United States v. Anthony C. Thomas

pro- 36-43). question of such minuscule (Tr. was thus ob- ever its force is The excluding nothing portions being improper ex- jectionable cross that facts than error at the most. more harmless amination because exceeded brought out con- or and circumstances lawyer So, an asked a defense because by the wit- nected with matters stated obviously improper question, a convicted Am.Jur. ness on direct examination. felon, appears who from evidence p. cited. and cases Witnesses § caught on the have red-handed been Rule, Wigmore, Evi- This is the Federal blatantly public pushing a choice street 1940), (3d ed. dence 1885-1889 §§ cocaine),7 goes (heroin of narcotics circuit, Baker v. United rule in this for trial wherein the inter- free another 7, 36, society more be hazarded ests will judges which two evidence than usual Government authority panel overrule. have no grown passage of time. has stale with leads to this majority opinion process also indicates To term is a mis- for truth” stated result as “search the trial should have er- ruling objection. aof for unsubstantial the reason nomer search for However, the conviction From the reversal of standard stated ror. use majority opinion, dissent. reason ruling all” was “obvious to dispose matter. logical There is also no relevance major-

the further claim advanced ity opinion quantity of narcotics appellant’s possession pro- is somehow respect “pur- bative with to whether he drug than, chased the rather for exam- of America UNITED STATES finding stealing ple, or so an small possessed amount.” one That a small THOMAS, Appellant. Anthony C. quantity narcotics arrested on when No. logically prove street does tend to disprove purchased, that he found Appeals, United States stole the narcotics. Circuit. District Columbia Sept. Argued next contends that Reargued Feb. relationship quantity En Banc of the of narcotics possession in one’s addict’s6 needs Sept. Decided probative question would be on the knowledge importa- whether he had large tion. While it from true quantities possession in one’s narcotics might permissible

an inference be large

he was a dealer and would hence knowledge importation,

contrary necessarily is not true that materially

smaller amount would rele-

vant that he show did not knowl- edge importation. To extent argument weight has whatso- showing posses- 6. There is no that Walker was an two narcotics in his he had shaking addict. out on the street sion per- envelope capsules from an majority opinion completely police ignores interrupted

7. The when he was son implications the clear that Walker was a and arrested. officer pusher which is inferable from the fact Kenkel, Washington,

Mr. John B. D. C., Court) appel- (appointed for lant. Harvey Price, Asst. U. S.

Mr. S. Atty., appellee. Thomas A. Messrs. Terry Flannery, Atty., A. U. John S. Zuckerman, Roger Asst. U. S. E. appearances ap- Attys., also entered pellee. Judge, BAZELON, Chief Before McGOWAN, TAMM,

