United States v. Harold Silvern

879 sparse au Our review of of the to exercise bondsman thority that supervision on issue convinces us some minimal the de- this over agreement indemnity accomplish of an in order existence fendant his con- surety appearance. on a bail bond tinued v. does not release a United See minimally 939, (D.Conn. responsibility su Payne, F.Supp. from his pervise 941 1967). duty defendant. There a criminal While does not amount duty fore, guarantee of its Rochelle’s breach to an defend- making absolute supervision Kamin presence, encompass over maintain ant’s does some Maryland’s sky under the risk some effort toward that end. increased thereby extin agreement, indemnity While Rochelle maintain that does not obligation guished thereunder.1 its duty supervision owes of minimal court district judgment The having jurisdiction to the court over the is af- Indiana District of the Southern defendant, contend does that it owes firmed. duty no regard, such an indemnitor. In this Affirmed. language ap- Rochelle relies on pearing in an of the Florida Appeals Court of

District effect surety

that where the on bail bond is by third-party,

indemnified indem-

nitor true he bondsman since

bears the ultimate risk of loss. United Bonding Tuggle, Insurance v. Co. (Fla.App.1968). 80, 82 So.2d The re- America, STATES UNITED appeals marks the Florida court were Plaintiff-Appellee, intended, hold that the however, not agreement indemnity existence Defendant-Appellant. SILVERN, Harold exercising any surety excuses the from No. 72-1133. supervision That over defendant. Appeals, question simply before the Flor- States Court was Circuit. Seventh The ida court. called court was only the decide of Florida stat- effect May 25, En Banc Reheard ute ing an affidavit disclos- Aug. 7, 1973. Decided filed, agreement indemnity si- multaneously bond. with the bail purpose of this

court there held that on place the indemnitor statute was to footing surety equal on the protect might both so bond indemnity through

property risked

agreement. Flor- If the intention surety place legislature ida was footing” “equal and the indemnitor surety is conclude that

then we must duty thereby his of su- from excused not pervision arising bond re- the bail from Sutton, lationship. also, See Carr (1912). W.Va. S.E. Kaminsky Kaminsky’s bond so New York Rochelle’s contention de tions of might parted Illi- York and there travel the State State New he demonstrating area fore not within Rochelle’s nois short of falls persuade. fact, supervision Kaminsky, of New also left the State does regard, York. enlargement condi-

880 111., Chapman, Chicago,

James P. Sullivan, Flynn, Thomas P. Peter A. Chicago, 111., defendant-appellant. Thompson, Atty., James R. U. S. Wil- Huyck, Kanter, U. liam T. Arnold Asst. Attys., 111., Chicago, plaintiff-ap- S. pellee. SWYGERT, Judge,

