# Petition — Lacey v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 832

## Text

—_——_—

- Supreme Court, U.S

FILED

JUN 5 1978

| MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

Octosper TeRM, 1977

~~ @VA1T51

WILLIAM LACEY,
Petitioner,

vs.

UNITED STATES,
Respondent.

Petition For A Writ of Certiorari
To the United States Court of Appeals
For the Second Circuit

ORZO THADDEUS WELLS,
Attorney for Petitioner,
350 Broadway—Suite 1200,
New York, New York 10013
(212) 226-3000

AARON DINES
Of Counsel and
On the Petition

Patrick C. ENGLISH AND
BENNET ZUROFSKY
On the Petition

N.J. Appellate Printing Co., inc., So. Plainfield, New Jersey (201) 753-0200

TABLE OF CONTENTS

I 5 crib pad aXe sa cesan bes 6ncXewow's 1
SELENE LEER TORT 2
og 5d Dey da nananteoning 2
Constitutional Provisions Involved ................. 3
NEES ICE EI OT TPO e ee 4

REASONS FOR GRANTING THE WRIT:

A) There is a Direct Conflict Between the Ninth and
the Second Circuits Concerning whether it is Im-
permissibly Coercive to Give a Second Allen ty
Charge Where a Jury Has Reported Itself Unable
a I 6 co os KAnibc nd cetacehivcen 9g

B) The Guidance of This Court is Urgently Required
in order to Clarify The Current Confused State of
the Law Concerning the Proper Standard of Re-
view Wher Supplemental Charges are Given .... 13

Conclusion GR cigs TL EI OE Re Ae 2 ert aN ae Rae 24

Cases CITED:
Allen v. United States,

Re er ee i)
Andrews v. United States,

300 F.2d 127 (Sth Cir. 1002) ................ 21
Bransfield v. United States,

EE 12

Burrup v. United States,
371 F.2d 556 (10th Cir. ), cert. den.
ck - 9; Se ee 21-22

TABLE OF CONTENTS

Cases CITED:
Burton v. United States,

196 U.S. 238 (1905) ......... ccc cece eee ees 12
Chicago & E. I. Ry. v. Sellars,

ei pncaes xaiea 16
Commonwealth v. Spencer,

442, Pa. 328, 275 A.2d 299 (1971) .............. 18
Fields v. State,

487 P.2d 831 (Alaska 1971) .............0005. 18
Government of Virgin Islands v. Hernandez,

476 F.2d 791 (3d Cir. 1973) ...........-00008. 15
Green v. United States,

309 F.2d 852 (5th Cir. 1962) ................. 20
Hodges v. United States,

408 F.2d 543 (1960) ...........00..ce eee eee 16

Hoffman v. United States,
297 F.2d 754 (5th Cir.), cert. den.

370 U.S. 955 (192) ..........ccec cee eee eens 21
Jenkins v. United States,

380 U.S. 445 (1965) ...... 0.0... e cece. 11, 19, 21
Kersey v. State,

525 S.W.2d 130 (Tenn. 1975) .......:........ 18
Levine v. Headlee,

148 W. Va. 323, 134 S.E.2d 892 (1964) ........ 9
Miles v. United States,

ER ns, sc uiasev unas rs

Munroe v. United States,
MAN NTU sc on c.ccccesdccecass 17

iii

TABLE OF CONTENTS

Cases CITED:

People v. Gainer,
19 Cal. 3rd 835, 566 P.2d 997,

139 Cal. Rptr. 861 (1977) .............0. 0000. 18
People v. Prim,

53 Ill. 2d 62, 289 N.E.2d 601 (1972) .......... 18
People v. Sullivan,

392 Mich. 324, 220 N.W.2d 441 (1974) ........ 18
Powell v. United States,

297 F.2d 318 (5th Cir. 1962) .............. 19, 20
Speiser v. Randall,

OP GM, GES (PMID) nosso. co scans cca ccos,- ll
State v. Blake,

113 N.H. 115, 305 A.2d 300 (1973) ............ 18
State v. Champagne,

196 N.W.2a 218 (N.D. 1072) ................ 18
State v. Nicholson,

| ar re 18
State v. Martin,

297 Minn. 359, 211 N.W.2d 765 (1973) ........ 18
State v. Patriarca,

112 R.I. 14, 308 A.2d 300 (1973) .............. 18
State v. Perry,

131 Vt. 337, 306 A.2d 110 (1973) ............. 18
State v. White,

285 A.2d 832 (Me. 1972) .............0...00- 18

iv
TABLE OF CONTENTS

Cases CITED:

United States v. Amaya,
509 F.2d 813 (1975), cert. denied
2d UG. 1908 (1UB) 6 .disi ctv ccd ee 16

United States v. Angiulo,
485 F.2d 37 (1st Cir. 1973), cert. denied

GD UB. GED oo cc cvccvvtcvecsesseus 14, 20, 21, 22
United States v. Bailey,

468 F.2d 652 (5th Cir. 1972) ...........--:. 9, 15
United States v. Bailey,

480 F.2d SIB (1973) ....... 22. c ee vecccccoees 15
United States v. Barley,

460 F.2d 998 (3d Cir. 1972) .......0... 00000. 21

United States v. Brown,
411 F.2d 930, cert. denied 396 U.S. 1017 (1969) .. 16

United States v. Chaney,

550 F.2d 1004 (1977) ...........eeececeeee: 16
United States v. Cheramie,

520 F.2d 325 (1975) ...........eeccececeeess 15
United States v. Contreras,

463 F.2d 773 (1972) ........0..cecceeeeeeees 17
United States v. Dawkins,

O08 P26 GT (BBN). «....000cennvscse eee 17
United States v. Dolan,

544 F.2d 1219 (4th Cir. 1976) .............00. 15
United States v. Duke,

492 F.2d 693 (5th Cir. 1974) ................. 21

TABLE OF CONTENTS

Cases Crrep:

United States v. Dyba,
I a 17, 19

United States v. Fioravanti,
412 F.2d 207 (3d Cir.), cert. denied sub nom.,
Panaccione v. United States,

moe Gan Gee (EUED) .... ccc ececee. 14, 17, 18
United States v. Flannery,

451 F.2d 880 (Ist Cir. 1971) ............... 14, 21
United States v. Godwin,

522 F.2d 1135 (4th Cir. 1975) ................ 15

United States v. Harms,
391 F.2d 348 (4th Cir. 1968) ................. 20

United States v. Harris,
391 F.2d 348, cert. denied, 393 U.S. 874 (1968) 16, 21

United States v. Hynes,
424 F.2d 754 (2d Cir. ), cert. denied

Ne kc ccccccece 14
United States v. Kenner,

354 F.2d 780 (2d Cir. 1965), cert. denied

Te ccocces 14
United States v. McCray,

ee 15
United States v. Peterson,

CE 17

United States v. Robinson,
560 F.2d 507 (2d Cir. 1977), cert. denied
46 U.S.L.W. 43541 (Feb. 27, 1978) .... 9, 10, 14, 17

TABLE OF CONTENTS

Cases CITED:
United States v. Rogers,

289 F.2d 880 (4th Cir. 1961) ................ 20
United States v. Scott,

547 F.2d 334 (1977) .........2cccecceeeeees: 16
United States v. Seawell,

550 F.2d 1159 (9th Cir. 1977) .......... 9, 12, 17
United States v. Silvern,

4384 F.2d 879 (1973) (en banc) .............. 16
United States v. Singletary,

2 - § _. eS reer er 17
United States v. Smith,

353 F.2d 166 (4th Cir. 1965) ................ 20
United States v. Smith,

303 F.2d 341 (4th Cir. 1962) ................. 21
United States v. Stollings,

S01 F.2d O64 (4th Cir. 1074) ...........2.05- 15
United States v. Sutherland,

488 F.2d 1158 (Sth Cir. 1070) .............2055- 21

United States v. Taliaferro,

558 F.2d 724 (4th Cir. 1977) ...............-. 15
United States v. Taylor,

530 F.2d 49 (1976) ...... 00... .eeceeeeee. 15, 21

United States v. Thomas,
146 U.S. App. D.C. 101, 449 F.2d 1177
(D.C. Cir. 1971) (en banc) ..... _... 13-14, 18, 21

TABLE OF CONTENTS

Cases Crrep:

United States v. Wynn,
415 F.2d 135 (1969), cert. denied

er Ec vnccenckadccddeneh¥es 17
Winship, In re,

I ee ee ll
STATUTE CITED:
I I i 2

AUTHORITIES CITED:

Standards Relating to Trial By Jury
(Approved Draft, 1968) at Sec. 5.4 .............. 13

Mathes and Devitt, Federal Jury Practice and

Instructions, Sec. 79.01 (1965) .............. 15, 16
APPENDIX
SE bc cb RaNeddsaneck eecainc Sddadanesdebat ne la
PR goes cccndnatdaeensoinneonws 3a
ce 4a
10 Year List of Federal Reported Criminal Cases
Involving The Allen Charge .................... 5a

IN THE

SUPREME COURT OF THE UNITED STATES
Ocroser TERM, 1977
No.

