Petition — Horan v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1530

MARVIN HORAN,

Petitioner,

Vv.

Unrrep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Joun Boetrner, JR.

1022 Charleston National Plaza

Charleston, West Virginia 25301

JARRETT PRINTING COMPARY, CHARLESTON, Ww VA. QD

INDEX

TABLE OF CONTENTS

Page

NY IID eiincsissatcrceleetarhsoninidulagheadeteabdlitemindspaitenibietts 2

TD ciceenecemintnienn enppencaieianighaenapaenimeiibiaiameasiite 2

I I i cchcctrsctiviniinemrcintnecsineennriannatittcatibiatiibaii 2

EE 2

Reasons for Granting the Writ 00.00.

LLLP ALLL ELLE TL ET,

INDEX TO APPENDIX

Grand Jury Indictment 000000000000... saldeiianaiiiad la

Pourths Cisettlt Oplenbete nneeecncccccecccsscccessecssescceeesenes ow 14a

AUTHORITIES

Allen v. United States, 164 U.S. 492; 17 S. Ct. 154,

Sp ee I certecercicheernitcnbtiichlenaiticindtildilteiyticiiiicne 16

Allis v. United States, 1894, 155 U.S. 117, 123; 15

'.e | 2% § § ee ee 16

Andrews v. United States, 309 F.2d 127 at 129 an

ae ee ee ee 17

Chicago & E. 1. Ry. v. Sellars, 5 F.2d 31 (1925) 13

Cole v. Swan, 4 Gren 32 (Iowa 1853) 0... 15

Commonwealth v. Moore, 398 Pa. 198, 157 A.2d

GD CID cctatheeniatenetitinnsinaitneintengttientiiniiitinitictin 15

i

Page

Kikmeier v. Bennett, 143 Kan. 888, 57 P.2d 87, 92

(1936) . eincalneas ———

Erwin v. Hamilton, 50 How. Pr. 32 3 (N. We 11878) . 15

Goff v. United States, 446 F.2d 623 (1971) 000000. S14

Jenkins v, United States, 380 U.S. 445 (1965) .... 20, 21, 22

Middlestates Util. Co. v. Incorporated Tel. Co., 222

Iowa 1275, 271 M.W. 180 (1937) a

Needy v. City of Richland Center, 237 Wis, 537, 297

N.W. 419 (1941)... suukieseninis SD

People v. Sheldon, 156 N.Y. 268, 50 N.E. 840, 842

UIT \ hateinpamabbiehinathananieidiad adisimeaaeniiad in

State v. Moon, 20 Idaho 202 117 P. 757 (1911) .. 14

State v. Randall, 137 Mont. 534, 353 P.2d 1054 (1960) 14

State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959)... 14

State v. Voeckell, 69 Ariz. 145, 210 P.2d 972 (1949)... 17

Thaggard v. United States, 354 F.2d at 739.00 sd

United States v. wittiedd 468 F.2d 652 waned Cir.

1972) . saeieenaiiade a

United States v. Brown, 411 F.2d 930 (1969) 000... 18

United States v. Fioravanti, 412 F.2d 407 (1969) _... 13

United States v. Flannery, 451 F.2d 880, 883 12

United States v. Harris, 391 F.2d 348 (1968) 0000... 18

United States v. Kenner, 354 F.2d 780 (1965)... 18

United States v. Rogers, 289 F.2d 433 (1961) —...... 13

ik

—_—ee oe

Page

United States v. Thomas, 1971, 146 U.S. App. D.C.

101, 449 F.2d 1177, 1187 (en banc) ................. 12

Walker v. United States, 342 F.2d 22 at 28-29... 12

Wash v. United States, 371 F.2d 135 (1967) 0... 18

LAW REVIEW ARTICLES

American Bar Association, Standards Relating to

Trial by Jury 145-46 (1968) ccc ccoeenenseennenneD 2, 17

Comment, “Instructing the Deadlocked Jury: Some

Practical Considerations”, 8 John Marshall Journ.

of Practice and Procedure, 169, 174-75 (1974) .. 19

Comment, “The Allen Charge: Dead Law a Long

Time Dying,” 6 San. Fran. L. Rev. 516, 329

0) 18

Comment, “The Allen pean cane Problems

in Recent Developments”, 47 N.Y.U.L. Rev. 296,

CO —————— 20

Note, “Due Process, Judicial Economy, and The

Hung Jury: A Re-examination of the Allen

Charge”, 58 Va. L. Rev. 123, 129 (1967) ............_ 20

Note, 31 U. Chi. L. Rev. 386 N, 1 (1964) 0000000... 15

iii

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1530

MARVIN Horan,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

To the Honorables, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Petitioner, Marvin Horan, hereinafter referred to as

Horan, prays that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for

the Fourth Circuit, decided March 24, 1976, in Case No.

75-1779, styled Unitea States of America vs. Marvin

Horan, a/k/a Reverend Marvin Horan, which affirmed

a judgment of the United States District Court for the

Southern District of West Virginia at Charleston,

entered April 18, 1975, in a criminal proceeding wherein

Horan was found not guilty as charged in count two,

four and five of the indictment, all related to the making

and/or possession of destructive devices, i.e., dynamite

2

bombs, but was found guilty as charged in count one

of the indictment, a conspiracy charge.

OPINIONS BELOW

The District Court rendered no formal opinions in

the proceedings but the opinion of the Circuit Court

of Appeals decided March 24, 1976, yet unreported, is

attached to this Petition as a part of the appendix.

JURISDICTION

The decision of the Court of Appeals was rendered

March 24, 1976, and this Petition is filed within thirty

days of that day. This Courts jurisdiction is invoked

under 28 U.S.C.A. Section 1254 (1).

QUESTIONS PRESENTED

1. Whether the district judge invaded the province

of the jury denying the petitioner a fair trial by giving

the Allen charge, together with a command to reach a

verdict.

2. Whether after some twenty-four hours of testi-

mony extending over four trial days the district judge

was warranted in recalling a jury only three hours into

deliberations on his own motion to induce a verdict via

the Allen charge.

3. Whether the effect of the Allen charge, the ac-

companying command to reach a verdict, and the timing

of both coerced a verdict against the petitioner.

STATEMENT OF THE CASE

(a) Introduction

The Kanawha County (West Virginia) textbook pro-

test received national attention in both 1974 and 1975.

ae

3

This well known controversy developed as a result of

the adoption and implementation of objectionable text-

books by the Kanawha County (West Virginia) Board

of Education in 1974.

The protest movement to remove certain of these

textbooks from the schools took various forms, including

demonstrations, sit-ins, the keeping of children home

from school, mass striking of workers, boycotting of

various businesses, and, unfortunately, certain acts of

violence.

Among the acts of violence, were included three

dynamite bombings during October, 1974 of the Wet

Branch Elementary School, the Midway Elementary

School, and the Valley Grove Elementary School, all

located in Kanawha County, West Virginia.

Subsequent to these bombings, a six count indictment

was returned by the federal grand jury on January 17,

1975 (attached as part of the appendix). The following

persons were charged in the indictment:

(1) LARRY ELMER STEPHENS—charged in

five counts of the indictment. Convicted by jury

on April 18, 1975 on all five counts. Trial co-

defendant with Horan.

(2) DELBERT LEE ROSE—charged in five

counts of the indictment; plead guilty to counts

1, 3, 4 and 6; used as a government witness.

