutional
when we
apart
32, ¶ 7,
Candedo,
[than]
farther
P.3d
in fact are
UT
232
2010
any
getting
we
not feel
do
1008.
started. We
defense counsel's
Over
to a verdict."
closer
jury back
cаlled the
the trial court
objections,
ANALYSIS
courtroom,
jury modified
read the
a
the
use of Allen
non-coercive
"[TJhe
16
(Instruction
46), and sent
instruction2
Allen
"such
in Utah because
charges"
permitted
is
their deliberations.
continue
back to
them
proper exer
and
charges
a reasonable
later,
[are]
jury sub
the
eighteen minutes
About
jury to
guide
the
power
the court's
liberty
cise of
asking, "[Wlould
a note
mitted
4
impartial verdict."
State v. Lac
fair and
goods?" The
the sale of
qualify аs
coins
simply
major
convictions
because
originated
their sincere
in Allen v. United
2.
instructions
Allen
Lactod,
P.2d at
ity
view."
761
takes a different
tion
sufficiency of evi-
weight and
distrust
verdict-urging
for
standards
recommended
of their
to convinceseveral
which fails
"the ABA
dence
because
instructions"
inconven-
the cost or
reasonable doubt."
beyond
mention
jurors
no
fellow
makes
ABA
marks omit-
quotation
"[the
internal
(emphasis
and becausе
of retrial"
ience
however,
minority
instructions,
ted).
not
single out
does
standard
even-handed
identical,
highlights
sends an
these dif-
but
instead
and the State
jurors
keep
jurors
all
encouraging
did not
Instruction 46
message"
argue that
ferences to
(additional
citation
According
Id. 134
juror.
mind.
open
holdout
target
omitted)
(citing
marks
quotation
State,
quoted
internal
above-"which
Justice Discov-
Criminal
for
ABA Standards
your
(empha-
jurors"
fellow
fails to convince
15-5.4(a)(d) (8d ed.
Jury §
ery & Trial
added)-is
lan-
from the
distinguishable
sis
1996),
http://www.americanbar.
at
available
to con-
Harry-"which
fails
guage used
justice_section_ar-
publications/eriminal
org/
jurors," id. 118
their fellow
several of
vince
chive/crimjust.standards_Jjurytrial_blk.htrml
(additional
emphasis and internal
2018)).
(last
April
visited
omitted).
convineed
are not
marks
We
"your" illustrates
versus
the use of "several"
{10 Here,
argues that Instruction
Ginter
*5
difference
than a semantic
anything more
are too similar
of this case
facts
46 and the
Instruc-
Allen instructions.
between the two
Horry
in
cireumstances
and
instruction
of
by stating,
rest
"[TJhe
differs
tion 46 also
Harry
binding
as
application of
to avoid
Harry
yourselves," while the
you
ask
should
agree.
We
precedent.
states,
ought
jurors
other
"[TJhe
instruction
46 di
Harry,
Instruction
As in
111
themselves,"
(emphasis
id.
seriously ask
recon
single holdout
only the
rected
omitted). Both
quotation marks
and internal
Instrue
Paragraph 4 of
position.
her
sider
however,
instructions,
ultimately
require
states,
tion 46
...
their
to reevaluate
"those for conviction
your number
majority of
a substantial
If
jurors'
'...
their
fellow
positions
if
conviction,
you
of
those
of a
in favor
doubt,"
id. 130
a
see
[plural] had
reasonable
whether
disagree should reconsider
who
added).
Harry court deter-
(emphasis
it
one since
is a reasonable
your doubt
"urged only the
instruction
mined that
impression
no effective
to make
appears
in
position
juror to reconsider her
minority
On the
minds of the others.
upon the
while ...
those for convic-
acquittal,
of
favor
hand,
majority
a lesser
or even
if a
other
positions
reevaluate their
tion
asked to
were
acquittal,
an
you are
favor of
number of
in
jurors' had a reason-
only if '...
their fellow
yourselves
ask
you should
the rest of
The same determination
able doubt."
Id.
you
whether
thoughtfully,
and most
again,
46;
Instruction
indeed
applies to Instruction
sufficiency
weight
of
accept the
and
should
her
to reconsider
urged
46
the holdout
your
to convince
which fails
evidence
favored
regardless of whethеr
she
position
jurors
doubt.
beyond a reasonable
fellow
conviction,
majority
while the
acquittal or
added.)