Before Chief Judge, DUFFY, Senior Circuit CUMMINGS, KILEY, FAIRCHILD, SPRECHER, PELL, Cir- STEVENS Judges. cuit SPRECHER, Judge. This reheard en case has been banc attempt greater certainty an to establish Circuit, in district courts and to judicial energy by possibly conserve avoiding regard appeals retrials, giving of the so-called Allen or “dynamite” charge supplemental in- as a jury. struction to a deadlocked approved The Allen instruction was Supreme Court Allen v. United States, 492, 501-02, 164 U.S. 17 S.Ct. 1 157, 154, (1896) 41 L.Ed. 528 and al- though no court has held that the' in- unconstitutional, struction itself stormy has had a career.2 1969, charge, From 1963 supplemented paragraph by a second ad- vising “must that the case a failed to reach retried” generally cir- was “ men, large proportion upon many a . . . [I]n sion the minds so certainty honest, equally equally intelligent ex not be cases absolute could with pected; that, although If, hand, must the verdict himself. the other juror, acquittal, minority individual be the each was for acquiescence they ought con and not a mere to ask themselves whether they fellows, yet might reasonably clusion of his doubt the correct- question judgment submitted witli examine ness which was not con- regard proper majority.” candor and curred other; opinions deference to the of each duty complete history it was to decide For the Allen conscientiously so; attempts by case if could do the various cir- listen, to deal with see United States cuits convinced, argu Thomas, U.S.App.D.C. 101, 449 each other’s 146 ments; that, larger (1971) (on rehearing if much the number F.2d en 1177 conviction, juror Bailey, dissenting bane) were for States v. and United 1972), (5th affirmed en should consider whether his doubt F.2d 652 Cir. impres- (5 1973). banc, a reasonable one which made no 480 F.2d 518 deliberations; Length Jury dead- In- 5.4 the Manual on cuit as jury. locked Cases in Federal Criminal structions 523, Instructions), Buy F.R.D. (La (a) retires for Before (1963).3 deliberation, the court jury: informs the instruction which Brown, F.2d (i) to return order held as 933-934 agree juror must each follows:4 thereto; within district courts Because the duty jurors (ii) have difficul- encountered this Circuit have one another and to with consult determining precise lan- what ties to with a view to deliberate reaching guage supplemental in a to include agreement, if it can an given, charge it should be when and in- to done without violence he this, important court to articu- for judgment; dividual specificity standards. our late with juror (iii) each must de- dealing supplementary in- with In himself, the case for but cide only ap- structions, primary of an task impartial consid- after an pellate to set standards court is his of the with eration evidence proper of the conduct for the jurors; fellow hung jury. We faced with (iv) in the of de- course pres- have reconsidered ently liberations, juror should not approved form of the own hesitate to reexamine his LaBuy charge In- forth as set change opinion if and his views judicial structions, the numerous erroneous; convinced it and scholarly literature decisions and (v) juror sur- charge. that no should of the Allen this field critical honest as render his conviction it would serve concluded that haveWe weight or of the to the effect justice require to un- the interests solely of the because evidence that, power supervisory our der jurors, or of his fellow future, this Cir- district courts within purpose return- for the mere ju- with deadlocked cuit when faced ing a verdict. sug- comply the standards ries with (b) appears gested by Associa- If it court American Bar jury Jury publication. By has been that agree, unable Trial tion’s require specifically provide: the court These standards sonably large proportion of their doubt the correctness 3. “In a cases absolute judgment. expected. Although certainty cannot be you on a ver- “If should fail must the verdict of each Any acquies- juror case must be retried. mere dict individual and not a others, yet in the same future must be selected cence in the of questions conclusions you you source as manner and from the same should examine the sub- chosen, proper regard no reason and there is have been mitted and deference opinions other, you ever be to believe that the ease would of each opinions men and women submitted twelve listen to each other’s should competent or more decide with a to be convinced. your duty more or case can tried better the case if decide here, exhaustively conscientiously larger or than it has been do so. If a much jurors conviction, that more or clearer evidence could number of favor dis- produced juror senting on behalf of either side.” consider the reason- ableness of doubt when it makes his States, impression upon In 431 F.2d of other Brandom v. United the minds (7th jurors, intelligent impartial, equally added: “. . . reaffirm the future use [W]e and who have heard the same evidence. hand, the District If Courts of Circuit the other practices acquittal, minority out standards set favors ask they might in Brown.” themselves whether not rea- “complying” them. to continue their deliberations United States repeat DeStefano, 476 F.2d or instruc- (a). 1973). provided in subsection tion words mended standards.” tions from and substantial

within signed result, possibly “in manner consistent Although prejudice ards. sistent with the recommended stand- inal and a threaten to liberate for an vals. ^[*] order that deadlocked the time referred, deadlocked court -X- civil circuit, produce our and coercion or for unreasonable avoid require the cases -X- shall because it has not unreasonable juries in uniform Widespread in a manner con- -X- juries with henceforth courts in this of potential supplements ^[*] require be the both crim- which we the final had practices charged recom- length devia- inter- -X- de- de- lated defendant’s and “no with went cumstances issues supplemental this case panel of this court A struction was economy fendant’s conviction. supervisory power, circuit supplemental recommendations nor the 27, 1973). Silvern, No. 72-1133 However the far are In and that neither panel’s the case prejudice beyond henceforth surrounding charge.” uniformity, case, exceedingly lengthy and we constitutional the ABA standards.5 interest “under containing occurred United States supplemental agrees timing wording and affirm courts of also vio charge under our from the February the other to do with the facts and cir judicial rights” the de in this agrees ABA the in following have been consid- civil and criminal cas- ABA standards both them and be “consistent with” es. ered to cases, hand, larger large portion of “If a