(3) MELVIN D. DICKERSON, a/k/a Butch—

charged in all six counts of the indictment; con-

victed by jury in June, 1975 at subsequent trial

of counts 1, 2, and 3.

(4) JENNIE LYNN STEPHENS—charged in

three counts of the indictment and convicted by

a jury in June, 1975 at a subsequent trial of counts

1, 2, and 3.

4

(5) MICHAEL WAYNE BLANKENSHIP —

charged in all six counts of the indictment; plead

guilty to counts 1, 2, 4, and 5; used as a govern-

ment witness against Horan and Larry Elmer

Stephens.

(6) DARIUS IVAN PHILLIPS, a/k/a Popeye

—unindicted co-conspirator, used as a govern-

ment witness.

The petitioner, Marvin Horan, was charged in counts

1, 2, 3, 4 and 5 of the indictment.

Horan and his trial co-defendant Larry Elmer Stephens

entered a plea of not guilty to all counts of the indict-

ment and the trial began April 14, 1975 and continued

for five days until April 18, 1975.

On April 18, 1975, on a Friday afternoon at approxi-

mately 3:55 p.m., the jury announced to the Court its

verdict. Horan was found guilty as charged in count 1

of the indictment and innocent as to charges of counts

2, 4, and 5 of the indictment. Horan’s trial co-defendant

Larry Elmer Stephens was found guilty on all counts.

On May 19, 1975, Horan and Stephens were sentenced

to imprisonment for a period of three years.

In June 11, 1975, Horan filed a motion for a new trial

pursuant to Rule 33 of F.R.C.P. on the ground of newly

discovered evidence. The motion of Horan included also

a motion for an opportunity for an evidentiary hearing

on his motion to present evidence and testimony.

The motion for a new trial was based upon an affi-

davit of Gregory Duane Crowder, an unknown inde-

pendent third person, who over heard a member of the

jury say that he or she was “pressured” into finding

Horan guilty of count one because of the conduct of the

judge in interrupting the deliberations of the jury and

5

the giving of the supplemental Allen charge command-

ing the jury to reach a verdict.

The name of the juror was enclosed in a sealed

envelope.

On June 19, 1975, the Court denied the motion of

Horan for a new trial on the ground of the above evi-

dence of jury interference and further denied the

defendant the opportunit™ to examine any jury or to

present evidence in support of the motion.

(b) Trial Testimony

Prior to the trial, co-defendants, Michael Wayne

Blankenship, Melvin D. Dickerson, Delbert Lee Rose,

all plead guilty to various counts in the indictment and

entered plea bargaining agreements with the United

States and were used as government witnesses. The

other co-defendant, Jeannie Lynn Stephens, was granted

a severance, and was subsequently tried separately and

convicted in June, 1975.

On April 14, 1975, Horan, together with his trial

co-defendant, Larry Elmore Stephens, after entering

pleas of not guilty stood trial on the charges as contained

in the indictment.

The evidence produced against Horan was established

solely through convicted co-defendants pursuant to the

plea bargaining arrangement.

Delbert Lee Rose, testified about a certain unidentified

discussion which took place on or about the middle of

November, 1974. Rose testified that co-defendant, Larry

Stephens and Horan were there together with others.

Rose stated that there was a general discussion of ex-

plosive devices. Rose continued to say that there was a

discussion about what would happen if a sealed can of

gasoline were placed on the boiler at Midway Elemen-

tary School. Rose said that Horan would furnish the

gas can, and that he went to Horan’s house to pick it

up. However, on cross-examination, Rose admitted that

he went to the door of the defendant, Marvin Horan,

and asked that if he could “borrow” the gas can.

Q. Now when you knocked on the door at

Reverend Horan’s house to ask for the gas can,

what did you say to whomever answered the

door?

A. Ican’t remember the exact words. Marvin

came to the door. I ask him if he had a gas can

I could borrow. I can’t remember really—lI can’t

remember whether I told him my car was out of

gas or I wanted it to carry extra gas. I can’t

remember the exact words.

There was, however, no evidence that the gas can

was ever used for anything, except that Rose did use

the gas can as he indicated to obtain gas for his car.

Rose continued his testimony and stated that Horan

had told him that the state law required the school to

have a hot lunch program, and if the cafeteria were out

of operation, that they would automatically have to

shut the school down.

Also, Rose testified that he had a discussion of the

Bible with Horan, and that Horan had read several pas-

sages out of the Bible. Rose couldn’t remember the

words exactly but said it related to the passage about

there being “a time and place for all things.” Also, Rose

stated that Horan read a passage relating to war and

— ————e

7

the fact that Horan stated “be not afraid for the Lord

thy God is with thee.”

When asked by the government what those Bible

passages meant to him, Rose subjectively stated that

“it meant to me to not be afraid of whatever we would

do in the fight against the books.” On direct examina-

tion by the government, Rose added that on the same

evening, Horan stated “that he figured that he had paid

enough taxes in the last ten years that Midway School

belonged to him and that we had his permission to do

anything y‘e wanted to do to it.”

Later, Michael Wayne Blankenship, testified that he

talked to Jennie Stephens, wife of trial co-defendant,

Larry Stephens, and asked her for Twenty Dollars

($20.00) for some “stuff.” Blankenship went on to tes-

tify that Marvin Horan gave Jennie Stephens the Twenty

Dollars ($20.00).

After Horan had given the money to Jennie Stephens,

he asked Blankenship what the money was for. Blanken-

ship vaguely testified that he said it was something that

he wouldn’t want to get caught with.

In a surprise move, and contrary to an earlier assur-

ance of the United States Attorney, the government

moved to have the grand jury testimony of Horan read

to the jury.

At the earlier hearing on pre-trial motions, the gov-

ernment represented that the grand jury testimony of

Horan would not be used in the government’s case in

chief. Moreover, the government admitted that such

assurance was made and that it was not surprised by

any turn of the evidence to warrant a change in the

assurance.

Nevertheless, the Court granted the motion of govern-

ment to have the grand jury testimony of Horan read

to the jury. Horan moved for a mis-trial on the ground

of prosecutorial misconduct.

Also, the government moved the admission of a taped

excerpt of a speech which Horan made on April 5, 1975,

some nine days prior to the beginning of the trial.

The excerpt from the speech is as follows:

“God has called upon his ministers today—

Reverend Graley, Hill, and myself, as well as

other ministers throughout the valley—to bring

the sins to the attention of the world. The world

has listened to the message. They are condemned.

They know what wrong. And friends, I don’t

care what the law says, when we blaspheme God,

it is wrong; and if going to jail over it, I'll go.

Thats all there is to it.”

The district judge initially overruled the motion of

the government to introduce this taped excerpt into

evidence on the ground that it was not material. Sub-

sequently, however, the excerpt of the above speech

was allowed in evidence as rebuttal testimony.

Neither Horan or trial co-defendant Stephens took

the stand.

In his defense, Horan called Arthur Rose who testi-

fied that Delbert Lee Rose actually used the gas can

he got from Horan to get some gasoline out of his car

because his car was out of gas.

Also, a Mr. Richard D. Bright testified that Horan

ran a rally on the night of the alleged meeting at the

textbooks headquarters and that he went past the text-

book headquarters at approximately 10:30 or 11:00

o'clock and that there was.a huge crowd outside. He

did not see Horan at the textbook headquarters. There

was also a similar testimony from JoAnn Burdette.