WILLIAM LACEY,

Petitioner,

UNITED STATES,
Respondent.

PETITION FOR A Writ oF CERTIORARI
TO THE UNrrep States Court or APPEALS

FOR THE SECOND CIRCUIT

The petitioner, William Lacey, respectfully requests
that a Writ of Certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the Sec-
ond Circuit entered in this proceeding on March 31, 1978.

OPINION BELOW
The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto. No opinion was rendered
by the District Court for the Southern District of New York.

1

JURISDICTION

The judgment of the Court of Appeals fo: the Second
Circuit was entered on March 21, 1978. A timely Petition
for Rehearing was denied on May 9, 1978. This Petition
for Certiorari was filed within 30 days of that date. The
jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. When a jury has previously announced that it is
deadlocked, has been given a supplemental Allen type
charge, and has, after deliberating further, once again an-
nounced that it is unable to reach a verdict, is the reading
of a second Allen type charge unconstitutionally coercive?

2. What standards should be applied by the Federal
Courts in determining whether supplemental jury charges,
given after a jury has announced deadlock, are imper-

missibly coercive?

3

CONSTITUTIONAL PROVISIONS
INVOLVED

AMENDMENT V

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentunent or in-
dictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the militia, when in actual service
in time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of
life and limb, nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall
private property be taken for public use, without com-
pensation.

AMENDMENT VI

In ali prosecutions, the accused shali enjoy the right
to a speedy and public trial, by an impartial jury of the
State and District where‘ the crime shall have been com-
mitted, which District saall previously have been ascer-
tained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining wit-
nesses in his favor, and to have the assistance of Counsel

for his defense.

4

STATEMENT OF THE CASE

In September of 1977 petitioner was tried in the Fed-
eral District Court for the Southern District of New York
on the charge of possession with intent to distribute cocaine.
The prosecution contended that the petitioner had “ex-
acted” approximately six ounces of cocaine from three indi-
viduals who had smuggled the drugs into this country by
going to their apartment and threatening violence. In sup-
port of this contention the government produced these
three smugglers as its major witnesses. Two of the prose-
cution witnesses, individuals who the prosecution con-
ceded were “not totally reliable and were not upstanding
pillars of the community” (Tr. 9 (4) ) identified the peti-
tioner as the one who had forcibly taken six ounces of co-
caine from them. In direct contradiction to the testimony
of these witnesses was the testimony of the third
smuggler, also an eyewitness to the transaction. This
prosecution witness testified that he had been present
during the transaction for approximately one hour (Tr.
291 (10) ) and that petitioner was not the individual who
had taken the cocaine (Tr. 292 (11), 293 (22)). This
witness also gave a partial description of the individual
involved in the transaction,’ a description which in no
way fit that of the petitioner. No testimony of any sort
was introduced that the petitioner had ever distributed
any cocaine or even that he had been seen in possession
by anyone other than the two accusing witnesses.

The defense attacked the testimony of the identify-
ing witnesses, inter alia, on the grounds that these wit-
nesses had a strong motive to fabricate in the hope of
winning leniency, since they had been facing life sen-
tences on state charges of selling drugs. The record made

1. It was indicated that the individual appeared heavy-set (Tr. 289 (5))
and that he did not have a beard (Tr. 290 (20)). The petitioner can only
be described as thin and had a distinctive red beard at the time of the alleged
theft of cocaine (Tr. 16 (22)).

Statement of the Case 5

amply clear that this was indeed their motive for testify-
ing (Tr. 48, Tr. 173 (12-22), Tr. 202 (23)). Further,
the accusing witnesses admitted that they had both with-
held information from the prosecution at various times
(e.g. Tr. 88 (6), Tr. 49 (12), Tr. 51 (5), Tr. 202-205)
and even admitted lying (e.g. Tr. 50 (20-25), Tr. 81
(5-15), Tr. 90 (7-16), Tr. 93 (11), Tr. 183-185, Tr. 203
(10)). Therefore, in the context of the case it is clear that
the members of the jury were faced with a relatively simple
issue—were the witnesses who identified the petitioner
credible. The trial judge quite explicitly indicated this
to the jury (Tr. 429 (23)).

The initial jury instructions were clear and compre-
hensive. Yet the jury found itself unable to agree. Sev-
eral hours after beginning their deliberations the jury
informed the trial judge that it was “hopelessly dead-
locked” (Tr. 427 (6), Tr. 429 (15)). Defense Counsel
moved for a mistrial, arguing that since the issue was not
complex forcing additional deliberations could only be
coercive. The trial judge agreed that the issue was a
relatively simple one (Tr. 425 (18)), but dismissed the
jury's note as “hyperbole” (Tr. 427 (6)) and determined
to give an Allen type charge? The defense was given
an exception to the court's ruling (Tr. 427 (13)). After
the Allen charge was given the trial judge dismissed the
jury for the evening.

In the late afternoon of the second day of delibera-
tions the jurors once again sent out a note informing the
judge that they still felt that it would be impossible for
them to agree upon a verdict. The prosecution suggested
that a second Allen type charge be used. Counsel for the
defendant made his position completely clear:

2. After the trial judge determined to give the Allen charge the defense
attorney asked how long the judge would force the jury to deliberate into the
evening. The judge indicated that he would decide that question “at [by]
the seat of my pants” (Tr. 427 (23)).

6 Statement of the Case

I think that any further Allen charge or any other
charge similar to that . . . that directs them to con-
tinue deliberating after a second note indicating their
impossibiliy of reaching a verdict is in a way coercive
with the simple issues involved (Tr. 443 (i5)).

Nonetheless, the trial judge, indicating his belief that
“the jury has not deliberated as long as they should in a
case like this before they come to this conclusion that they
are deadlocked to the point where they can’t reach agree-
ment” (Tr. 443 (20-24) ), decided to give a second Allen
charge. An exception was given to the defense.

Before giving the second Allen charge a colloquy de-
veloped between the judge and the prosecutor. The
prosecutor indicated his belief that even if the second
Allen charge were given it would be coercive to force the
jury to deliberate past the end of that day (Tr. 443 (11) ).
The trial judge indicated his apparent agreement by no-
ting, “If we don’t reach an agreement by five o clock then
I am going to declare a mistrial. In the meantime I will
indicate to them in the same short fashion that I did yes-
terday what is involved, with the so-called Allen charge
(Tr. 443-444). The text of what the judge told the jury
is set out in the note below.*

—_—- . . the
3. The opinion below indicated that the circuit panel was under
ion that petitioner had not objected to the use of the Allen
in ‘pan based Cheit opinion on this belief. Appendix at 2a. Th
ve

at

error.