5. “In a absolute on the other much expected. jurors acquittal, certainty be The ver- favors cannot number jurors be of each individu- should ask dict must the verdict smaller number juror acquiescence they might mere themselves whether not rea- al and not a sonably of others. doubt the correctness of their conclusions questions judgment. sub- “You should examine proper regard and deference mitted with “Likewise, jurors a fa- opinions other. You of each for voring finding party a for either should another and de- consult one should with might ask themselves whether reaching liberate with a view reasonably doubt correctness agreement if it done without vio- can be judgment, impression when it makes no judgment. lence to individual minority jurors the minds your duty if is decide the case “It equally impartial intelligent and as you conscientiously can do so. have heard and who the same evi- juror “In course of deliberations dence. his should not hesitate to reexamine opinion, you agree change his if “If fail t'o own views should on ver- and erroneous, dict, open no convinced but case is left cases, and undecided. juror disposed his Like it must be surrender honest con- all weight Any jury viction as to or the effect some time. future must be solely of opinion and from the evidence because .selected same manner jurors you or as fellow for the same source have been his chosen, purpose returning a mere verdict. there is no to believe reason jurors larger be “If a much number fa- the case ever submitted to competent conviction, twelve vor the smaller number of men and women more jurors or that the reasonable- decide case could consider exhaustively tried or of their better more ness doubt when makes here, impression upon than the minds of it has been that more or other jurors intelligent produced equally clearer could be who are evidence impartial behalf heard the of either side.” who have same evidence. any jury thirty supplemental If in tried after If a days (30) supple- necessary provided that from this is deemed following given relating instruction has been mental instruction deadlock given form, retired, prior other than the above to the time resulting repeated: conviction will be reversed and remanded for a new trial.8 represent must the con- The verdict suggest addition, the dis- In juror. judgment of each In sidered the need trict courts consider whether it is neces- to return a order supplemental re- instructions sary juror thereto. that each by sending jury room at duced into the Your verdict must be unanimous. retires either a writ- time the your duty, jurors, to consult as recording of, together copy tape ten or a and to deliberate with one another equipment to enable the with agreement, reaching an view hear, complete instructions you violence so without do by the court. judgment. Each individual Affirmed. yourself, must decide case impartial consider- do so after an PELL, Judge (concurring in your fellow ation of evidence dissenting part). your jurors. course of deliber- I concur in the affirmance of the de- ations, to reexamine do hesitate conviction; however, fendant’s since change your opin- your own views Judge opinion by Sprecher written But ion if convinced it is erroneous. my approved by the of breth- your do honest convic- not surrender in the Sev- ren does establish new law weight or effect of evi- tion as to the Circuit,1 myself enth find free to opinion solely of the of dence because disagreement my record some of with your jurors, or for the mere fellow that I do some reluc- new law. so with returning purpose verdict. of good my respect tance because of partisans. You not You are judgment my of brothers and because judges judges of facts. Your — regard LaBuy- my opinion with to sole is to the truth interest ascertain charge apparently runs modified Allen in from the evidence the case. body schol- counter to a considerable arly thought elsewhere. Experience has shown that var- now language supplements candor, myself in or ad- find iants or In all I do not dis- given Judge merely proliferate ap- charge by ditions serve turbed peals.7 Apparently in the Austin trial below. Commentary Fioravanti, In the ABA to Section 5.4 8. See United States v. (a), 1969): 407, (3rd this instruction which is Instruction F.2d .' . Jury [Hjereafter 8.11 of and Forms for not let a Instructions this court will Cases, 39, Federal in Criminal 27 F.R.D. have been stand which (1961) suggested any way by charge.” 97-98 “[i]llus- fluenced in is an opinion also, Judge Goldberg’s an trative of instruction with consistent See con 5.4(a).” part curring dissenting section in in in Bailey, 480 F.2d 518 States 7. We realize that the ABA standard and 1973) permit “I : graven illustrative instruction are not ‘‘as criminal in future conviction stand Thomas, (United in stone” federal in that does U.S.App.D.C. 1177, 449 F.2d strictly comply the Standards (1971) and that on the Committee recommended the American Bar Asso Operation Jury System of the Judicial ciation.” sug- Conference the United States dieta, gested paragraph (v) Although a variant obiter the context standard, being appealed, ABA but unless and until we the case law is neverthe suggest any future, change super declared, preumably further less under the quoted visory power in this is of this court. given. deadlock instruction to be really loci, system justice is is et our because every mandatorily require either too disturbed because does not jury held not violate the defendant’s to rights render neverthe- prej- not to constitutional less it me that it desirable seems to is Nevertheless, apparently udicial. writ- should be reached if ing compromise section one of a manual of instruc- can be of honest