In
paragraph
This
of
(Emphasis
either
to reconsider
jurors were not asked
very
word-for-
similar-almost
struction 46
way.
the mod
paragraphs five and six of
word-to
Further,
here
the trial court
Harry.
112
given in
instruction
ified Allen
Cf.
("If
split
were
¶¶ 17-18
informed
majority of was
a substantial
id.
one,
conviction,
dis
and
each
seven
your number are for a
in
with a verdict
less
jury returned
ought
to consider whether
senting juror
fac
of which were
thirty minutes-both
than
mind is a reasonable
in his or her own
doubt
Harry court held contributed
that the
one,
tors
to make no effective
appears
it
since
atmosphere
of coerciveness.
creating
many equal
impression
minds of so
upon the
language in Instruc
argues that
also
the oth Ginter
ly
jurors.... On
conscientious fellow
time,
"expens[el
describing the
tion 46
hand,
a lesser num
majority
er
or even
effort,
strain" that
money and emotional
jurors
you
acquittal, the other
ber of
are for
involved in
would be
in the case and
involved
again,
ought
seriously ask themselves
essentially gave
majority
a retrial
Lactod,
"the
more
cive effect
in the instruction.
pressure
ammunition and increas[ed] the
on P.2d at 30-31
quotation
juror."
omitted);
the holdout
Similar
marks
comments about
see
McElhiney,
also
(Utah
Lactod,
Here,
costs
ABA-recommended standards for verdict You partisans. are not You judges; instructions,"-a urging Harry factor the judges of the facts. Your sole interest weighed in favor of coerсion. See Har here is to seek the truth from the evidence ¶ 39 224, 134, ry, App P.3d 98 in the case. Remember at all times that marks omit juror expected no is yield a conscien- ted). Accordingly, we also consider this lan tious conviction he or she have as to guage to contribute to the creation of weight evidence; the or effect of the but atmosphere of coercion. remember also that after full deliberation and consideration of the evidence in the 1 13 Ginter also claims that the omission of case, your duty it is agree upon a ver- language reminding jurors the to treat each you if diet can do so without surrendering "respect other with promoted and deference" your conscientious conviction. atmosphere a juror. coercive for the holdout Id. 11-12. cautionary The language in While prescribed "there is no ritual of words states, Instruction indicating whether the of an Allen coercive," presence is the of caution- at all juror times that no is Remember ary language helps any counterbalance coer- expected give up an honest belief he or argues 6. Ginter also that the bailiff's response" communica judge the because the trial tions with reached). the amounted to an additional defense counsel could not be Like- wise, disagree. Allen instruction. We All the bailiff the fact that Instruction 46 did not reiterate describe, terms, general did was usually State, in prоof what that the burden of was on the but happens in only repeated similar situations state that he proof "beyond that the burden was doubt," pro ask the trial court how it wanted to unavailing reasonable in terms of specific judge ceed in this proving instance. And the trial unavailing coerciveness. Also are the uncorroborated did, fact, observations of Ginter's determine how it wanted to trial proceed proceeded accordingly. United States ex counsеl that when the entered the court- Cf. Fike, rel. Clark 538 F.2d Cir. room to receive the Allen instruction, several 1976) blunt," (determining "although jurors distress," appeared that "exasperated," "in or jury denying bailiff's request though statements to the they may its crying, as have been questions to ask the court some were not coer vague juror bailiff's indication that one had cive and therefore did not amount to an Allen threatened to not return if deliberations were to when, time, especially beyond at the day. it "was continue jury in this that the 46 "shows of weight or effect to the may have as she these deliberating." While evidence; but, case continued full deliberation weigh in favor tend to arguments in the latter three evidence of the and consideration that, State, say given all of agree upon a ver- "we cannot duty to of the case, your it is [discussed], have sub we do not the factors you can do so. dict integrity of as to stantial doubts that because Harry, we determined T 14 McElhiney, 275 process." See deliberation judge had been the trial jury knew that "the F.3d at 948. not single that a informed majority[,] ... the focus agreement with single charge on that Allen the modified of CONCLUSION And Id. 132. acute." particularly §T16 cautionary determine that knowledge, the Because we of this because Harry case are and this between differences Allen instruction in the modified