Then came Billy L. Pauley, a local Mayor, who testi-

fied that Horan had on many occasions been instru-

mental in curbing violence and keeping the peace in

the textbook protest.

After the reading of the aforementioned excerpt of

the Horan speech to the jury, all parties rested and

closing arguments followed.

Following four days of testimony (some 24 hours in

all), the district judge convened the Court on the fifth

day at 9:30 a.m. One minute later, the jury retired from

the courtroom to begin their deliberations regarding

Horan and trial co-defendant Stephens.

At approximately 11:52 a.m., the district judge re-

ceived an inquiry from the foreman of the jury, wanting

to see a copy of the grand jury statement of Horan.

The district judge denied the request and excused the

jury for lunch.

Upon returning from lunch at 1:30 p.m., the jury

resumed their deliberations.

At 2:37 p.m., in the afternoon (Friday), approxi-

mately one hour after the jury returned from lunch,

the district judge, on his own motion, summoned the

jury back to the courtroom and inquired whether they

had agreed upon a verdict yet.

The foreman of the jury responded that they had not

yet reached a verdict.

The district judge thereupon began to give his own

version of the supplemental Allen charge, but a sidebar

was called by the attorney for the United States.

10

At the sidebar, there was a discussion regarding the

form of the supplemental charge which the district

judge was preparing to give.

The United States Attorney offered the district judge

a substitute charge which the district judge chose.

Characteristically, the district judge emphatically

stated to those present “I think this jury ought to come

to a verdict of some kind,”

Thus, after only some three hours and nineteen min-

utes of actual deliberation, the district judge proceeded

to give a supplemental Allen charge to the jury solely for

the purpose of inducing a verdict, although no difficulty

or deadlock had been indicated.’

'THE COURT: Ladies and gentlemen of the jury, I want you pay

close attention to this instruction.

As the Court has previously instructed you, in order to return a

verdict in this case, each juror must agree thereto, and in considerin

your verdicts, jurors have a duty to consult with one another an

deliberate with a view to reaching an agreement, if it can be done

without violence to a juror’s individual judgment,

Each juror must decide the case for himself, but this should be done

only after an impartial consideration of the evidence with his fellow

urors. In the course of the deliberations, a juror should not hesitate

o re-examine his own views and change his opinion if convinced it

is erroneous. However, no juror shou i surrender his honest con-

viction as to the weight or effect of the evidence solely or for the

mere purpose of returning a verdict.

Each of you who finds himself in the minority should reconsider

yous views in the light of the opinions of the majority; on the other

and, each juror who finds himself in the majority should give equal

consideration to the views of the minority.

Justice through tria) by jury must Myers de wT upon the willing-

ness of each individual furor to seek the trut to the facts from

the same evidence presented to all the jurors, and to arrive at a verdict

by a plying the same rules of law, as given in the instructions of

e Cour

The function of the jury is to determine the facts. This should be

done without prejudice, fear or favor, and solely from a fair con-

sideration of the evidence. This must be decided only on the evidence

you heard from the witness stand, and the exhibits that are part of

the evidence, and not from an thing else. The evidence should be

considered and viewed by you in the light of your own observations

and experiences in the ordinary affairs of life.

I further charge you that there a nothing more important in the

(Footno ootnete continued on next page)

11

Significantly, the Court concluded the above charge

with a command to the jury:

“IT would like for you to go back to your jury

room, agree upon verdicts, and return to the court-

room.” (Emphasis added)

One hour and nineteen minutes later, the jury re-

turned a verdict of guilty of one count and acquittal of

three counts as to Horan, and convicted co-defendant,

Stephens, of all five counts.

REASONS FOR GRANTING THE WRIT

A. Conflict. Within The Circuit Court of Appeals

Horan urges this Court to grant the writ sought in

this petition for the reason that there is a growing and

serious discontent, as well as confusion and often bitter

conflict among the circuits with regard to the form, the

variations of that form, the timing and delivery of the

supplemental Allen charge to the jury.

This confusion and conflict have reached epidemic

proportions. Many circuits have cried out to this Court

for uniform national standard of application of the

Allen charge, and have actually urged its abolishment.

As a panel of the Fifth Circuit stated in United States

(Footnote continued)

world today than that you and I do our sworn duty to see that these

defendants get a fair and full trial, and that the government likewise

ts a fair and full trial. You have been chosen and sworn as jurors

this case to try the issues of oak presen, egations of

the indictment and the denial made b y the aot a leas of of a

accused, You are to perform this duty y without

to any oo ® The law = not permit jurors to be go ir con

~ 7 Ye ape a, udice A public 0

th the accused the public expect at you will care

imparti consider all the evidence in the case, and follow the —

as stated the Court.

I would like for you to go back to your jury room, agree upon ver-

dicts, and return to the courtroom.

You may go now. (App. 155-157)

12

v. Bailey, 468 F.2d 652 (5th Cir. 1972), quoting the

words of the dissent in Walker v. United States, 342 F.2d

22 at 28-29:

“It was the judges who first thought of the idea

of the dynamite charge. It ought to be the judges

1 put an end to it in a quick and not too decent

a burial.”

The circuits have repeatedly grappled with the faults

of the Allen charge and the number of cases are legion,

and seem to be increasing at an alarming rate. Indeed,

the charge has caused so much difficulty that the Amer-

ican Bar Association has recommended that the Allen

charge be replaced, and that the supplemental Allen

charge only be given in a situation where a jury has

become deadlocked. American Bar Association, Stan-

dards Relating to Trial by Jury, 145-46 (1968),

The following is a synopsis of the varying treatment

accorded the Allen charge among the circuits and

graphically indicates the confusion and conflicts which

have occurred and continue to occur with the application

of this most unmanageable of all jury charges:

(1) The District of Columbia Circuit has exercised

its supervisory jurisdiction and has abolished

the supplemental Allen charge and has replaced

it with the ABA standard. See United States v.

Thomas, 1971, 146 U.S. App. D. C. 101, 449 F.2d,

1177, 1187 (en banc).

(2) The First Circuit has stated that the Allen

charge should be used with great caution and

only when “absolutely necessary”. United States

v. Flannery, 451 F.2d 880, 883.

(3) The Second Circuit has “grave doubts” about

the supplemental Allen charge and has given

notice that it will not tolerate the slightest devia-

tion from the approved language; it has further

13

stated that it will permit Allen to stand only by

the “barest margin”. See United States v. Ken-

ner, 354 F.2d 780 (1965).

(4) The Third Circuit has flatly abolished the sup-

plemental Allen charge in any form. “Hereafter

this Court will not let a verdict stand which

may have been influenced in any way by an

Allen charge.” United States v. Fioravanti, 412

F.2d 407 (1969).

(5) The Fourth Circuit has, as in the instant appeal,

stated that it views the giving of the supple-

mental Allen charge, sua sponte, to be such a

threat to the province of the jury that it pays

very close scrutiny to the charge. See also,

United States v. Rogers, 289 F.2d 433 (1961).

(6) The Fifth Circuit has most reluctantly upheld

the supplemental Allen charge, but has urged

its “death”. United States v. Bailey, 468 F.2d

652 (1972).

(7) The Sixth Circuit has reversed convictions upon

the slightest addition to or deviation from the

Allen charge. See, United States v. Harris, 391

F.2d 348 (1968).