WRIGHT, LEV- ROBINSON, MacKINNON, ENTHAL, Judges, WILKEY, ROBB, apparently unfruitful, Circuit cident sitting Drayton en banc. returned to bed about 5:00 a. m. He was aroused a. about 6:30 Rehearing En Banc On door, m. knock on his front and in response inquiry III, who ROBINSON, W. SPOTTSWOOD there, a male voice answered “Annette’s Judge: Circuit Drayton opened brother.” the door be- by jury on Appellant was convicted a cause, figured words, in his “I after he respective both counts of an indictment brother, I said Annette’s knew An- ly charging dangerous with a assault nette.” robbery.1 weapon was His sentence and apartment, Two men entered the then pursuant provisions a commitment unlighted, one, still and later identified Act.2 the Federal Youth Corrections appellant, promptly Drayton knocked appeal on this His sole contention down with a the head. blow to As by a series the conviction was vitiated Drayton lay face down floor to the with events, including prominently a standing the pistol, man him same over with a charge,3 in version of the Drayton’s and later with own improperly verdict his view induced the shotgun,7 gathered the other man8 mon- jury returned. the ey apart- and in the articles of value Upon the careful consideration ransacking While in ment. the was record, the conviction we conclude that Drayton arise, progress, attempted to reversed, and that future ren- should be head, again and was struck in the charges Allen-type must con- dition shotgun. struggle A with the for time ap- been which has form the standard shotgun ensued, Drayton the com- proved by American Bar Association the shouting, whereupon the menced two adopted by the Third and Seventh part apartment men left with for these conclu- Our reasons Circuits.4 loot. collected summary a of the relevant sions follow police summoned to were facts. apartment. Drayton Drayton’s tak- was hospital, en where cuts about his stitched, he and on return head were his gave police the relevant details. Ac- Jr., Drayton, victim James C. by Drayton, police companied went accompany- of an armed assault and - Thomas, apartment of Annette robbery apartment his knew, morning. there. he but no one was February whom early of a hours day, after Somewhat later same by Shortly midnight, awakened after Drayton sleuthing own, on his glass footsteps, some he sound broken brother, Thomas had a learned that Miss to see two kitchen in time went into his Drayton appellant, exiting address through our whose hastily the back men appellant procured. was ar- There investigation in- also police A door.5 acquainted At her with brother. 22-2901 1. 22-502 §§ D.C.Code although, Drayton trial, on testified that (Supp. I occasion, previous Thom- at Miss a man 5010(b) 2. See § 18 U.S.C. pointed apartment out as had been as’ accompanying 67, infra, text. brother,” not have he would “Annette’s by receiving approbation recognized the time of 3. the brother at So named in Allen v. United offenses. Drayton’s ' shotgun, bed- 7. found L.Ed. 528 man, was handed over the other room Drayton IV, knocked who had to the one Part infra. down. men, Drayton only the saw backs of they were never identified. ap- apparently never Never identified prehended. Drayton Thomas, knew an Annette subsequently text, appears not but was Drayton conviction, dissenting rested, identified and was should consider whether his doubt is one of his assailants.9 reasonable one which makes no im- portrayed the case Such was pression many upon minds of so and, save evidence at trial Government’s jurors equally honest, equally intelli- identity participant appellant’s as a gent with himself. Ap- offenses, it uncontested. affair, complicity pellant denied If on the other hand the asserting ought acquittal, minority in bed that he was at home are for committed, they might were the offenses to ask themselves whether when partially reasonably he was corrobo- in this claim doubt the correctness testimony, judgment of his mother rated of a which is not concurred by majority. and a cousin. A motion for initially completion acquittal, made jury After the had deliberated about case in chief and of the Government’s hour, judge an vising it sent to the a note ad- in, was renewed when all the evidence “[w]e, jury, the cannot come denied. was agreement.” Thereupon, to among judge The included his in- jury’s absence, judge, expressing “ jury, its retire- structions to the before view that is not a case we should [t]his deliberations, some the in- ment for of retry,” have to informed of counsel his charge. gredients the Allen In that jurors intention to excuse the day for the judge jury aspect counseled the to them on the fol- but reconvene follows: lowing deliberations; day further large pursued, portion judge of the cases In a abso- and this course the over certainty vigorous expected, objection cannot al- lute defense counsel. though jury must be the verdict the verdict was returned to judge courtroom,11 whereupon not a an- each individual and acquiescence going mere the conclusion that he “not to de- nounced was your jurors, yet you thereby require mistrial, should ex- fellow clare a and question submitted with amine the retrial of this case before some other regard proper defer- jury.” Rather, explained, candor and he he was excusing jurors opinion ence for the of each other. time to you morning your duty if at 9:30 to decide the case “come back tomorrow night’s conscientiously sleep can do so. You with a fresh mind and a arguments to each other’s with listen reach a verdict about the seek to disposition way If He to be convinced. matter one the other.”13 larger jurors you are much the number added that he was “sure ladies and it, 9. See note tomorrow morn- about but come back infra. ing at with a fresh mind and a 9:30 quite tlay. 10. It late The record night’s sleep and seek to reach verdict p. it was when the reveals that 5:24 m. way the matter other. about one or the jury actually excused. gentlemen you I am sure ladies and transpired on, backlog What from then later know we have a substantial text, work, day summarized in was: spend before and to another Foreman, just THE Mister jury retrying COURT: this another case your you has read its has sense to me. See if doesn’t make verdict, contents to counsel and the defendant to a think can’t decide and come jury individually. overnight has decided to excuse about it going you gentlemen, time. I am to declare So, this not are ex- ladies and thereby require mistrial, a re- to- with that admonition until cused jury. Report morning trial of case before some other morrow at 9:30. you, going your ask What I am to do is to delib- Don’t start [the marshal]. your jury, you pres- members of the to break off all erations until twelve of this time. consideration of the case at ent. your- among Don’t discuss the case 11, supra. 12. See note selves, anybody don’t talk about else it, you supra. anybody and don’t let talk to

J181 judicial gentlemen have a substantial know we evaluate effort work, spend backlog jury. another avoid or break a deadlocked retrying day jury judge is, course, The trial under a just me.” make sense to case doesn’t duty guidance jury to lend to the jurors He admonished through governing instructions as to the you to a can’t decide and come “[s]ee principles law, including those which overnight verdict, think about obligations define for the individually.”15 jurors. quite, obviously, It was in an appointed attempt enlighten reconvened in the lat- regard deliber- ter time. After about two hours of embraced some ations, an in-courtroom of interfused with admonitions within rereading Drayton’s testimony charge. separating proper at its But the line finding ap- guidance request, improper fine, returned a verdict from coercion is location, pellant guilty precise always of the in- on both counts is not appeal us, however, In This followed. clear. dictment. case before judge urged verdict,