without tions, judg- the court that deviation states conviction or violence individual precise nothing wrong from the of that in- ment. I find jury your struction the deadlocked situa- Austin’s is admonition “[i]t experience duty con- tion is reversible error. the case decide conceptual difficulty, scientiously Indeed, even under our su- ABA do so.” pervisory establishing power, deny stand- do not recommendations desira- bility giving ard from deviation occur which no additional instruction an very regard when we do so case which to the deadlocked duty we hold was neither deviation to deliberate with a view agreement. constitutionally impermissible reaching nor other- prejudicial. wise the context situation of My feeling appears that the matter basic is of deadlocked tó me that writing might three be involved. instructions basic situations remain judges. They hands of are The the trial first of is where the these evenly evenly approximately the ones at the site who are best battle divided. position Here, which instruc- if the deliberations have appears appropriate tions are to the factual is- some duration it substantial po- “dyna- me sues. Likewise are best in the there not sufficient challenged charge nature, necessity, mite” sition determine the to cause change. verbiage of instructions to be situation to As a matter challenged charge aspects fact, primarily in connection with the functional jury deliberation, including of may those that concerned situation where there with the minority necessary reasonably holding ap- against is a when small out pears remaining majority. that a reached has the status two sit- The basic being any posture. of If in deadlocked. instruc- uations are the latter found the tion the law and misstates the subcategories, While be there then, prejudicial course, oversimplification, effect is of at the mi- risk of the ordinarily By nority jurors reversal would follow. or either reasonable are prescribing the exact which of unreasonable. If the obdurateness judge may minority a trial type, in the instruct dead- the the of latter is wheth- are, me, flowing corruption locked situation it we seems to er or from from substantially circumscribing the discre- lawyers inelegantly re- what some trial tionary flexibility by pigheadedness, needed the trial fer to as it unlike- seems judge ly challenged charge for effective trial administration. that the have will thing It is one no error in an in- blasting did, find much say effect. If it I cannot given struction which necessarily in a that this bad would be a trial, thereby putting approval long our result, tacit at least as reason as is entirely play different matter part some determinations. engage priori processes in a of fixa- word Ultimately then we are concerned with tion. jurors those who are reasonable but considering desirability the conscientiously in our ma- unconvinced that the procedures giving jority of the position an in- is correct. all We would given Judge by struction such the as one agree, think, juror, par- I that no Austin, ticularly we it in type juror should look at the con- just not de- text scribed, being' occasion in which it is uti- should feel that he is probably say pressured lized. While by the trial absolute, tempor- an as necessitas est just lex closing a verdict for the sake of out pressure requirement I the case. do not find such that the deadlocked in- challenged charge. only given is axiomatic struction can when encompasses given regular all that no one instruction first as a of the Likewise, each “may of the law in a case. exceeds the ABA standard ” paragraph particular repeat instruction Secondly, . . . . part of should be considered as a and this follows from what al- I have though Thus, jurors in ready said, even whole. I event include challenged prescribed reminded instruction are instruction the words recommended, certainty expect- cannot be absolute were Com- truism) (which probably Sys- Operation Jury ed mittee on the of the open unde- that the case left will be tem of the Judicial Conference (also (footnote is not reached majori- cided of the United States jurors true), ty opinion): on balance are suffi- ciently instructed that do not have “(v) juror that each finds him- who to surrender honest convictions minority self in the should reconsider merely purpose returning a for the light opinions his views of the verdict. majority, juror and each who finds himself Looking impact at the overall give equal consideration the views challenged instruction, appears to me minority.” jurors that as reasonable advises persons The committee’s comments are illumi- should take another look at nating position : whether their reasonable correct. It also is to noted paragraph “This additional makes it admonition is directed at perfectly clear instructions minority. as well as the jurors take views other into ac- solely count are directed minor- If we become embroiled semantical jurors ity and also reflects the view- looking instructions, niceties at nice leading point jurists.” of several arguably impact have little ties which *****8 suggestion concur ma- juries,2 lay people composing giv- jority opinion that consideration be then would tend to think letting en to the instruc- (which ABA based instruction has been during its tions deliberation. laid down as the now which can be to a deadlocked interpreted jury) (concur- could STEVENS, average being “bugle juror ring) call” for . hung jury. That is no more de be Recognizing importance un- an sired than is an instruction which im ambiguous statement of the rule to be properly pressures a unanimous decision. applied future, in this circuit Further, straight-forward I cannot with the ma- clear, concur

