United States v. Robert Samuel Scruggs

583 F.2d 238, 1978 U.S. App. LEXIS 7934
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 6, 1978
Docket77-5537
StatusPublished
Cited by57 cases

This text of 583 F.2d 238 (United States v. Robert Samuel Scruggs) 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. Robert Samuel Scruggs, 583 F.2d 238, 1978 U.S. App. LEXIS 7934 (5th Cir. 1978).

Opinions

GEE, Circuit Judge:

Appellant Robert Samuel “Tackhammer” Scruggs was indicted, along with five others, on one count of conspiracy to transport altered money orders in interstate commerce, in violation of 18 U.S.C. § 371. Twelve substantive counts charged him with causing these altered money orders to be transported in interstate commerce and aiding and abetting others to commit this offense, in violation of 18 U.S.C. §§ 2 and 2314. A jury trial resulted in conviction of Scruggs1 and two of his co-defendants. In this appeal, appellant seeks a reversal on three grounds. First, he contends that the trial court erred, considering all the circumstances of the case, in giving an Allen charge. Second, he contends that there was no evidence to support his convictions on seven substantive counts. Finally, he contends that reversible error was committed by the admission of certain evidence. We disagree with all three contentions and affirm his convictions.

This case involved the operation of a money order scheme in Northern Mississippi, Tennessee and Alabama in late 1976 and early 1977. The plan consisted of purchasing Travelers Express Company money orders in small amounts, altering these amounts to more substantial sums, and then cashing the altered money orders at various banks and businesses throughout the area. Twenty-five money orders were purchased from Mr. Quik Store No. 23 in Booneville, Mississippi, for amounts ranging from $.50 to $2.00. The same money orders were subsequently altered, cashed and ultimately presented for payment in amounts ranging from $46.00 to $193.00. Because the orders were all payable through The First Northwestern National Bank in Faribault, Minnesota, the bank collection process resulted in the money orders’ traveling in interstate commerce. Appellant Scruggs was the apparent leader of this operation, procuring the money orders from “a friend,” participating in their alteration with a check-writing machine and receiving and distributing the proceeds from the cashed instruments.

Appellant’s primary complaint on appeal concerns the trial court’s use of the much-maligned Allen2 or “dynamite,” charge after the jury had begun its deliberations. The jury had received the case at approximately 5:45 p. m. on a stormy Friday evening after a five-day trial. At approximately 10 p. m., the trial judge and counsel met in chambers to discuss the alternative possibilities of a recess until Saturday morning or a supplemental charge and further deliberations. Appellant’s lawyer asked the court to allow the jury to continue deliberations for another 30 minutes or an hour so that they might reach a verdict on their own. At 10:28 p. m. the judge sua sponte called the jury back in and delivered what he characterized as a mild Allen charge.3 At 10:38 p. m. the jury was asked [240]*240to resume its deliberations. The verdict was returned at 11:26 p. m. Two of the five co-defendants were acquitted; appellant Scruggs and two others were convicted.

Appellant objected to this charge at trial on the basis of its timing but not its content. On appeal, he urges that the trial court committed reversible error in giving this charge. He repeats his trial grounds for objection and adds a general attack on the Alien charge as being inherently coercive.

At the outset we note that the content of the charge at issue cannot seriously be questioned. It is well settled in this circuit that the Allen charge is permissible,4 within the limitations of our prior decisions. United States v. Bailey, 480 F.2d 518 (5th Cir. 1973) (en banc). We have upheld versions of this charge so long as they avoid “the pitfalls of coercive deadlines, threats of marathon deliberations, or pressure for surrender of conscientiously held minority views.” United States v. Skinner, 535 F.2d 325, 326 (5th Cir. 1976), [241]*241cert. denied, 429 U.S. 1048, 97 S.Ct. 756, 50 L.Ed.2d 762 (1977). We require trial judges, when giving any version of Allen, to make it clear to each juror that he must conscientiously adhere to his or her own honest opinion, and the judge must avoid creating the impression that a juror-caused mistrial is “improper, questionable, or contrary to good conscience.” Thaggard v. United States, 354 F.2d 735, 739 (5th Cir. 1965). The charge given below was well within these limitations.5

Appellant’s main attack, however, is not on the content of the charge. He contends that the totality of the circumstances conclusively show that the charge was coercive: the charge was given at 10:28 p. m. after only four and one-half hours of deliberation, no request was made by counsel or by the jury for additional instructions, there was no indication of deadlock, and the verdict was returned only 48 minutes after the charge was given.

We previously have recognized that whether an Allen charge will be given, or when it will be given, is within the sound discretion of the trial judge. United States v. Bass, 490 F.2d 846, 855 (5th Cir. 1974); Hale v. United States, 435 F.2d 737, 742 (5th Cir. 1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). We have never required the trial judge to wait for requests from counsel or from the jury before giving the charge. See United States v. Bass, supra; Hale v. United States, supra; Thaggard v. United States, supra. While we think it preferable that juries not be kept late in the evening, we must conclude, as we did in Bailey, that the timing complained of does not allow us to find that the jury was coerced. We have approved an Allen charge that was given after only 65 minutes of deliberation and that was followed by a verdict 25 minutes later. Andrews v. United States, 309 F.2d 127, 129 (5th Cir. 1962). See also United States v. Bailey, 468 F.2d 652, 664-65 (5th Cir. 1972), aff’d en banc, 480 F.2d 518 (5th Cir. 1973). Despite the dictum in United States v. Williams, 447 F.2d 894 (5th Cir. 1971), and Webb v. United States, 398 F.2d 727 (5th Cir. 1968), relied on by appellant, we find no abuse of discretion here.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Weaver
Fifth Circuit, 2025
United States v. Victor HIll
99 F.4th 1289 (Eleventh Circuit, 2024)
State v. Pendleton
537 P.3d 66 (Idaho Supreme Court, 2023)
Arturo Rubinstein v. Yoram Yehuba
38 F.4th 982 (Eleventh Circuit, 2022)
Danita Carol Thetford v. State
Court of Appeals of Texas, 2021
Dawn Best v. William Johnson
714 F. App'x 404 (Fifth Circuit, 2018)
United States v. Ebolose Eghobor
812 F.3d 352 (Fifth Circuit, 2015)
United States v. Crystal S. Douglas
572 F. App'x 876 (Eleventh Circuit, 2014)
United States v. Jose Andaverde-Tinoco
741 F.3d 509 (Fifth Circuit, 2013)
United States v. Dennis Calvin Bush, Jr.
727 F.3d 1308 (Eleventh Circuit, 2013)
United States v. Peter Makusi Otemba Owuor
397 F. App'x 572 (Eleventh Circuit, 2010)
United States v. Vanvliet
542 F.3d 259 (First Circuit, 2008)
United States v. George David Salum, III
257 F. App'x 225 (Eleventh Circuit, 2007)
United States v. Valles-Zamora
252 F. App'x 701 (Fifth Circuit, 2007)
United States v. Rudolph
224 F.R.D. 503 (N.D. Alabama, 2004)
City of Grand Forks v. Ramstad
2003 ND 41 (North Dakota Supreme Court, 2003)
United States v. Albert Jordan
316 F.3d 1215 (Eleventh Circuit, 2003)
United States v. Santana
83 F. Supp. 2d 224 (D. Puerto Rico, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
583 F.2d 238, 1978 U.S. App. LEXIS 7934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-samuel-scruggs-ca5-1978.