II through admonitions, other expressions well. The is- Every defendant a federal appellant presents sue is whether in toto right has the to have his criminal case urging individual elements of —the guilt all, only found, the found separately which we examine so jury —was verdict of a of his unanimous great possibly as to exert a coercive in- Any peers.16 the undue intrusion upon jury. fluence the judge province into this exclusive years ago, Just four in magni Fulwood jury of first of the is error the States,18 ap- upheld court an this to secure a verdict tude. When efforts charge against plication of jury point that a sin from the reach the only per coercive, not claims that it was gle may juror surrender into be coerced form and under the entertained, se but also the conscientiously views given.19 However, special circumstances jury’s province is and the invaded the desirability of the the indicated unanimity court requirement is diluted.17 of urged avoiding and variant formulations against that these considerations finding upon judgment” dif- 11, supra. trust 14. See note (b) large majority; the view ferent supra. 15. See jurors larger of “if much number that 31(a) ; acquittal” “if of Billeci v. are Fed.R.Crim.P. minority jurors conviction,” 274, 283, States, F. are for 184 87 position; (1950). jurors 403, 24 reexamine their A.L.R.2d 881 should 2d States, jury See, generally, (c) time will some Hibdon v. United “some and that case, duty 1953), this and F.2d and cases decide 204 834 have case, you, jury in hope this Andres v. United cited therein. also that States, Id. matter.” 68 92 this 333 U.S. S.Ct. be able to decide will Dow, (1948) ; complained of were L.Ed. 1055 Maxwell v. circumstances original judge 581, 586, (a) L.Ed. in his U.S. 44 S.Ct. that the trial (1900) ; Publishing portions charge Allen “de- American Co. included Fisher, keep duty jurors scribing an arguments (1887). weigh open 41 L.Ed. mind and to repeated -id., peers,” them their g., supra States, 17. E. Hibdon charge containing supplemental Allen in a 204 F.2d at 838. judge (b) full; allowed that overnight separate jury and recess 18. 125 F.2d 960 Id. rendition. Allen the first after denied, cert. stated The court F.2d 18 L.Ed.2d S.Ct. separation co- recess was less jury 185-186, immedi- than on the Id. at at 962-963. ercive by sequestration ately delib- opinion were followed Variations from the (a) “dis- Id. should eration. statements judges “consistently following the trial use a viction an Allen im- plainly porting instruction ingredients form within given new Besides, judge’s Allen”.20 also acknowl- inquiry as to whether there edged charge, when unem- even minority” jurors.28 “a clear exhortations, “po- Where, here, bellished further jury comments coercive;”21 tentially “its content Allen-plus29 are both Fulwood-plus,30 scrutiny.” and manner deserve of use the situation demands close examination too, widening mindful, We are “the to determine whether under all circum- charge, challenge”23 in its likely even stances it is to have been coercive. increasing pristine text, in- —and creasingly corps critics.24 Ill concerned — Moreover, had we have occasion to Improper upon duress dead charge “approaches warn locked does seek its source go the court physical the limits to which in threats of abuse.31 Commu desirability suggesting jurors unduly nications from agreement constraining avoidance of the ne- they possess whenever ju- cessity of a retrial prying propensity indi substantial holdings ry.” jurors they are aware We vidual loose from beliefs partic- particular honestly coerced, or under formulations have.32 charge may in- held, ular circumstances Court has when coercive;26 in got v. Unit- “[y]ou deed be Williams de told that to reach a States,27 con- case,” ed reversed a we ourselves and in cision much “By law, 20. Id. at 369 F.2d at 963. the ancient common kept together prisoners were U.S.App. 21. Moore v. United agreed upon had court until verdict;” 203, 204, F.2d D.C. required they be and this See also Green v. United candle, “kept meat, drink, fire, without 852, 1962). (5th 854 Cir. they by permission judge, unless till States, supra 21, 22. Moore v. note unanimously agreed.” People are all v. U.S.App.D.C. 204, 120 Compare 345 F.2d at 98. Sheldon, 268, 840, N.E. 156 N.Y. 50 842 States, v. United 119 Williams (1898). practices Such have found occa 193, U.S.App.D.C. 190, 530, 338 F.2d 533 g., modern sional use more times. E. (1964). Pope (no State, (1858) v. 36 Miss. 121 City Center, food) ; Mead of Richmond v. U.S.App. 23. United v. States 419, (1941) 537, Wis. N.W. 626, 193, 197, 630, D.C. 432 F.2d cert. de (no heat). See, generally, Note, In On nied, 91 S.Ct. 27 L.Ed. structing Juries, Deadlocked 78 Yale L.J. (1970). 2d 255 Note, ; (1968) 103-04 n. 140-1 listing 24. See the n. id. at 197 Economy Process, Due Judicial at 630 n. 5. Hung Jury: A of the Al Reexamination Charge, len 53 Va.L.Rev. 123 States, supra 25. note Williams v. United at 193 n. See, g., 32. e. Jenkins v. United 4, quoting F.2d at 533 n. United States 13 L.Ed. (4th Rogers, v. 289 F.2d Cir. 2d 957 1961). 33. Id. at 1060. See also Meisch, v. See United 370 F.2d States Davidson, 60, 65 367 F.2d States (3d 1966) ; United Cir. 1966) opinion) (6th (concurring Cir. Rogers, supra note 289 F.2d at years (trial judge’s statement in 24 435-437. judicial of turned service he had “never Supra [nonjury yet case] one back couldn’t decide”) ; States, supra 191-193, Rice 28. 