UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Reargued En Banc February 26, 1971.
Bazelon, Chief Judge, and Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, Robb, and Wilkey, Circuit Judges, sitting en banc. Robb, Circuit Judge (dissenting).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Appellant was convicted by a jury on both counts of an indictment respectively charging assault with a dangerous weapon and robbery. *fn1 His sentence was a commitment pursuant to provisions of the Federal Youth Corrections Act. *fn2 His sole contention on this appeal is that the conviction was vitiated by a series of trial events, including prominently a version of the Allen charge, *fn3 which in his view improperly induced the verdict the jury returned.
Upon careful consideration of the record, we conclude that the conviction should be reversed, and that future rendition of Allen -type charges must conform to the standard which has been approved by the American Bar Association and adopted by the Third and Seventh Circuits. *fn4 Our reasons for these conclusions follow a summary of the relevant facts. I
James C. Drayton, Jr., was the victim of an armed assault and an accompanying robbery at his apartment in the early hours of a February morning. Shortly after midnight, awakened by the sound of broken glass and footsteps, he went into his kitchen in time to see two men hastily exiting through the back door. *fn5 A police investigation of the incident apparently was unfruitful, and Drayton returned to bed about 5:00 a.m. He was again aroused about 6:30 a.m. by a knock on his front door, and in response to his inquiry as to who was there, a male voice answered "Annette's brother." Drayton opened the door because, in his words, "I figured after he said Annette's brother, I knew Annette." *fn6
Two men entered the apartment, then still unlighted, and one, later identified as appellant, promptly knocked Drayton down with a blow to the head. As Drayton lay face down to the floor with the same man standing over him with a pistol, and later with Drayton's own shotgun, *fn7 the other man *fn8 gathered money and articles of value in the apartment. While the ransacking was in progress, Drayton attempted to arise, and was again struck in the head, this time with the shotgun. A struggle for the shotgun ensued, and Drayton commenced shouting, whereupon the two men left the apartment with part of their collected loot.
The police were again summoned to Drayton's apartment. Drayton was taken to a hospital, where cuts about his head were stitched, and on his return he gave the police the relevant details. Accompanied by Drayton, the police went to the apartment of Annette Thomas, whom he knew, but no one was there. Somewhat later the same day, after some sleuthing on his own, Drayton learned that Miss Thomas had a brother, our appellant, whose address Drayton also procured. There appellant was arrested, and was identified by Drayton as one of his assailants. *fn9
Such was the case portrayed by the Government's evidence at trial and, save for appellant's identity as a participant in the offenses, it was uncontested. Appellant denied his complicity in the affair, asserting that he was at home in bed when the offenses were committed, and in this claim he was partially corroborated by the testimony, of his mother and a cousin. A motion for a judgment of acquittal, made initially on completion of the Government's case in chief and renewed when all the evidence was in, was denied.
The trial judge included among his instructions to the jury, before its retirement for deliberations, some of the ingredients of the Allen charge. In that aspect the judge counseled the jury as follows:
In a large portion of the cases absolute certainty cannot be expected, although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusion of your fellow jurors, yet you should examine the question submitted with candor and proper regard and deference for the opinion of each other. It is your duty to decide the case if you can conscientiously do so. You should listen to each other's arguments with a disposition to be convinced. If much the larger number of jurors are for conviction, a dissenting juror should consider whether his doubt is a reasonable one which makes no impression upon the minds of so many jurors equally honest, equally intelligent with himself.
If on the other hand the majority are for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which is not concurred in by the majority.
After the jury had deliberated about an hour, it sent to the judge a note advising that "we, the jury, cannot come to an agreement." Thereupon, in the jury's absence, the judge, expressing the view that "this is not a case we should have to retry," informed counsel of his intention to excuse the jurors for the day *fn10 but to reconvene them on the following day for further deliberations; and this course the judge pursued, over vigorous objection by defense counsel. The jury was returned to the courtroom, *fn11 whereupon the judge announced that he was "not going to declare a mistrial, and thereby require a retrial of this case before some other jury." *fn12 Rather, he explained, he was excusing the jurors at that time to "come back tomorrow morning at 9:30 with a fresh mind and a night's sleep and seek to reach a verdict about the matter one way or the other." *fn13 He added that he was "sure you ladies and gentlemen know we have a substantial backlog of work, and to spend another day before another jury retrying this case just doesn't make sense to me." *fn14 He again admonished the jurors to "see if you can't decide and come to a verdict, think about it overnight individually." *fn15
The jury reconvened at the appointed time. After about two hours of deliberations, interfused with an in-courtroom rereading of Drayton's testimony at its request, it returned a verdict finding appellant guilty on both counts of the indictment. This appeal followed. II
Every defendant in a federal criminal case has the right to have his guilt found, if found at all, only by the unanimous verdict of a jury of his peers. *fn16 Any undue intrusion by the trial judge into this exclusive province of the jury is error of the first magnitude. When efforts to secure a verdict from the jury reach the point that a single juror may be coerced into surrendering views conscientiously entertained, the jury's province is invaded and the requirement of unanimity is diluted. *fn17 It is against these considerations that we must evaluate any judicial effort to avoid or break a deadlocked jury.
The trial judge is, of course, under a duty to lend guidance to the jury through instructions as to the governing principles of law, including those which define for the jurors their obligations as jurors. It was quite, obviously, in an attempt to enlighten the jury in the latter regard that the judge embraced some of the Allen admonitions within his charge. But the line separating proper guidance from improper coercion is fine, and its precise location is not always clear. In the case before us, however, the judge urged a verdict, not only through Allen admonitions, but by other expressions to the jury as well. The issue appellant presents is whether in to the urging--the individual elements of which we examine separately--was so great as possibly to exert a coercive influence upon the jury.
Just four years ago, in Fulwood v. United States, *fn18 this court upheld an application of the Allen charge against claims that it was coercive, not only per se but also in the form and under the special circumstances given. *fn19 However, the court indicated the desirability of avoiding variant formulations and urged that the trial judges "consistently use a form of instruction plainly within Allen ". *fn20 Besides, we have also acknowledged that the charge, even when unembellished by further exhortations, is "potentially coercive;" *fn21 that "its content and manner of use deserve scrutiny." *fn22 We are mindful, too, of "the widening challenge" *fn23 to the charge, even in its pristine text, by an increasing--and increasingly concerned--corps of critics. *fn24
Moreover, we have had occasion to warn that the Allen charge "approaches the limits to which the court should go in suggesting to jurors the desirability of agreement and avoidance of the necessity of a retrial before another jury." *fn25 We are aware of holdings that in particular formulations or under particular circumstances the charge may indeed be coercive; *fn26 in Williams v. United States, *fn27 we ourselves reversed a conviction following an Allen charge importing new ingredients and given after the judge's inquiry as to whether there was "a clear minority" of jurors. *fn28 Where, as here, comments to the jury are both Allen -plus *fn29 and Fulwood -plus, *fn30 the situation demands close examination to determine whether under all circumstances it is likely to have been coercive. III
Improper duress upon a deadlocked jury does not seek its only source in threats of physical abuse. *fn31 Communications from judge to jury are unduly constraining whenever they possess a substantial propensity for prying individual jurors loose from beliefs they honestly have. *fn32 The jury is coerced, the Supreme Court has held, when it is told that "you have got to reach a decision in this case," *fn33 and in much the same category is the admonition in this case that "you ought to be able to agree on a verdict." *fn34 Statements of this sort reflect the judge's assessment that the ...