United States v. Darwin Clark Bailey

"After the most careful consideration of the Allen Charge and the context in which it was presented in this case, we have concluded that its use here was not so prejudicial as to deprive appellant of a fair trial and a unanimous verdict based on proof beyond a reasonable doubt.

"Our refusal to reverse this conviction should not be taken to mean that we have tacitly approved of the Charge or that we intend, in the future, to ponder each case on its peculiar facts. On the contrary, we know from the experience in this circuit and from an examination of the experience in others that the use of the Allen Charge is an invitation for perennial appellate review. As the Arizona Supreme Court said when it abolished it in 1959:

`When and wherever its use is called into question it must stand or fall upon the facts and circumstances of each particular case. ItPage 520has given, and we believe each use will give us, harassment and distress in the administration of justice. No rule of thumb can circumscribe definite bounds of when and where, or under what circumstances it should be given or refused.

`We are convinced that the evils far outweigh the benefits, and decree that its use shall no longer be tolerated and approved by this court.' State v. Thomas,86 Ariz. 161,342 P.2d 197,200(1959).

"Hereafter, in this circuit, trial judges are not to give instructions either in the main body of the charge or in the form of a supplement that direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his. Such an instruction will be deemed error, normally reversible error. Conceivably, in very extraordinary circumstances the error may be found so inconsequential as to avoid the necessity of reversal on appeal. But hereafter this court will not let a verdict stand which may have been influenced in any way by anAllenCharge.

"We predicate our decision on the basis of the potential for prejudice its future use may generate and the profound difficulty in confining its use within just and equitable bounds. Its peccancy comes from its tendency to hurt, from its tendency to erode the jurors' capacity for meaningful group deliberation with its concomitant arguing, influencing, and exchange of views. As a prophylactic device to eliminate future vexation, our prohibition shall have prospective application only in those jury trials which shall be conducted hereafter.

". . . That this court has such supervisory power is hardly deniable. In La Buy v. Howes Leather Co.,352 U.S. 249,77 S.Ct. 309,1 L.Ed.2d 290(1957), the United States Supreme Court held that `. . . supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system.'Id.at 259-260,77 S. Ct. 309. Moreover, this pronouncement by the Nation's supreme judicial authority has been reaffirmed by every Court of Appeals, including our own, that has confronted the issue. In a very recent opinion of this court, Guam v. Camacho,470 F.2d 919(9th Cir. 1972), Chief Judge Chambers acknowledged the existence of the `supervisory power' of this court.See alsoUnited States v. Thomas, 146 U.S. App.D.C. 101,449 F.2d 1177(1971) (en banc); United States v. Daniels,446 F.2d 967(6th Cir. 1971); In re Ellsberg,446 F.2d 954(1st Cir. 1971); United States v. Jones, 140 U.S.App.D.C. 70,433 F.2d 1176(1970), cert. denied402 U.S. 950,91 S.Ct. 1613,29 L.Ed.2d 120(1971); Dellinger v. Mitchell, 143 U.S.App.D.C. 60,442 F.2d 782(1971); Ralph v. Warden,438 F.2d 786(4th Cir. 1970), cert. denied,408 U.S. 942,92 S.Ct. 2869,33 L.Ed.2d 766(1972); United States v. Butera,420 F.2d 564(1st Cir. 1970); United States v. Fioravanti,412 F.2d 407(3d Cir.), cert. denied,396 U.S. 837,90 S.Ct. 97,24 L.Ed.2d 88(1969); United States v.Page 521Brown,411 F.2d 930(7th Cir. 1969), cert. denied,396 U.S. 1017,90 S.Ct. 578,24 L.Ed.2d 508(1970); Boeing Co. v. Shipman,411 F.2d 365(5th Cir. 1969) (en banc); United States v. Dooling,406 F.2d 192(2d Cir. 1969), cert. denied,395 U.S. 911,89 S.Ct. 1744,23 L.Ed.2d 224(1969); Sanders v. Russell,401 F.2d 241(5th Cir. 1968); Pea v. United States, 130 U.S.App.D.C. 66,397 F.2d 627,637(1968) (rehearing en banc); ACF Industries, Inc. v. Guinn,384 F.2d 15(5th Cir. 1967), cert. denied,390 U.S. 949,88 S.Ct. 1039,19 L.Ed.2d 1140(1968); Government of Virgin Islands v. Lovell,378 F.2d 799(3d Cir. 1967); Thomas v. United States,368 F.2d 941(5th Cir. 1966); Tate v. United States, 123 U.S.App.D.C. 261,359 F.2d 245(1966); United States v. Freeman,357 F.2d 606(2d Cir. 1966); Black v. United States, 122 U.S.App.D.C. 393,355 F.2d 104(1965); United States v. Inman,352 F.2d 954(4th Cir. 1965); Ford v. United States, 122 U.S.App.D.C. 259,352 F.2d 927(1965) (en banc); Smith v. Katzenbach, 122 U.S.App.D. C. 113,351 F.2d 810(1965); Natural Resources, Inc. v. Wineberg,349 F.2d 685(9th Cir. 1965), cert. denied,382 U.S. 1010,86 S.Ct. 617,15 L.Ed.2d 525(1966); Jones v. United States,342 F.2d 863, 119 U.S.App.D.C. 284 (1964) (en banc); United States v. D'Angiolillo,340 F.2d 453(2d Cir.), cert. denied,380 U.S. 955,85 S.Ct. 1090,13 L.Ed.2d 972(1965); United States ex rel. Sturdivant v. New Jersey,289 F.2d 846(3d Cir.), cert. denied,368 U.S. 864,82 S.Ct. 109,7 L.Ed.2d 61(1961); Wildeblood v. United States, 106 U.S.App.D.C. 338,273 F.2d 73(1959) (Burger, J.); Delaney v. United States,199 F.2d 107(1st Cir. 1952); Helwig v. United States,162 F.2d 837(6th Cir. 1947)."

"(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:

(i) that in order to return a verdict, each juror must agree thereto;

(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and

(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

"(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall notPage 522require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

"(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement."