United States v. Leon Blevinal

607 F.2d 1124, 1979 U.S. App. LEXIS 9959, 5 Fed. R. Serv. 351
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 5, 1979
Docket78-5712
StatusPublished
Cited by15 cases

This text of 607 F.2d 1124 (United States v. Leon Blevinal) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Leon Blevinal, 607 F.2d 1124, 1979 U.S. App. LEXIS 9959, 5 Fed. R. Serv. 351 (5th Cir. 1979).

Opinions

RONEY, Circuit Judge:

Defendant appeals his conviction on four firearms charges, arguing first, the district court gave what he regards as an impermissible Allen -type charge; second, the court erred in admitting three weapons into evidence; third, there was insufficient evidence to support the convictions; and fourth, there was no evidence upon which the jury could conclude that the weapons relating to the indictment met the statutory definition of “firearm.” Finding no error, we affirm.

Defendant and two others formulated a plan to purchase firearms for resale. Two lots of handguns were successfully bought and resold, but while negotiating for the sale of a third lot, defendants suspected that federal agents were investigating their activities. In order to ascertain whether they were in fact under surveillance, defendant and the others conducted a dummy delivery run. Their suspicions were borne out. Federal agents stopped the motor home in which defendant and his accomplices were riding, in order to search it for guns. Instead of illegal firearms, agents recovered only owner’s manuals for Colt AR — 15 rifles and High-Standard shotguns from defendant’s suitcase. Defendant and the others were released.

Defendant was subsequently found in possession of 25 pistols. Along with the handguns, agents recovered an AR — 15 rifle and two High-Standard shotguns, the kind depicted in the owner’s manuals previously seized from defendant.

Defendant was convicted under a four-count indictment charging conspiracy to violate the federal firearms acts, 18 U.S.C.A. §§ 371, 922(a)(1), 922(b)(3), 922(b)(5), 922(m), 923(a), 924, engaging in the business of selling firearms without a license, 18 U.S.C.A. §§ 923, 924, exporting arms without proper registration, 22 U.S.C.A. § 1934, and engaging in business as a firearms dealer without having paid a licensing fee, 18 U.S.C.A. §§ 923(a), 924. The charges all related to handguns. No charges were [1126]*1126brought in connection with the rifle and shotguns seized from defendant.

So-Called Allen charge

When the jury was initially convened, the trial court informed the members that they would sit each day “to about a quarter after five or five thirty, something like that.” On the third day of trial the jury was charged, and at approximately 2:00 p. m., deliberations began. At approximately 5:55 p. m., no verdict having been returned, but without any indication that the jury was experiencing difficulties, the court returned the jury to the courtroom. Following is the statement the court then made to the jury, with the words about which defendant complains on appeal in italics.

THE COURT: Now, members of the Jury, I know you have not yet reached a verdict in this case and as I told you on Monday morning about generally how we operate and so on but of course I didn’t go into how we operate if we got into a situation like this where we did not have a verdict late in the day. So, I want to be sure you understand how we intend to operate. We, of course, have spent three days already on this case. We have no intention of giving up on it. I want you to understand that. We have no intention of giving up on it. So, what I intend to do is, it’s now about five minutes to six or something like that. If you have not made a verdict by say six forty-five it would be my intention to let you go home and come back in the morning and resume your deliberations in the morning because as I say we don't have any intention of giving up on the case. We intend to get a verdict. So, what I suggest to you, that you do now is you go back to the Jury room and resume your deliberations and if you can reach a verdict by six forty-five that’s fine. If you cannot then we will come back in the morning and resume the deliberations after you have had a night’s rest.
I don’t want you to feel that you are under any pressure at all to reach a verdict. I just simply wanted you to know how we intended to operate. So, I suggest now that you go back to your Jury Room and resume your deliberations. We will follow that general course.
All right.

After retiring again, defendant’s counsel objected to the court’s instruction, “We have no intention of giving up on it,” because it carried with it “a connotation that the Court means forever and ever.” The court refused counsel’s suggestion that the jury be further instructed that a mistrial would be granted if the jury members could not agree on a verdict without surrendering honestly held beliefs.

Without rendition of a verdict, the jury recessed about 45 minutes later. The next morning, after one and one-half hours of deliberations and without any additional instructions, a verdict of guilty on all four counts was returned.

The “Allen charge,” Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), is a supplemental instruction designed to encourage jury unanimity, generally given when it appears that the jury may be having difficulty reaching a verdict. The Supreme Court has approved such supplemental instructions, ás has this Court, sitting en banc. United States v. Bailey, 480 F.2d 518 (5th Cir. 1973). Considered in its entirety, so long as the charge does not unduly coerce the minority into surrendering its views for the purpose of rendering a verdict, or set a time limit for the deliberations, the charge may be approved. United States v. Cheramie, 520 F.2d 325, 329, 330 (5th Cir. 1975). Nonetheless, where given, the charge is subject to close scrutiny, since the potential for coercion is present in even the most mild supplemental instructions, considering jury members’ zeal to get the job done.

Defendant argues first that the district court should not have returned the jury for supplemental instructions on its own motion, but should have waited for a suggestion from the jury itself, or from counsel, that the jury was experiencing dif[1127]*1127ficulties. In the first place this Court has not required such a procedure. See United States v. Scruggs, 583 F.2d 238, 241 (5th Cir. 1978). In the second place, there was no indication that the jury was having difficulty. It had not been out an inordinate length of time. In the third place, we do not interpret the court’s actions as concern for whether the jurors were having difficulty seeking a verdict, but rather as concern for the fact that the jury members were entitled to some guidance since they had not finished their work at the usual adjournment time. The court had initially told the jury that it would sit each day until five or five-thirty, and the jury was entitled to know by 5:55 p. m. what procedure would be followed as it continued its work. It does not appear that the court intended to do any more.

The coercion about which defendant complains is the district court’s suggestions, “We have no intention of giving up on it.” In considering whether any statement unduly coerced a jury into rendering a verdict, the court looks “to the language employed and that language’s impact, under the circumstances, on the finders of facts.”

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United States v. Leon Blevinal
607 F.2d 1124 (Fifth Circuit, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
607 F.2d 1124, 1979 U.S. App. LEXIS 9959, 5 Fed. R. Serv. 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leon-blevinal-ca5-1979.