4. Members of the jury, in analyzing how long ‘you
rating in this case this morning, I asked you to come
you recall, but we actually didn’t get started until about
ten. Someone was delayed. I never ascertained why because
think it was important. You then went out to
and you returned after two. When I this note it
Actually you have not been out that long today. So I feel that
should continue to discuss this case with the hopes of coming up
a verdict that’s in conformity with your convictions and your conscience.
I am going to repeat what I said to you yesterday when you left, because
of the interval in time, to refresh your reco as

area.

its
bite
SrEgSe

Statement of the Case 7

The trial judge did not, however, declare a mistrial
when the jury remained unable to reach a verdict by the

In the large portion of cases absolute certainty cannot be expected,
although the verdict must be the verdict of each individual juror and
not mere acquiescence in the conclusion of others. Yet you should
examine the question submitted with regard and deference to
the opinion of each other and you should Msten to each other's opinion
with a disposition to be convinced. It is your duty to decide the case
if you can conscientiously do so.
If a much larger number of jurors favor conviction a dessenting juror
should consider Aas reasonableness of his doubi when a - im-
pression mp mind of the other jurors equally intelligent and im-
EF'spes Sie alr hank ts capa hes mane the hould
, upon o ,t jority favors acquittal, minority shou
= themselves whether tor ahah on jeden doubt the correctness
o ir judgment.
Likewise the jurors in the majority favoring the finding for either party
should ask themselves whether they might not reasonably doubt the
correctness of their judgment when it makes no im ion upon the
minds of the minority jurors, who as I have indicated before, are equally
intelligent and impartial and have heard the same evidence.
Should you fail to agree in this verdict that is not the end of the
case. It may be retried. Any future jury must be selected in the same
way you were selected from the same source of jurors that you have
been selected and there is no reason to believe that the case would ever
be submitted to twelve men and women who are more competent to
decide it than you or that the case would be tried any better or ex-
haustively than it has been tried here or that there is any more or
clearer evidence that could be produced on behalf of either side.
For that reason I suggest to you that you give it further consideration
and I thank you for doing that as I have thanked you for what you have
done in the past (Tr. 444-446).
The first Allen type charge was substantially identical, except for the first para-
graph. The judge commented instead:
I have a note which reads or maybe I should have said that I had a
note. Here it is.
We are hopelessly deadlocked, and it is signed by the foreperson. I
want to compliment the jury for the serious manner in which you are
attending to your chores in this case. I will indicate to you just as a
trivia matter that I have been in this business for about 29 years, fifteen
years it the State court and fourteen years here in the Federal court.
I have been dealing with jurys during that time. It is not unusual for
a jury to feel that they have reached the end of the road. In this case,
which is essentially a very simple case your duties are really simple in
nature, although they may be hard to perform. There is essenti ly, in
the case, a very serious question of fact which must be decided by you.
I suppose in a layman's terms you wo:ld say well you either believe the
Cohen's and the Brown's or you believe the fact that the case has not
been proven beyond a reasonable doubt. I can understand the note
coming. in. But you realize that you have only been out less than two
hours on a case that’s taken a number of days to try (Tr. 429-430).

8 Statement of the Case

end of the day. Instead, over the objections of defense
counsel that to dtso would be coercive, the trial judge
announced that he intended to force the jury to return
for yet another day of deliberations (Tr. 450). Unknown
to defense counsel at the time, and apparently unknown
to the trial judge, was the fact that Yom Kippur was to
begin at sundown of the following day.

Thus, after two Allen type charges and with the
possible realization on the part of Jewish jurors that they
would be forced to deliberate past the start of Yom Kip-
pur, a third day of deliberation began. After nearly two
hours of additional deliberation the jury finally reached
a unanimous verdict, and found petitioner guilty. The
petitioner appealed his conviction on the ground, inter
alia, that the two Allen charges used were unduly coercive
in the context of the trial. In a brief, per curiam opinion,
the Second Circuit Panel affirmed his conviction, mis-
takenly finding that no objection had been made below
to the two Allen charges and indicating that they had
examined the wording of the two supplemental charges
and that “neither was unfair or unduly coercive” (Appendix
at 2a).

9

REASONS FOR GRANTING THE WRIT

A) There is a Direct Conflict Between the Ninth
and the Second Circuits Concerning whether it
is Impermissibly Coercive to Give a Second
Allen type Charge* Where a Jury Has Reported
Itself Unable to Reach a Verdict.

If this case had arisen in the Ninth Circuit, the con-
viction of the petitioner would have been reversed as
having been coerced. Yet the Second Circuit has re-
cently put itself in conflict with the Ninth by holding
that the giving of two Allen type charges is not imper-
missibly coercive where the jury has twice announced
deadlock. United States v. Seawell, 550 F.2d 1159, 1163
(9th Cir. 1977) (holding that the giving of two Allen
type charges was inherently coercive upon a jury) and
United States v. Robinson, 560 F.2d 507, 517 (2nd Cir.
1977), cert. den., 46 U.S.L.W. 3262 (October 11, 1972)°
(holding that two uses of this charge need not be consid-
ered unduly coercive). Consequently, since this case
arose in the only circuit which has approved of such a
practice, petitioner's conviction was allowed to stand.

In Seawell the context in which the two Allen type
charges were given was, if anything, less egregiously co-

5. There are a number of different versions of the so-called Allen charge,

but the term is generally meant to comprehend a charge similar to that ap-

oved in Allen v. United States, 164 U.S. 492 (1896). This charge is also

by the appellations “hanging instruction” (Levine v. He , 148

W. Va. 323, 134 S.E.2d 892 (1964)), the “dynamite charge”, the “shotgun

instruction”, the “third degree instruction”, or the “nitroglycerin ” 'be-

cause it is thought that the charge can “blast a verdict out of a jury rwise

unable to agree that a person is guilty.” United States v. Bailey, 468 F.2d
652, 666 (5th Cir. 1972).

6. Ay the Petition for Certiorari filed with the court by the peti-
tioner in Robinson did not question the use of two Allen type charges. 46
U.S.L.W. 3056-7 (August 16, 1977). Thus this petition would appear to
raise this issue before the Court for the first time.

10 Reasons for Granting the Writ

ercive than the context of the present case, yet the Ninth
Circuit noted that:

Problems arising from the inherently coercive effect
of the Allen charge have caused other courts of ap-
peals and state courts to prohibit or resrict severely its
use... . [E]ven in its most acceptable form the Allen
charge “approaches the ultimate permissible limit.

[cite omitted]. We conclude that permitting it to be
given twice in a federal prosecution would be an un-
warranted expansion of its use.

If the charge is to pass muster, there is little need

to repeat it save at a jury's request. ... Repetition
of eden together with the jury’s second deadlock
is almost certain to convey the thought that by failing
to come to an agreement—by once again reporting
themselves at an impasse—the jurors have acted con-
trary to earlier instructions as that instruction was
properly to be understood. . . . We believe that the
defendant's right to an impartial jury demands a
per se rule [against repetition].

United States v. Seawell, 550 F.2d 1159, 1162-3
[footnotes omitted].

The Second Circuit, apparently unaware of the Sea-
well case, reached the opposite conclusion in Robinson.
In a very cursory analysis (and over a strong dissent ) it
noted that “although the chances for coercion may in-
crease with each successive appeal by the court to the
jurors to try to reach a verdict we are unwilling to hold
that a second Allen type charge is error per se.” United
States v. Robinson, 560 F.2d 507, 517.

This case is strikingly similar to Seawell and Robin-
son. The jury in all three cases found itself to be hope-
lessly deadlocked even after a modified Allen charge was
used. The trial judge in all three cases told the jurors, in
effect, that he disbelieved their considered judgment that

they could not reach an opinion without doing violence

Reasons for Granting the Writ ll

to the conscientiously held opinion of one or more mem-
bers of the jury. The conviction in this case was appar-
ently affirmed partly’ on the basis of Robinson, though
the brief per curiam opinion cited no cases. It is sub-
mitted that the Second Circuit erred in Robinson and con-
sequently in its affirmance of Petitioner's conviction. It
is further submitted that the Fifth and Sixth Amendments
to the United States Constitution compel the result reached
by the Ninth Circuit in Seawell.

A long line of cases hold that in order to meet the
due process standards of the Fifth Amendment a jury
must determine that the government has proven its case
beyond a reasonable doubt before a defendant may be
convicted. E.g. In Re Winship, 397 U.S. 358, 362 (1970);
Speiser v. Randall, 357 U.S. 513, 525-26 (1958); Miles v.
United States, 103 U.S. 304, 312 (1881). Similarly, an
unbroken line of cases reaching back into the 1800's show
that this court has consistently recognized that the re-
quirement of unanimity on the part of jurors is one of the
indispensable features of the federal * jury system. These
two requirements undoubtedly mandated the holding of
this court that supplemental jury instructions which could
have coerced jurors into surrendering conscientiously held
views were improper. Jenkins v. United States, 380 U.S.
445 (1965). Said the Court, “[T]he principle that jurors
may not be coerced into surrendering views conscien-
tiously held requires no elaboration.” United States v. Jen-

7. It is also clear that the affirmance was partly based upon the factual
error on the part of the Circuit panel that there had been no objection to
the use of the Allen charges.

8. This case does not require the court to determine whether the use of
two supplementary charges by a state cuurt would be unconstitutional. Cf.
Johnson v. Louisiana, 406 U.S. 356 (1971). Neither is the court faced with
the situation where a jury itself requesis a supplemental charge ( United States
v. Kahner, 317 F.2d 459, 484 (2nd Cir.) or wheie the c read is =
of the original charge. United States v. Washington, 144 U'S. App. D.C.,
338 F.2d (1970).

