United States v. Darwin Clark Bailey

480 F.2d 518, 1973 U.S. App. LEXIS 9434

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 1973
• Docket: 72-1799
• Status: Published

Opinions

PER CURIAM:

The court convened en banc to consider the propriety of the Allen¹ charge. The facts of the case and the charge in question are set out in the panel opinion. United States v. Bailey, 5 Cir., 1972, 468 F.2d 652. We adhere to our decisions approving the Allen charge within the limitations therein delineated. See, e. g., United States v. Sutherland, 5 Cir., 1972, 463 F.2d 641, 647-648; United States v. Williams, 5 Cir., 1971, 447 F.2d 894, 898-900; Posey v. United States, 5 Cir., 1969, 416 F.2d 545, 551-552; Sanders v. United States, 5 Cir., 1969, 415 F.2d 621, 629-632; Thaggard v. United States, 5 Cir., 1965, 354 F.2d 735, 738-739. Cf. Green v. United States, 5 Cir., 1962, 309 F.2d 852, 854-856; Powell v. United States, 5 Cir., 1961, 297 F.2d 318, 319-322, for supplemental charges which went beyond the pale.

The judgment of conviction is affirmed.²

1 . Allen v. United States, 1896, 164 U.S. 492, 501-502, 17 S.Ct. 154, 41 L.Ed. 528.

2 . Appellant, a Mississippi highway patrolman, was charged with bank robbery. The evidence against him, inter alia, included an eye witness who saw appellant leaving the bank when the robbery alarm sounded, “bait money” in his possession, and his detailed confession.

An example of the advocacy which is calculated to cause a deadlocked jury, thereby making some form of supplemental charge necessary is seen in this record. Notwithstanding an inquiry from the district court to the prospective jurors whether each of them would vote not guilty unless convinced of guilt beyond a reasonable doubt, defense counsel, on voir dire, inquired as follows:

“Now, please listen carefully to this because this is very important and vital to the defense of this case. If there is a single juror who is seated in this jury box who is not convinced beyond all reasonable doubt as to this man’s guilt, they are not convinced that the Government has proven his guilt in the manner prescribed by law, if that doubt continues to exist in your mind and you should be the only one of those twelve jurors, and after re-consultation with your fellow jurors if you are still convinced that his guilt has not been proven beyond all reasonable doubt, do you tell me here and now under your solemn sworn oath as jurors that you will have the courage and the fortitude, if necessary, as long as you believe that, to stand alone and to face those other eleven jurors and continue to vote not guilty so long as you have that reasonable doubt in your mind? Do you tell me that you have that courage and that fortitude? Will you nod your head each and every one? You tell me that you will not be swayed by the majority rule but as long as you have that reasonable doubt in your mind you can stand tall and straight and say, ‘No, I am not convinced of his guilt and I will continue to vote not guilty if it takes staying here till doom’s day’?”