119 F.2d at 717-718 at 531-533. jury’s (judge’s response inquiry, to to as See, g., e. Rice 356 F. v. United to whether be “undecided” could 709, 715, 2d advising counts, certain the “defend- supra, accompa- 18-19, guilty not 30. See notes ants either must be found nying guilty count.”). text. on each going mistrial, declare a category in this “not to admonition is the same thereby require agree a of this case be- “you ought retrial to able be case jury.” referred, fore some other He this sort of Statements on a verdict.” backlog too, to the court’s “substantial judge’s assessment reflect work,” feeling easy “to relatively of and voiced reso- bear factual issues day spend another jurors, pressure in their lution, who just retrying so, this case doesn’t make found own endeavors to me.” sense all costs. to some result at come fashion, also, in similar somewhat jurors So unlikely seems not emphasizing expressions desira do might to their oaths have been faithful achieving a means bility verdict as attempting verdict reach a troubled avoiding necessity of a retrial.35 proof introduced at the trial. sus Equally pressuring are statements identity one The crucial issue was reflecting interpretation ceptible to an ostensibly Drayton’s attackers, minority upon unwholesomely who he “Annette’s brother” one said was they happen simply to be because immediately prior The the attack. in minority.36 be “No against appellant Government’s case agree fear to a verdict identification, duced to Drayton’s rested on regard agree will that a failure so presented appellant alibi a corroborated reflecting upon ei public ed the time of the crimes. integrity.” intelligence, or his ther his credibility ponder the wit- had to judge reliability of nesses as well portrays the us The record before face of victim’s identification in combination sequence of events which suggestive perhaps improbable measure, generated, each in some appel- attributed to self-identification When elements. these undesirable Equivocal raise evidence can lant.41 inability to announced first jurors, problems for conscientious given already agree, had judicial susceptibility increase their instruc “potentially coercive”38 prodding other- for a verdict seem tion, to solicit further efforts and his wise unable to reach.42 of Allen- realm entered the verdict burgeon- Particularly days re judge’s these Fwiwood-plus. initial litigation, judge’s share jury’s the trial sponse announcement adjustment sensitivity to the need he was was a declaration deadlock jurors 318, alternate States, [two] “the whether 34. v. Powell United voters,” replace minority Kesley (5th 1961). [could] v. also See Cir. inquiry response judge’s (5th to States, his affirmative Cir. United 47 F.2d ap there was “a clear minori- 1931) (judge’s to whether as “it statement that ; States, supra ty”) you note parent Powell v. United that some of to the court (judge’s F.2d at 320 statement forgotten part of the that juror jurors,” a to stand your “it credit to that no that court to oaths as as spirit pure be- in a of stubbornness out seem to me that there “[i]t does not position”). has very he taken a cause the facts are much doubt as far as concerned.”). States, supra Kesley note 37. v. 454, quoting Bybee, State v. F.2d at supra note 35. See United States 466-467 17 Kan. 198-199, at Smith, supra 631-632; note 21. F.2d at 38. Text 342-343 11, supra. 39. note See supra. 36. Brasfield v. United 40. note See (1926) 71 L.Ed. surprising, 41. is not note See infra. (inquiry jury how numerical- stood jury requested then, reread- that ly) ; supra Williams testimony. Drayton’s ing of 191-193, Instructing ques- Note, (jury Deadlocked On 338 F.2d at foreman’s 531-533 See Juries, judge open Yale L.J. tion to trial court as processes point highest judicial IV efficiency. But while there need Our conclusion that the conviction expedite courts, the work of the actual, though must be reversed expense cannot be of the call of undesigned, jury coercion of the is an Indeed, may be conscience. well that appraisal we could make hung might jury prosecutor lead the very expenditure judicial considerable case, particularly reconsider whether energy. time and And even as we view case, presented a close or weak be retrospect case, the demands of this jury to a that a mistrial need —so realize, we from number of AUen necessarily retrial, “require” not charge complaints reaching court, judge jurors.43 the trial told the We unique, frequently are not but no doubt whatever appel recur. So it is that the drain on motives, acted out of the best of Allen-charge late resources made con jury coercion of the entire- upon troversies leads us to focus means ly transpiring, unintended. The events whereby seemingly inevitable aber however, responsibility ap- invoke our rations of the can be or reduced of, praise complained the activities eradicated. good them, intentions behind probable impact upon in terms of opinion,44 In recent Johnson our jury. considered, All circumstances expressed approval examined and our strayed beyond we think those activities the American Bar Association’s stand- legitimate bounds, with substantial problem ard for treatment probability prejudice accused, juries45 deadlocked and a form of in- and with the result struction it deemed harmonious there- repeat compre- appellant’s with.46 conviction cannot stand. We need not 11, supra. (b) appears also note If it See to the court jury agree, has been unable to the court infra. may require the to continue their Supra note 23. may give repeat deliberations and or Association, Bar Standards 45. American provided an instruction subsection by Jury Relating (a). to Trial 145-46 require The court shall not Jury ABA Standards: require hereinafter cited threaten to to delib- Length Deliberations; dead- lenghth § 5.4 erate for an unreasonabe of time jury. locked unreasonable intervals. (a) for delibera- (c) jury may Before retires discharged with- tion, may give an instruction having agreed upon court out a verdict if it jury: informs the appears prob- no there is reasonable verdict, (i) return a ability order to agreement. agree thereto; each (ii) duty Jlathes, Jury have a to consult