United States v. William Todd Armstrong, Kenneth W. Myrick, and Owen K. Stephenson,defendants-Appellants

WRIGHT, Bеfore MERRILL and Circuit EAST,* Judges, Judge. and District EAST, Judge: District defendants-appellants The above-named (Armstrong, Myrick, Stephenson) ap- peal respective judgments their convic- frauds. We tion and sentence for federal jurisdiction § note our under U.S.C. and affirm.

BACKGROUND engaged in scheme so- Appellants were liciting guarantee advance fees for loan agreements. Myrick Stephenson were principals of a trust fund whose assets guarantees. Armstrong were to seсure the finder, charging put a fee acted as financially people troubled in touch with Myrick Stephenson. The two trustees agreement enter into an would * East, Honorable William G. Senior Oregon, Judge for States District sitting designation.

individual, fee, agree providing spite failed to on all for an additional counts deliberation, guarantee eight days trust would certain and were forced adjourn, having sup- partial balance sheet was reached loans. The trust’s obtaining verdict. plied to the individuals to assist sheet, however, The balance

these loans. During days deliberation, the seven or non- listed assets which were overvalued there were a number of difficulties. The appellants were indicted existent. principal incidents included: activity. based on this 1. After the court instructed the jury, Myrick Stephenson were tried on 15 but began, before deliberations even two of (18 including counts mail fraud U.S.C. jurors attempted speak to the court (18 1343), wire fraud U.S.C. in- § § reporter, apparently to tell her that one ducement to travel interstate in order to juror did not want to serve and wished to (18 giving and false defraud U.S.C. § reporter be dismissed. The court told them (18 application information in a loan U.S.C. speak not to to her but to write a note to 1014). The trustees were convicted two § brought the court. The court jury Armstrong on all counts. was convicted on any and asked if member wished to be fraud, jury wire with the one count of excused, but none did. being reach a verdict on three unable to deliberation, day 2. On the fourth proceeded other counts. The trial over the stating: jury note was received “This weeks, jury spent course of four and the Twenty Dead Lock minutes later a [sic].” days period seven in a deliberat- two week stating: second note was received “We are ing returning partial before its verdict. not dead lock as stated. We have not [sic] significant arguments appel- The most even voted on all the counts. We have one appeal center on the activities lants raise on juror your who refused to listen to instruc- jury re- and the District Court’s respond tions.” The court did not to these sponse. possible Appellants point to a third notes. threat, party to the revelation of the nu- day 3. The next a note was received split, juror, and merical to the health of one juror go from Fletchеr that he wanted to to extra-jury arguing an communication his brother’s funeral in Louis. After St. erred in not declar- that counsel, the court discussions decided Further, ing appel- a mistrial on all counts. Friday to allow him to leave on a and court’s in- lants characterize certain of the early following return week. charges1 structions as Allen and claim that deliberations, day 4. the sixth On impermissibly -charged the twice Allen juror Gingras court received a note from stating that hеr husband had taken two review the conduct of the Our careful night calls the before which had used ob- jury and the action of the court reveals a “ your ‘Tell wife scene said: tangled but not reversible course of events. stop hassling my brother-in-law at ” additionally reject appellants’ other as- We respond court.’ The court did not to this signments of error. letter.

JURY CONDUCT following Tuesday morning, 5. The prolific ‍‌‌​​​​‌‌‌‌​​​​​‌‌​‌‌​‌‌​​‌​‌‌‌​‌​​​‌​​‌​‌‌​​‌​​​‍deliberations, writers. Notes day juror

This was a last Goldstein in the gave stаting flowed to the court like rainwater that she a letter to the court condition, rain forests. Each note indicated another that she was worried had heart jurors, level of frustration and more incidents about the threats to one of the end, juror No. 1 refused to follow the court’s jury turbulence. In the instructions, and wished to be excused they she could not resolve all their differences— 1. See Allen v. 41 L.Ed. 528 replies phone in- Government call court had