12 Reasons for Granting the Writ

kins, supra, at 446. (Adopting the views of the Solicitor
Gund. Cf. Bransfield a“ United States, 272 U.S. 448,
450 (1926); Burton v. United States, 196 U.S. 238, 307-
308 (1905) (both holding that the mandate of an impar-
tial jury requires reversal where a judge has inquired as
to the division of a jury which is unable to agree).

The situation in which . pe a type o~- is _
iven must be anal in light e constitu-
tional ane te definition, jury deadlocks are
most likely to occur in close cases such as the one pres-
ently before the Court. One or more members of the
jury, having properly been instructed as to the law of
the case oa as to the burden of proof and after discussing
the matter with other jurors, finds him/herself with reason-
able doubt as to the guilt of the accused. The jury, find-
ing itself unable to agree on a verdict, then indicates to the
judge that it is at an impasse.

Petitioner does not contend that a non-coercive, prop-
erly framed’ supplemental jury charge at this point is
necessarily coercive. But where a jury, having been in-
structed properly as to their duty to attempt to reach a ver-
dict, still finds that in the minds of some jurors a reasonable
doubt exists, an additional reading of any Allen type charge

is unavoidably coercive. Rejection of the jury's second

deadlock along with repetition of the charge is virtually
certain to sound to jurors like a “lecture sounding in re-
proof.” United States v. Seawell, 550 F.2d 1159, 1163
(1977). Additionally, the trial judge’s failure to accept the
decision of the jury that to reach a unanimous decision
oue ur more of the jurors would be forced to give up
conscientiously held opinions is tantamount to denying

9. Petitioner discusses possible criteria for determining what constitutes
a non-coercive, properly framed supplemental jury charge elsewhere in this
petition. See pages 20-22, infra.

ee ere

Reasons for Granting the Writ 13

their word that those opinions are conscientiously held.
Further, jurors cannot fail to receive the idea that they
will simply not be released until some verdict is reached."
This, of course, is clearly impermissibly coercive as this
court held in Jenkins v. United States, 380 U.S. 445 (1965).

Consequently petitioner requests that the Court settle
the conflict between the Ninth and Second Circuits con-

cerning the permissibility of the use of the two Allen type
charges by holding that the use of two such charges is
inherently coercive and therefore constitutionally infirm.

B) The Guidance of This Court is Urgently Required
in order to Clarify The Current Confused State
of the Law Concerning the Proper Standard of
Review When Supplemental Charges are Given.

The guidance of this Court is urgently needed in
order to eliminate the “hodge-podge” of varying standards
of review which have developed in the different circuits
concerning the use of supplemental Allen type charges
where the jury has reported itself in deadlock. The cha-
otic and confused state of the law in this area may best
be illustrated by a brief examination of the standards
imposed by each of the circuits.

In The District of Columbia Circuit, the traditional
Allen charge has been replaced with the charge recom-
mended by the American Bar Association." United States
v. Thomas, 146 U.S. App. D.C. 101, 449 F.2d 1177 (D.C.

10. In this case such an impression would have been made
strong by the requirement that the jury return for a third day of deliberations
after they had been unable to agree subsequent to the second Allen charge
and after several hours of additional deliberation.

11. This charge appears in Minimum Standards for Criminal Justice, Trial
By jury ( Approved Draft, 1968) at Sec. 5.4. The charge, which is consider-
ably less harsh than the Allen charge, appears at p. 22 of this brief, infra.

14 Reasons for Granting the Writ

Cir. 1971) (en banc). The Court, in an exercise of its
supervisory power, stated that it would reverse verdicts
which were reached after a non-complying charge was
given.

Using a different approach, the First Circuit in
United States v. F , 451 F.2d 880 (1st Cir. 1971),
placed substantial limitations around the Allen charge by
requiring 1) the elimination of remarks addressed exclu-
sively to minority jurors unless remarks were also ad-
dressed to majority jurors, 2) the elimination of any sug-
gestion that the case must be decided sooner or later by
a jury, and 3) a reinstruction on the prosecutor's burden of
proof beyond a reasonable doubt whenever an Allen
charge is given. In the subsequent case of United States
v. Angiulo, 485 F.2d 37 (Ist Cir.) cert. denied, 419 U.S.
896 (1973), the First Circuit reaffirmed its Flannery
standards and reversed a case involving two Allen charges.

Unlike most of the other circuits, the Second Circuit
has had little difficulty in upholding the use of almost any
version of the Allen charge. Although United States v.
Kenner, 354 F.2d 780 (2d Cir. 1965) cert. denied 383 U.S.
958 (1966), indicated that the court would take a strict
view of Allen charges, the circuit has readily affirmed sub-
sequent uses. See, e.g., United States v. Hynes, 424 F.2d
754 (2d Cir.) cert. denied 399 U.S. 933 (1970). This
attitude recently reached its apex in the summary affir-
mance of a trial judge's use of two Allen charges. United
States v. Robinson, 560 F.2d 507 (2d Cir. 1977) (en
banc), cert. denied (on other grounds), 46 U.S.L.W. 3262
(Oct. 11, 1977).

The Third Circuit banned future use of the Allen
charge entirely in United States v. Fioravanti, 412 F.2d
407 (3d Cir.), cert. denied sub nom. Panaccione v. United

=F

Reasons for Granting the Writ 15

States, 396 U.S. 837 (1969). See also, Government of
Virgin Islands v. Hernandez, 476 F 2d 791 (3d Cir. 1973).
The Third Circuit, unlike the District of Columbia Cir-
cuit, did not recommend the American Bar Association
standards to its district judges. Instead, the circuit re-
quired use of a similar charge found at Mathes and De-
vitt, Federal Jury Practice and Instructions, Sec. 79.01
(1965).

Although the Fourth Circuit has never actually pro-
hibited further use of the Allen charge, it has strongly
recommended the use of the American Bar Association
charge within its jurisdictions and strongly implied that
further use of the Allen charge would be held unac-
ceptable. United States v. Stollings, 501 F.2d 954 (4th
Cir. 1974). Apparently, most of the district judges have
complied with this request. See, United States v. Talia-
ferro, 558 F.2d 724 (4th Cir. 1977); United States v. Dolan,
544 F.2d 1219 (4th Cir. 1976); United States v. Godwin,
522 F.2d 1135 (4th Cir. 1975).

The propriety of the Allen charge has been ex-
tensively litigated in the Fifth Circuit. The result is a
not very clear state of the law. In United States v.
Bailey, 480 F.2d 518 (1973), the circuit, sitting en banc,
permitted continued use of the Allen charge despite a
vigorous dissent and the strongly anti-Allen sentiment
of the panel below, 468 F.2d 652 (1972). Subsequent
litigation has resulted in both affirmances, see, e.g., United
States v. McCray, 528 F.2d 1029 (1976), and reversals,
see, e.g., United States v. Taylor, 530 F.2d 49 (1976). In

t-Bailey attempts to clarify its view, the Fifth Circuit
has applauded the elimination of the second paragraph
of the original Allen charge, United States v. Cheramie,
520 F.2d 325 (1975), and has stated that it “will sanction
soothing and purgative additions [to the Allen charge],

16 Reasons for Granting the Writ

but any verbal gilding which may plausibly be read as
coercive must be disapproved,” United States v. Amaya,
509 F.2d 813 (1975), cert. denied, 429 U.S. 1101 (1975).

The Sixth Circuit has stated that the Allen charge is
properly given only within “exceedingly narrow bounds.”
United States v. Scott, 547 F.2d 334 (1977). Although
it has not required more than a strict adherence to the
original Allen language it has expressed a preference for
the charge appearing in Mathes and Devitt, Federal Jury
Practice Instructions, Sec. 79.01 (1965). See United States
v. Harris, 391 F.2d 348, cert. denied, 393 U.S. 874 (1968).

Among the several circuits, the Seventh Circuit takes
the strictest view of the Allen charge. It first prohibited
the use of the Allen charge in United States v. Brown,
411 F.2d 930, cert. denied, 396 U.S. 1017 (1969), and
required future use of the American Bar Association
charge. Subsequently, in United States v. Silvern, 484
F.2d 879 (1973) (en banc), it placed further restrictions
on the use of Allen type charges by requiring the use of
a boilerplate charge and prohibiting any deviation from
the required charge. Additionally, the Circuit is prohib-
iting the use of even the boilerplate charge unless it had
been included in the judge’s initial charge to the jury.
See also United States v. Chaney, 559 F.2d 1094 (1977)
(reversing for failure to follow the structures of Silvern).

