United States v. James Michael Martin

740 F.2d 299, 1984 U.S. App. LEXIS 19881
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 2, 1984
Docket82-5159
StatusPublished
Cited by4 cases

This text of 740 F.2d 299 (United States v. James Michael Martin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. James Michael Martin, 740 F.2d 299, 1984 U.S. App. LEXIS 19881 (4th Cir. 1984).

Opinions

PER CURIAM:

Following a jury trial the appellant was convicted of conspiracy to import hashish, conspiracy to import hashish with intent to distribute, importation of hashish and possession of hashish with intent to distribute. He now claims that the trial court erred (a) in giving “an unbalanced Allen charge”, (b) in admitting into evidence a boat registration card found in an automobile at the [301]*301proposed off-load site, (c) in failing to grant a mistrial when a drug enforcement agent testified that he had found a ski mask during a search of the T-Craft boat, which search was conducted during the trial, and (d) in failing to instruct the jury to disregard certain remarks of the assistant United States attorney that allegedly placed a burden upon the defendant to prove his innocence.

Finding no merit in any of these exceptions, we affirm.

I

At about 2:30 a.m. on November 2, 1981 the sailing ship, Anonymous of Rorc, entered the North Edisto River in Charleston County after completing a crossing from Lebanon. It was loaded with 9600 pounds of hashish and had three crew members plus a captain. Shortly after entering the North Edisto River this ship was met by a white T-Craft fishing boat of about 20 feet in length. There was one individual in the fishing boat and he was wearing a ski mask. This individual boarded the sailing ship and took the helm, while the crew began loading the small boat with bales of hashish. At this time a customs patrol boat spotted the sailing ship and cut on its lights observing the Anonymous of Rorc and the T-Craft. The customs boat backed away a short distance, reported its find by radio and prepared to board. At this time the crew began throwing bales of hashish over the side and the individual wearing the ski mask jumped into the T-Craft and headed up the North Edisto River.

The Coast Guard boarded the sailing ship and arrested the captain and the three crew members. From a chart found aboard the ship it was determined that the off-load site was West Bank Plantation. Officers were sent to this site where they seized a 1973 Plymouth automobile. The temporary registration card for the Evinrude motor of the T-Craft was found in the vehicle. About daybreak the T-Craft was found grounded in Bohicket Creek. James Michael Martin was in the T-Craft and was arrested.

II

Following three and a half days of trial the case went to the jury at 1:25 p.m. At 3:15 p.m. the jury asked to have certain testimony read by the court reporter and asked for an additional instruction as to constructive and actual possession. The charge was given and at 4:07 p.m. the jury came back requesting additional instructions and some additional testimony to be read. There was a delay in getting the court reporter to read the testimony, because two court reporters had been used in the trial due to a death in the family of one of the reporters.

At some time prior to 9:35 p.m. the jury had supper and at that time the court and the jury were waiting for the arrival of the first court reporter in order to read the requested testimony. While waiting, the judge inquired as to the quality of the meal and explained the cause of the delay. The court then stated:

He’ll be here in just a minute and after you hear that testimony that you want to hear, we’ll let you deliberate a while longer and see what happens tonight. I am not going to lock you up in there and forget about you. But I want to tell you something about it. As I said, you haven’t got to give up a firm conviction just to go with the crowd, however, if you’ve got a firm conviction about the case one way or the other, that doesn’t mean you shouldn’t listen to reason and think with the others and reason with the others and see if those of you who, as I said, if you are in the minority on the Jury, listen to the views of the majority; and if you are on the majority on the Jury, you listen to the views of the minority. And don’t get yourselves in a position where you turn your back and say do what you want, I’m through. You listen and reason and I think you can arrive at a verdict after you hear his [302]*302testimony. There is nothing wrong with not agreeing. Occasionally we have a Jury who doesn't arrive at a verdict. You’re not the first Jury.

The judge then stated that a case was tried best the first time and explained the problems of a second trial when each attorney has a copy of the first trial transcript and uses it for the purpose of correcting every little difference in the testimony of each witness between the first trial and the second trial.

There was an exception by the defendant as to that part of the charge “with regard to impeaching a witness’ testimony and so forth” because defendant had used a prior statement in cross-examining some of the government witnesses. The court recalled the jury and gave an explanation of his prior comments as follows:

I want to tell you one thing that I didn’t want to create an improper inference from what I said about the use of the testimony to cross-examine the witnesses. Every good lawyer does that. If I made an incorrect inference, I did not mean to infer that it was improper in anyway to take a person’s testimony that he relayed earlier under oath and cross-examine him with it at some later trial or hearing. If you don’t do that, you’re not worth a grain of salt. Every lawyer knows that. There is nothing wrong with that. I didn’t mean to infer with that.

The additional charge certainly cleared up any misunderstanding that may have resulted from the court’ earlier remarks about the use of prior testimony. Since there was no objection to the first part of the charge, the charge must have been plain error if the defendant is to prevail on this point.

The danger of the Allen type charge is the possibility that the minority on the jury may be coerced into going along with the majority. A decision so arrived at is not the unanimous verdict of each and every juror, but simply the decision of a majority of the twelve. United States v. Rogers, 289 F.2d 433 (4th Cir.1961).

The language of the supplemental charge is simply not coercive of any juror. It treats the majority and the minority equally and advises each to listen to the views of the other. Although it is not the charge approved in United States v. Sawyers, 423 F.2d 1335 (4th Cir.1970), it was not given to a deadlocked jury in an effort to get it to reach a verdict. The jury was still in deliberations, it was still waiting to hear the testimony read back by the court reporter, and although it had been out approximately eight hours, its notes to the court requesting additional testimony and additional charges indicated that it was continuing to deliberate the issues.

The jury reached a verdict at 11:40 p.m., some two hours after the above charge, so there is no evidence that the charge had the coercive effect that we criticized in the unbalanced charge in Rogers, supra.

Since there had been no indication that the jury was having difficulty in agreeing on a verdict, the charge was unnecessary, but since it was not coercive in any way, it was not error. The charge simply repeated what the judge had instructed in his initial charge:

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Related

State v. McClanahan
454 S.E.2d 115 (West Virginia Supreme Court, 1994)
United States v. James Michael Martin
756 F.2d 323 (Fourth Circuit, 1985)

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Bluebook (online)
740 F.2d 299, 1984 U.S. App. LEXIS 19881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-michael-martin-ca4-1984.