for health reasons. trigger presump- here in, jurors they would be volvеd did brought told the soon, tion not an outside influence. gave second al- because was discharged below). merely part (discussed argues call was leged Allen intra-jury in this case. Before differences to deliberate. then returned pre- determining we invoke this lunch, juror about whether court asked Goldstein us health, sumption, would have presence of the other Government her out of the her, stop line outside communica- she draw a between jurors. Before the court could concerning intra-jury matters she could tions replied that felt matters. and that those which relate other that afternoon come to decision she remain to finish. artificial, drawing often creates dis Line lunch, reality after, crete units where a continuum as the went Soon note, quick this one exists. We should not too to sub received another court overreaching many ject eight jurors. It stated real situations com signed by Doing partmentalization. us complaints juror Jackson and noted so leads about absurdity, grasp down road to juror Gingras’ opinion that he involved farther lunch, ing illogically her. After more and more for the dis phone in the calls to foreperson they preserve lines com were tinctions which court asked partments initially how created with such and he allowed as deadlocked Responding ques- judicially next more honest to court’s reverence. is far were. tion, acknowledge jury to continuum and assert stated that could return he genuine ques for our decision. In some The court then told them to basis verdicts. incidents, “go Eight jury we are ultimate back and return a verdict then.” tions about jury guilty ly ver- later the returned not so concerned with' their nature minutes they prejudice on have worked dicts on some counts no verdicts on the fairness of the defendant’s trial. others. Klee, (9th F.2d See United States v. 494 394 appellants join urging The four 835, denied, 62, Cir.), 419 95 cert. U.S. S.Ct. grounds on these inci- for reversal based (1974); 42 L.Ed.2d 61 Cavness United the extraneous communication cre- dents: States, (9th 1951). Thus, .Cir. presumption preju- ated an unrebutted presented having been with facts establish- dice; the revelation deliberations and ing jury irregularity, whether or we split required a mistrial be de- numerical speak presump- in terms of the rebuttable clared; required illness Goldstein’s mis- prejudice or of the fairness tion of trial; required and the first deadlock note trial, we same defendants’ reach the result. the question We consider of ex- mistrial. incidents, reviewing to se- traneous communication most decisions on challenge recognize we rious to the verdict. that the District Court is in a position we better than determine appellants correctly assert The happened prejudicial. what whether presence upon of outside influences reason, Klee. we United States v. For prejudice, presumрtion establishes a accord some deference its decision when contrary only by strong rebuttable show applying the abuse discretion standard. ing Remmer v. United by the Government. 227, 450, course, States, 74 look 347 S.Ct. 98 L.Ed. Of a careful U.S. States, will re (1954); v. United 146 influence be a 654 Mattox source 140, 50, (1892); step vealing evaluating possible preju 36 917 U.S. L.Ed. 170, Goliday, there was indeed some third dice. United States 934, denied, telephone party cert. involvement in the calls 171-72 Cir. 410 U.S. least, 1386, Gingras. her juror At the husband 93 35 L.Ed.2d 597 S.Ct.

1333 rеceiving the outside calls short additional time was involved it would take to finish messages challenge transmitting to her. the case. We see no reason significantly, they may have been court’s conclusion and find no error. More Finally, deference is accorded to the Dis- party, although third some be made timing declaring trict juror actually lieved that Jackson made the mistrial due to a deadlocked party calls. But even if it was a third who Cawley, F.2d calls, States v. 630 1345 placed the we are convinced that the recanted its first an- District Court did not abuse its discretion in nouncement of deadlock 20 minutes after it refusing to declare a mistrial as a result. professed deliberations, it. At the end of The calls did not refer to the merits. the court allowed the to re- did not articulate threats nor were partial turn the verdicts it dis- Gingras with either side. Juror identified missed it. There was no abuse of discre- stated in her note to the court that shе' tion. not let the would calls interfere with her