statements enough distinguish the two significant to counterbalance Harry "insufficient preclude the otherwise urging aequies- еach other from fully prior statements general mandatory of see Thus, application con- we are not T31. Id. cence." Menzies, 399 n. 3 portion ly of inclusion of State that the vinced ("Horizontal (Utah 1994) ... In- decisis stare cautionary language from its appeals follow to counterbalance that a court requires 46 was sufficient struction applies favor of coercion doctrine weighing in decisions. This factors own prior con- here, comprised Instructiоn 46 of multi especially to courts equal where force that were essentially panel the factors to observe requiring all of each ple panels, tains another."), Harry. conclude we prior held coercive decisions was coercive. Instruction 46 Cf. hand, {15 argues State, on the other ¶¶ 27-34, P.3d Harry, 2008 UT surrounding cireumstances physical Roche, 98; 239 A.D.2d People v. coer- 46 were not giving of Instruction ("The (1997) formerly dead N.Y.S.2d Having deliv- disagree. the bailiff cive. We convicting its vеrdict jury announced locked response forms to the er dinner order relatively interval brief the defendant at longer of how much jury's question delivery the Allen subsequent implied, required to deliberate they would be *7 any intervening commu without charge and least, jury going not very that the at the Under these circum with the court. nication open left any time soon and to be dismissed stances, conclusively way of dis we see no jury be question of whether as a factor counting erroneоus instruction actual overnight. That the trial court's held verdict."). guilty of the in the eventuation jury's outside of the expressed intent was by process rights were violated Ginter's due gesture did mean that the presence does not The tri of this instruction. the coerciveness message that effectively send the court's not into re "may not coerce al court intending go." to let them it was "not to a this amounts turning a verdict because fact nonecoercive the describes as State also is, jury trial and impartial of a fair and denial the court for what that the deliberated therefore, process." a denial of due (four of time a normal amount considered Tinsley, (citing Mills v. P.2d at 31 hours) impasse communicating their before (10th Cir.1963)). Accordingly, F.2d not Instruction 46 was the fact proceed remand for further reverse and we night. Addi- or late at given on a weekend opinion. this ings in accordance with that when the tionally, State contends whole, In- are read as a jury instruсtions jurors to consider directing the
struction authored Judge JAMES Z. DAVIS keep respectful, and opinions, be each other's Judge MICHELE M. in which Opinion, mind, any coercive open counterbalances concurred. CHRISTIANSEN had. effect JR. Judge FREDERIC VOROS J. Last, jury's submis- argues that the State concurred, opinion. the court after question sion of VOROS, view, Judge (concurring): a fresh verdict-urging instruction de- signed ground from up could achieve the [17 majority I opinion concur in the legitimate goals of the Allen instruction while separately only my write to state belief that protecting rights both pre- defendants' it time to rewrite the Allen instruction. serving just convictions. That from derives an 1896 charge: ..., substance,
These instructions were large
that in proportion of cases absolute that,
certainty expected; could not be al-
though the verdiet must be the verdict of juror,
each individual and not a mere ac- quiescence fellows, in the conclusion of his UT yet they question should examine the sub- Utah, Appellee, STATE Plaintiff candor, mitted with and with a regard and opinions deference to the other; duty each that it was their to decide Kyle WYMAN, Duane Defendant they so; conscientiously case could do Appellant. listen, they disposition should with a No. 20120293-CA. convinced, to be arguments; to each other's that, larger if much the number were for Appeals Court of of Utah. conviction, dissenting should con- April18,2013. sider whether his doubt was a reasonable one which impression upon made no men, honest, many equally
minds of so
equally If, intelligent with upon himself. hand, majority other were for ac-
quittal, minority ought to ask them-
selves whether might reasonably
doubt the judgment correctness of a which majority.
was not concurred in States, 492, 501,
Allen v. United 164 U.S. (1896). S.Ct. 41 L.Ed. According itself,
the Allen court these instructions literally
"were taken from a in a approved
criminal case which
supreme court of
in [Com
Massachusetts
*8
(1851) ],
Tuey,
monwealth]
Those cases were issued in 1851 and 1881
respectively,. words, In other the instruc
tions used in this case and basically
an 1851 century instruction as modified tinkering. a half of The result is an
unwieldy instruction that has resulted in two years.
reversals in five prudence 18 I realize that often counsels
in favor continuing to do what has worked past.
in the But as present demonstrate,
case what has worked in the
past always has not my worked well.