United States v. Harold Silvern

484 F.2d 879, 1973 U.S. App. LEXIS 8452

Opinions

SPRECHER, Circuit Judge.

This case has been reheard en banc in an attempt to establish greater certainty in district courts in this Circuit, and to conserve judicial energy by possibly avoiding appeals and retrials, in regard to the giving of the so-called Allen or “dynamite” charge as a supplemental instruction to a deadlocked jury.

The Allen instruction was approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896) ¹ and although no court has held that the' instruction itself is unconstitutional, it has had a stormy career.²

From 1963 to 1969, the Allen charge, supplemented by a second paragraph advising the jury that the case “must be retried” if the jury failed to reach a verdict, was generally given in this circuit as part of the Manual on Jury Instructions in Federal Criminal Cases (La Buy Instructions), 33 F.R.D. 523, 611 (1963).³

In United States v. Brown, 411 F.2d 930, 933-934 (7th Cir. 1969), we held as follows:⁴

Because the district courts within this Circuit have encountered difficulties in determining what precise language to include in a supplemental charge and when it should be given, it is important for this, court to articulate with specificity our standards. In dealing with supplementary instructions, the primary task of an appellate court is to set the standards for the proper conduct of the trial judge faced with a hung jury. We have reconsidered not only the presently approved form of the Allen charge as set forth in the LaBuy Instructions, but the numerous judicial decisions and scholarly literature in this field critical of the Allen charge. We have concluded that it would serve the interests of justice to require under our supervisory power that, in the future, district courts within this Circuit when faced with deadlocked juries comply with the standards suggested by the American Bar Association’s Trial By Jury publication. These standards specifically provide:

5.4 Length of deliberations; deadlocked jury.

(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:

(i) that in order to return a verdict, each juror must agree thereto;

(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can he done without violence to individual judgment;

(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and

(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

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In order to avoid the potential for prejudice and coercion to which we have referred, district courts in this Circuit are required henceforth to charge deadlocked juries in both criminal and civil cases in a manner consistent with the recommended standards.

Although our 1969 language was designed to produce uniform practices within the circuit, it has not had that result, possibly because of the final words that deadlocked juries be charged “in a manner consistent with the recommended standards.” Widespread deviations from and substantial supplements to the ABA standards have been considered to be “consistent with” them and “complying” with them. United States v. DeStefano, 476 F.2d 824 (7th Cir. 1973).

In this case, the supplemental instruction was exceedingly lengthy and went far beyond the ABA standards.⁵ A majority of the court agrees with the panel of this court “under the facts of this case that neither the wording of the supplemental charge containing the ABA recommendations nor the timing and circumstances surrounding the charge violated defendant’s constitutional rights” and “no prejudice occurred from the supplemental charge.” United States v. Silvern, No. 72-1133 (7th Cir. February 27, 1973). The majority also agrees with the panel’s disposition of the other issues in the case and we affirm the defendant’s conviction.

However in the interest of judicial economy and uniformity, and under our supervisory power, district courts in this circuit are henceforth required to do the following in both civil and criminal cases.

If a supplemental instruction is deemed necessary and provided that the following instruction has been given prior to the time the jury has retired, it may be repeated: ⁶

The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.

Experience has now shown that variants in language or supplements or additions serve merely to proliferate appeals.⁷

If in any jury trial tried after thirty (30) days from this opinion a supplemental instruction relating to a deadlock is given other than in the above form, a resulting conviction will be reversed and remanded for a new trial.⁸

In addition, we suggest that the district courts consider whether the need for supplemental instructions may be reduced by sending into the jury room at the time the jury retires either a written copy or a tape recording of, together with equipment to enable the jury to hear, the complete instructions as given by the court.

Affirmed.

1 . “ . . . [I]n a large proportion of cases absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted witli candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.”

2 . For a complete history of the Allen charge and attempts by the various circuits to deal with it, see United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177 (1971) (on rehearing en bane) and United States v. Bailey, 468 F.2d 652 (5th Cir. 1972), affirmed en banc, 480 F.2d 518 (5 Cir. 1973).

3 . “In a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusions of others, yet you should examine the questions submitted with proper regard and deference for the opinions of each other, and you should listen to each other’s opinions with a disposition to be convinced. It is your duty to decide the case if you can conscientiously do so. If a much larger number of jurors favor conviction, a dissenting juror should consider the reasonableness of his doubt when it makes no impression upon the minds of other jurors, equally intelligent and impartial, and who have heard the same evidence. If upon the other hand, the majority favors acquittal, the minority should ask themselves whether they might not reasonably doubt the correctness of their judgment.

“If you should fail to agree on a verdict the case must be retried. Any future jury must be selected in the same manner and from the same source as you have been chosen, and there is no reason to believe that the ease would ever be submitted to twelve men and women more competent to decide it, or that the case can be tried any better or more exhaustively than it has been here, or that more or clearer evidence could be produced on behalf of either side.”

4 . In Brandom v. United States, 431 F.2d 1391, 1399 (7th Cir. 1970), we added: “. . . [W]e reaffirm the future use by the District Courts of this Circuit of the standards and practices set out in Brown.”

5 . “In a large portion of cases, absolute certainty cannot be expected. The verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusions of others.

“You should examine the questions submitted with proper regard and deference for the opinions of each other. You should consult with one another and deliberate with a view to reaching an agreement if it can be done without violence to individual judgment.

“It is your duty to decide the case if you can conscientiously do so.

“In the course of deliberations a juror should not hesitate to reexamine his own views and change his opinion, if convinced that it is erroneous, but no juror should surrender his honest conviction as to the weight or the effect of the evidence solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict. “If a much larger number of jurors favor conviction, the smaller number of jurors should consider the reasonableness of their doubt when it makes no impression upon the minds of other jurors who are equally intelligent and impartial and who have heard the same evidence.

“If on the other hand, a much larger number of jurors favors acquittal, the smaller number of jurors should ask themselves whether they might not reasonably doubt the correctness of their judgment.

“Likewise, the jurors in a majority favoring a finding for either party should ask themselves whether they might not reasonably doubt the correctness of their judgment, when it makes no impression upon the minds of the minority jurors equally intelligent and impartial as they are and who have heard the same evidence.

“If you should fail t'o agree on a verdict, the case is left open and undecided. Like all cases, it must be disposed of some time. Any future jury must be .selected in the same manner and from the same source as you have been chosen, and there is no reason to believe that the case would ever be submitted to twelve men and women more competent to decide it, or that the case could be tried any better or more exhaustively than it has been here, or that more or clearer evidence could be produced on behalf of either side.”

6 . In the ABA Commentary to Section 5.4 (a), this instruction which is Instruction 8.11 of Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 97-98 (1961) is suggested as “[i]llus-trative of an instruction consistent with section 5.4(a).”

7 . We realize that the ABA standard and illustrative instruction are not ‘‘as graven in stone” (United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177, 1188 (1971) and that the Committee on the Operation of Jury System of the Judicial Conference of the United States suggested a variant in paragraph (v) of the ABA standard, but unless and until we suggest any further change in the future, the instruction quoted in this opinion is the only deadlock instruction to be given.

8 . See United States v. Fioravanti, 412 F.2d 407, 420 (3rd Cir. 1969): .' . [Hjereafter this court will not let a verdict stand which may have been influenced in any way by an Allen charge.” See also, Judge Goldberg’s opinion concurring in part and dissenting in part in United States v. Bailey, 480 F.2d 518 (5th Cir. 1973) : “I would permit no criminal conviction to stand in any future federal trial in this Circuit that does not strictly comply with the Standards recommended by the American Bar Association.”