jority respects. Judge in two other Sprecher decision which has writ- Judge Arterburn, Judge, laymen 2. now Chief that a could been Supreme put sym- signs Indiana Court mat- misled. are mere Words aptly Harbelis, meaning thought, Ind. ter Hendrix 248 bols of v. and which 619, (1967), N.E.2d 230 315 as follows: never exact. strive with inexact We “Instructing pre- is a most difficult tools to out refinements and work complex process. generally thoughts and lines in cise statements of ideas, there been an conceded over- but are never able to reach exact wording emphasis placed upon perfection. writing In the of instruc- meaning eternally tions, refined which instructions we are confronted with attempts exactitude, far exceed actual effect and failures at jury. frailty keep an When has to be we must this human mind by legally language read and reread trained of in- when examine the slight mind to catch a variation or error structions.” 230 N.E.2d at 319. meaning, in its is difficult to believe 886 majority’s however, compels Candor, me to from the failure to find re-

ten. by judge’s error comments. versible re- add two brief fusal to follow our mandate in Brown. references to Unit- In view majority seems to excuse the DeStefano, F.2d 324 ed v. States vague allegedly an sentence in the majority (7th 1973), in both Cir. opinion: Brown potential “In order to avoid the dissenting opinions, it be of and significance prejudice for and coercion to that I to record the fact referred, which we have district courts in favor of the four votes cast one of granting in this Circuit are henceforth rehearing petition en juries deadlocked in both my The reason in that case. banc criminal and civil cases con- manner panel opin- my vote was concern sistent with the recommended stand- incorrectly the fail- decided that had ion citing ards.” 411 F.2d at 934. After subpoena an district court ure of the majority says: this sentence the though “Al- defend- violated the witness occurrence designed our 1969 process. right compulsory Id. at ant’s produce practices uniform within the 329-331.1 circuit, it result, possi- has not had that yet satisfac- able I have bly because of the final words that dead- myself torily explain this cir- how juries charged locked ‘in a manner lawfully in- an announce that cuit can consistent with the recommended stand- Supreme struction to a Widespread ards.’ deviations from and specifically squarely held Court has supplements substantial to the ABA crimi- error in federal is not reversible standards have been considered to be future constitute shall in the nal trials ‘complying’ ‘consistent with’ them and given in such error when reversible DeStefano, with them. United Circuit. trials conducted Seventh (7th 1973).” F.2d The ci- Possibly is confidence the answer tation of is unfortunate. DeStefano Supreme such review of a decision Court That case dealt with deviations from overruling an as this lead to closely Brown standards similar to those That confidence well Allen. indulged seen here and the same Louisiana, misplaced, cf. Johnson v. judge. important More is the fact that 152; U.S.356, L.Ed.2d 92 S.Ct. agreed of this court but were warranted, provide does not even opportunity denied rehear en completely satisfactory answer to a dif- banc, since the defendant DeStefano question. ficult prior rehearing. Therefore, died to the submit, holding SWYGERT, (dissenting Chief panel questionable is a DeStefano concurring part). part, precedent.1 However, if the reference agreement pres- I am full with the interpreted DeStefano ervation our decision in United States “widespread assertion that deviations Brown, 411 F.2d 930 supplements from and substantial majority’s decision that through- ABA standards” have occurred re- deviation from it will henceforth However, Brown, sult in a I dissent reversal. out the Circuit since there is case, incidentally, suggests required standard, so, a dif That and if whether that directing inconsistency the ference between a mandate was reversible error. trial court to take action “consistent with” opposed a as to “not inconsistent with” Fairchild opinion dissented in the De- and standard. both and the order of this court DeStefano Stefano April 20, part: Silvern instructions which were consistent dated in 1973 reads given, appeal with the ABA standards were as ex It is ordered that the is dis- pressly required by Brown. The issue missed as moot and the district court is instructions, vacating was whether additional not directed to enter an order the required by by permitted judgment dismissing Brown but of conviction and Allen, lawfully were inconsistent with the indictment as moot. point interpretation, by support the record. the im- for such Because is scant large portion According portant quote appeals that have been I to the colloquy judge heard, only judges within the Circuit the and counsel between two preceded jury’s reception of the standards which the deviated from ABA have supplemental by the instruction.3 Brown.2 mandated confused It is clear the was from record that That vague- alleged lip difficulty judge despite trial service he or had — requirement to Brown paid Brown is in belied its of a and ness of the States, determination that this is consistent with in Brandom United 2. The predated is the recommended standards and here F.2d 1391 your opinion. and last the Brown decision. sentence DeStefano judge; Well, in tried the same MR. SULLIVAN: the Bran- at bar were case in occurred dom case— other deviation United one (N.D. 71-0-576, Baranski, From what No. THE COURT: Circuit? MR. The And SULLIVAN: Seventh. Ill.). opinion, I was the understand this this regard With 3. MR. SULLIVAN: original recharge charge, after you jury, part the —another last about many agree, didn’t the court said group— that some other not think you things said; the same that have “If right. All THE COURT: you agree verdict, fail to on the ease Now, in is not that MR. SULLIVAN: open undecided, left is like all and and harkens I the Brown case and think disposed cases it must time. be some very that kind instruction back to the If the is case retried a future must and condemned. has been criticized be selected the same manner from No, that the instruction THE COURT: you the same been source as have chosen.” condemned, I been lias criticized THE COURT: Is that condemned ease, the one from that lifted this have the Brandom case? you that, “If states is that condemned No, outright MR. SULLIVAN: the case should fail to you condemned. I would like read it to open it.” must decide is left —another judgment. so we can all make a way reads. That right. THE COURT: All suggested Court of It has been (Continuing) MR. SULLIVAN: phrase Appeals I I which use you and from the same source as have open have, “is and undecided.” left chosen, been there reason to But all that follows MR. SULLIVAN: believe that ever sub- case would people other and other —from that about mitted to twelve men or women more you community, assume must not competent to decide this case than those differently going more tried it is evidence, to be you compose present jury. who States, Brandom vs. There is no reason believe that there year— 1391, decided last 431 Fed.2d produced will be more or clearer evidence Circuit? THE COURT: Seventh trial, therefore, you urge at a future I See, special we rule Sev- have disposi- deliberate this case with the Allen the old enth Charge You Circuit. tion to be convinced—” every but here other Circuit going going say says THE COURT: I am not that we are [Brown] unique that. I be sur- wouldn’t ... right. prised MR. SULLIVAN: All follows “There- no other you fore, urge regard to deliberate in this case to the Seventh Circuit Charge. conforming convinced, re- at I am So directing you your the same time have balance vised— verdict must be a ? conscientious decision of juror.” there, each individual all MR. SULLIVAN: page Judge. off % s|! S¡! I tore 8¡S if* MR. case. LAPIDUS: case was af- deals with a different firmed, your sen- Honor. That This is the last THE COURT: for, affirmed, by looking way, tence and is what was that case. potential preju- Well, MR. SULLIVAN: “In order here is what to avoid coercion, Brown, too, re- affirmed dice and said— ferred, but— Courts in this Circuit the District THE dead- COURT: But for the henceforth reason that juries ap- the proved by criminal and civil instruction had heretofore locked both the in manner consistent with the then cases a Seventh they turned I made turtle in the Brown recommended standard.” ease. sponte proposed “charge he jury advised counsel that in a manner ... charge. give jury supplemental the the recommended stand- consistent with jury, however, nei- deliberately incorporated was deadlocked most of The ards”-— the Allen charge judge ther then nor after the and coun- had con- which supple- proposed If it is sel had discussed in Brown. demned this court charge, opinion mental first in Brown of con- true that our mandate is in error its assertion that the ABA standards ease sistent adherence to judge jury sufficiently ambiguous informed the “had to authorize range charges, equivalent jury Imme- were fact deadlocked.” of reading diately put proposal into Brown before he his broadest reasonable judge judge effect, did asked the whether approve what the “yet judge put give, had arrived at a He himself verdict.” here. To as the response yet.” charge, of “not This received a modified “a modified from justify phrase may hardly charge,” be taken to a clear violation Allen was (emphasis the elaborate which followed. of our direction in Brown repeatedly supplied). on the Brown we laid stress giv- fact that the ABA recital was to be rehearing majority’s on The juries. may true, to deadlocked en el- to the coercive does not address itself following admit, I that an instruction charge given case, in this ements of the appropriate if Brown is even likely prejudicial effect. nor point deadlock, not deliberated to con- Most of the coercive admonitions provided it has consumed unsuccess- given. charge were tained in the Allen ful an amount of time deliberation Moreover, majority opinion. note See patently proportion to out of it does not deal with the untimeliness difficulty the issues in the case charge. supplemental After the testimony before it and the amount fourteen hours had deliberated for proper days, time sua taken at trial. When the the trial two successive commit. instant ly mental fendant cordingly, the District Courts of this Circuit in Brown that End of phere. struction. tion so as to create of the heinous interference with quately contain is in conflict standards prejudicial ciation’s decision I mental THE In Brown MR. SULLIVAN: say, necessary, demonstrate charge. this was warned elements of COURT: case the instruction We reaffirm failed to court recommended instruction. of the trial court’s we reaffirm Even here Brown contains Will’s will —the practices warrant thing by you charge was court given before this court’s more than the American show that potential opinion. part jury’s Right, I have been ade- held that “The set out the future use prejudicial Court of record will reversal. type charge I am about position free delibera- consequences coercion insufficient sufficiently in Brown.” general Brown Bar Asso- Appeals, question then as supple- supple- In the atmos- clear- taken Ac- de- in- 4. The struction one ladies and had turned. if heinous hearing of the charge, demonstrate gentlemen, warned and I ..THE JURY JURY THE COURT: You THE COURT: Have THE COURT: Who is THE Get the (The following necessary, no. them: follows: ^[*] question that propose pertinent will you COURT: by you modified open thing COURT: FOREMAN: FOREMAN: jury, Mr. Marshal. the foreman? tell gentlemen. there has ^[*] yet will —the jury:) you what I am record, arrived at further from the Allen I have been I have one further I am The Court of I am ladies and As of ^[*] been no verdict consequences record will them a modified Not be answered going about proceedings am, its presence -!- yet, verdict? sir. going entirety, to ask gentlemen. to commit. adequately Appeals, sir. moment, Charge, seated, clearly ^[*] were you say yes in- re- passed, judge then the trial jurors inquiry make discreet If their deliberations. the status they close at

estimate

hand, Brown is their instruction under

clearly inappropriate. This case—broad facts, arguably issues, close on its

in its lengthy to fit the trial5 —fails in its of de- after hours

first formula fourteen

liberation, Flan- v. see United States (1st

nery, 1971), Bur- Cir. F.2d 880 roughs States, F.2d 431 v. United Thaggard (10th 1966), but cf. States, F.2d of the trial failure probable imminence

to ascertain the unquestionably The in-

verdict is clear. then, Allen, modified from

struction

not the this case. reason reverse BLEW, Appellee,

Ada Secretary RICHARDSON,

Elliot L. Welfare, Health, Education Appellant.

No. 72-1777. Appeals,

United States Court Circuit.

Seventh

Argued June 1973. Aug. 23,

Decided conspiracy. The en- and one of of mail fraud tried on ten counts The defendant was days testimony. compassed ten

Case Details

Case Name: United States v. Harold Silvern

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 7, 1973

Citation: 484 F.2d 879

Docket Number: 72-1133

Court Abbreviation: 7th Cir.