In 1925, the Eighth Circuit frowned upon the use
of Allen even in civil cases, Chicago & E. I. Ry. v. Sellars,
5 F.2d 31 (1925), but more recently it has followed Judge
Blackmun’s opinion in Hodges v. United States, 408 F.2d
543 (1969) affirming the use of Allen by the trial judge.
Several more recent opinions indicate, however, that the
American Bar Association charge is frequently used by

Reasons for Granting the Writ 17

district judges in the circuit. See, e.g., United States v.
Singletary, 562 F.2d 1058 (1977); United States v. Daw-
kins, 562 F.2d 567 (1977).

The Ninth Circuit has not prohibited the use of the
Allen charge. United States v. Peterson, 549 F.2d 654
(1977). It has, however, taken a tough approach to
poorly-timed Allen charges, especially when the jury has
not indicated a deadlock, United States v. Contreras, 463
F.2d 773 (1972), and has absolutely prohibited the use
of two supplementary Allen charges, United States ». Sea-
well, 550 F.2d 1159 (1977). The Ninth Circuit's holding
in Seawell places it directly into conflict with the Second
Circuit's view of the use of two supplementary Allen
charges as reflected in their decisions in the present case
and in United States v. Robinson, supra.

In a recent line of cases, the Tenth Circuit has in-
creasingly tightened its standard of review for the use of
Allen charges, although it has not prohibited use of the
charge. In United States v. Wynn, 415 F.2d 135 (1969)
cert. denied, 397 U.S. 994 (1970), the court urged trial
judges to use Allen as part of their initial charge rather
than as a supplemental charge. The Wynn court cited
the Third Circuit’s ban on Alen, United States v. Fiora-
vanti, supra, with approval but refused to ban the charge
itself. Shortly after Wynn, the circuit met en banc to
decide Munroe v. United States, 424 F.2d 243 (1970).
The Munroe court followed Wynn's refusal to ban the
charge, but strongly recommended the use of the Amer-
ican Bar Association charge in future trials. Most re-
cently, in United States v. Dyba, 554 F.2d 417 (1977),
the Tenth Circuit detailed its standard of review for Allen
charges as requiring an evaluation of at least three ele-
ments: 1) an examination of any and all colloquy be-

18 Reasons for Granting the Writ

tween the judge and the jury foreman/woman, 2) an
examination of all of the circumstances surrounding the
giving of the Allen charge, and 3) a comparison of the
charge with the American Bar Association guidelines.

It is thus unfortunately apparent that the eleven
circuits have taken eleven different positions regarding

the use of the Allen charge."*

Further, the uncertainty concerning supplemental
charges has caused a flood of litigation concerning them,
clogging the courts to the extent that two of the circuits
which have banned the Allen charge specifically cited the
burden of appellate review as a factor in their decision.
See United States v. Thomas, 449 F.2d 1177, 1186 (D.C.
Cir. 1971); United States v. Fioravanti, 412 F.2d 407, 417
(3d Cir.), cert. den. sub nom. Panaccione v. United States,
396 U.S. 837 (1969). This concern has been echoed by
dicta in almost every other circuit. (See, e.g., United States
v. Angiulo, 485 F.2d 37, 40 (1st Cir. 1973) ) and has been
confirmed by a no means exhaustive survey which shows
that during the past 10 years there have been no fewer than
150 opinions rendered in the Federal Courts which deal
directly with the use of the Allen charge (in its many for-
mulations ) in criminal cases. A list of these cases, far too

12. The situation in state jurisdictions is also confused. The Pi

Supreme Court has indicated that it believes the Allen charge to be unvonsti-
tutional. Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971).
Other cases in which states have eschewed its use entirely and adopted the
A.B.A. or similar standards include: Fields v. State, 487 P.2d 831 (Alaska
1971); People v. Gainer, 19 Cal. 3rd 835, 566 P.2d 997, 139 Cal. . 861
(1977); People v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601 (1972); State v.
Nicholson, 315 So. 2d 639 (La. 1975); State v. White, 285 A.2d 832 (Me.
1972); People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974); State v.
Martin, 297 Minn. 359, 211 N.W.2d 785 (1973); State v. Blake, 113 N.H.
115, 305 A.2d 300 (1973); State v. Champagne, 198 N.W.2d 218 (N.D.
1972); State v. Patriarca, 112 R.I. 14, 308 A.2d 300 (1973); Kersey v. State,
525 $.W.2d 139 (Tenn. 1975); State v. Perry, 131 Vt. 337, 306 A.2d 110
(1973). At least 12 other states have mandated substantial modifications of
the Allen charge. See cases collected in People v. Gainer, supra, n.8.

Reasons for Granting the Writ 19

long to be reproduced here, is included in the Appendix
to this brief. See 5a. While all the circuits appear to
recognize their constitutional duty to forbid charges which
could have a coercive effect on the jury (Jenkins v. United
States, 380 U.S. 445 (1965) ), they have had the great diffi-
culty in fashioning this duty into a workable standard ap-
plicable to all the various permutations which the Allen
charge has taken. Petitioner submits that it would aid the
circuits immensely if this court were to elucidate such
standards. Standards are a promise of consistency.

For example, the panel hearing this case below ap-
parently felt that it was not compelled to take into con-
sideration the entire context within which the supplemental
jury charges at issue here were given."* Other circuits
have specifically stated that the circumstances surrounding
the issuance of the charge must be considered in deter-
mining whether the charge could have been coercive to
members of the jury. See, e.g. United States v. Dyba,
554 F.2d 417, 421 (10th Cir. 1977); Powell v. United
States, 297 F.2d 318, 322 (5th Cir. 1962). Certainly this
obligation is not merely discretionary. Cf. Jenkins v.
United States, 380, U.S. 445 (1965).

If the court had considered the factual context of this
case it could not have avoided the conclusion that the
charges given were indeed coercive. In light of the sim-
plicity of the issue involved, the length of time which the
jury deliberated, the assertions at two different times by.
the jury that it was in hopeless disagreement, the failure
of the trial judge to declare a mistrial at the end of the
second day as he had indicated he would, and the un-

certainty which was necessarily created in the minds of

13. This can be the only conclusion from the court's brief comment that,
“a careful reading of the two charges indicates that neither was unfair or
unduly coercive.” Appendix at 2a. (emphasis added). Further, as will be
indicated later in this petition, it is not accepted that the wording of the
charges was non-coercive.

20 Reasons for Granting the Writ

the jurors concerning the length of time they would be
forced to deliberate (exacerbated, perhaps, for some by
the rapid approach of Yom Kippur) this is the only con-
clusion which could have been reached.

Even when considered in isolation, however, it is clear
that the wording of the supplemental charges used in this
case was coercive. A survey of the cases decided in the
various circuits shows several aspects of formulation which
have been used in determining whether a supplemental

charge will be considered to be fair.

First, the supplemental charge must not imply that
only those in the minority are under an obligation to re-
examine their views. In other words, the charge must
work in an even-handed manner. See, e.g. Green v. United
States, 309 F.2d 852 (5th Cir. 1962); United States v.
Angiulo, 485 F.2d 37 (lst Cir. 1973); United States v.
Rogers, 289 F.2d 880 (4th Cir. 1961); United States v.
Harms, 391 F.2d 348 (4th Cir. 1968).

Second, the charge mr :t make clear that no juror is
expected to surrender conscientiously held convictions con-
cerning the weight and sufficiency of the evidence merely
for the purpose of reaching a verdict. See, e.g. United
States v. Smith, 353 F.2d 166 (4th Cir. 1965); United
States v. Rogers, 289 F.2d 433 (4th Cir. 1961); Powell v.
United States, 297 F.2d 318 (5th Cir. 1961).

