United States v. Francis G. Brooks
420 F.2d 1350
D.C. Cir.
1969
Check Treatment

*1 objec- the conclusion that that towards- religious grounded tion is personal purely

faith and not conduct, political or so- or

code of

ciological tenet. Appellant issuance entitled writ, remand and we reverse and proceedings here

for further consistent regard the at with. In this we direct man

tention of the District Court suggested by proceeding

ner of disposition

Fourth Circuit Clifford, supra9

Brooks note 1 v.

It so ordered.

UNITED STATES America BROOKS,Appellant.

Francis G.

No. 22330. Appeals

United States Court of Columbia Circuit.

Argued May 2, 1969.

Decided Dec. Kessler, Washington,

Mr. Richard F. (appointed by court) D. C. pellant. Randall, Robert L. Wash- court) Mr. ington, (appointed by D. C. brief, appellant. was on the forthcoming, said, since we refusal have “From we conclude petitioner petitioner expressed release, is en- our view that entitled to discharge. undertaking to an In re- accordance with his perform titled versing honorable remanding post-military district court work nature writ, we, encompassed by program issuance of _ the case civilian work therefore, If, authorize the district administered fact, Selective Service. period Army stay petitioner its effective reasonable date a refuses his hon- honorably petitioner discharge dis- to be orable to enable in accordance A.R. regulation. charged in accordance 635-20 the writ should issue forthwith. ”*** pp. presume, however, 708-709. We do not such *2 (The jury responded the affirma- Subin, U. Asst. S. D. William Mr. tive.) David G. Messrs. Atty., whom with Atty., the brief Bress, time at the U. S. FOR THE DEFEND- [COUNSEL Lippe, Asst. filed, and Lawrence Honor, ask that : Your ANT] brief, Atty., were on S. polled, U. pellee. each and as to not just every to the total count but as verdict. and ROB TAMM BURGER* Before Judges. INSON, Circuit Very well. THE COURT: Hal- CLERK:

THE DEPUTY as tiwanger, your the same Judge: TAMM, Circuit by your foreman? stated of for seven Appellant indicted Yes. HALTIWANGER: JUROR arising robberies out two fenses Ma- Miss Colum THE DEPUTY CLERK: which occurred-in armed three lodobra— bia. The robbery, a robbery, with and assault that first THE COURT: What was weapon, attack dangerous related to an juror? get the name. We didn’t Ellis; four counts named victim THE DEPUTY CLERK: Mrs. Hal- through six, charging with armed assault tiwanger. robbery, assault commit intent to your Is THE COURT: robbery, assault commit intent forelady by your ? same as stated dangerous weapon, a vic involved awith You HALTIWANGER: JUROR count final named Jackson. The tim speak ? of each count carrying charged appellant a dan Well, you she three-day gerous weapon. After you agreement all the counts. Are court, found in the district with that verdict? except guilty appellant counts on all charged in offenses lesser included HALTIWANGER: Not all appeal the and five. way. counts two mean I in You am judgment appellant contends gave? answers she alleged must be reversed because exactly THE COURT: That’s ly which circumstances under coercive particular want On know. de further was sent back for disagreement? you in count are poll revealed that after a liberations about the had reservations Mr. two HALTIWANGER: robbery. Ellis, of the record re review far verdict. Our as armed error, thus veals reversible (Tr. 198-199.) point, the Court affirm. confronted situation similar recently had deliberated After that which we dealt with hours, forelady more than seven an- en banc in Williams & Coleman v. Unit- case, complexity nounced that had reached ed States:1 the six, three, one, perhaps four, inadequate on counts acoustics following among exchange courtroom, created confusion seven. jurors, place: took and this not revealed fact was jury poll progress. until the inwas THE DEPUTY CLERK: Members says forelady parties apparently All realized you the risk of in this situ- find the mistrial inherent defendant ation, and, charged, at the instance Govern- you? counsel, ment was held each and all of a conference * Burger Judge (now Justice) U.S.App.D.C.-, (Oct. Chief Circuit 1. 136 419 F.2d 740 disposition participate in the did not this case. robbery presiding judge the bench. There theOn suggested count “I can ? throw to,” and out if want me defense rob- On *3 replied, say yes, I would but counsel “I bery you count, you said are not satis- would, the rest the ask have fied. added). polled” (Tr. emphasis The right. JUROR That is TAYLOR: granted request. Further Court this count, robbery THE COURT: The polling juror, other revealed that one jury stands, as the is verdict of the “the Taylor, reservations about had merged robbery into the armed so that count” indictment. At Ellis proceed to the third count. Are again approached the point counsel you agreement with the suggested he bench, that Court by your forelady announced that he might accept partial those verdict on dangerous of assault with a by counts not the two affected weapon upon Ellis? made no ob- indecision. Defense counsel Yes, agree I JUROR TAYLOR: did jection proposed procedure, other to this to that. suggestion than the that the Government your THE COURT: So that might dis- charges, but further withdraw the agreement only as to the armed rob- possi- at the bench raised discussion bery count, is that it? bility might affect that the confusion other counts of the indictment. There- thought JUROR I TAYLOR: fore, again queried the two the Court agree two were I interrelated. dissenting attempt de- in an he was robbed. the extent of their confusion. termine you THE COURT: But are not summarizing After three counts robbery with the armed indictment, asked Mrs. Court verdict, is that it? portions of ver- agree it, JUROR I TAYLOR: disagreed replied: She dict she with. yes, but with reservations. got sorry, am I mixed “I Your Honor. Well, * * * THE COURT: we can’t have up So, once on that. before sys- reservations under awfully I’m I would like to retract that. tem. sorry. misunderstanding I had (Tr. agree, panel I room” The then then Court yes. asked her twice whether she was in ac- cord with the verdict announced (Tr. 204-205.) point, a third count, on the first un- and she stated bench, conference was held at the and the equivocally (Id.). she The again Court solicited counsel’s reaction Taylor, Court addressed Mrs. sum- then accept proposal partial his again, marized the first three counts seven; through on counts three “Now, you and asked: to what do take objection interposed by defense counsel exception?” following dialog en- The suggestion was a the third count sued: also be resubmitted agreed. Court JUROR TAYLOR: The rob- The Government’s re bery quest charge2 part. for an had hear was denied. Allen testimony some I didn’t hear Court a brief testimony, absence recapitulation previ- of the instructions yes. did given ously on the first three counts. At you charge, THE satisfied conclusion of this Are Govern- by your requested permission with the verdict as announced ment counsel forelady proach on third count, bench assault for a fourth confer- dangerous weapon ? ence. There stated for the record his 492, 17 Allen v. United U.S. S.Ct. L.Ed. 528 agree you ver- ques- now do understanding there was forelady. by last dict as announced on jury’s verdict tion about you now agreed, reservations Do Defense four counts. to this verdict? in which “The case and remarked: how question of announcement No. TAYLOR: which I stands you been co- COURT: Have Mullins Appeals. It the Court changing your mind? erced into case, the Court advised In that case.3 TAYLOR: No. jury to not to courts allow This is notify stands. how it at [sic] have arrived has that but Your Honor abided *4 your own will? free (Tr. 209). come out” Yes. exchange, Following re- the this accept- 212-213.) (Tr. then The Court twenty minutes. tired and deliberated ed verdict. the they Upon announced returning, guilty on the had found defendant pro of the evaluation Our Another the first third counts. employed by trial court must cedures request of de- was conducted begin 31(d) of the Federal Rule jurors expressing counsel, all fense pro Procedure, Rules which of Criminal to the verdict. their upon is there vides that “[i]f attempted ac- to insure the concurrence, may not unanimous by questioning curacy of delibera to for further be directed retire greater previous two dissenters may discharged.” Clearly, tions or be length: judge provision invests trial this Haltiwanger, THE Mrs. COURT: assessing a of discretion with measure you ex- in view of reservations during impact dissenting a of vote a very before, pressed I want it to be jury poll, of reasonable exercise and the this the record that clear proper this discretion should be accorded now considered verdict. by reviewing As we court. deference It defi- JUROR HALTIWANGER: 128 noted in Jackson v. United is, nitely sir. 214, (1967), U.S.App.D.C. 386 F.2d posi in a the trial much better not THE You have been COURT: appellate to de delivering tion than an tribunal anybody coerced into juror’s recalcitrant termine whether this verdict? acquiescence in was eventual No. HALTIWANGER: freely given. case in fact The Jackson delivering You are plays also indicates that defense will be- own free timely interposing ob a crucial role in guilty? cause think he pro jections