United States v. LaRiche

549 F.2d 1088
Court of Appeals for the Sixth Circuit·Decided February 22, 1977·No. Nos. 76-1577 to 76-1580·Published·Cited by 57 cases

Opinion

CELEBREZZE, Circuit Judge.

Appellants appeal their convictions on various counts of a six-count indictment which charged fifteen individuals with conspiracy and possession of goods stolen from interstate commerce in violation of 18 U.S.C. §§ 2, 371 and 659 (1970). The goods in question were 25,000 pairs of blue jeans stolen from a railroad trailer in Cincinnati, Ohio while en route from Knoxville, Ten[1092] nessee to Florence, Kentucky. Appellants, and others named in the indictment, were tried jointly before a jury in the Northern District of Ohio, Eastern Division. The trial lasted eight days. The chief witness for the prosecution was Edmund Eugene Flott, an unindicted accomplice, co-conspirator and government informant. It was Flott’s testimony which linked each Appellant to the stolen goods. At the close of trial and after receiving instructions from the Court, the jury retired to consider a verdict. Twice during deliberations the jury informed the Court of its inability to reach a verdict and each time the Judge responded with the statement that the “jury will continue its deliberations with a view of arriving at a verdict.” Finally, after several hours of deliberation over a four day period, the Judge issued an Allen charge. Within an hour of receiving the supplemental instruction, the jury returned a verdict. Appellant Brody was convicted of possession of goods stolen from interstate commerce as charged in count four of the indictment; Appellants LaRiche and Dal Pra were found guilty of conspiracy to possess goods stolen from interstate commerce as charged in count three of the indictment; and Appellant Cisternino was found guilty of conspiracy to possess stolen goods as charged in count five.

All Appellants join in arguing that the District Court erred in issuing the Allen charge. After the instruction was given, defense counsel uniformly objected to the charge. However, no specific objection was entered as to any particular portion of the charge so we must review the supplemental instructions under the “plain error” standard of Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Billingsley, 474 F.2d 63, 66 (6th Cir. 1973). In United States v. Harris, 391 F.2d 348, 354 (6th Cir. 1968), this Court stated that “[W]e have no criticism with the Allen charge as such. . . .We are of the opinion however that ... it approaches the limits beyond which a trial court should not venture in urging a jury to reach a verdict.” See also United States v. Scott, 547 F.2d 334, 336-337 (6th Cir. 1977). Appellants do not contest the constitutionality of the Allen charge, but contend rather that the charge exceeded the limits established by the Supreme Court in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Specifically, they argue that the charge was defective because it: 1) improperly informed the jury that the case must be disposed of sometime; 2) failed to restate the Government’s standard of proof; 3) erroneously informed the jury that their sole function was to find the truth; 4) coerced only a minority favoring acquittal to re-examine its position; and 5) improperly inferred that the failure to reach a verdict reflected unfavorably on the jury. In addition, Appellant Cisternino arguc-3 that the Court indirectly commented on his failure to take the stand and testify in his own defense. We find these contentions to be totally without merit.

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