Third, the trial judge should make clear to the jury
that it will be discharged without having agreed on a
verdict when it appears that there is no possibility of an
agreement. A jury which reports deadlock would not do
so unless it felt its divisions to be irreconcilable. While
it may not be improper for a trial judge to request the
jury to continue deliberating where he feels there is still
hope, it should be impermissible to leave the jury with

Reasons for Granting the Writ 21

the impression that they will not be released until a verdict
is reached. See, e.g. United States v. Angiulo, 485 F.2d
37 (1st Cir. 1973); United States v. Flannery, 451 F.2d
380 (1971); United States v. Duke, 492 F.2d 693 (5th Cir.
1974). It has even been postulated that a hung jury is
a constitutional right,* though it could perhaps be better
stated that it is a necessity if we were to guarantee in the
federal courts the right of a unanimous verdict which was
not coerced. Cf. Jenkins v. United States, 300 U.S. 445
(1965).

Fourth, a factor which has been held to be coercive
is the incorporation of extraneous matters into the sup-
plemental charge. The extraneous matters which could
be incorporated are legion, but the most common is un-
doubtedly a reference to retrial. United States v. Smith,
303 F.2d 341 (4th Cir. 1962); United States v. Barley,
460 F.2d 998 (3rd Cir. 1972); United States v. Harris,
391 F.2d 348 (6th Cir. 1968). Accord, United States v.
Thomas, 449 F.2d 1177, 1183-4 (D.C. Cir. 1971). Cf.
United States v. Taylor, 530 F.2d 49 (5th Cir. 1976) where,
inter alia, the trial judge reminisced about his first case,
and told the jurors that the case before them was “easy” ).
Matters not dealing with the weight or sufficiency of the
evidence simply have no place before a jury.

Finally, when a supplemental charge is offered it
should place the same emphasis as did the original instruc-
tions concerning the presumption of innocense and the
requirement of proof beyond a reasonable doubt. United
States v. Angiulo, 485 F.2d 37 (1st Cir. 1973); United States
v. Flannery, 451 F.2d 880 (1st Cir. 1971); United States
v. Sutherland, 428 F.2d 1152 (5th Cir. 1970); Burrup v.
F.2d 74, 155 (5th Gi.) (Brown, No dseetingh con don, 310 US 955

(1962); Andrews v. United States, 309 F.2d 127, 129-31 (5th Cir. 1962)
(Wisdom, J., dissenting).

22 Reasons for Granting the Writ

United States, 371 F.2d 556 (10th Cir.), cert. den. 386
U.S. 1034 (1967}. Not to include such a reminder risks an
impression that the trial judge is less concerned about the
standard which must be met than about a quick decision.

The standards here outlined are not impossible to meet.
The guidelines adopted by the American Bar Association
and by the Committee on the Operation of the Jury System
of the Judicial Conference of the United States (set out
in the note below)"’ meet them. A convenient formula-
tion of these standards into an actual charge may be found
in United States v. Angiulo, 485 F.2d 37, 40, n.4 (1st Cir.
1973).

But the charge used in this case, whether the stric-
tures listed be considered binding or only guides, must be

15. 5.4 Length of deliberations; deadlocked jury.

(a) Before the jury retires for deliberation, the court may give an
instruction which informs the jury:

(I) that in order to return a verdict, each juror must agree thereto;

(II) that jurors have a duty to consult with one another and to
deliberate with a view to reaching an agreement, if it can be done
without violence to individual judgment;

(III) that each juror must decide the case for himself, but only
after an impartial consideration of the evidence with his fellow jurors;

(IV) that in the course of deliberations, a juror should not hesitate
to reexamine his own views and change his opinion if convinced it is
erroneous;

(V) that each juror who finds himself in the minority shall recon-
sider his views in the light of the opinions of the majority, and each
juror who finds himself in the majority shall give equal consideration
to the views of the minority.

(VI) that no juror should surrender his honest conviction as to
the weight or effect of the evidence solely because of the opinion of
his fellow jurors, or for the mere purpose of returning a verdict.

(b) If it appears to the court that the jury has been unable to agree,
the court may require the jury to continue their deliberations and may
give or repeat an instruction es provided in subsection (a). The court
shall not require or threaten to require the jury to deliberate for an
unreasonable length of time or for unreasonable intervals. (Emphasized
paragraph is the one recommended for insertion to that appearing in
the A.B.A. Project on Minimum Standards For Criminal Justice, Trial
By Jury J 5.4 (Approved Draft, 1968 by the Judicial Conference.) Sup-
plement to Report of the Committee on the Operation of the Jury System
of the Judicial Conference of the United States 2 (1969).

Reasons for Granting the Writ 23

considered coercive, for it violates all but one of the above.
While the charge did properly emphasize to the jury that
all were to re-evaluate their views, the court did not indi-
cate that no juror was expected to surrender his or her
honestly held convictions. The phrase “if you can con-
scientiously do so” tucked in the long charge can hardly
suffice. Additionally, the trial judge incorporated into
the charge matters which should have had no bearing
on the decision. He set the tone of his charge by chas-
tising the jurors for beginning their morning deliberation
a bit late. He ended it by an extensive reference to re-
trial. While the comments concerning retrial may have
been, strictly speaking, accurate, they were nonetheless
coercive since they tended to convey a “need” for a verdict.
This impression was exacerbated by his failure to indicate
any standard concerning the presumption of innocence
and the degree of proof necessary in order to convict. Per-
haps most coercive of all, however, was the failure of the
judge to inform the jurors that they would be dismissed
when it became apparent that the possibility of agreement
no longer existed. In light of the fact that the jury had
twice indicated to the judge that they were hopelessly
deadlocked,"* that the trial judge had not only once but
twice given them a coercive charge, and that they had
been recalled for yet another day of deliberations, the jury
could not have reached any conclusion but that the judge
intended to keep them deliberating ad infinitum, until a
verdict was reached. This impression could easily have

been avoided.

Thus it is clear that the supplemental jury charges at
issue in this case were improperly and unconstitutionally
coercive on the jury.

16. Despite the judge’s characterization of this as “hyperbole”, it none-
theless represents the view of 12 jurors who there is reason to believe were
quite conscientious.

24

CONCLUSION

There is a direct conflict among the circuits concern-
ing whether the use of an Allen type charge twice given
is impermissibly coercive. Further, the circuits are in
utter confusion concerning the proper standard of review
against which to measure supplemental jury charges, re-
sulting in conflicting opinions and an avoidable volume of
appellate litigation. Finally, the petitioner was deprived
in this case of his Fifth and Sixth Amendment rights to a
fair and impartial trial by jury. Consequently a Writ of
Certiorari should issue to review the judgment and opinion
of the Second Circuit.

Respectfully submitted,

P ORZO THADDEUS WELLS,
Attorney for Petitioner,

350 Broadway—Suite 1200

New York, New York 10013
212

» (212) 226-3000

AARON DINEs,

Of Counsel and

On The Petition

la

APPENDIX
OPINION

At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the United States Court-
house in the City of New York, on the 3lst day of March,
one thousand nine hundred and seventy-eight.

Present:

HONORABLE WILFRED FEINBERG
HONORABLE WALTER R. MANSFIELD
HONORABLE JAMES L. OAKES

Circuit Judges,

UNITED STATES OF AMERICA,

Appellee,
against

WILLIAM LACEY,
Defendant-Appellant.
77-1450

Appeal from the United States District Court for the
Southern District of New York.

This cause came on to be heard on the transcript of
record from the United States District Court for the South-
ern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOPF, it is now hereby
ordered, adjudged, and decreed that the judgment of said
District Court be and it hereby is affirmed.

William Lacey appeals his conviction for possession of
cocaine with intent to distribute in violation of the federal
drug laws, after a jury trial before Judge Cannella in the

2a Opinion

United States District Court for the Southern District of
New York.

Appellant first contends that the two modified Allen
charges given by the district court deprived him of a fair
trial. However, a careful reading of the two charges in-
dicates that neither was unfair or unduly coercive; and,
in any case, appellant's failure to object at trial precludes
his raising this point on appeal.

Appellant also argues that the district judge erred in
excluding excerpts of a book written by one of the prose-
cution’s key witnesses, Harvey Cohen. But it was within
the district judge’s discretion to reject this attempt to
impeach this witness by use of arguably remote, extrinsic
evidence concerning collateral matters. Moreover, ap-
pellant's defense was not significantly impaired by this
exclusion, since Cohen had already admitted to substantial
drug usage and exposure to drugs, which was the gist of
the excluded evidence.

Finally, appellant's claim of insufficient evidence is un-
availing in light of the direct testimony concerning ap-
pellant’s knowing possession of a relatively large amount
of cocaine smuggled into this country from Peru.

We have considered all of appellant's arguments and
find them to be without merit. The judgment of con-
viction is affirmed.

