United States of America, Plaintiff-appellee, v. Muhammad Jalal Deen Akbar, Aka Gerald Leland Marity,defendant-appellant, 698 F.2d 378 (9th Cir. 1983)

Akbar was convicted of one count of air piracy, in connection with the April 9, 1980 hijacking of a commercial airplane from Ontario, California to Havana, Cuba. Seven crew members were on board during the flight. Akbar surrendered to Cuban officials in Havana and reappeared in Miami on November 18, 1981.

The hijacker was described by crew members as a black man with a mole on the left side of his nose. The descriptions of his height and weight varied significantly. Four of the seven crew members who viewed a photospread five weeks after the hijacking identified Akbar as the hijacker.

On December 16, 1981, 20 months after the hijacking, Akbar was arrested near Ontario, California. A United States passport with four Cuban immigration stamps was found in his possession, along with airline tickets, including one for a Cuban airline.

At trial, four government witnesses identified Akbar as the hijacker. Circumstantial evidence also linked him to the crime: he owned the type of gun used, lived and worked in Ontario, California, and belonged to the Black Muslims. The last was relevant because, during the flight, the hijacker said, "I'm one of Muhammed's." Akbar did not testify.

The Cuban stamps in Akbar's passport were admitted as evidence that the passport was stamped in Cuba while in his possession. The defendant argues that the slight probative value of the stamps was outweighed by their prejudicial effect.

A district judge's ruling on the admission of relevant evidence will be overturned only for an abuse of discretion. United States v. Kearney, 560 F.2d 1358, 1369 (9th Cir.), cert. denied, 434 U.S. 971, 98 S. Ct. 522, 54 L. Ed. 2d 460 (1977). There was no abuse here.

The trial jury was not administered in any normal or approved manner, with the judge's inquiries directed to the foreperson of the jury. During its deliberations, the jury sent the judge an ambiguous note asking for " [t]ranscripts of all witnesses of defendant." Seeking clarification, the judge questioned all jurors as to what testimony was desired and by whom.¹ 

The questioning concerned only the request for repetition of testimony, although some jurors' responses apparently referred to the jury's split on the issue of guilt. The jurors seemed to indicate that 11 of them had decided that the defendant was guilty with one still undecided. The identity of the doubtful juror also was revealed.

The judge determined that the single juror wished some identification testimony reread. Other jurors agreed that she should hear it. There followed some questions to the doubtful juror about her need for a rereading of the testimony.

The court reporter was then directed to read the desired testimony and the jurors were supplied with paper and pencil which they had requested. That began some time before noon and ended at 3:30 p.m. The jury retired to deliberate and arrived at a verdict at 4:55 p.m.

The apparent disclosure of the jury's division was unsolicited. The judge's questioning related to a collateral issue, in contrast with the facts in Brasfield v. United States, 272 U.S. 448, 47 S. Ct. 135, 71 L. Ed. 345 (1926). His inquiry as to the numerical division was not intended to reveal the jury's split on the issue of conviction. See Carlton v. United States, 395 F.2d 10, 11 (9th Cir. 1968), cert. denied, 393 U.S. 1030, 89 S. Ct. 642, 21 L. Ed. 2d 574 (1969). Moreover, the judge's questioning did not create a coercive atmosphere, particularly since the requested material was read before the jury resumed its deliberations.

The judge's dialogue with the jury was not reversible error in this case. However, under other circumstances, when questioning individual jurors has created a coercive atmosphere, this court will find it very difficult to affirm a resultant conviction.

The judgment is AFFIRMED.

KENNEDY, Circuit Judge, concurring:

I concur in the judgment. I do not believe the serious deficiencies in the interrogation procedure followed by the trial judge in this case warrant reversal. The substantial time that it took to read the testimony, and the further deliberations, persuade me that any coercive pressure was eliminated and that the jury's verdict was freely reached. I write separately because the case comes close to presenting reversible error and such interrogations should not be repeated.

As the questioning proceeded, juror-by-juror, it should have become increasingly apparent that the jurors took different views as to the necessity for hearing the additional evidence. An individual poll in this circumstance came perilously close to intruding upon the jurors' deliberations. The error in procedure was compounded when the court continued to question juror No. 7. The court's objective in inquiring which juror wanted the testimony is puzzling. In any event, it does not justify a series of questions each of which tended to isolate the requesting juror.