(8) The Seventh Circuit has abolished the Allen

charge and has accepted strict application of the

ABA recommendation. United States v. Brown,

411 F.2d 930 (1969).

(9) The Eighth Circuit allows only the unadulter-

ated recitation of the Supreme Court’s para-

phrase of the trial court’s charge in Allen and

reading the “second mp yg to the fe is

prohibited. See, Chicago & EF. I, Ry. v. Sellars,

§ F.2d 31 (1925).

(10) The Ninth Circuit allows a nee in-

struction that is confined to simply telling the

jury to keep trying. See, Wash v. United States,

371 F.2d 135 (1967).

14

(11) The Tenth Circuit “cautiously” approves Allen

but finds reversable error for any or the slight-

est deviation from the approved language. See

Goff v. United States, 446 F.2d 623 (1971).

Moreover, this Court should certainly be aware of

the large number of States which have joined the grow-

ing trend of abolishing the supplemental Allen charge.

Arizona has flatly abondoned the Allen charge in its

entirety. State v. Thomas, 86 Ariz. 161, 342 P.2d 197

(1959); Montana has also put Allen to rest. State v. Ran-

dall, 137 Mont. 534, 353 P.2d 1054 (1969); Kansas, Idaho

and Iowa have disapproved of and discouraged any use

of the dynamite charge. See Eikmeier v. Bennett, 143

Kan, 888, 57 P.2d 87, 92 (1936); State v. Moon, 20 Idaho

202 (117 P. 757) (1911); and Middlestates Util. Co. v.

Incorporated Tel, Co., 222 Iowa 1275, 271 M.W. 180

(1937).

The aforementioned confusion, distress, and conflict

among the federal circuit courts which have dealt with

the question of the propriety and use of the supplemental

Allen ¢harge clearly indicates and poignantly demon-

strates the need for this Court to come to terms with

the administration and application of the supplemental

Allen charge in its supervisory capacity.

The need for this Court to take some action is also

and more acutely necessary as in the present situation

where the trial judge gives the dynamite charge to the

jury, sua sponte, without any indication of deadlock or

difficulty whatsoever. The giving of the supplemental

Allen charge, sua sponte, is perhaps the greatest area

of abuse as found by the appellate courts.

At a minimum, this Court should grant this petition

to at least provide some uniform standards which would

15

warrant the giving of the supplemental Allen charge

by a trial judge where no deadlock or difficulty has been

experienced by the jury, and the deliberation of the

jury was only hours old.

B. Important Questions of Federal Law Which

_ Should be Settled by This Court.

The instant petition presents an important question

of federal law which should and must be settled by

this Court.

The problem facing a trial judge when a jury is seem-

ingly unable to reach a verdict, or has become dead-

locked, or where the jury may be deliberating too long,

in his opinion, is by no means a new problem.

It has been reported that Fourteenth Century jurists

devised perhaps the most effective solution—deadlocked

jurors were locked into an oxcart and carried about

with the judge while he rode circuit and were per-

mitted to leave the cart only when a verdict was reached.

Crabb, History of English Law, 287 (1829); cited in

Note, 31 U. Chi. L. Rev. 386 n. 1 (1964). Jurors were

said to be “kept without meat, drink, fire or candle, un-

less by permission of the judge, till they were all unani-

mously agreed.” People v. Sheldon, 156 N. Y. 268, 50

N.E. 840, 842 (1898).

Similarly, judges have seen fit to deal with recalcitrant

jurors by requiring the jurors to deliberate throughout

the night, Commonwealth v. Moore, 398 Pa. 198, 157

A.2d 65 (1959); by threatening to lock up the jurors

from Friday until Monday morning, Erwin v. Hamilton,

50 How. Pr. 32 (N. Y. 1875); by threatening to deprive

the jurors of food from Saturday until Monday, Cole

v. Swan, 4 Gren 32 (Iowa 1853); and by threatening to

16

deprive the jury in the dead of winter of water and heat

until they continued to deliberate, Needy v. City of Rich-

land Center, 237 Wis. 537, 297 N.W. 419 (1941).

However, the more subtle technique was found to be

the giving of supplemental instructions which exhorted

the jury to arrive at a verdict. Such supplemental in-

structions were said to be “familiar practice” and the

use was approved by this Court in 1894. Allis v. United

States, 1894, 155 U.S. 117, 123; 15 S.Ct. 36, 39; L.Ed.

91, 94. It was two years later, however, when this Court

expounded the case that was to become the wellspring

from which all future judges withdrew the solution to

jury deadlocks and jury difficulties. This, of course, was

Allen v. United States, 164 US. 492; 17 S.Ct. 154, 41

L.Ed. 528 (1896).

That the Allen case was to become this wellspring of

all modern law regarding seemingly deadlocked juries is

perhaps its greatest anomaly.

Alexander Allen was a fourteen year-old “colored boy”

who had been convicted of the murder of another youth

in the Cherokee Nation. Previously, Allen had been

convicted of murder in 1892, but this Court reversed

that conviction due to faulty jury instruction concerning

justification or excuse for homicide. 150 U.S. 551 (1893).

Allen was again tried and again convicted, but once

more this Court overturned his conviction because of a

defect in a jury instruction regarding self defense. 157

U.S. 675, 15 S.Ct. 720, 39 L.Ed. 854 (1894).

Allen was tried and convicted yet a third time. Again

this case found its way td this Court and when the third

decision was handed down, the following terse sentence

headlined the Court’s decision: “No counsel for plaintiff

A

17

in error [Alexander Allen)” 164 U.S. 494, 17 S.Ct. 154,

41 L.Ed. 528.

Equally perplexing, the opening paragraph of the

Court’s opinion began,

“We are somewhat embarrassed in the consider-

ation of this case by the voluminousness of the

charge . .. as well as the absence of a brief on the

part of the plaintiff in error.” Id at U.S. 494.

(Emphasis added)

Nevertheless, this Court then went on to affirm the con-

viction and to an analysis of the propriety of the original

“Allen charge” as follows:

“There was no error in these instructions.” Id at

U.S. 502

The original Allen case thus abounded with its own

pecularities and there is little wonder that many doubt

whether this case would not be decided differently today.

(See, Thaggard v. United States, 354 F.2d at 739)

Not surprisingly, then, the Allen charge has generated

more cases and more appeals than any other single prin-

ciple in modern law. (ABA, Standards Relating to Trial

by Jury (1968)

Judge Wisdom did not exaggerate at all when he said:

“The Allen charge causes more trouble in the

administration of justice than it is worth. Its

time-saving merits in the district court are more

than nullified by the complications it causes on

appeal .. . ‘Like Banquo’s ghost, it would not

remain at rest,’ Justice Udall, dissenting in State

v. Voeckell, 69 Ariz. 145, 210 P.2d 972 (1949).

Anc in this Circuit, the ghost seems especially

restless.” Andrews v. United States, 309 F.2d 127

at 129 (5th Cir. 1962)

18

The supplemental Allen charge, its timing, and the

variations of it, has been the subject of many legal com-

mentators. The overwhelming weight of legal comments

have been in opposition to the Allen charge. The objec-

tions primarily have been:

(1) It is coercive of minority jurors;

(2) It gives the trial judge undue influence;

(3) It may include language which forces a jury

which may be justifiably deadlocked into a hasty

verdict; and

(4) It ignores practical considerations regarding

hung juries.