duty juror.2 as a These facts render this quite

case those where unlike reversal has ALLEN CHARGES States, required. been ‍‌‌​​​​‌‌‌‌​​​​​‌‌​‌‌​‌‌​​‌​‌‌‌​‌​​​‌​​‌​‌‌​​‌​​​‍Remmer v. United instructions, part As of its initial the Dis- 347 98 L.Ed. 654 U.S. following: trict Court included the (attempt juror); to bribe a Mattox v. Unit retire, you your duty When it will be 140, 13 ed 36 L.Ed. U.S. S.Ct. your discuss case with fellow (jury exposed to extra-record facts and reaching agree- for the an public opinion possible on the evidence and ment, you can do so. verdict); Winkle, United States you Each of must dеcide the case for (5th Cir.), 827, 100 cert. yourself, you but should so do after (1979) (jury 62 L.Ed.2d found evidence, considering listening all of the pleaded guilty). out that a co-defendant had your jurors to the views of fellow and on inject irregularity outside calls did an discussing fully jurors. with the other it here, jury into the deliberations but we change your opinion Do not be afraid to agree with the District Court that the es- you wrong, you if think are but do not process sential fairness of the was not com- simply come to a because other decision promised. jurors may right. think that it is appellants’ We find no merit in observe, case, you This as can has taken a assignments concerning other three of error great prepare deal of time and effort incidents. Mere revelation of the try. There is no reason to think that although jury, numerical division of a to be could be better tried another time or' discouraged, compel a mistrial. does not quali- that another wоuld be better Williams, See United States v. important, It is there- fied to decide it. (9th 1971). Nor does the illness of fore, Cir. you to reach a verdict if can do so juror necessarily If, therefore, a mean that conscientiously. it looks at must declare a mistrial. In the ab may point you difficulty some that have juror sence of coercion of the or due to reaching in verdict and if a a unanimous illness, is, again, prejudice. there no substantially greater you number of verdiсt, apprised jurors may of Mrs. agreed the court itself Gold- on a the other convinced, stein’s condition and was and she want to ask themselves about the basis feelings when a substantial agreed, that she could continue for the their objective (2d proper though apply Dis- 2. Even courts must an n.ll Cir. it was for the juror Gingras’ evaluating juror questions test in influence be- trict Court to consider state- they jurors may testify in since were before the cause about their deliber- ments her note ations, Miller v. United 403 F.2d court. 1059, 1060, (1965).” ... a conclu- L.Ed.2d reached different 957] number have is instruction mild form of The first sion. charge. the traditional Allen See Devitt attempt you to reach important It is that Blackmar, Jury Practice 1 Federal course, but, only if each of verdict 18.14, (3d ed. Instructions .at 604-07 § having his or you can so after made do reference to the cost of It does not make Do determination. her own conscientious trial or the need for a new trial an honest conviction as not surrender It is shorter and less case of a deadlock. weight and effect of evidence Moreover, pointed. this instruction was simply to arrive at a verdict. charging of given part of the initial as Following receipt of the Goldstein note jury. recently noted We have that Allen- counsel, and after consultation with type charges part of initial in- given told court called given coercive as structions are not as thosе they soon. The court would be dismissed v. Wil- after a deadlock. United States gave following then instruction before liams, 1980). Here, Cir. sending them back: court that in the case of a dead- indicated case, gave beginning you I At lock, might minority want substantial concerning your duty instructions sworn light reexamine its views those you a verdict could in return using majority. language, such is When your manner conscience. consistent suggest practice better to also ma- say, surrendering an That is to without light jority position in should reexamine its you honest belief and conviction that minority.3 But the absence of such held, course, and, of in manner consist- reciprocal opening these mild pointed ent with the evidence. I out charge (cid:127) instructions does not render im- you important to return a it was giv- permissibly We conclude that coercive. you do so verdict if without surren- ing charge the first was not error. dering an honest conviction. Appellants next assert the sеcond again. You consult those instructions instruction, first, you. incorporating the are in the room with im They correctly proper. note that this court Appellants in- characterize both these against repeat per se rule has established charges and structions as Allen assert ing an Allen to a deficient, improper. The first is each well, States v. Sea 1162-63 argue, it does not instruct the because 1977). We are here called on to majority light its views in to reеxamine new factual decide the effect of this varia- second, they minority. those of the The rule. In application tion on the of this claim, per se rule in this a violation of Seawell, had announced a deadlock against -charging jury. circuit twice Allen a gave charge. court a full Allen and the evaluating for Allen When informed that additional deliberation Our standard dissenting two charges recently was enunciated in United had failed to convince thе 762, Beattie, v. 613 F.2d 764 and jurors, States the court recalled the re- 982, Cir.), denied, 446 100 charge. cert. U.S. S.Ct. soon returned read the 2962, (1980): 64 L.Ed.2d 838 deter This guilty. “[T]o with a verdict of court held propriety the trial use of mine court’s necessarily overly coercive case, charge exam an Allen in this must is reversible error twice and ruled it ‘in its context and under ine instruction Allen-charge jury. the circumstances’ to see it had all however, the facts differ upon the Jenkins

coercive effect 445, alleged charge first Allen markedly. 446 United 380 U.S. S.Ct. [85 withhold such would also be better appears. a need until

