Petition — O'Brien v. United States

DEC 18 W979

MICHAEL RODAK, JR., CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

1979-1980 TERM

10. €@9-958 4

EDWARD PATRICK O'BRIEN,

Petitioner

vs

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

CLARK HOLMES

210 Fleming Building

Des Moines, Iowa

50309

ATTORNEY FOR PETITIONER

i

INDEX

CRUE OEE, wd oda cebecocebebecesosecusepee L

PUPSSGICTION, cc dvocodecdccesncctsspervecccsecs I

Questions Presented. ..cccccccccccccccscccccce L

Constitutional Provisions and

ee ae a a eS eet 0 beens T

Statement of the EN SDS Se Fe ee 2

Reason for Granting the Writ......ccceesccee 7

THE COURT BY ITS ACTIONS DENIED THE

PETITIONER HIS RIGHTS TO DUE PROCESS

AND A FAIR TRIAL BY AN IMPARTIAL AND

INFORMED JURY.

CERO a ei os ko as © bow o Beh 0 sis De Ke KA eo I5

pe Ae Oe eal oP. oer er eeeee % |

Opinion and judgment of the United

States Court of Appeals for the Eighth

Circuit.

ii

TABLE OF CASES, STATUTES, AND AUTHORITIES

CASES

Farkas v. United States, 2 F.2d 644

Cee ee COO Ss hac au Sere a Seah as oko ts 9

Sandroff v. United States, I58 F.2d 623

CR CSE nO) 6 ie os eck BS Ss ce beh cease 9

State v. Armento, 256 N.W. 2d 228

PR Eee Nand a bas Che Seb eC aw CaN Docc ee bee ee

State v. Kent, 4 N.D. 577, 62 N.W. 631

WRT 6b ie oc Saks Cetaeee ene wenbcwe LL

State v. Thornburgh, 220 N.W. 2d 579

Cee SPOS Le oy CRE eek iow kcacascabeocsc.

State v. York, 2II N.W. 2d 314

SUR ES on ibn v6 Wedge de ees dens cdacecane:: 8

United States v. Dickens, 417 F.2d 958

er Sens SUORE is chen ck phe Ea ee ens. S03 52

United States v. Mayer, 556 F.2d 245

Cee WR ROT TE Gs tree cc hiwse sed ebascves aU

United States v. Pfeiffer, 539 F.2d 668

CR ey SFE a Rade ec ob bbe 0 cbbe wc iace 29

STATUTES

Title I8 u.s.c. § 2 :

Title Tg b 2 te FE oe 8 SSeS Ce Gh awa od chk Bae eS ES 2

Title 18 U.S.c. 8 3

oe 7 @ee seamen anaecaenaonaeae*~# oeeeaoenenneenwene 2

s sd e Sg PP RO AS SA er rare ee 2

AUTHORITIES

76 Am. Jur. 2a = Trials § TO4I. eae4aes5eanee@e5ueo#eaee#eee#ee i2

Federal Rules of Criminal Procedure,

Rule eS op Serpe ee tae SRE a aS ae pen I3

IN THE

SUPREME COURT OF THE UNITED STATES

1979-1980 TERM

NO.

EDWARD PATRICK O'BRIEN,

Petitioner

vs

UNITED STATES OF AMERICA,

Respondent.

PETITTON FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The Petitioner, Edward Patrick O'Brien, re-

spectfully prays that a Writ of Certiorari issue

to review the judgment and opinion of the United

States Court of Appeals for the Eighth Circuit

entered in this proceeding November 20, 1979.

OPINION BELOW

The opinion of the United States Court of

Appeals for the Eighth Circuit has not been pub-

lished; it appears as Appendix A.

PIE meer ge gee nt ete

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ia

JURISDICTION

On the 20th day of November, 1979, the Uni-

ted States Court of Appeals for the Eighth Cir-

cuit filed its opinion and judgment (see Appen-

dix A). Petitioner did not file a request for

rehearing, and has neither requested nor been

granted an extension of time in which to file a

Petition for Writ of Certiorari. Jurisdiction of

this Court is invoked under Title 28 U.S.C.

81254(1).

QUESTIONS PRESENTED

- May the Court, on its own motion, exclude

evidence on reading of a transcript to a jury at

its request, when that evidence had been previous-

ly admitted without objection by the United States

Attorney?

May the Court order the return of a verdict

after one juror had insisted he was unable to

reach a verdict?

CONSTITUTIONAL PROVISIONS AND STATUTES

This case involves:

U.S. Const. amend. V. No person shall be

held to answer for a capital, or otherwise in-

famous crime, unless on a presentment or indict-

ment by 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 or

2

limb, nor shall be compelled in any criminal case

to be a witness against himself, not be deprived

of life, liberty, or property, without due pro-

cess of law; nor shall private property be taken

for public use, without just compensation.

28 U.S.C. 81254(I). Cases in the Courts of

Appeals may be reviewed by the Supreme Court by

the following methods:

- « « (I) By writ of certiorari granted upon

the petition of any party to any civil or crimi-

nal case, before or after rendition of judgment

ox decree.

Federal Rules of Criminal Procedure, Rule

24(c). ALTERNATE JURORS. The Court may direct

that not more than 6 jurors in addition to the

regular jury be called and impanelled to sit as

alternate jurors. Alternate jurors in the order

in which they are called shall replace jurors

who, prior to the time the jury retires to con-

sider its verdict, become or are found to be un-

able or disqualified to perform their duties. ..

STATEMENT OF THE CASE

Petitioner was convicted in the United

States District Court for the Southern District

of Iowa on two counts of violation of Title I8

U.S.C. 882312,2 (Interstate Transportation of

Stclen Motor Vehicle; Aid and Abet) and Title

I8 U.S.c. §37I (Conspiracy), and was sentenced

to serve two concurrent four-year terms of impri-

3

sonment. The case was appealed to the Eighth

Circuit Court of Appeals, and affirmed. The

opinion has not been published; it appears in

Appendix A.

The events during trial and deliberations

of Edward Patrick O'Brien are as follows:

On March 9, 1979, the Petitioner was arraign-

ed and entered a plea of not guilty, which plea

was accepted by the Honorable Ronald E. Longstaff,

United States Magistrate. The case was ultimately

brought to trial on June I8, 1979. On the after-

noon of the first day of the trial, the United

States Attorney began the presentation of evi-

dence, and the jury was ultimately instructed on

June 2I, 1979. The jury returned its verdict of

guilty on two counts late June 22, 1979. On July

I8, 1979, the Petitioner was adjudged guilty on

two counts of the indictment and sentenced to

serve two four-year terms, the sentences to run

concurrently. Notice of Appeal was filed July

27, 1979.

Since the Petitioner's appeal was based on

a series of events which occurred during jury de-

liberations, the following Time Table was assem-

bled to clarify those events in relation to each

other, with the approximate time each occurred.

4

TIME TABLE

June 2I, 1979

8:58 p.m. Jury notifies Court it has arrived

at a stalemate.

9:24 p.m. Jury requests testimony transcript.

I0:30 p.m. Jury request re-reading of testimony.

Petitioner objects to re-reading.

June 22, 1979

9:29 a.m. U.S. and Petitioner request jury be

admonished without re-reading of

testimony.

9:38 a.m. Jury continues deliberations.

3:I7 p.m. Juror asks to be removed.

3:44 p.m. Jury reports continuing stalemate.

U.S. requests re-reading of

testimony.

Petitioner moves for mistrial on

juror request for removal.

Petitioner objects to re-reading.

Disagreement on Allen charge.

5

4:3I p.m. Agreement to read testimony.

4:50 p.m. Discussion on editing testimony.

5:00 p.m.- Transcript read; jury returns to

7:53 p.m. deliberations.

6:00 p.m. Juror repeats request to be removed;

Petitioner moves for mistrial.

I0:33 p.m. Petitioner moves for mistrial due to

coercive effect of late hour.

II:00 p.m. Jury asks to continue.

II:55 p.m. Jury returns verdict.

Shortly after it began deliberating, the

jury notified the Court it had arrived at a

stalemate, and the Petitioner moved for a mis-

trial on grounds that an order to continue delib-

erations would be coercing a verdict. The motion

was denied. Approximately one-half hour later,

the jury requested a transcript of the testimony

of Government witness Arthur William Schlotzhauer,

and witness James Allan LoHoff, and an hour later

requested, in the alternative, that the testimony

be read to them. The Petitioner objected, arguing

that such a reading would be a resuscitation of

the earlier testimony, and would give it undue

emphasis.

The alternatives of a simple admonition and

6

an "Allen" charge were discussed, resulting in an

agreement that an "Allen" charge would be prema-

ture, and the jury was sent back to its delibera-

tions,

Some six hours later, the jury reported be-

ing still at a stalemate. At this time, the United

States Attorney requested a re-reading of testi-

mony, and the Petitioner objected, on the same

grounds earlier urged. The possibility of an

“Allen” charge was again discussed, to no resolu-

tion. Instead, the parties arrived at a compro-

mise regarding re-reading of testimony, which

would allow the jury to hear the portion of tran-

script requested, plus cross-examination of those

witnesses, and the Petitioner's entire testimony.