One commentator has asserted that the Allen charge

“seems to play havoc with basic theories of our system

of justice.” Comment, “The Allen Charge: Dead Law

a Long Time Dying,” 6 San. Fran. L. Rev. 326, 329

(1972). He adds:

“The fact that the Court takes care to point out

that the recalcitrant minority may stand either

for conviction or for acquittal cannot alter the

fact that the thrust of the charge is to put pressure

on the dissenters. This weight of judicial pres-

sure, combined with the pressure already being

exerted by the majority jurors, may induce a

doubting juror to relinquish his position and ac-

cept the instruction as an invitation to allow the

majority to rule.”

19

ishes the dissenting jurors that the return of the

unanimous verdict depends upon their assent to

the majority position—a consideration having no

evidentia’y basis and absent an instruction that

a generally deadlocked verdict is permissible,

intimates that the trial will not end until a ver-

dict of either guilty or not guilty is returned.”

Comment, “Instructing the Deadlocked Jury:

Some Practical Considerations,” 8 John Marshall

Journ. of Practice and Procedure, 169, 174-75

(1974)

The role of the trial judge also has an effect upon the

impact of the Allen charge. One commentator has

“Because the Allen instruction comes from the

bench, the pressure on a hold-out juror is even

greater. The judge is a symbol of the law—of all

who confront the jury—he demands the greatest

respect, and rightly so. He also is in the greatest

position to influence a jury. Jurors preceive the

judge as an expert and rely heavily on his direc-

tion during a trial. As Mr. Chief Justice Fuller

stated in Starr v. United States:

“It is obvious under any system of jury trials

the influence of the trial judge on the jury is

necessarily and properly of great weight and

that his lightest word or intimation is received

with deference, and may prove controlling.”

(Emphasis added )

Another commentator has voiced a similar criticism:

“Instructing a criminal jury to doubt the correct-

ness of the judgment which was not concurred

in by the majority, to listen with deafness to the

majority, and to reconsider his position accord-

ingly dilutes the standard of proof beyond a rea-

sonable doubt. The thrust of the charge admon-

The above comment has particular significance with

regard to the instant petition. The type of language used

by the trial judge in the present case—“I would like

for you to go back to your jury room, agree upon verdicts,

and return to the courtroom,” has been attacked by

courts and commentators alike. One commentator has

pointed out that:

20

“The addition of certain elements not present in

the approved Allen formulation has been found

to render the charge coercive. Thus, instructions

containing warnings that the jury has ‘got to

reach a verdict,’ (Jenkins v. United States, 380

U.S. 445 (1965), have been rejected. Note, “Due

Process, Judicial Economy, and The Hung Jury:

A Re-examination of the Allen Charge,” 58 Va.

L. Rev. 123, 129 (1967)

The possible effect of the last sentence of the charge

in the instant petition—“I would like for you to go back

to your jury room, agree upon verdicts, and return to

the courtroom”’—and similar additions to the Allen

charge have been discussed. Comment, “The Allen

Charge: Recurring Problems in Recent Developments,”

47 N. Y. U. L. Rev. 296, 303-04 (1972)

Also, the time or the timing factor as in the present

petition is significant. One commentator has stated:

“The length of time following the reading of the

instruction to the deadlocked jury and the return

of its verdict may also be cited to underscore the

coercive effect of the supplemental instruction.

Where a jury has been unable to agree on a ver-

dict for a length of time and a verdict is returned

shortly after a supplemental instruction is given,

the circumstances may be said to sustain the

inference that the instruction had a coercive effect

—that the jury misinterpreted the instruction as

an order by the Court to come to an agreement.

It may also be urged on appeal that the supple-

mental instruction, by not containing offensive

language, had a course of effect in that the charge

was given too soon after the jury had commenced

deliberations, or, as frequently occurs, that the

instruction was given sua sponte by the trial court

before the jury had reported its inability to agree.

When the instruction is determined to be given

w—-

f

21

too soon after the jury has commenced its deliber-

ation, the Court has interfered with the indepen-

dent deliberation of the jury. The action of the

trial court may be preceived by the jurors as a

cue by the judge that their verdict is overdue. 8

John Marshall Journ., supra. at 184-85 (Emphasis

added )

‘Thus, in view of the above cited cases and legal com-

mentaries, it is clear that this Court should accept its

responsibility and to determine, once and for all,

whether the supplemental Allen charge is to be given,

and if it is to be given, when it is to be given, and what

it should and should not contain. This Court should rule

with preciseness and with sufficient clarity to guard

against the continued abuses.

C. Conflict With Decisions of This Court.

The petitioner asserts that the decision of the Circuit

Court in this matter is at odds with the decision of this

Court in Jenkins v. United States, 380 U.S. 445 85 S.Ct.

1059, 13 L.Ed. 2d (1965).

In the Jenkins case, this Court held that any statement

to the effect that the jury had to reach a decision was

coercive and that the conviction should be reversed.

As this Court stated:

“Of course, if this Court should conclude that the

Judge’s statement had the coercive effect attrib-

uted to it, the judgment should be reversed and

the cause remanded for a new trial; the principle

that jurors may not be coerced in the surrendering

views conscientiously held is so clear as to require

no elaboration.”

In the instant petition, the words of the Court at the

conclusion of the supplemental Allen charge given only

after some three hours and nineteen minutes of deliber-

ation following over twenty-four hours of trial testimony,

—I would like for you to go back to your jury room,

agree upon verdicts, and return to the courtroom, is, in

and of itself a coercive statement in view of circum-

stances and facts of this matter.

It is submitted that the judicial command “agree upon

verdicts” and “return to the courtroom” is tantamount

to commanding the jury to reach a verdict and is coer-

cive as this Court has held in Jenkins v. United States,

supra.

CONCLUSION

For the reasons assigned herein, the petitioner prays

that the writ of certiorari should be granted and the

writ issued to review the judgment order entered by

the Fourth Circuit Court of Appeals.

Respectfully submitted,

JOHN BOETTNER, JR.

Attorney at Law

1022 Charleston National Plaza

Charleston, West Virginia 25301

Telephone: 304/342-4191

CERTIFICATE OF PROOF OF SERVICE

I, JOHN BOETTNER, JR., Attorney for Petitioner,

MARVIN HORAN, hereby certify that a copy of the

foregoing Petition for a Writ of Certiorari has been

deposited in the United States Mail, postage prepaid, air

mail, certified, properly addressed to Respondent’s Coun-

sel, THE SOLICITOR GENERAL, United States Depart-

ment of Justice, Washington, D. C. 20530, on this, the

3rd day of May, 1976.

JOHN BOETTNER, JR.

——— —

la

APPENDIX

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

JANUARY, 1975 SESSION, CHARLESTON

Unitep STATES OF AMERICA

a 2

LARRY ELMER STEVENS

MICHAEL WAYNE BLANKENSHIP

MARVIN Horan, also known as

Reverend Marvin Horan

JEANNIE LYNN STEVENS

MELVIN D. DICKERSON,

also known as Butch

DELBERT LEE ROSE

No, 75-10CH

18 U.S.C., Sec. 371—Ct. 1

18 U.S.C., Sec, 2—Cts. 2, 3, 4,5 & 6

18 U.S.C., Sec, 844(f)—Ct. 4

26 U.S.C., Sec. 5861(f£)—Cts. 2 & 5

26 U.S.C., Sec. 5861(d)—Cts, 3 & 6

26 U.S.C., Sec, 5871—Cts. 2, 3,5 & 6

The Grand Jury charges:

COUNT ONE

1. From on or about the Ist day of October, 1974,

until on or about the 15th day of November, 1974, in

Kanawha County, West Virginia, and within the South-

ern District of West Virginia, LARRY ELMER

STEVENS, MICHAEL WAYNE BLANKENSHIP, MAR-

VIN HORAN, also known as Reverend Marvin Horan,

JEANNIE LYNN STEVENS, MELVIN D. DICKERSON,

also known as Butch, and DELBERT LEE ROSE, the de-

fendants herein, and Darius Ivan Phillips, also known as

2a

Popeye, named herein as a co-conspirator, but not as a

defendant, unlawfully, wilfully and knowingly did com-

bine, conspire confederate and agree together and with

each other, and with divers other persons whose names

are to the Grand Jury unknown, to commit offenses

against the United States, that is:

To unlawfully and maliciously damage and destroy,

and attempt to damage by means of firearms, that is,

destructive devices, being dynamite bombs, the Midway

Elementary School, the Valley Grove Elementary School,

and other property owned, possessed and used by the

Kanawha County Board of Education, Kanawha County,

West Virginia, an institution and organization receiving —

Federal financial assistance; in violation of Title 18,

United States Code, Section 844(f).

2. In carrying out the aforesaid object of this con-

spiracy, the defendants, co-conspirators, and divers other

persons whose names are to the Grand Jury unknown:

(a) Did unlawfully, wilfully and knowingly make

firearms, that is, destructive devices being dynamite

bombs, in violation of the provisions of Title 26, United

States Code, Section 5861(f).

(b) Did unlawfully, wilfully and knowingly receive

and possess firearms, that is, destructive devices being

dynamite bombs, which were not registered in the

National Firearms Registration and Transfer Record; in

violation of Title 26, United States Code, Section 5861(d).

3. It was further a part of this conspiracy that ‘he de-

fendants would use the firearms, that is, destructive

devices being dynamite bombs, to blow up, damage, and

destroy the aforesaid Midway Elementary School, the

Valley Grove Elementary School, and other property

3a

which was owned by the Kanawha County, West Vir-

ginia Board of Education.

4. At or about the times and places hereinafter men-

tioned, the defendants committed the following and

other overt acts in furtherance of this conspiracy and to

effect the objects thereof:

(a) On or about October 18, 1974, LARRY ELMER

STEVENS contacted MICHAEL WAYNE BLANKEN-

SHIP regarding the acquisition of certain explosive com-

ponents, that is, safety fuse and non-electric blasting caps.

(b) On or about October 19, 1974, MICHAEL

WAYNE BLANKENSHIP contacted Darius Ivan

Phillips, also known as Popeye, and requested certain

explosive components, that is, approximately five (5)

non-electric blasting caps and approximately twenty (20)

feet of safety fuse.

(c) On or about October 19, 1974, Darius Ivan

Phillips, also known as Popeye, in the company of

MICHAEL WAYNE BLANKENSHIP, delivered cer-

tain explosive components, that is, approximately five (5)

non-electric blasting caps and approximately twenty (20)

feet of safety fuse, to the anti-textbook headquarters,

Campbells Creek, Kanawha County, West Virginia.

(d) On or about October, 1974, in a back room of

the anti-textbook headquarters, Campbells Creek, Kan-

awha County, West Virginia, MARVIN HORAN, also

known as Reverend Marvin Horan, gave JEANNIE

LYNN STEVENS Twenty Dollars ($20.00) for the pur-

chase of certain explosive components, that is, approxi-

mately five (5) non-electric blasting caps and approxi-

mately twenty (20) feet of safety fuse.

(e) On or about October 19, 1974, at the anti-text-

book headquarters, Campbells Creek, Kanawha County,

4a

West Virginia, JEANNIE LYNN STEVENS gave Twenty

Dollars ($20.00) to MICHAEL WAYNE BLANKEN-

SHIP for the purchase of certain explosive components,

that is, approximately five (5) non-electric blasting caps

and approximately twenty (20) feet of safety fuse.

(f) On or about October 19, 1974, outside the anti-

textbook headquarters, Campbells Creek, Kanawha

County, West Virginia, MICHAEL WAYNE BLANKEN-

SHIP paid Darius Ivan Phillips, also known as Popeye,

Twenty Dollars ($20.00) for the certain explosive com-

ponents, that is, approximately five (5) non-electric blast-

ing caps and approximately twenty (20) feet of safety

fuse.

(g) On or about October 19, 1974, outside the anti-

textbook headquarters, Campbells Creek, Kanawha

County, West Virginia, Darius Ivan Phillips, also known

as Popeye, delivered to JEANNIE LYNN STEVENS

at or near the Key Market parking lot, Campbells Creek,

Kanawha County, West Virginia, certain explosive

materials, that is, approximately five (5) non-electric

blasting caps and approximately twenty (29) feet of

safety fuse.

(h) On or about October 19, 1974, JEANNIE LYNN

STEVENS transported in a black and maroon Chevelle

automobile from at or near the Key Market parking lot,

Campbells Creek, Kanawha County, West Virginia, cer-

tain explosive components, that is, approximately five

(5) non-electric blasting caps and approximately twenty

(20) feet of safety fuse, to the residence of her and her

husband, LARRY ELMER STEVENS, at 670B Camp-

bells Creek Drive, Kanawha County, West Virginia.

(i) On or about October 19, 1974, LARRY ELMER

STEVENS transported in a black and maroon Chevelle

5a

automobile certain explosive components, that is, ap-

proximately five (5) blasting caps and approximately

twenty (20) feet of safety fuse, from his residence at

670B Campbells Creek Drive, Kanawha County, West

Virginia, to the anti-textbook headquarters, Campbells

Creek, Kanawha County, West Virginia.

(j) In or about the middle of October, 1974, at the

anté-textbook headquarters, Campbells Creek, Kanawha

Couhty, West Virginia, a conversation was held among

LARRY ELMER STEVENS, MARVIN HORAN, also

known as Reverend Marvin Horan, DELBERT LEE

ROSE, Arthur Rose, and divers other persons whose

names are to the Grand Jury unknown, which conversa-

tion concerned the destroying of the Midway Elementary

School by placing a full, sealed five-gallon can of gasoline

on the furnace boiler of the Midway Jiementary School

and allowing it to explode when the temperature of the

furnace rose high enough. During this conversation,

MARVIN HORAN, also known as Reverend Marvin

Horan, volunteered the use of his five-gallon gasoline can

for the aforesaid destruction of the Midway Elementary

School.

(k) In or about the middle of October, 1974, at the

residence of MARVIN HORAN, also known as Reverend

Marvin Horan, on Campbells Creek, Kanawha County,

West Virginia, MARVIN HORAN, also known as Rev-

erend Marvin Horan, gave to DELBERT LEE ROSE a

red five-gallon gasoline can and instructed DELBERT

LEE ROSE to wipe the fingerprints off of it.

