United States v. John Jay Beattie
613 F.2d 762
9th Cir.
1980
Check Treatment

*2 proof, about the you have doubts WALLACE, Before BROWNING and wonder those who have no doubts would CURTIS,* Judges, and District Circuit certain as right were to be as Judge. are number of other when a substantial WALLACE, Judge: Circuit suf- jurors find doubts about the seem to ficiency the evidence. A jury guilty on five found Beattie that if would seem to me Conversely, it fraud, and counts of mail 18 U.S.C. § doubts, had only one or two conspiracy one count of to commit mail those and con- reappraise should doubts fraud, appeals Beattie his U.S.C. 371. § jurors and of the fellow sider the views claiming trial conviction are reasona- decide whether those doubts jury, when he instructed the sua erred jurors fellow many ble when so their sponte, ap- in a manner to that similar doubt. don’t see them as reasonable proved in Allen v. United re-exam- simply That This is a method of L.Ed. claims, coercively pro- ining your Beattie about the case and views deprived and him without intention of the Court duced verdict give up an reject anyone of a fair trial. We his claim weight honestly affirm the conviction. held conviction about * Curtis, California, Judge, sitting Jesse W. United States District District of Honorable Central designation. sufficiency of the evidence. But join

will recall I did tell it would be thus do other circuits desirable, time, from time to reap- which have held such an instruction to be views, praise your cited, impact per consider the error se. See cases on views and the views of 774 n. 2 jurors fellow change your 1972). Rather, and to views approach our has been to *3 from time you thought ap- to time if it determine if the when chal propriate to do so. lenged, jury affected the ver improperly Thus,

But always propriety dict. to determine the your remember that conscientious the trial an Allen charge view about court’s use of the evidence case, that must we must examine the give control and instruction up don’t a conscientiously “in its held view context and under all solely pur- the circum poses arriving verdict, at a stances” although, to see if it had a coercive effect say, as I it highly upon is States, desirable that the jury. there Jenkins v. United be a verdict on all substantially 1059, or all of 380 U.S. 85 13 L.Ed.2d S.Ct. very counts or at least on some of (1965); Seawell, 957 United v. States 583 counts. 416, (9th Cir.), denied, F.2d 418 cert. 439 991, 591,

