United States v. Robert Webb

816 F.2d 1263, 1987 U.S. App. LEXIS 5272
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 22, 1987
Docket86-1644
StatusPublished
Cited by16 cases

This text of 816 F.2d 1263 (United States v. Robert Webb) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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 Webb, 816 F.2d 1263, 1987 U.S. App. LEXIS 5272 (8th Cir. 1987).

Opinions

BRIGHT, Senior Circuit Judge.

Robert Webb appeals his conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C. App. § 1202(a)(1). Webb contends that the district court erred in giving a supplemental Allen instruction1 after asking for the numerical division of the jury and preliminarily declaring a mistrial. For the reasons discussed below, we reverse Webb’s conviction and remand for a new trial.

I. BACKGROUND

The evidence produced at trial revealed conflicting accounts of the events immediately preceding Webb’s arrest. According to the Government, Webb was detained by two detectives from the City of St. Louis Police Department when his van failed to stop at a stop sign. The detectives asked Webb to step down from the van and produce his driver’s license. When Webb failed to produce a license, he was arrested and patted down. During the search, one of the detectives seized a handgun from Webb’s jacket pocket. The detectives testified that Webb stated he was carrying the gun for protection. According to the defense, Webb had been standing outside his van on the passenger side talking to a passenger inside the van for approximately twenty minutes when two detectives approached him. Although the detectives subsequently patted Webb down, they found no weapon on Webb. Instead, one of the detectives entered the van and came back out with the handgun. Webb denied having any knowledge of the gun. Additional testimony indicated that Webb’s van earlier in the evening did not contain a handgun.

The jury, after having been instructed on the offense, began deliberations at 1:40 p.m. on the second day of Webb’s trial. At 3:05 p.m., the jury requested a rereading or, alternatively, a copy of the instructions. On the suggestion of both Mr. Delworth, the Public Defender, and Mr. Poehling, the Assistant United States Attorney, the court denied the jury’s request and informed them to remember the instructions as read. At 5:15 p.m., the court received another communication from the jury stating that they were unable to reach a unanimous decision. The court, after reading the [1265]*1265jury’s note to counsel, suggested that either of the following procedures would be proper: (1) give the jury a supplemental Allen instruction or (2) ask how the jury stood numerically and whether further deliberations would be productive.2 After soliciting counsel’s views, the court decided to inquire into the numerical division of the jury and, if the division was heavily one-sided, to give the jury an Allen instruction. At this point, Mr. Delworth stated he had no objection to the court’s procedure.

Subsequently, the jury was recalled and the foreperson was asked how the jury stood numerically without indicating whether for guilt or acquittal. The foreperson replied “Eleven for. Eleven for and____” The court declared a mistrial and asked counsel to approach the bench.

During the bench conference, the court reconsidered and withdrew the mistrial ruling observing that the foreperson had not indicated whether the eleven jurors were for acquittal or guilt. The court then decided to give the jury a supplemental Allen instruction. Mr. Delworth, now uncomfortable with the court’s proposed action, objected and moved for a mistrial. The court, however, informed the jury that it would be giving a supplemental instruction and recessed.

In chambers, the court held a conference regarding the Allen instruction it proposed to give to the jury. Mr. Delworth, however, objected to the proposed instruction and stated a preference for the Allen instruction from the Model Criminal Jury Instructions for the Eighth Circuit.3 The court withdrew its proposed instruction, and drafted another. At 5:30 p.m. the trial judge gave the supplemental Allen instruction.4 Fifteen minutes later, the jury returned a unanimous verdict of guilty.

[1266]*1266II. DISCUSSION

In determining whether an Allen charge has an impermissible coercive effect on the jury, we examine four factors: “(1) the content of the challenged instruction, (2) the length of the period of deliberations following the Allen charge, (3) the total time of deliberation, and (4) any indicia in the record of coercion or pressure upon the jury.” United States v. Smith, 635 F.2d 716, 721 (8th Cir.1980) (citation omitted).

In this case, the most obvious indicia of coercion is the court’s inquiry into the numerical division of the jury. It is well settled that a trial judge should not inquire into the numerical division of the jury when the jury has indicated its inability to agree. In Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), the Supreme Court held that “the inquiry itself should be regarded as grounds for reversal.” Id. at 450, 47 S.Ct. at 135. The Court stated:

Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature of extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.

Id.

Moreover, the court deemed the error a per se ground for reversal notwithstanding the absence of a particular exception by counsel because “the error * * * affects the proper relations of the court to the jury, and cannot be effectively remedied by the judge’s charge after the harm has been done.” Id.

The cases in this circuit have consistently followed Brasfield and have held that an inquiry into the numerical division of a jury constitutes a per se ground for reversal of a federal conviction. Cornell v. State of Iowa, 628 F.2d 1044, 1047 (8th Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 944, 67 L.Ed.2d 112 (1981); Jacobs v. United States, 279 F.2d 826, 832 (8th Cir.1960). Only in the rare circumstance that the inquiry reveals an even division of the jury is the coercive effect of the inquiry mitigated to an extent that reversal is not required. Anderson v. United States, 262 F.2d 764, [1267]*1267774 (8th Cir.), cert. denied, 360 U.S. 929, 79 S.Ct. 1446, 3 L.Ed.2d 1543 (1959).

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United States v. Robert Webb
816 F.2d 1263 (Eighth Circuit, 1987)

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Bluebook (online)
816 F.2d 1263, 1987 U.S. App. LEXIS 5272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-webb-ca8-1987.