(1) On or about October 21, 1974, at the anti-text-

book headquarters, Campbells Creek, Kanawha County,

West Virginia, MARVIN HORAN, also known as Rev-

erend Marvin Horan, in the presence of LARRY ELMER

6a

STEVENS, DELBERT LEE ROSE, Arthur Rose, and

divers other persons whose names are to the Grand Jury

unknown, made inflamatory statements, including but

not limited to the following: (1) That according to the

Bible there is a time to live and a time to die and that

one must fight fire with fire; a time to kill and a time to

be killed; a time for love and a time for hate; a time for

war and a time for peace; (2) that hes MARVIN HORAN,

also known as Reverend Marvin Horan, had paid taxes

for the last ten years and that he had paid enough taxes

to own the Midway Elementary School, that he con-

sidered the Midway Elementary School his, that the

persons present had his permission to do anything they

wanted to with the Midway Elementary School; (3) and

according to the law there has to be a hot lunch program

in the school and if the cafeteria at the Midway Elemen-

tary School was shut down, there could be no school

held; or words to that effect.

(m) In or about the early morning hours of October

22, 1974, at the anti-textbook headquarters, Campbells

Creek, Kanawha County, West Virginia, LARRY ELMER

STEVENS, MELVIN D. DICKERSON, also know as

Butch, and DELBERT LEE ROSE had a conversation

concerning the dynamiting of the Midway Elementary

School on Campbells Creek, Kanawha County, West

Virginia.

(n) In or about the early morning hours of October 22,

1974, at the anti-textbook headquarters, Campbells

Creek, Kanawha County, West Virginia, LARRY ELMER

STEVENS, MELVIN D. DICKERSON, also known as

Butch, and DELBERT LEE ROSE made a firearm, that

is, a destructive device, being a bomb, consisting of ap-

proximately five (5) sticks of dynamite, one (1) non-

electric blasting cap, and five (5) feet of safety fuse.

7a

(o) In or about the early morning hours of October

22, 1974, LARRY ELMER STEVENS transported DEL-

BERT LEE ROSE in a black and maroon Chevelle auto-

mobile, to the vicinity of the Midway Elementary School,

Campbells Creek, Kanawha County, having in their pos-

session a firearm, that is, a destructive device, being a

bomb, consisting of approximately five (5) sticks of

dynamite, and one (1) non-electric blasting cap, and five

(5) feet of safety fuse.

(p) In or about the early morning hours of October

22, 1974, LARRY ELMER STEVENS instructed DEL-

BERT LEE ROSE to throw the firearm, that is, a destruc-

tive device, being a bomb, consisting of approximately

five (5) sticks of dynamite, and one (1) non-electric

blasting cap, and five (5) feet of safety fuse into the

cafeteria of the Midway Elementary School, Campbells

Creek, Kanawha County, West Virginia.

(q) In or about the early morning hours of October

22, 1974 DELBERT LEE ROSE, after lighting the fuse,

threw a firearm, that is, a destructive device, being a

bomb, consisting of approximately five (5) sticks of

dynamite, one (1) non-electric blasting cap, and .ive (5)

feet of safety fuse into a classroom of the Midway Ele-

mentary School, Campbells Creek, Kanawha County,

West Virginia.

(r) At approximately 3:40 a.m. on October 22 1974,

a firearm, that is, a destructive device, being a bomb, con-

sisting of approximately five (5) sticks of dynamite, one

(1) non-electric blasting cap, and five (5) feet of safety

fuse, exploded in a classroom of the Midway Elementary

School, Campbells Creek. Kanawha County, West Vir-

ginia.

(s) On or about October 11, 1974, outside the anti-

8a

textbook headquarters, Campbells Creek, Kanawha

County, West Virginia, LARRY ELMER STEVENS,

MELVIN D. DICKERSON, also known as BUTCH, and

DELBERT LEE ROSE had a conversation about why

DELBERT LEE ROSE had put the bomb in a classroom

of the Midway Elementary School instead of its cafeteria.

(t) In or about the early part of November, 1974,

at the anti-textbook headquarters, Campbells Creek,

Kanawha County, West Virginia, in the presence of

LARRY ELMER STEVENS, MICHAEL WAYNE BLAN-

KENSHIP, DELBERT LEE ROSE, Michael Ray Moles,

and divers other persons whose name are to the Grand

Jury unknown, LARRY ELMER STEVENS, MICHAEL

WAYNE BLANKENSHIP, and DELBERT LEE ROSE

had a conversation concerning the destroying of Valley

Grove Elementary School, Kanawha County, West Vir-

ginia, by the use of explosives.

(u) On or about November 9, 1974, at the anti-text-

book headquarters, Campbells Creek, Kanawha County,

West Virginia, LARRY ELMER STEVENS, MELVIN

D. DICKERSON, also known as Butch, and others whose

names are to the Grand Jury unknown, did make a fire-

arm, that is, a destructive device, being a bomb, which

consisted of approximately six (6) sticks of dynamite,

one (1) non-electric blasting cap, and five (5) feet of

safety fuse.

(v) On or about November 11, 1974, at the anti-

textbook headquarters, Campbells Creek, Kanawha

County, West Virginia, LARRY ELMER STEVENS de-

livered to DELBERT LEE ROSE a firearm, that is, a

destructive device, being a bomb, which consisted of

approximately six (6) sticks of dynamite, one (1) non-

electric blasting cap, and five (5) feet of safety fuse.

ya

(w) On or about November 11, 1974, at the anti-

textbook headquarters, Campbells Creek, Kanawha

County, West Virginia, LARRY ELMER STEVENS in-

structed DELBERT LEE ROSE to use a firearm, that is,

a destructive device, being a bomb, which consisted of

approximately six (6) sticks of dynamite, one (1.) non-

electric blasting cap, and five (5) feet of safety fuse, to

destroy and damage the Valley Grove Elementary

School, Kanawha County, West Virginia.

(x) On or about November 11, 1974, DELBERT

LEE ROSE transported a firearm, that is, a destructive

device being a bomb which consisted of approximately

six (6) sticks of dynamite, one (1) non-electric blasting

cap, and five (5) feet of safety fuse, from the anti-text-

book headquarters, Campbells Creek, Kanawha County,

West Virginia, to along West Virginia Secondary Route

114, North, Elkview Section of Kanawha County, West

Virginia, where DELBERT LEE ROSE disposed of said

firearm in order to conceal it from law enforcement

authorities.

(y) On or about November 12, 1974, LARRY

ELMER STEVENS and Dale Chapman along West Vir-

ginia Secondary Route 114, North, Elkview Section of

Kanawha County, West Virginia, did attempt to locate a

firearm, that is, a destructive device, being a bomb, which

consisted of approximately six (6) sticks of dynamite,

one (1) non-electric blasting cap, and five (5) feet of

safety fuse.

(z) In or about the latter part of November, 1975,

outside the anti-textbook headquarters, Campbells Creek,

Kanawha County, West Virginia, LARRY ELMER

STEVENS and DELBERT LEE ROSE had a conversa-

tion about obtaining explosive components and devices.

10a

(aa) On or about December 2, 1974, at or near the

Key Market parking lot, Campbells Creek, Kanawha

County, West Virginia, LARRY ELMER STEVENS con-

tacted and had a conversation with MICHAEL WAYNE

BLANKENSHIP about obtaining explosive components

and devices from Darius Ivan Phillips, also known as

Popeye.