potentially to coercive Yes, HALTIWANGER: assisting cedures, purpose for the both my probably it was because choosing meth trial best beginning up in mixed but was resolving extremely od an delicate thoughts. my situation, pre purpose and for serving Taylor, you the record all relevant facts intelligent support appellate expressed needed to also reservations. You U.S.App. not the time it retires that must Mullin United Mullin, standing 29, of its vote at In reveal 356 F.2d 368 D.C. anyone, including the Trial time to we stated: ** Judge probably *. rare While it is any- standing at 370. their vote to reveal the case, In instant found before verdict or deadlock is 190-191). (Tr. this instruction to the District Court a we commend every practice admonishing fixed signifi- quite footing: case it is In instant stands review. different counsel, long regarded has able been cant as a “useful” necessary sufficiently preserving familiar who device right problems be able defendant’s coercion to a unanimous ver- not though, memory, appellant dict5 points cite Mullin case from even out, object questioning psychological may its failed effect poll- pressure conformity exert but also more toward ing jury’s apparent questions than continue after mere on numerical divi- unanimity tendency We sion revealed.4 because lack to isolate dissenting jurors. which not events are convinced request co- after were occurred poll, The first stated, as we as to con- free ercive properly request conducted at the of de error. stitute reversible counsel; fense additional coercion leading Appellant’s case reliance on may have resulted from further States, 272 U.S. of Brasfield v. United questioning relatively slight, so far (1926), S.Ct. L.Ed. as we can determine from the record Brasfield, largely misplaced. and the failure of defense counsel *5 jury trial after several recalled object spite ample in of opportunity to inquired what hours of deliberation and do so.6 time, the same the Court’s among jurors division the numerical preserve effort portion that Supreme reversed was. The verdict which was untainted the dis inquiry, conviction which followed senting proce reservations —a stating: approved by dure parties at trial and not appeal contested in this procedure pur- —neces Such serves useful inquiry sitated into the extent of the pose by ques- attained that cannot be disagreement. dissenters’ We are con requiring tions not to reveal vinced that inquiry “essentially the nature extent of its division. or neutral” rather than “calculated to af upon Its effect a divided jurors’] fect judgment,” [the and that depend often circumstances it impair any did not properly which cannot be known to rights. substantial appellate courts trial or to the may vary widely in different sit- Affirmed. uations, general tendency is but in * * * practice, Such a coercive. III, ROBINSON, SPOTTSWOOD W. generally which is and is never useful Judge (concurring): Circuit harmful, is not sanctioned. be Though (empha- among at I 272 U.S. 47 S.Ct. those who clear, added). (and poll, sis Williams Coleman) A v. United grant request 4. Failure defense counsel’s tous of defense counsel’s views as to the proper resolving for a second when ambigui- method of possibility poll suggested significantly first that ties in the verdict. A differ- qualified presented their verdict was or ent conditional situation would be if the jurors has been to constitute reversible questioning held record indicated that place Cook atmosphere; error. v. United took in a coercive as (5th Mullin, “precarious Cir. stated undertaking” give for a trial court ad- See, g., Humphries 5. e. ditional instructions or take similar ac- Columbia, 174 U.S. 19 S.Ct. tion when the numerical division of the L.Ed. 944 jurors U.S.App.D.O. is known. 31, 356 F.2d at 370. emphasis It merits that a total four during took, place conferences bench Williams & Coleman v. United proceeding issue, course here -, 419 F.2d at 746 consistently (Oct. 23, 1969). that Court was solici- banc In there bar, the case at were two from en dissented States1 Tay jurors, superficially simi- and Mrs. accorded a treatment Judge lor, Tamm’s who voiced reservations as episode, concur I lar charging rob sustaining before verdict on count conviction opinion 1— bery Williams, needless Ellis —of seven-count indict review. us for however, Williams, me, binding ment. Unlike say, Cole- on peppered inquiries upheld were not cir- under conviction man’s mem- their individual to three verdicts were.2 there —which cumstances judge, very Rather, bespoke confusion at the first court bers of disharmony, posed omen of juror follow would coercion of —it suggestion under fate deliberate the same must meet Brooks further,3 showing here. but defense counsel circumstantial the weaker polled.4 however, rest of the think, the facts really markedly completed, When the differ two cases again proposed a result resubmission of count points to dictate that crucial feeling jury but, 1 to the because trouble anyway. So it both ju- honesty on also could have involved and a sense of intellectual settled, join the other two “Ellis” in affirmance duty that dicial approbation with the ostensible of both this case. counsel, upon inquiry a brief to ascertain doubting juror Williams, difficulty. the extent of the Mrs. Halti toas her verdict times about asked four wanger prior retracted her manifestation tried. of the counts Coleman disagreement and, explaining that she either she answered three times confused, unequivocally had been voiced Only guilty.” “[ijnnocent” or “[n]ot *6 guilt her concurrence in verdict of put question a fourth time when the Taylor on count 1. Mrs. stated that “[gjuilty,” and that without did she she, too, agreed with that verdict, but change any in stance. of her elucidation “with poll resumed reservations.” That charted the until after Not completed, judge and she was revealed Williams, and and, course for the inas forestalling acceptable juror an the one jury was directed to fur deliberate verdict, jury sent back to judge’s ther on in the the “Ellis” for its own determination room words, to “see if at a can arrive later, unanimity. When, minutes 22 any unanimous verdict without reserva emerged again announce ver- ju any part tions whatever on sought guilty, no dict of the defense 5 ror.” not under- and court did second later, Twenty re- sponte minutes one. As in- to conduct take sua report unani- turned to the courtroom to dicated, majority conclud- the court guilt mous on those counts. verdicts of Coleman’s ed that verdict survived con- Williams, Unlike another disunity coercion. and claims whether, in the -, 4. intimate view U.S.App.D.C. F.2d 740 1. 419 136 specific request, face of counsel’s (1969). could have directed further deliberations Farms-Chevy v. Chestnut 2. also Bruce See completing poll. without 192, U.S.App.D.C. Dairy, 126 Chase 75 'accepted Concomitantly, 5. (1942). 224 F.2d counts. verdicts on “Jackson” Compare States, Compare 31(d). v. 82 Clainos United 3. See Fed.R.Crim.P. 593, 278, 281-282, U.S.App.D.C. 1, States, 163 supra F.2d note Williams v. United accept appel- (1947). X 596-597 cannot 746; at -, U.S.App.D.C. 419 F.2d 136 argument portended lant’s this action U.S.App.D.C. at -, id., 419 F.2d 136 any prejudice significant in the circum- (dissenting opinion). 752 here. stances 1356 may given freely if ducted, vouched case stand each of the 7 those verdicts.6 in important

