Unpublished Disposition, 930 F.2d 29 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 930 F.2d 29 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Dennis Wayne BLY, Defendant-Appellant.

No. 89-50281.

United States Court of Appeals, Ninth Circuit.

Argued and submitted Sept. 10, 1990.Decided April 1, 1991.

Before FLETCHER, BOOCHEVER and WIGGINS, Circuit Judges.


MEMORANDUM* 

Dennis Wayne Bly appeals his conviction following a jury trial for bank robbery. Trial testimony elicited the following facts: On October 25, 1988, Bly's codefendant John Uland robbed a teller at a bank in Pomona, California. He got into a green station wagon driven by another man. Both were described to police who arrived on the scene as thin, six-foot tall white men. The robber was further described as having a slight mustache and dark hair. The getaway car driver was not further described.

A witness gave Officer Joseph Waltman the license number of the getaway car, which police determined was registered to the address of 863 Telamon Lane in Pomona. Officer Waltman and his partner proceeded to the house. Approximately thirty minutes after the robbery, they saw Bly arrive in a brown Buick Riviera and enter the house without knocking. Bly is a tall, thin Caucasian with a beard, mustache and light hair. When Bly emerged with a woman and child and drove away in the Buick, the officers followed and then stopped the car.

At the suppression hearing, Officer Waltman stated that as the car pulled over he saw Bly attempting to hide something between himself and the woman. As he approached the car he saw a large quantity of money and a metal object that could have been a weapon. Officer Waltman had Bly and the woman exit the car. He reached into the car and retrieved $525--approximately one-half the amount stolen from the bank--in small bills, as well as a metal pipe, spoon, and hypodermic needle. On this basis, Officer Waltman held Bly until two witnesses to the robbery arrived. One of these witnesses identified Bly as the getaway car driver; the other identified him as the robber. Following arrest and indictment, a jury convicted Bly of bank robbery in federal district court.

Bly moved to suppress the fruits of Officer Waltman's stop of his car. Following an evidentiary hearing, the district court ruled that there was reasonable suspicion for the stop and denied the motion. The district court's factual and credibility findings are reviewed under the clearly erroneous standard. United States v. Sarkissian, 841 F.2d 959, 962 (9th Cir. 1988). The existence of reasonable suspicion to stop a vehicle is reviewed de novo. United States v. Thomas, 863 F.2d 622, 625 n. 2 (9th Cir. 1988).

Bly argues that the facts that (1) he and the getaway driver were both six feet tall, slim, white males, and (2) he entered without knocking the house at which the registered owner of the getaway car lived, do not constitute reasonable suspicion. We reject this argument. Taken together, these are "specific articulable facts, together with the rational inferences drawn therefrom that reasonably warrant suspicion that the person to be detained may have committed ... a crime." United States v. Maybusher, 735 F.2d 366, 371 (9th Cir. 1984), cert. denied, 469 U.S. 1110 (1985).

Bly attempts to avoid this conclusion, first, by noting that he had a beard and light hair while the description of the robber included only a mustache and dark hair. However, there were two men involved in the robbery--the robber and the getaway car driver. Even though Bly's description was partially inconsistent with that of the robber, it was not inconsistent with that of the getaway car driver--for whom no description of hair characteristics was available.

Bly next notes that the description of the getaway car driver was very general--six-foot tall white male with slight build--and, therefore, the fact that Bly matched this description had little significance. While Bly might have a point if the description is viewed apart from the link to the residence, an evaluation of reasonable suspicion turns upon "all of the circumstances." United States v. Holland, 510 F.2d 453, 455 (9th Cir.), cert. denied, 422 U.S. 1010 (1975). In this case, the description was coupled with an address and the two cannot be evaluated in isolation.

Bly also attempts to cast doubt on the importance of the fact that the registered owner of the getaway car lived at the house he entered by characterizing this as a "mere association" with a place connected to criminal activity. However, as first noted, Bly's association with the residence cannot be separated from the fact that he also fit the description of the getaway car driver. Furthermore, Bly entered the house without knocking, as if he lived there. Finally, Bly entered the house approximately one-half hour after the robbery, when the participants would naturally be returning to a safe-haven.

We affirm the district court's denial of Bly's motion to suppress evidence.

The district court selected jurors to replace challenged jurors in alphabetical order as they appeared on the panel list. The district court overruled Bly's objection to this procedure. The propriety of this procedure is a question of law reviewed de novo. See United States v. Nelson, 718 F.2d 315, 318 (9th Cir. 1983) (implicitly applying a de novo standard).

The law is clear that the Constitution does not prohibit the procedure at issue because people with surnames beginning with letters of the alphabet are not a cognizable community group. E.g., Walker v. Goldsmith, 902 F.2d 16, 17 (9th Cir. 1990) (per curiam). Bly contends, however, that this is a non-random procedure in violation of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1869. However, statistical randomness is not required. Nelson, 718 F.2d at 319. In grappling with the problem of determining whether a procedure "directly affects the random nature of the selection process," the Nelson court seems to have indicated that a panel should look to whether the procedure used had the possibility of allowing discrimination against a cognizable group--either by adopting a non-objective standard for choosing jurors or by giving some other indication that discrimination might have occurred. See id. at 318-19. This test takes into account the fact that although a litigant need not show prejudice, id. at 318, he must show a substantial violation rather than merely a technical violation of the Act, id. at 318, 28 U.S.C. § 1867(a).