W. Instructions Cases, with with one another and to deliberate Forms for Federal Criminal In- reaching agreement, 8.11, a view to struction F.R.D. 97-98 (1909) can be done without violence to indi- : judgment; represent vidual The verdict must the con- juror (iii) juror. that each must decide the. sidered of each In himself, only verdict, necessary case for partial after im- an it order to return juror agree consideration of the evidence that each thereto. Your jurors ; with his fellow verdict must be unanimous. (iv) your duty, jurors, in the course of delibera- to consult juror tions, should not hestitate to with one another to deliberate with and change you reaching agreement, his own and reexamine views his a view to an if opinion erroneous; it is convinced can do so without violence to individual (v) judgment. you that no should surrender Each of must decide the weight yourself, honest conviction as to the case for but do so solely impartial of the evidence or effect because consideration of the evi- opinion jurors, jurors. your of of his fellow dence with fellow In the purpose returning your deliberations, or for the mere of of do not course your verdict. hesitate to reexamine own views Circuit, it opinion; charac the Third in that hensive discussion Fioravanti,52 terizing isolated, charge “an invita use of to remind that we suffices perennial appellate motivating the prime tion consideration “[a] review,”53 “majority-mi prospectively the outlawed promulgation of the ABA Standard * * * litigation nority” partly large because of instruction amount of confining difficulty profound original “the the use of the Allen bounds,” just equitable pointed charge engendered.” within use We has model similar to the and recommended a the sources of trouble out that of “[o]ne instruction for use language ABA-endorsed appeal ac- that the on has been judges charge jurors disposed to on vary con tually judge to tends to from used In United uniformity sultation inter States judge, in a of and this lack sese.55 Circuit, influ v. Seventh pitfalls.” We is full of delicate context ^ Brown,56 by difficulties majority-mi- enced took a hard at “the look administrative 49— Allen-type charges,57 de associated with charge” nority of the Allen element cided that “it would serve the interests minority advising defer- owe supervi justice require under our of sen- two ence —which sory that, future, power in the district tences before us featured. faced courts within Circuit when ele- We noted abandonment juries comply the” with with deadlocked “may in the interest ment well courts, ABA Two state justice” be- administration of efficient standard.58 pro reasons, substantially similar recurring con- cause that “would avoid supervisory scribed the troversies, turning upon questions subtle context of each case.” coercion grounds.59 ago, A Court of decade charge in Further use of the Allen Arizona declared “that the evils [of has in two fed usual form been banned outweigh charge] far supervisory eral circuits exertions of opinion Johnson Our v. In United States benefits.”60 authority.51 54. Id. your opinion change if convinced your do not erroneous. But surrender Id. 55. at 420 n. 32. weight as to the honest conviction Supra 56. note 51. solely because of the effect of evidence opinion your jurors, or for the fellow 57. at 933. 411 F.2d returning purpose mere verdict. 58. Id. partisans. You are You are not judges judges Your sole Thomas, facts. Ariz. 342 P.2d v. — 59. State Randall, from ; interest ascertain the truth (1959) v. State evidence the case. Mont. 353 P.2d supra 47. note United States v. supra Thomas, note 60. v. State at 432 F.2d at explained: at As the court P.2d 200. Standards, Jury 632. See also ABA is called "When wherever its use supra at 154-56. upon question it stand or fall into each the facts circumstances Johnson, supra 48. United States v. given, particular It has case. wo give us, use will harass- believe each Id. 432 F.2d at 633. ment and distress administra- justice. can No rule thumb tion of Id. when definite bounds of circumscribe Fioravanti, United States v. where, what or under circumstances (3d Cir.), denied, cert. Panaccione given refused. should be also Andrews Id. See (1969) ; 24 L.Ed.2d F.2(l (5th 1962) (dis- 127, 129 Cir. Brown, 1969), 411 F.2d 930 ; Jury Standards, senting opinion) ABA denied, cert. 154-156; Note, supra Due at note (1970). 24 L.Ed.2d 508 Economy Hung Process, and Judicial Supra note 51. Jury: Reexamination A Charge, supra 144-149 Fioravanti, Ya.L.Rev. 53. United States v. note approved by designat- exactly reviewed and clear that we felt made it way.61 There, ed committee of the American Bar Asso- advanced the same we Project Minimum ciation’s Standards implementing ABA standard in and Justice, adopted for Criminal was as recommendations to trial struction Delegates, judges.62 reflection, its House of and that was Upon further by opinions light of the Third and mandated in of the additional circumstances bar, Circuits. We think the time presented Seventh think it case at path they jus has come to follow the have in the interest of furtherance of lay traveled and down the same man- step tice to take a which the court was ready date. circumstances to take Johnson, supervi and to exercise our bar, Johnson, The case at unlike sory generally prospective power, with a presents appropri- the occasion we deem judges comply ruling, require trial doing ate for so. With the court now with the ABA standard. b&nc, jurisdic- supervisory en convened clear,64 tion is and the situation before already in Ful- We have noted impositions Al- Justice) Burger us underscores the wood, Judge (now Chief charges script len in usual can make for. urged “consistently trial bench to not, appeal on this was contention plainly use a form of instruction within