(bb) On or about December 2, 1974, outside the

anti-textbook headquarters, Campbells Creek, Kanawha

County, West Virginia, LARRY ELMER STEVENS re-

ceived an unknown amount of money from MARVIN

HORAN, also known as Reverend Marvin Horan.

(cc) On or about December 2, 1974, LARRY EL-

MER STEVENS, MICHAEL WAYNE BLANKENSHIP

and Charles Wayne Bostic drove to the residence of

Darius Ivan Phillips, also known as Popeye, on Camp-

bells Creek, Kanawha County, West Virginia.

(dd) On or about December 2, 1974, at the residence

of Darius Ivan Phillips, also known as Popeye, Darius

Ivan Phillips, also known as Popeye, declined to sell any

explosive components and devices to MICHAEL WAYNE

BLANKENSHIP.

(ee) And other overt acts.

All in violation of Title 18, United States Code, Section

371.

COUNT TWO

In or about the early morning hours of October 22,

1974, at or near the anti-textbook headquarters, Camp-

bells Creek, Kanawha County, West Virginia, and within

the Southern District of West Virginia, LARRY ELMER

STEVENS, MICHAEL WAYNE BLANKENSHIP, MAR-

—

lla

VIN HORAN, also known as Reverend Marvin Horan,

MELVIN D. DICKERSON, also known as Butch, and

DELBERT LEE ROSE, aided and abetted by one another,

did unlawfully, wilfully, and knowingly make and cause

to be made a firearm, that is, a destructive device, being

a bomb, consisting of approximately five (5) sticks of

dynamite, one (1) non-electric blasting cap, and five (5)

feet of safety fuse, v “hout having complied with the

provisions of Chapter 53, Title 26, United States Code;

in violation of Title 26, United States Code, Section

5861(f) and 5871, and Title 18, United States Code, Sec-

tion 2.

COUNT THREE

In or about the early morning hours of October 22,

1974, at or near the anti-textbook headquarters, Camp-

bells Creek, Kanawha County, West Virginia, and within

the Southern District of West Virginia, LARRY ELMER

STEVENS, MELVIN D. DICKERSON, also known as

Butch, and DELBERT LEE ROSE, aided and abetted

by one another, did unlawfully, wilfully, and knowingly

possess a firearm, that is, a destructive device, being a

bomb consisting of approximately five (5) sticks of

dynamite, one (1) non-electric blasting cap, and five (5)

feet of safety fuse, which was not registered to them or

to any of them, in the National Registration and Transfer

Records as required by Chapter 53, Title 26, United

States Code; in violation of Title 26, United States Code,

Sections 5681(d) and 5871, and Title 18, United States

Code, Section 2.

COUNT FOUR

In or about the early morning hours of October 22,

1974, at the Midway Elementary School, Campbells

Creek, Kanawha County, West Virginia, and within the

12a

Southern District of West Virginia, DELBERT LEE

ROSE, aided and abetted by LARRY STEVENS,

MICHAEL WAYNE BLANKENSHIP, MARVIN

HORAN, also known as Reverend Marvin Horan, JEAN-

NIE LYNN STEVENS, and MELVIN D. DICKERSON

did unlawfully and maliciously damage and destroy, and

attempt to damage and destroy, and cause same by means

of an explosive, that is, a destructive device, being a

dynamite bomb, a building and other personal and real

property, that is, the Midway Elementary Schooi, Camp-

bells Creek, Kanawha County, West Virginia, which was

owned, possessed and used by the Kanawha County West

Virginia, Board of Education, an institution and organ-

ization receiving Federal financial assistance; in violation

of Title 18, United States Code, Sections 884(f) and 2.

COUNT FIVE

On or about the 9th day of November, 1974 at or near

the anti-textbook headquarters, Campbells Creek, Kan-

awha County, West Virginia, and within the Southern

District of West Virginia, LARRY ELMER STEVENS,

MICHAEL WAYNE BLANKENSHIP, MARVIN

HORAN, also known as Reverend Marvin Horan, MEL-

VIN D. DICKERSON and other persons whose names

are to the grand jury unknown, aided and abetted by each

other, did unlawfully, wilfully and knowingly make and

cause to be made a firearm, that is, a destructive device,

being a bomb, which consisted of approximately six (6)

sticks of dynamite, one (1) non-electric blasting cap, and

five (5) feet of safety fuse, without having complied with

the provisions of Chapter 53, Title 26, United States Code;

in violation of Title 26, United States Code, Sections

5861(f) and 5871, and Title 18, United States Code,

Section 2. -

13a

COUNT SIX

On or about the 11th day of November 1974, at or near

the anti-textbook headquarters, Campbells Creek, Kan-

awha County, West Virginia, and within the Southern

District of West Virginia, LARRY ELMER STEVENS,

MELVIN D. DICKERSON, DELBERT LEE ROSE and

other persons whose names are to the grand jury un-

known, aided and abetted by one another, did unlawfully,

wilfully and knowingly possess a firearm, that is, a des-

tructive device, being a bomb, which consisted of ap-

proximately six (6) sticks of dynamite, one (1) non-

electric blasting cap, and five (5) feet of safety fuse,

which firearm was not registered to them or to any of

them, in the National Firearms Registration and Transfer

Record as required by Chapter 53, Title 26, United States

Code; in violation of Title 26, United States Code, Sec-

tion 5861(d) and 5861, and Title 18, United States Code,

Section 2.

A True Bill,

J. D. THAXTON,

Foreman.

WAYNE A. RICH, JR.

Asst. United States Attorney

l4a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 75-1779

UNITED STATES OF AMERICA,

APPELLEE,

VERSUS

Marvin Horan, a/k/a

REVEREND MarvIN Horan,

APPELLANT.

Appeal from the United States District Court for the

Southern District of West Virginia, at Charleston, K. K.

Hall, District Judge.

(Argued February 2, 1976 Decided Mar. 24, 1976)

Before BRYAN, Senior Circuit Judge, and CRAVEN

and RUSSELL, Circuit Judges.

John Boettner, Jr., for Appellant; Wayne A. Rich, Jr.,

Assistant United States Attorney, (John A. Field, III,

United States Attorney, H. Marshall Jarrett and Robert

B. Allen, Assistant United States Attorneys and Michael

F. Pezzulli, Third Year Law Student, on brief) for Ap-

pellee.

PER CURIAM:

After some 24 hours of trial time [extending over four

days], the district judge submitted the case to the jury

15a

upon a charge free of error. Some three hours and 19

minutes later, he inquired of the jury if they had reached

a verdict, and upon being formed that they had not, the

court delivered a form of Allen charge approved by us

in United States v. Sawyers, 423 F.2d 1335 (4th Cir.

1970). One hour and nine minutes later the jury returned

a verdict of guilty of one count and acquittal of three

counts.

Whenever a district judge gives a supplemental in-

struction on his own motion, we view the danger of in-

vading the province of the jury to he sufficient to require

our close scrutiny. In another case, United States v.

Stollings, 501 F.2d 954 (4th Cir. 1974), -¢ warned that

the giving of such an instruction two and one-half hours

after the beginning of deliberations constituted undue

haste. See also United States v. Hogan, 486 F.2d 222 (4th

Cir. 1973). We repeat the admonition.

Upon careful consideration of all the circumstances,

we conclude the giving of the supplemental instruction

was not an abuse of discretion.

The other assignments of error are without merit.

AFFIRMED.