# Petition — Horan v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 819

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2280%3A1. Public record. Not legal advice.