individual That value unanimous.” questioned Mrs. Halti- only in the remains constant Taylor wanger an effort in Mrs. degree judges appellate —trial sensitivity possible detect unanimity alike—insist true 1. Mrs. duress as time, verdicts. At the same it is obvious thought and adhered dismissed the judge suddenly confronted my probably it was verdict “because regard problem must be in that beginning was mixed verdict up my but indulged flexibility the man- as to some thoughts.” Taylor like- shaped dealing ner of with it.8 As way responded in no that she was wise coerced, cooperative court and endeavors of her decision had reached end, pro- counsel9 a common toward her free will. own my judgment, review, cedure under Williams, As the court declared kept precept call for faith as to far system justice our “[i]t basic to in a criminal conviction. affirmance Compare States, States, 6. Williams v. F.2d United 325 See Slocum v. United 1963) ; Shibley 465, (8th supra 1, U.S.App.D.C. -, v. Cir. 468 note 136 419 (dissenting opinion). 327, (9th States, F.2d 752-53 F.2d United Cir.), denied, 873, S. cert. 352 U.S. -, Id. (1956). Ct. L.Ed.2d 77 at 746. See also Andres United 740, 748, 333 U.S. 68 S.Ct. 9. See Jackson v. United 128 U.S. App.D.C. 214, 216, 92 L.Ed. 1055 F.2d . (1967)