Johnson, time, as in confined to the content of Yet, Allen.”63 in the course of judge’s instructions, the trial expressions actually used beyond others, extended to a and difficult judges, close in this case and in fact under the sur- issue coercion added an extra measure of influence rounding given That juries. circumstances. issue we We instructions be- resolved, process but the has exact- appellate lieve that courts should no judicial heavy longer ed a toll in time terms be burdened with the necessities effort, and even so its contribution un- niceties—and the concomitant litiga- disposition gauging to the ultimate of this Allen- certainties —of type various tion is uncertain. There remains in the renditions in terms of the coercive- problem case a serious any as to whether impact. persuaded, ness of We appel- too, by new in-court identification of complexity and by of lit- volume by Drayton igation generated could charge, lant survive a one-man showup appellant, at which without use is in- its continued unrestricted compatible judicial counsel and hours after the offenses adminis- with sound committed, today were was first identified as what tration. We have us participant.65 While we do not under- Fulwood was not available when issued question,66 take the is- painstakingly decision —the standard that was right Drayton trial, Johnson, supra to counsel. At 61. United States v. appellant 199, 200-201, identified from the witness stand, identifi testified to his earlier F.2d at 633-634. appellant’s showup cation at house. The Id. at F.2d at 632. occurred the decisions in United supra Wade, 63. Text v. at note 20. States 388 U.S. S.Ct. (1967), and 18 L.Ed.2d 1149 Gilbert Compare v. California, supra at 200- any L.Ed.2d at 633-634. might judicial event call for careful scru tiny Denno, under Stovall appellant 65. The that after record discloses L.Ed.2d Drayton, apprehended bedroom, his victim, brought in, and that he appellant question appellant’s there as one identified 66. The was raised at showup trial, appeal. assailants. This one-man occur- but not on this But see 52(b). pres red about 24 hours after the crimes were The record Fed.R.Crim.P. necessity committed, special ently incomplete for a no before us on that appears, showup place explore time or now score we could not amplification. appellant question remanding nor is there indication that first without Sera-Leyva g., he had had counsel or was warned that . E proved open of another as in the the vehicle for be event sue will instruction70 informing jurors following responsibili- Further- remand. our trial appellant judges more, ties in reveals that situations wherein decide the record conditionally com- rule, pro- from the released to do so.71 This “[a]s new phylactic imposed device eliminate his future mitment sentence only appeal be will benefit those could on briefs filed.67 vexation,”72 whose conducted trials are intimate view as While we do not including, course, hereafter,73 done in this more can what be may appellant retrial to which be permitted case, realism of we are subjected.74 doubting proceedings further whether regard holding as a re We do not eventuate, actually especially if a would overruling our deci consideration or required. We conclude that new trial not held sion in Fulwood.75 We have justice will in the future the interest of coercive; charge per se served, periodically la- be better rather, predicated we our decision have Aiiew-charge boring the refinements of judicial administration, on the needs concepts, language but eoerciveness out, ground which, points Johnson to the broader sounder adherence consider, Fulwood did not but which doctrine, but which was recommended the American Bar commended itself to permissive in Johnson for the time left sum, say, in What we Association.76 requirement governing being, in- as a come focus [the the time has “to judges juries given by trial structions major function on its Allen] opinion. subsequent the date of this counseling open jury to consult Accordingly, in exercise of su- our mindedly disposition with a to hearken power pervisory over administration fellow-jurors, agree no and to when adopt law in this we violation of conscience is involved.”77 circuit,68 guidelines ABA standard69 objective, convinced, That we can be Alien-type future renditions of only through reality supervi come a ap- charges abide, ABA engage and the sory exercise which we today.78 125, U.S.App.D.C. 127, 633, U.S.App.D.C. 200, at 432 F.2d at 160, (1969) ; Wright v. many judges long F.2d since dis 279, U.S.App.D.C. element, a uniform ban carded this change F.2d as much of a would not make use thought. Moreover, might as John stated, supra, 67. at note As text U.S.App.D.C. points out, at son also 2, appellant under sentenced F.2d and n. at 633 n. provisions 5010(b) § of 18 U.S.C. possible in the retrial references appears prior rec- lack of adult hung jury, sometimes included of a event making possible ord influenced decision from the omitted in Allen renditions but early release from confine- conditional appear model, do not ABA ment. approved Circuit, per- 68. Like “[w]e the Seventh Allen. ceive no distinction between criminal supra Fioravanti, note v. 72. States Brown, cases,” v. civil United States at 420. 412 F.2d supra F.2d 934 n. note at ruling applies equally Brown, id.; to both. Compare and our v. United States 73. supra 411 F.2d at 934. note Supra 69. note 45. Bass, 74. United States Supra 70. 46. note 71. As we made clear United States Supra 18. note Johnson, supra note Johnson, supra 432 F.2d at the ABA stand 76. United Allen-type ard does not bar the use charges, deadlock, either before or after Id. “majority-minor eliminates Allen, States, supra ity” element from the v. United usual text. In Fulwood since, “considerable And as we noted in it was observed