1335 Fried, given sary. United States v. 576 F.2d 787 shorter, than that milder form was a denied, 895, (9th Cir.), 99 Further, ‍‌‌​​​​‌‌‌‌​​​​​‌‌​‌‌​‌‌​​‌​‌‌‌​‌​​​‌​​‌​‌‌​​‌​​​‍given part cert. it was as in Seawell. (1978). 255, evaluating 58 L.Ed.2d 241 The second opening instructions. affidavit, magistrate should read it of the than a reminder charge was no more whole, important- “giving a common first, Most was milder still. and interpretation.” sense realistic Id. at charge was the pseudo-Allen the second ly, Bowers, 790, quoting United Statеs v. 534 given had reached only one after 186, (9th Cir.), cert. 429 timing of these 192 n.5 impasse. The content and 360, 942, (1976). 50 L.Ed.2d 311 significantly less coer- U.S. 97 S.Ct. charges render them decision deference” is accorded the encountered in Seawell. “Great cive than those magistrate who concludes that such a Accordingly, unnecessary to ex- we find Spinelli showing has been made. v. United prohibition to this case.4 tend the Seawell 410, 419, 584, 590, short, States, practice 89 S.Ct. Although better in a U.S. (1969); utilize such an 21 L.Ed.2d 637 simple case would be to States once, Whitney, that the only we conclude instruction charges Hearsay to the did not statements from victims are con District Court’s reliable, Mahler, sidered United States v. reversible error. constitute 1172, (9th Cir.), 1174-75 cert. de- nied, U.S. L.Ed.2d OTHER ISSUES (1971), appellants presented have Appellants raise several other issues why no reason the victims here should be disposed briefly. which from others who are considered different purposes. Finally, argue impro- several relied on for these Appellants first pattern revealed the affidavit evidence obtained in the detailed prieties tainted the tending Myrick combined with the information of the offices of and Ste- search suggests that argue the affida- discredit the asset valuation phenson.5 first activity present. probably there is criminal support the search warrant did not vit in support specific This is sufficient information probable cause to believe a establish Spinelli warrant. The affidavit issuance of the search crime had been committed. States; Texas, Aguilar v. question page detailed 15 docu- United was a 12 L.Ed.2d 723 setting forth information from nu- U.S. ment guaran- victims of the trust’s loan merous promises, experts from con-

tee statements We also conclude that cerning the asset valuation on trust’s refusing grant Court acted sheet, statements and informa- balance falsity in the hearing questions on affi establishing why sought the rеcords tion or not the few inaccuracies davit. Whether specified. the location were at disregard in reckless may have been stated truth, sufficient de a search war for the there existed

In order to issue rant, tails and facts in the affidavit ‍‌‌​​​​‌‌‌‌​​​​​‌‌​‌‌​‌‌​​‌​‌‌‌​‌​​​‌​​‌​‌‌​​‌​​​‍exclusive magistrate need conclude from support probable activity proba possible these errors to affidavit criminal is the that cause for the issuance of the war- bly prima facie case is not neces- search shown —a charges Appellants argue within the Seawell rule nor renders the that because the had 4. room, improperly writing District coercive. in in the the Court’s action the instructions Allen was en- coercive nature of the opportunity Although Armstrong purports join to reex- hanced. It is true that the also in 5. charge keeps message search, question the objecting amine the its before to the office we availability strengthens jury, expectation pri- the nature and its whether he had a sufficient vacy Illinois, 128, “reminder” instruction. How- of the court’s v. 439 U.S. to do so. Rakas case, ever, 421, (1978). under the facts of this we do not L.Ed.2d 387 99 S.Ct. 58 availability brings these believe that this 1336 only necessary. portion a small of the trial was Thus, was hearing