/s/ Wilfred Feinberg
WILFRED FEINBERG

/s/ Walter R. Mansfield
WALTER R. MANSFIELD

/s/ James L. Oakes
JAMES L. OAKES

Circuit Judges

3a

PETITION FOR REHEARING

At a Stated Term of the United States Court of Appeals,
in and for the Second Circuit, held at the United States
Court House, in the City of New York, on the ninth day
of May, one thousand nine hundred and seventy-eight.

Present:

HON. WILFRED FEINBERG
HON. WALTER R. MANSFIELD
HON. JAMES L. OAKES

Circuit Judges.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

EDWARD WHITE, RICHARD PAGLIALONGA,
ILENE BAKER, WILLIAM LACEY,
MILTON THOMPSON, A/K/A “SKIP”,

Defendants,

WILLIAM LACEY,
Defendant-Appellant.

77-1450

A petition for a rehearing having been filed herein by
counsel for the defendant-appellant William Lacey.

Upon consideration thereof, it is
Ordered that said petition be and it hereby is denied.

A. DANIEL FUSARO
Clerk

4a

CERTIFICATION

1 hereby certify that on this 2nd day of June, 1978,
three copies of the Petition for Writ of Certiorari were
mailed, postage paid, to the Solicitor General of the United
States, Department of Justice, Constitution Ave. and 10th
St. N.W., Washington, D.C., 20530, Counsel for Respon-
dent. I further certify that all other parties required to
be served have been served.

/s/ Orzo Thaddeus Wells
ORZO THADDEUS WELLS,
Attorney for Petitioner.

5a

10 YEAR LIST OF FEDERAL REPORTED
CRIMINAL CASES INVOLVING THE
ALLEN CHARGE
( Not Exhaustive )

Basker v. Crouse, 426 F.2d 531 (10th Cir. 1970).

Berne v. Government of Virgin Islands, 412 F.2d 1055
(3d Cir. 1969), cert. denied, 396 U.S. 837, 90 S. Ct. 96, 24
L.Ed.2d 87 (1969).

Brandom v. United States, 431 F.2d 1391 (7th Cir. 1970),
cert. denied, 400 U.S. 1022, 401 U.S. 942.

Breeze v. United States, 398 F.2d 178 ( 10th Cir. 1068).

Bryan v. Wainwright, 511 F.2d 644 (5th Cir. 1975),
rev g., 377 F. Supp. 760 (M.D. Fla. 1974), cert. denied,
423 U.S. 837.

Conner v. Deramus, 374 F. Supp. 504 (M.D. Pa. 1974).

Floyd v. Superintendent, Virginia State Pen., 383 F. Supp.
1103 (W.D. Va. 1974).

Goff v. United States, 446 F.2d 623 (10th Cir. 1971).

Government of Canal Zone v. Fears, 528 F.2d 641 (5th
Cir. 1976).

Government of Virgin Islands v. Hernandez, 476 F.2d
791 (3d Cir. 1973).

Hale v. United States, 435 F.2d 737 (5th Cir. 1970),
cert. denied, 402 U.S. 976, 91 S. Ct. 1680, 29 L.Ed.2d 142
(1971).

Hodges v. United States, 408 F.2d 543 (8th Cir. 1969).

Jones v. Norvell, 472 F.2d 1185 (6th Cir. 1973), cert.
denied, 411 U.S. 986, 93 S. Ct. 2275, 36 L.Ed.2d 964.

6a 10 Year List

Kersey v. State, 525 $.W.2d 139 (S. Ct. Tenn. 1975).

Marsh v. Cupp, 536 F.2d 1287 (9th Cir. 1976), af'g,
392 F. Supp. 1060, cert. denied, 429 U.S. 981, 97 S. Ct.
494, 50 L.Ed.2d 590 (1976).

Miracle v. United States, 411 F.2d 544 (Sth Cir. 1969).

Munroe v. United States, 424 F.2d 243 (10th Cir. 1970)
(en banc).

Nordman v. National Hotel Co., 425 F.2d 1103 (5th
Cir. 1970).

Posey v. United States, 416 F.2d 545 (5th Cir. 1969),
cert. denied, 397 U.S. 946, 90 S. Ct. 965, 25 L.Ed.2d 127,

rehearing denied, 397 U.S. 1031, 90 S. Ct. 1267, 25 L.Ed.2d
544.

Post v. United States, 132 U.S. App. D.C. 189, 407 F.2d
319 (D.C. Cir. 1968), cert. denied, 393 U.S. 1092, 89 S.
Ct. 863, 21 L.Ed.2d 784 (1969). |

Powell v. United States, 297 F.2d 318 (9th Cir. 1972).

Ralls v. Manson, 503 F.2d 491 (2d Cir. 1974), rev’g, 375
F. Supp. 1271 (D. Conn. 1974).

Sanders v. United States, 415 F.2d 621 (5th Cir. 1969),
cert. denied, 397 U.S. 976, 90 S. Ct. 1096, 25 L.Ed.2d. 271.

Shaw v. Robbins, 338 F. Supp. 756 (D. Me., S.D. 1972).

Steel v. United States, 400 F. Supp. 41 (E.D. Okla.
1975).

Sullivan v. United States, 414 F.2d 714 (9th Cir. 1969).
United States v. Abbadessa, 470 F.2d 1333 (10th Cir. ).
United States v. Alper, 449 F.2d 1223 (3d Cir. 1971).

United States v. Amaya, 509 F.2d 8 (5th Cir. 1975),
cert. denied, 429 U.S. 1101.

10 Year List | 7a

United States v. Angiulo. 485 F.2d 37 (1st Cir. 1973),
cert. denied, 419 U.S. 896.

United States ex rel. Anthony v. Sielaff, 522 F.2d 588
(7th Cir. 1977).

United States v. Atkins, 528 F.2d 1352 (5th Cir. 1976).

United States v. Bailey, 468 F.2d 652 (5th Cir. 1972),
affd en banc, 480 F.2d 518 (1973).

United States v. Bambulas, 471 F.2d 501 (7th Cir.
1973).

United States v. Barash, 412 F.2d 25 (2d Cir. 1969),
cert. denied, 396 U.S. 835, 90 S. Ct. 86, 24 L.Ed.2d 86
(1969), rehearing denied, 396 U.S. 949, 90 S. Ct. 371, 24
L.Ed.2d 255 (1969).

United States ex rel. Barbry v. Rundle, 308 F. Supp.
628 (E.D. Pa. 1970).

United States v. Bass, 425 F.2d 161 (7th Cir. 1970).
United States v. Bass, 490 F.2d 846 (5th Cir. 1974).
United States v. Bates, 407 F.2d 590 (7th Cir. 1969).

United States v. Bermudez, 526 F.2d 89 (2d Cir. 1975),
cert. denied, 425 U.S. 970, 96 S. Ct. 2166, 48 L.Ed.2d 93
(1976).

United States v. Betancourt, 427 F.2d 851 (5th Cir.
1970).

United States v. Bokine, 523 F.2d 767 (5th “ir. 1975).

United States v. Bowles, 428 F.2d 592 (2d Cir.), cert.
denied, 400 U.S. 928, 91 S. Ct. 193, 27 L.Ed.2d 188 (1970).

United States ex rel. Brothers v. Rundle, 414 F.2d 244
(3d Cir. 1969).

8a 10 Year List

United States v. Brown, 411 F.2d 930 (7th Cir. 1969),
cert. denied, 396 U.S. 1017, 90 S. Ct. 578, 24 L.Ed.2d 508.

United States v. Burley, 460 F.2d 998 (3d Cir. 1972).

United States v. Cassino, 467 F.2d 610 (2d Cir. 1972),

cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L.Ed.2d 590
(1973).

United States v. Chaney, 559 F.2d 1094 (7th Cir. 1977).
United States v. Cheramie, 520 F.2d 325 (5th Cir. 1975).

United States v. Chrysler, 533 F.2d 1055 (8th Cir.),
cert. denied, 429 U.S. 844, 97 S. Ct. 124, 50 L.Ed.2d 115
(1976).

United States v. Contreras, 463 F.2d 773 (9th Cir. 1972).
United States v. Cowley, 425 F.2d 243 (10th Cir. 1971).

United States v. Davis, 481 F.2d 425 (4th Cir.), cert.
denied, 414 U.S. 977, 94 S. Ct. 296, 38 L.Ed.2d 220 (1973).