1188 argument Government, proceedings, any, may the an- if as At oral be consistent might modify opinion. ticipating that we our with this adopt rule, proposed that we not the Reversed and remanded. ABA-approved instruction instead wording.79 accept Our initial a variant ROBB, Judge (dissenting): Circuit wording proposed is is that the reaction majority finds that the verdict of Perhaps major improvement. fur- not a by the was coerced the district study would confirm that initial ther judge; specifically, it finds coercive in- open disposed to But we are not view. charge given by in the Allen fluences having language, variants in the door to together judge, with his remarks through just such a mind that it was in reported inability after had process the courts were led into agree. Having reversed the convic- increasing we ear- difficulties outlined ground tion on this then opinion. in We do not consider lier this goes further and outlaws standard or its model instruc- the ABA’s charge, in favor of an instruction recom- graven in The Judicial tion as stone. by mended the American Bar Associa- approved for this circuit has Conference disagree tion. with both conclusions implement concept a committee to majority. justice standards,80 criminal the ABA’s giving It cannot be said that may in be that due course some charge, standing alone, was er- emerge appropriate, modification will as charge approved by ror. That was by general reconsidera- either virtue Supreme Court of the United States in adaptation to local tion or the need for States, Allen v. United 164 U.S. But we if there is to conditions. think S.Ct. L.Ed. It was change wording, in it should be again by approved carefully a one that considered on States, Lias broadly representative broad basis aff’g (1931), S.Ct. L.Ed. 505 committee, body, ABA that can like the Cir.), (4th F.2d 215 and in Kawakita v. wide-ranging inquiry make a States, consequences necessity possible for and aff’g (1952), L.Ed. 1249 190 F. Accordingly, de- modification. 1951), capital 2d 506 case. acceptance cline the Government’s approved It was this court in an proposal. opinion by Judge Burger Circuit in Ful appellant’s convic- U.S.App.D.C. wood v. United reversed, and the case remand- tion (1966), denied, 369 F.2d 960 cert. the District Court for such further ed to U.S. L.Ed.2d proposal for this court would be eliminated work 79. The is also tantamount to a Judges consistently suggestion similarly modify would use District that we plainly Comparison within Allen." form of instruction ABA standard. of tlie stand- implementing instruction, 3G9 F.2d ard subsequently 45-46, supra, which have 963. The cases ly (Tr. 120) 863, 21 of 1092, an coercion. 89 S.Ct. intimation denied, 393 U.S. Again, the court concluded instruc- 784 L.Ed.2d the tions with statement that “all twelve to times declined three In 1970 we agree way you you of whichever charge error use the was that of hold your short, In find. verdict must be Supreme of cases the these two 131) agree (Tr. unanimous.” I cannot States United certiorari. Court denied given context, in this that when 403, U.S.App.D.C. Orsinger, 138 disagreement any hint there was of 831, denied, 1105, 400 U.S. cert. F.2d among jurors deadlock the there —before (1970); 62, United 27 L.Ed.2d S.Ct. any minority charge could —the U.S.App.D.C. States juror. impact coercive on denied, 626, 400 U.S. 193, 432 F.2d cert. to view seems have been shared This 257, 949, 27 L.Ed.2d the the defendant who at counsel (1970); Simpson, 144 States v. charge long an- conclusion of the court’s 735, decid 445 F.2d nothing “Satisfied, Honor, Your nounced Moreover, is it ed November 132) (Tr. further.” past agreed five counsel that the of cases from years, in more than a score turn now to the the remarks of circuits, the other alleged are court which to have exerted rejected challen of certiorari has denial jury a coercive influence after the re- charge.1 ges the Su to the Allen Since agree. ported inability to In substance charge preme disavowed the Court has not judge jury the district told the he Hodges v. not for so. it is us do See going was not to declare a mistrial and (8th States, 408 F.2d thereby require day of trial be- 1969) (opinion by Blackmun, Circuit Cir. jury, fore another course that view Judge). backlog the court's substantial “just in United As we observed work doesn’t make sense to me.” 23,269, Simpson, judge No. explained he The was excus- might November decided so the “come charge 1970, objections the back tomorrow at 9:30 with fresh mind charge given night’s sleep weakened when the and a and seek to reach a original part way the court’s instruc verdict about the matter one or the * * * jury tions, you than later after a has rather other. if can’t decide (at reported disagreement, verdict, 445 F. and come to a think about Burrup overnight 135) individually.” (Tr. 2d See also v. United On Cir.), following (10th day, deliberating 371 F.2d denied, hour, cert. 386 U.S. S.Ct. an about asked (1967); testimony complaining 18 L.Ed.2d 596 wit- Wynn, explained 415 F.2d States v. ness read. The “it foreman 1969), denied, got- though us have cert. seems as several opinions, 25 L.Ed.2d like ten different would S.Ct. ** * (Tr. testimony.” pertinent here where That observation to have charge ap 142) testimony language read. The then long peared court’s the court in the middle of the retired Before future, held was United States v. tion be used of these cases One charge, (3rd Cir.), giving Pioravanti, in- P.2d 407 cert. your cluding denied, “It the statement * * * majority. duty agree, possible”, if L.Ed.2d 88 cited Appeals prejudicial, Although and the convic- Court of not been Circuit had at 414. affirmed. directed that the Bar Associa- tion was case you “The court reminds stated: After had been out for three your days be the reported inability verdict must verdict of each and had arrive acquies- gave individual and not a mere at a verdict the Al- your opinions ju- cence of fellow len and added: you you rors. court also reminds important This case. conscientiously case, decide can long expensive. trial has been If request[s] you (Tr. court do so.” you agree verdict, should fail 144) open the case is left and undecided. my supplemental cases, In re disposed Like all it must be tions of what erence to the plainer lock was broken ment ment testimony from the evidence as in their mention the greed not so much in their conclusions marks which in other cases have been From their Once held to be was to the case truth which must have been as tainly the 27 L.Ed.2d 188 coercive to ment on a verdict other the court States v. aged, to aged marks cert. The absence of coercion becomes even the a encourage engage expense no jury denied, that difference was settled jury among jury when the nature of the more coercive than references on Bowles, proper. that the invited to resolved. it jurors in was a statement of the request as it was to the court. The the to decide were a the very purpose inconclusive it made no sense to difficulty transcript same evidence apparent district the evidence court’s (1970). U.S. jury for a ought In F.2d 592 legitimate disagree. issues to backlog short, court were of a not The remark of reading agree. Agree is considered. to stenographer, debate. be encour retrial, had they (2d disagree- disagree- apparent fact, a function recollec- attempt encour by simple Cir.), dead- been. work retry disa- Cer ref- an not re to Affirming served denied, App.D.C. 183, L.Ed.2d 996 this matter. Bear arrive at instructions. will have ments with a I want case room vinced. if sometime. been on Fulwood v. United you be lieve any to believe that another does there F.2d at 524. opinion # you equally long : should