# United States v. Darwin Clark Bailey

> Court of Appeals for the Fifth Circuit · November 7, 1972 · 468 F.2d 652

URL: https://www.frixlaw.com/law-library/cases/9458820

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Darwin Clark BAILEY, Defendant-Appellant
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 7, 1972
- **Citations:** 468 F.2d 652
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** John, Goldberg, Morgan
- **Cited by:** 114 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Modified on other grounds by United States v. Darwin Clark Bailey, 480 F.2d 518 (1973).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9458820

## How later opinions describe it (automated extraction)

- concluding that an Allen charge was not impermissibly coercive where the jury continued deliberating for an hour and a half after receiving the charge
- finding that giving an Allen charge 3.5 hours after deliberations began was not “improperly precipitous” and noting that a charge 1.5 hours into deliberations did not imply coercion
- describing the First Circuit, Second Circuit, Fourth Circuit, Sixth Circuit, and Eighth Circuit courts as having " 'grave doubts' about Allen" and permitting it "'to stand only by 'the barest margin'"' (quoting United States v. Kenner, 354 F.2d 780, 782-84 (2d Cir.1965))
- describing the First Circuit, Second Circuit, Fourth Circuit, Sixth Circuit, and Eighth Circuit courts as having “‘grave doubts’ about Allen” and permitting it “to stand only by ‘the barest margin’” (quoting United States v. Kenner, 354 F.2d 780 , 782–84 (2d Cir. 1965))
- stating that giving the Allen charge 3 1/2 hours after the jury retired to deliberate was not an abuse of discretion

## Opinion text

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, IN-GRAHAM and RONEY, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.
It is ordered that the cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk shall set a briefing schedule for the filing of supplemental briefs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9458820. Public record. Not legal advice.