United States v. Dawkins, 562 F.2d 567 (8th Cir. 1977).

United States v. Destefano, 476 F.2d 324 (7th Cir.
1973).

United States v. Diamond, 420 F.2d 688 (5th Cir. 1970).

United States v. Dixon, 135 U.S. App. D.C. 401, 419
F 2d 288 (D.C. Cir. 1969)

United States v. Dolan, 544 F.2d 1219 (4th Cir. 1976).

United States v. Domenech, 476 F.2d 1229 (2d Cir.),

cert. denied, 414 N.S. 80, 94 S. Ct. 95, 38 L.Ed.2d 77
(1973).

United States v. Duke, 492 F.2d 693 (5th Cir, 1974).
United States v. Dyba, 554 F.2d 417 (10th Cir. 1977).

United States v. Fioravanti, 412 F.2d 207 (3d Cir.),
cert. denied sub nom. Panaccione v. United States, 396
U.S. 837, 90 S. Ct. 97, 24 L.Ed.2d 88 (1969).

10 Year List 9a

United States v. Flannery, 451 F.2d 880 (1st Cir. 1971).
United States v. Floyd, 555 F.2d 45 (2d Cir. 1977).

United States v. Fonseca, 490 F.2d 464 (5th Cir. 1974),
cert. denied, 419 U.S. 1072, 95 S. Ct. 660, 42 L.Ed.2d 668.

United States v. Gill, 490 F.2d 233 (7th Cir. 1973).
United States v. Godwin, 522 F.2d 1135 (4th Cir. 1975).
United States v. Graydon, 429 F.2d 120 (4th Cir. 1970).
United States v. Green, 523 F.2d 229 (2d Cir. 1975).

United States v. Handy, 454 F.2d 885 (9th Cir. 1971).

United States v. Harris, 391 F.2d 348 (6th Cir.), cert.
denied, 393 U.S. 874, 89 S. Ct. 169, 21 L.Ed.2d 145 (1968).

United States v. Hogan, 486 F.2d 222 (4th Cir. 1973).
United States v. Howell, 514 F.2d 710 (5th Cir. 1975).

United States v. Hynes, 424 F.2d 754 (2d Cir. 1970),
cert. denied, 399 U.S. 933, 90 S. Ct. 70, 26 L.Ed.2d 804.

United States v. Jennings, 471 F.2d 13-0 (2d Cir.), cert.
denied, 411 U.S. 935, 93 S. Ct. 1909, 36 L.Ed.2d 395
(1973).

United States v. Johnson, 139 App: D.C. 193, 432 F.2d
626 (D.C. Cir.), cert. denied, 400 U.S. 949, 91 S. Ct. 257,
27 L.Ed.2d 255 (1970).

United States v. Kalmanson, 481 F.2d 667 (5th Cir.
1973).

United States v. Knaack and Segoriano, 409 F.2d 418
(7th Cir. 1969).

United States v. LaRiche, 549 F.2d 1088 (6th Cir.
1977). oe

10a 10 Year List

United States v. Lee, 509 F.2d 645 (2d Cir.), cert. de-
nied, 411 U.S. 935 (1973).

United States v. Marken, 457 F.2d 186 (9th Cir. 1972).

United States v. Martinez, 446 F.2d 118 (2d Cir. 1971),
cert. denied, 404 U.S. 94. 92 S. Ct. 297, 30 L.Ed.2d 25
(1971). :

United States v. McCray, 528 F.2d 1029 (5th Cir. 1976).

United States v. Medansky, 486 F.2d 807 (7th Cir. 1973),
cert. denied, 415 U.S. 989, 94 S. Ct. 1587, 39 L.Ed.2d 886
(1974).

United States v. Meyers, 410 F.2d 693 (2d Cir. 1969).
United States v. Moore, 429 F.2d 1305 (9th Cir. 1970).
United States v. Moriarty, 497 F.2d 486 (5th Cir. 1974).

United States v. Orsinger, 138 U.S. App. D.C. 403, 428
F.2d 1105 (D.C. Cir.), cert. denied, 400 U.S. 831, 91 S.
Ct. 62, 27 L.Ed.2d 61 (1970).

United States v. Ozuma-amador, 480 F.2d 611 (5th Cir.
1973).

United States v. Peterson, 549 F.2d 654 (9th Cir. 1977).

United States v. Pope, 415 F.2d 685 (8th Cir. 1969),
cert. denied, 397 U.S. 950, 90 S. Ct. 973, 25 L.Ed. 132
(1970).

United States v. Prentiss, 446 F.2d 923 (5th Cir. 1971).
United States v. Prince, 496 F.2d 1289 (5th Cir. 1974).

United States v. Rao, 394 F.2d 354 (2d Cir.), cert.
denied, 393 U.S. 845, 89 S. Ct. 129, 21 L.Ed.2d 116 (1968).

United States v. Ringlowd, 497 F.2d 1250 (8th Cir.
1974).

10 Year List lla

United States v. Robinson, 419 F.2d 1109 ( 8th Cir. 1969).

United States v. Robinson, 560 F.2d 507 (2d Cir. 1977)
(en banc), cert. denied, 46 U.S.L.W. 43541 (Feb. 27, 1978).

United States v. Sawyers, 423 F.2d 1335 (4th Cir. 1970).
United States v. Scott, 547 F.2d 334 (6th Cir. 1977).
United States v. Seasholtz, 435 F.2d 4 (10th Cir. 1970).
United States v. Seawell, 550 F.2d 1159 (9th Cir. 1977).
United States v. See, 505 F.2d 845 (9th Cir. 1974).
United States v. Silla, 555 F.2d 703 (9th Cir. 1977).

United States v. Silvern, 484 F.2d 879 (7th Cir. 1973)
(en banc).

United States v. Simpson, 144 U.S. App. D.C. 259, 445
F.2d 735 (D.C. Cir. 1970).

United States v. Singletary, 562 F.2d 1058 (8th Cir.
1977).

United States v. Skinner, 535 F.2d 325 (5th Cir. 1976).

United States v. Skillman, 442 F.2d 542 (8th Cir.), cert.
denied;’404 U.S. 833, 92 S. Ct. 82, 30 L.Ed.2d 63 (1971).

United States v. Smith, 399 F.2d 896 (6th Cir. 1968).
United States v. Smith, 521 F.2d 374 (10th Cir. 1975).
United States v. Smoot, 463 F.2d 1221 (D.C. Cir. 1972).
United States v. Solomon, 565 F.2d 364 (5th Cir. 1978).
United States v. Stollings, 501 F.2d 954 (4th Cir. 1974).
United States v. Stover, 565 F.2d 1010 (8th Cir. 1977).

United States v. Sutherland, 463 F.2d 641 (5th Cir.
1972).

12a 10 Year List

United States v. Taliaferro, 588 F.2d 724 (4th Cir. 1977).
United States v. Taylor, 530 F.2d 49 (5th Cir. 1976).

United States ex rel. Thomas v. New Jersey, 472 F.2d
735 (3d Cir. 1973), cert. denied, 414 U.S. 878.

United States v. Thomas, 146 U.S. App. D.C. 101, 449
F.2d 1177 (D.C. Cir. 1971) (en banc).

United States ex rel. Tobe v. Bensinger, 492 F.2d 232
(7th Cir. 1974).

United States v. Tolbert, 406 F.2d 81 (7th Cir. 1969).

United States v. United States Gypsum Co., 550 F.2d
115 (3d Cir. 1977).

United States v. Washington, 144 U.S. App. D.C. 338,
447 F.2d 308 (D.C. Cir. 1970).

United States v. Wiebold, 507 F.2d 932 (8th Cir. 1974).
United States v. Williams, 444 F.2d 108 (9th Cir. 1971).
United States v. Williams, 447 F.2d 894 (5th Cir. 1971).

United States v. Wilson, 449 F.2d 1005 (D.C. Cir. 1971)
(en banc).

United States v. Winn, 411 F.2d 415 (10th Cir. 1969).
United States v. Wolford, 444 F.2d 876 (D.C. Cir. 1971).

United States v. Wynn, 415 F.2d 135 (10th Cir. 1969),
cert. denied, 397 U.S. 994, 90 S. Ct. 1133, 25 L.Ed.2d 402
(1970).

Webb v. United States, 398 F.2d 727 (5th Cir. 1968).
Weston v. Rose, 527 F.2d 524 (6th Cir. 1975).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1134%3A1. Public record. Not legal advice.