listen to each other’s I case, more in that in your duty jury, hope can ^[*] you by the mind, (Tr. 322-323) a the deliberate, will be able to decide the exhaustively appear any conscientiously Circuit There 369 F.2d 960 verdict and consider light part to duty disposition # case can be ladies go some you, and said: to decide the of these to decide this appears Judge Burger, back The court ^[*] States, either side. and endeavor expensive; jury as trial would not this reason to be so con- than it has to again do some no reason gentlemen particular court, 125 U.S. jury so, in to ^[*] argu- tried case, case, time jury cert. giv nor ob- be- to perceive not I no element the court. other statement some proceedings. coercion these have case would to decide the if Many cases have sustained verdicts gener- one could not was accurate a remarks a returned ality and, event, any could have had trial similar to those which impact jury. no coercive on the If I here finds coercive. mention they already likely what would knew fewa illustrative cases. deadlocked, they happen it sur- if know, plusage; did if Kawakita being information, coercive, 1951), aff’d, far from U.S. reducing have had the effect S.Ct. 96 L.Ed. 1249 would avoid, hope in all ver that we can avoid to pressure them reach economy. purposes I for the cases dict. get any don’t think we will better F.2d at 963. again if we tried the ease than we F.2d 543 Hodges now, I in the box nor do feel that sup- The court (8th Cir. presented better case will be » plemental said: you than it is to now. about Gentlemen, same ed, the case manner as other little. you want You should sometime be juries. selected talk consider Failure decid- you a mistrial our utmost So, ^[******] it is —it in the case. avoid necessary the declaration of we do necessi- agree upon verdict will you know, taken con- As has us long equally tate try siderable time to this case. There expensive. great many has been witnesses come long from distances be here. We opinion is of The Court hope again. won’t do this in a be tried better case cannot So, you gentlemen court will ask is It manner. exhaustive more or you again please, will retire you that very desirable therefore custody of the bailiffs and resume the verdict. a return should again hoped deliberations and it is provided by our Constitution manner you that a in can reach verdict deciding questions of for and laws ease. 415 F.2d at 136. jury. 408 by of a is verdict fact F.2d at 553 n. Rao, also States v. 394 United F.2d Cir.), (2d denied, 355 cert. Wynn, 135 F.2d 415 89 21 L.Ed.2d 116 S.Ct. 1969), (10th denied, U.S. 397 cert. Cir. ).2 (1968 402 25 L.Ed.2d 90 S.Ct. supplemental court’s agree summary, In I cannot charge remarks: these included by charge, the Allen was coerced by by remarks, the court’s other you to advise would The court like to reach combination of the I would affirm is unable two. if the necessary then it is in the ease verdict the conviction. what is to declare also, charge my the Allen In This means as a mistrial. known of the be in favor should not outlawed all over tried have be the case will you by jury. As the Ameri- instruction recommended easily see, considera- I must decline to can Bar Association. this involves can Bar As- expense effort. recommendation of the exalt the and considerable ble try something we the decisions of is sociation over Su- And it juries There remarks to deadlocked be decided. Similar it is a case Wilson twelve other civil have to believe that cases been sustained. reason no Co., in reach- Cas. 275 successful Farm Bureau will he more Southern you denied, Cir.), (5th U.S. than F.2d cert. 364 this matter a verdict (1960) ; give L.Ed.2d intel- will been. You must have Co., cooperative ligent F.2d to this Ins. attention Silverman v. Travelers may be In both cases there order consideration Judge) (Wright, which exists told court District of this conflict a resolution plaintiff and the defendant : between the ; you heard F.2d at You must realize that in this ease. particular all of in this case. the facts F.2d at 264. 626, 636-637, preme denied, Court States. cert. U.S. may suggest (1970) in this connection that we S.Ct. L.Ed.2d charge problem with a in the fu- the Allen confronted sensible advice for be following judge, group sitting if some district men and women ture question Supreme instead of Asso- around a Court the Bar table to decide fact; charge. gives pro ciation, and that the diluted Will version posed Supreme the Bar then overrule Association is invi holding charge ju tation is erroneous ? stubborn or recalcitrant persist ror to in a blind adherence to his adopt- are told one reason for We position, thereby producing hung jury. ing the Bar Association instruction Judge Burger put As in Fulwood v. judges frequently that district deviate language approved from cert. de charge. spite pleas of our Yet if nied, 18 L. strayed conformity judges district (1967): Ed.2d 996 litany approved Su- from the preme carefully [T]he Court I think it to as- is a reasonable bal- they may reminding jurors anced method of sume that also deviate from elementary their prescribed obligations, the formula the Bar Asso- which they sight during they pro- can lose ciation. If hear not perfect- they tracted deliberations. Court and court neither will ly and, valid to persuaded by Association; remind them that the Bar give thought some contrary hopes majority, the views of others and charge” should reconsider “aberrations position light those views. The disturb the still will occur. given require did here assumption An critics of the Allen reach verdict but produces only to be it seems duty reminded them their at- guilty. verdicts of I am not aware tempt an it accommodation. While theory. support statistics suggests minority they re- Sawyers, See United States v. position light consider their of a Certainly scholars having view, a different support report- find can no for it in the reminds them that not ac- cases, judgments acquittal ed quiesce in a which does not verdict appealed ap- not and therefore do not represent own convictions. pear in the books. We do know how (Emphasis original.) many spared defendants have been I see no reason to abandon or substan- expense ordeal and of a retrial because a tially charge. revise Accord- was reminded its duties ingly, majority’s I dissent from the charge. sound counsel direction that not be used in fu- prefer On merits I ture. language. to the Bar Association my expressed adhere the views Judges TAMM, dissent United States v. Circuit MacKINNON 193, 203-204, and WILKEY concur in this dissent. notes demonstrates vividly complete congruence, obviously come before court attest and it And, impossible meaningfully change fact this has not been done. course, precisely language adherence even of the instruction without effect- approved change Allen would substantive the standard problem, alone solve the for there would itself. continually questions remain whether as to action, The Conference taken es- particular circumstances involved continuing bring tablished committee to giving Allen-type charge of an attention of the courts and other legally Jury warranted. See ABA Stand- agencies concerned such of the ABA- ards, supra note at 155-156. recommended standards committee study suitable and believes desirable implementation. general Furthermore, opinion instructions. (1967), in an prefaced Judge the statement v. Unit in Post Robinson Circuit reaching conclusion, n. “sometime ed jury” cert. is of assistance to a 320 n. 3 —hard-

Case Details

Case Name: United States v. Anthony C. Thomas

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 14, 1971

Citation: 449 F.2d 1177

Docket Number: 22768_1

Court Abbreviation: D.C. Cir.