United States of America, Appellee, v. Robert Webb, Appellant, 816 F.2d 1263 (8th Cir. 1987)

Robert Webb appeals his conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C. App. Sec. 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.

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 jury'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.II. 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, 774 (8th Cir.), cert. denied, 360 U.S. 929, 79 S. Ct. 1446, 3 L. Ed. 2d 1543 (1959).

The Government urges affirmance on the ground that the defendant consented to the procedure by specifically requesting an "Allen type instruction", fn. 2 supra. Moreover, the variance between an approved instruction and the instruction given does not raise the issue of an erroneous instruction because counsel did not specifically object to the court's instruction but merely expressed a preference for the Model instruction of the Eighth Circuit.

The Government's position in part is well taken. Appellant and his counsel did consent to the giving of an Allen instruction unless the jury were hopelessly divided. Yet, an additional element in the equation of coerciveness between court and jury arose when the presiding judge declared a mistrial upon hearing the numerical 11-1 decision of the jury.

The district judge initially directed a mistrial before consulting either attorney. Counsel for Webb immediately moved for a mistrial. Moreover, this counsel later stated his views about the court's Allen type instruction:

THE COURT: I'm going to offer this one [instruction] that was--that you both have seen.

Do you want to object to it?

MR. DELWORTH [appellant's counsel]: Yes, Your Honor, I would prefer the Eighth Circuit, the model criminal jury instructions to the Eighth Circuit. Their modeled Allen instruction.

(Tr. at 192).

We construe this statement as a specific objection to the instruction and requesting the Model instruction.

The coercive effect on the jury of the proceedings which we have outlined is supported by the very short time of fifteen minutes that the jury took to reach the verdict upon receiving the Allen instruction. Accordingly, notwithstanding appellant's initial consent to the inquiry of the jury division, counsel did not waive his objection to the coercive effect of further proceedings including the court's statement of mistrial, plus an Allen charge which omitted a statement advising the jury that the Government must prove guilt beyond a reasonable doubt and suggesting that both minority and majority should re-examine their position. See Potter v. United States, 691 F.2d 1275, 1280 (8th Cir. 1982).

We conclude that the proceedings related in this opinion including the giving of an Allen charge, which we deem as incomplete, served improperly to coerce the jury. Appellant did not consent to the full course of the proceedings relating to the polling of the jury, the declaration of a mistrial, a withdrawal of that declaration and the giving of an incomplete Allen charge. Accordingly, we reverse and remand for a new trial. We believe this result is required by the decisions of this court. See, e.g., United States v. Hollister, 746 F.2d 420, 425 (8th Cir. 1984); United States v. Smith, 635 F.2d at 721.

ROSS, Circuit Judge, dissenting.

In my opinion counsel for appellant effectively waived any objection to the actions taken by the trial court. This waiver is set forth clearly in footnote 2 of the court's opinion. I would affirm the conviction.