Any other U.S. 99 questions S.Ct. 58 L.Ed.2d 666 that wanted (1978); Cupp, 1287, raise now? Marsh v. right. All 536 F.2d 1290 You will re- (9th Cir.), denied, 981, sume cert. 429 deliberations. We will be at 97 S.Ct. 494, call. (1976). 50 L.Ed.2d 590 later, Five hours following a one and one- Beattie that contends our decision is con- half hour lunch break and three and one- trolled supra, United v. States deliberation, half hours of jury returned There, 463 F.2d gave the trial court a verdict. charge eight an Allen hours prior of deliberation primary any specific judicial reason for disfavor of an indication Allen in the record that un- charge such as that were delivered in this case is its able to reach a potentially coercive verdict. We held that effect upon charge those premature members of a was jury holding coercive. Id. at to a minority position Here, at the the jury time of the had also instruc deliberated for tion. eight United receiving charge States v. hours before (3d Cir.), denied, 416-17 cert. had judge 396 not stated to the trial (1969); Note, were deadlocked. similarity of these Process, Due Economy Judicial and the facts to those of Contreras would Hung Jury: A here, Reexamination of there, the Allen charge Allen was Charge 53 Va.L.Rev. It premature. observed, however, is We have contended that charge the Allen persuades jury difficulty verdict, in reaching a minority jury members to alter their indi charge, sufficient to warrant an Allen may vidually held views not on the basis of be shown other by specific than statements law, evidence and major but on the basis of from jury. example, For deliber- ity opinion. ating eight very simple hours aon factual may issue in itself difficulty. show such We have in approved countless cases States, supra, See Sullivan v. United an Allen charge, g., United (Allen F.2d at 716 instruction “should be Guglielmini, (9th 1979); 598 F.2d 1149 Cir. given only apparent when it is to the dis- United Handy, States v. (9th 454 F.2d 885 trict jury’s from the conduct or the 1971), denied, cert. 409 U.S. length of its deliberations that it is clearly (1972); warranted”) (emphasis added). Moore, (9th 1970); Sullivan States, Thus, v. United while the Contreras decision (9th 1969); Dearinger v. does not focus on the factors that it led Cir.), denied, F.2d 346 cert. charge the determination that an Allen there, tions have “been consistently approved we could conclude that the premature apparently here did not err in [they district the Ninth in a form Circuit when are] concluding sufficiently not more coercive than in Allen.” “deadlocked,” the time of based on delibera- Handy, supra, 454 United States v. F.2d at had tion and the fact returned Moore, g., supra, 889. E. times for further instruc- the court three 1306-07; 429 F.2d at Sullivan rehearing testimony. tions and We need 717; States, supra, Dearinger 414 F.2d at not, however, question reach that because States, supra, 378 F.2d at 348. We premature, even if it were we would not conclude that the instruction here reverse unless the was also coercive. jurors each sufficiently reminded Scruggs, 583 F.2d United States v. give of his ultimate obligation to control- 1978); Smith, ling weight conscientiously to his own opinion. nothing express held There was Martinez, 11 9—20 implied or in that instruction which was *4 denied, 994, 297, Cir.), 92 cert. 404 U.S. S.Ct. more coercive in tendency than the lan- Indeed, (1971). in 30 L.Ed. 259 Contreras guage approved by in the instruction the charge given that the Allen we stated both Supreme Court in Allen. premature, there and that we had “a States, supra, Sullivan v. United 414 F.2d at profound feeling that it was coercive upon 718-19. jury.” the su United States Second, period the of deliberation follow pra, suggests 463 at 774. This F.2d that we ing charge sufficiently long the Allen charge did examine the “in its context and permit jury members to reach a reasoned required by under all the circumstances” as decision, upon percep based their individual States, supra, Jenkins v. United 380 at U.S. Here, tion of the evidence and the law. no 446, 1060, although 85 S.Ct. at we did not suspicion by of coercion was raised an im directly say per opin so. The brief curiam post-charge guilty mediate verdict. We in ion Contreras does not reflect the factual have length considered the of deliberation “profound feeling basis of the it was following charge significant an Allen coercive as a upon jury.” the The Allen instruc coercion, in given detecting tion in factor Contreras and the one different, Moore, 1307, here are but we supra, do not find that 429 F.2d at as have dispositive. circuits, difference We conclude that g., other v. Robin require because, son, Contreras does not 507, reversal (en 560 F.2d 517-18 below, for the reasons set forth we hold 905, banc), denied, cert. 435 98 S.Ct. that under all the circumstances the Allen 1451, (1978); 55 L.Ed.2d 496 United States case, charge given prema in this even if 324, DeStefano, (7th 476 F.2d 337 ture, was not coercive. Pope, denied, 1969), cert. 397 U.S. First, charge given by the the trial (1970). 90 25 L.Ed.2d 132 S.Ct. in this case contained all of the elements elapsed charge While the time charge the between initially by sanctioned the Su- preme significant, dispositive in Allen.1 is it is not Court Instructions ad- verdict monishing jurors posi- to reconsider their the issue. It is but one of the total circum- Supreme approved that, arguments; 1. The Court instructions each other’s if much the stating conviction, larger number were for a dissent- ing juror should consider whether his doubt large proportion in a of cases absolute impres- was a no reasonable one which made that, certainty expected; could not be al- men, upon many equally sion the minds of so though the verdict must be the verdict of honest, If, equally intelligent with himself. juror, acqui- each individual and not a mere hand, upon majority the the was for fellows, other yet escence in the conclusion of his acquittal, minority ought to ask them- question should examine the submitted reasonably they might selves proper regard whether with candor and with a judgment, other; opinions doubt the correctness of a which deference to the of each majority. duty was not concurred in it was their to decide the case States, conscientiously so; supra, could Allen v. United 164 U.S. at listen, disposition convinced, with a at to be S.Ct. jury process considered. The an instruction of dubious merit stances to be con- however, case, deliberated for three and tinues to deteriorate. charge the Allen