rant. no 154, 171-72, However, Delaware, 39 438 U.S. him. of the wit v. devoted to Franks 2674, 2684, (1978). nesses, 57 L.Ed.2d 667 were of his and three 98 S.Ct. six clients testifying were bankers about those others Appellants claim that certain dоcu four individuals. Since there were defend which into evidence ments were admitted ants, unduly disproportionate this not is were outside were in the search and seized “clear,” “manifest,” does not make out the Assuming, ar scope warrant. the of the which be prejudice or must shown “undue” relating to guendo, that the five documents not to to reverse a District Court’s decision parties not named in warrant trusts and grant a 14 to sever. United Rule motion seized, was harmless. improperly were it Escalante, 1197, 1201(9th v. F.2d States 637 portion were a of the docu These small denied, 856, 101 Cir.), 449 U.S. S.Ct. cert. introduced. ments seized and 154, (1980). 71 66 L.Ed.2d merely cumulative to the other were adequately support documents which error It was not for the court Thus, required. no reversal convictions. prosecution to rebut the letter of allow States, 400 696 Pasterchik v. F.2d United Armstrong’s clients with the details one denied, 982, (9th 1968), 89 cert. 395 U.S. Cir. The District Court has transaction. 2142, (1969). Ct. 23 L.Ed.2d 770 S. determining what wide discretion rebut arguе that it was error for the Appellants introduced and how it tal evidence be refer the to a document court to Perez, presented. v. States will copy of a which was a document evidence Cir.), denied, 167, 173 (9th F.2d cert. 419 491 asked about. not in evidence which 858, 106, (1974). 42 L.Ed.2d 92 U.S. 95 S.Ct. however, Appellants, concede that the court Here, proper it for the court to deter was re could have allowed the Government not mine in order that letter mis introducing opеn its case for prosecution put jury, lead the could Morgan requested v. United exhibit. context, proper though that con its even 686, States, (9th 703 Cir. technically bear on Arm text did not 1064, denied, 962, 19 cert. 390 U.S. strong’s of mind. state 1160 Since document L.Ed.2d by copy referred to the court was objection Finally, we dismiss exhibit, there was no error. unintroduced comment, on Arm prosecution’s to the stand. Al strong’s take the failure to only by raised Several issues are prohibited, are though comments Grif such Armstrong. We conclude California, 380 U.S. fin evi merit. There was sufficient without (1965); v. United Wilson L.Ed.2d Armstrong guilty to find fraud dence 60, 13 37 L.Ed. properly infer from wire. The (1893), will a conviction reverse testimony prior numerous about his appears com for error was in that he knew or reckless transactions the ver may possibly have affected ment disregard of truth about fraudulent single isolated statem dict. it was a time activities nature of the trust’s ent;6 any it did not stress inference of engaged activity for which he he silence, and there were guilt because Themy, States convicted. See United We conclude that curative instructions. Cir. beyond a rea harmless this statement was Passaro, United States sonable doubt. Armstrong claims it was error severance, 1980), cert. grant arguing his motion sentations, during closing prosecution Ladies Gentlemen?” its ar- stated deny misrepre- gument: you the “Did hear him -U.s. - jurors pronounce- its first , ears of from 66 L.Ed.2d sounding in re- it “becomes a lecture ment ‍‌‌​​​​‌‌‌‌​​​​​‌‌​‌‌​‌‌​​‌​‌‌‌​‌​​​‌​​‌​‌‌​​‌​​​‍рer proof,” is coercive. id. 1163 and se each af- conviction are judgments of us. That is not case before shall issue mandates several firmed now.

AFFIRMED.

MERRILL, concurring: Judge, Circuit but opinion East’s Judge concur

I respecting to a word like add

would charge.

Allen or ob- nothing coercive otherwise I find Bryant, A. BRYANT Linda Thomas giving balanced jectionable in wife, Plaintiffs, husband and to de- charge retires before Allen v. advice, me to be sound It seems to liberate. abstract, COMPANY, as how given in the RESEARCH TECHNICAL quite corporation, foreign problem handle a should Defendant-Appellant. course of their likely encounter in the Further, nothing I see coer- deliberations. COMPANY, jurors to permitting the RESEARCH improper in TECHNICAL

cive or foreign Third-Party corporation, charge” in the Allen such an “outset have Plaintiff, neither during In jury room deliberations. addressing judge is the case of a deadlock. context COMPANY, a EASTMAN CHEMICAL danger of is in context foreign Third-Party corporation, giving can arise from coercion Defendant-Appellee. jury might charge. danger is that the charge language from the conclude PRODUCTS, CHEMICAL EASTMAN judge accept the the refusal of INC., Third-Party Plaintiff-Appellee, public report of that in the jury’s deadlock If, giv- reached. a verdict must be interest deadlock, charge CABINETS, in the context of en AND CUSTOM FURNITURE advice INC., corporation, sounds in terms of assistance —of Ashland an Idaho problem it jury might foreign corpora- solve the Company, how the Chemical tion, Company, If per se coercive. faces —it is not Paint now and Columbia corporation, Third-Party foreign in the De- be found not exists it must coercion fendants-Appellees. was directed to continue fact deliberate, in so used but in 79-4514. No. directing it. Appeals, United States Court Seawell, United States Ninth Circuit. 1977), cert. (1978), L.Ed.2d 666 4, 1981. March Argued and Submitted re- when, having been without held Aug. Decided given a jury, quested report to a response time in second

second deadlock, serve does at a Repeated or instruction.

assistance ringing it should still

time when

Case Details

Case Name: United States v. William Todd Armstrong, Kenneth W. Myrick, and Owen K. Stephenson,defendants-Appellants

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 17, 1981

Citation: 654 F.2d 1328

Docket Number: 80-1507 to 80-1509

Court Abbreviation: 9th Cir.