Bly has pointed to no facts indicating that discrimination against a cognizable group might have occurred. Alphabetical selection of jurors from a venire is objective; it does not involve discretion on anyone's part. Indeed, the fact that 30 of the 34 panel members were eventually chosen as jurors indicates that the procedure had virtually no effect on the composition of the final jury. Although one circuit has disapproved the practice of selecting jurors alphabetically, see United States v. Puleo, 817 F.2d 702, 706 (11th Cir.) (holding that the practice is not reversible error), cert. denied, 484 U.S. 978 (1987), and we also disapprove because of the appearance of non-randomness, it does not constitute a substantial violation of the Act.

C. The District Court's Comments to the Jury

On the afternoon of its first day of deliberations, the jury requested a rereading of one witness' testimony. On the afternoon of the second day, the jury requested a rereading of the testimony of the woman who left the house with Bly. Before having that testimony reread, the court stated:

[The court reporter] can't be rereading everybody's testimony again and again. It raises other questions ... I will do this but I urge you for anything else use your heads to come up with a decision. Nothing lasts forever, not even jury deliberations.

After having the testimony reread, the court added:

Go back and deliberate. Do it with a [sic ] open mind, and remember, you're here to decide the guilt or innocence of the defendant. It's an important case to the government and defendant. And if you could possibly do so, come up with a decision, unanimous verdict. So ordered. Go back to the jury room. We'll have you deliberate until 4:30 p.m.

Bly moved for a mistrial on the ground that these comments amounted to an improper "Allen " charge--"a supplemental instruction given by the court to encourage a jury to reach a verdict after that jury has been unable to agree after some period of deliberation." United States v. Nickell, 883 F.2d 824, 828 (9th Cir. 1989). The district court denied the motion and the jury returned a guilty verdict twenty minutes later.

The propriety of a jury instruction is reviewed for abuse of discretion. See United States v. Wauneka, 842 F.2d 1083, 1088 (9th Cir. 1988). In the situation of an Allen -type charge, abuse exists when the instruction had a coercive effect in context. Id. This court has considered four factors in making this judgment: (1) the form of the instruction; (2) the period of deliberation following the instruction; (3) the total time of deliberations; and (4) other indicia of coerciveness. See, e.g., United States v. Hooten, 662 F.2d 628, 636 (9th Cir. 1981), cert. denied, 455 U.S. 1004 (1982).

The government argues that this instruction is not an Allen -type charge because it does not tell jurors to reexamine their beliefs and there was little indication of deadlock among the jurors. See Nickell, 883 F.2d at 828 (an Allen charge is given to a jury that is "unable to agree."). Regardless of whether we agree with the government, the form of instruction in this case is much less coercive than the typical Allen instruction. If there is a common thread among Allen charges, it is that they usually include a request to the minority jurors to reexamine their beliefs in light of the majority's. See, e.g., United States v. Mason, 658 F.2d 1263, 1265 n. 1 (9th Cir. 1981) (charges which state only that jurors should "reconsider potentially unreasonable positions" are the "mildest form" of Allen charges); Nickell, 883 F.2d at 828 (instruction stated, inter alia, "you should not be reluctant to change an opinion expressed earlier if a review of the evidence and the instructions and discussion with your fellow jurors fairly convinces you that you should do so"); United States v. Beattie, 613 F.2d 762, 763 (9th Cir.) (instruction stated, inter alia, "if only one or two [jurors] had doubts, that they should reappraise those doubts and consider the views of the [ir] fellow jurors and decide whether those doubts are reasonable when so many of their fellow jurors don't see them as reasonable"), cert. denied, 446 U.S. 982 (1980). The supplemental instruction in this case included no such request.

Further, because the district court did not instruct jurors to reexamine their beliefs, there was no need to remind the jury not to surrender their beliefs. See United States v. Garner, 663 F.2d 834, 840-41 (9th Cir. 1981), cert. denied, 456 U.S. 905 (1982). In Garner, this court found the following instruction, given after several hours of jury deliberation without notification of deadlock, not to be grounds for reversal:

The one thing I do want to stress to the members of the jury, and if I am able to do this, I know you all realize the expense of trial to everyone involved in it, to both sides, to yourselves. I know that all of you realize the importance of the case to the defendant and to the Government, that it is an important case, that it be resolved.... Well, I know you're fine people and doing the best you can, and I will ask you at this time to retire to the jury room and continue your deliberations and endeavor to reach a verdict if you can, and we'll stand by and see what progress is made.

Id. at 841 n. 4. The instruction in this case resembles the instruction in Garner in both tone and language. While we question the judiciousness of the district judge's instruction, we hold that it was not coercive.

Given the extremely mild nature of the instruction as well as the fact that the jury had not indicated that it was deadlocked, any error in not giving Bly a chance to suggest an alternative instruction was harmless. See United States v. Frazin, 780 F.2d 1461, 1469-71 (9th Cir.) (holding that court's failure to notify defendant or his counsel of deadlocked jury and court's ex parte message to the jury to continue its deliberations was harmless error), cert. denied, 479 U.S. 844 (1986).

We AFFIRM the judgment of the district court.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3