one-half hours after be- paramount the threat of problem is contrast, guilty By fore verdict. where, present coercion —a threat even Contreras, where coercion was here, charge “in is found uncoercive its found, only 35 minutes to find the took context and all the circumstances” under receiving defendant its Allen States, under Jenkins v. United 380 U.S. charge. 1059, 1060, Third, say we cannot time the total admonishing The line between jury deliberation, approximately twelve jury “simply keep trying,” ... hours, disproportionate was so to the task Walsh v. before the as to raise an inference that 1967), encouraging jurors to charge coercively produced the Allen extremely surrender their is fine. If beliefs result. The time needed to reach a verdict effective, charge it must follow truly is judge,” is left a trial “best truly dangerous. Judge it is also As Goldstein, (2d Cir.), said, Goldberg pre- has “The is used denied, cert. works, cisely because it because it can blast apparently and he found a verdict out of a otherwise unable to adequate. it to be agree person guilty,” that a is Finally, Bailey, neither Beattie nor the record reveals pres- indicia of coerciveness or upon sure jury. The instruction was disap- The Allen instruction has been *5 not rendered in atmosphere an proved by three circuits. See States over jury’s inability frustration Silvern, 1973) (en v. members, break a deadlock among its nor banc); Thomas, aware of how the stood App.D.C. (D.C.Cir.1971); F.2d 1177 so as to minority position to the F.2d 407

jurors that he speaking directly to (3rd courts, too, Many State them. See, have abolished it or restricted its use. Thus, an examination of the instruction Gainer, g., People 19 Cal.3d under all the circumstances reveals no coer- Cal.Rptr. (1977), 566 P.2d 997 and cases Any cion. prematurity of the resurvey cited at n. 8. For a recent therefore, could not be sufficient to war- objections Marcus, charge, to the see rant reversal. It is the rule of this circuit Allen Instruction in Criminal Cases: Is the extent, that the necessity, and character of Dynamite Charge About Permanently to be supplemental jury instructions is left to the Defused?, 43 Mo.L.Rev. 613 sound discretion of the judge. trial given, If the is to be care should Miller; objec- be taken that it be stated the least Wilson tionable form. The American Bar Associa- (per curiam). form, tion suggested has to be That discretion was not abused. repeated before the retires and later if AFFIRMED. necessary, preferable to that used in this case: BROWNING, Judge, concurring: Circuit represent The verdict must the con- adequately court distinguishes our judgment juror. sidered of each In order decision in United verdict, necessary to return a it is I therefore concur. juror agree each thereto. Your verdict must be unanimous. However, mind, my the instruction in jurors, this approaches your duty, case It is as accepta- limits of consult bility under the law of this A with one another and to with a circuit. bare- deliberate ly acceptable instruction, sanctioned, view once agreement, an tends to become the By new norm. can do so without violence to individual must decide judgment. Each only so but do yourself,

case for of the evidence

impartial consideration In the course jurors. fellow your

with deliberations, to re- not hesitate change your views and your own

examine erroneous. But

opinion if convinced honest conviction

do not surrender evidence effect of weight to the or your fel- opinion of

solely because of the purpose of jurors, the mere

low or for

returning a verdict. You are partisans.

You are sole the facts. Your

judges judges of — the truth from is to ascertain interest in the case.

evidence Project on Mini- Bar Association

American Justice, mum for Criminal Stan- Standards by Jury, Commen- Relating to Trial

dards has been (1968). This form

tary to 5.4§ Circuits,1 approved in sub- in two adopted others,2 in four form

stantially the same employed well opinion would my

and in

in the Ninth. *6 BLEVINS, Thomas E.

Lieutenant Colonel

Plaintiff-Appellant, PLUMMER, W.

The Honorable James Force;

Acting Secretary the Air Green, Commander,

Colonel Paul L. Base, California, De-

Norton Air Force

fendants-Appellees. 77-2163.

No. CV. Appeals, United States Court Cal., Fox, Angeles, P. Los Richard Ninth Circuit. plaintiff-appellant. Dec. Argued and Submitted Petersen, Atty., Los Asst. U. S. D. Steven Decided Feb. Cal., defendants-appellees. Angeles, Angiulo, (1st Silvern, 2. United States v. 485 F.2d 37 1. United States Skillman, 1973); United States v. banc); United States v. (en Thomas, 1971); United States v. (D.C.Cir.1971). Webb