Following a brief recess, the Court announced

that it had determined certain portions of witness

Schlotzhauer's testimony on cross~-examination had

been inadmissible and the United States Attorney

should have objected. Over the strenous objection

of the Petitioner, the Court ordered the suppos-

edly objectionable material edited from the re-

reading. The transcript was read as edited, and

the jury returned to deliberating.

Shortly before the jury's second report of

stalemate, one juror sent a note to the Court

requesting that he be removed, stating:

I, Charles Beidler, would like to ask

the Court to be removed from the jury,

7

due to the fact that my decision would

not be fair to the U.S. people or to

the defendant.

Petitioner moved for a mistrial, arguing

that under these circumstances, a unanimous

verdict was impossible. The motion was denied.

Following the re-reading of the testimony,

the juror inquired again about being removed

from the jury and the Petitioner again moved

for a mistrial.

Finaily, Petitioner moved again for a mis-

triai, noting the earlier deadlocks, the lengthy

deliberations, the one juror's inability to

reach a verdict, and the lateness of the hour.

REASON FOR GRANTING THE WRIT

THE COURT BY ITS ACTIONS DENIED THE

PFTITIONER HIS RIGHTS TO DUE PROCESS

AND A FAIR TRIAL BY AN IMPARTIAL AND

INFORMED JURY.

During cross-examination of Government wit-

ness Schlotzhauer, the Petitioner inquired into

the witness’ motivation for testifying. He first

elicited the information that Schlotzhauer, al-

though a participant in the crimes with which the

Petitioner was charged, was not going to be pro-

secuted for his actions. He next showed the wit-

8

ness, if prosecuted, understood he could be

charged with a number of offenses, totalling a

lengthy potential term in prison. He also asked

the witness what his role was in the charged

crimes. On re-reading, the Court ordered that the

questions regarding penalties on conviction if

charged be expunged.

In preparing the jury for the re-reading,

the Court stated:

The court is now going to have read to

you all of the testimony of Mr.

Schlotzhauer, both direct examination

and cross-examination, because the court

believes that it's impossible for the

court or anyone else to read a portion

of that and be fair. It may be that we

wouldn't read all of what he said about

a certain thing.

So in fairness, we're going to read all

of Schlotzhauer's testimony. ..

We feel that in fairness it will all be

read.

(Emphasis added.)

The first element of the alleged error is

whether the Court could have excluded this evi-

dence in the first instance. It has been general-

ly held that the Court has the power to exclude

evidence, but not, ordinarily, in the absence of

objections, State v. York, 2?II N.W. 2d 314 (Iowa

1973). The interposition by the Court of its own

9

objection is good only in the case where the evi-

dence could properly be excluded, State v. Thorn-

No objection was made to the evidence the

Court excluded. Nor, at the time, did the Court

itself interpose any objection. The Court cannot

now, after the evidence has been before the jury

for several days, take it upon itself to exclude

that evidence on re-reading of testimony, any

more than it could send word to the deliberating

jury to disregard it.

Assuming, arguendo, that the Court had the

power to exclude evidence at the point of a jury-

requested re-reading of testimony, the question

then is whether this evidence could have been

excluded when the questions were first asked. The

answer is clear: no, it could not.

The Federal Courts have consistently held

that the Defendant is entitled to examine thor-

oughly a witness' motivation for testifying. See,

e.g.: Farkas v. United States, 2 F.2d 644 (6th .

Cir. 1924): Where the verdict depends on the

credibility of the witness, his motive for testi-

fying, showing bias, is relevant; promises or

hopes of immunity from prosecution are admis-

sible as affecting the witness' credibility.

Sandroff v. United States, 158 F.2d 623 (6th Cir.

1946): In a conspiracy prosecution, the Court

committed reversible error in shutting off cross-

examination of the Defendant's co-conspirator

Io

on the question of promised or expected immunity,

and in refusing to permit his cross-examination

on why he and his son, though named as co-con-

Sspirators, had not been included.in the defend-

ant's indictment. United States v. Dickens, 417

F.2d 958 (Sth Cir. I969): Where the testimony of

an accomplice is critical, it becomes necessary to

attack the witness’ veracity and credibility,

which can be done only by a searching and wide

ranging cross-examination; while the scope and

extent of cross-examination is within the sound

discretion of the trial court, wide lattitude is

crucial when the testimony of an accomplice is

involved (emphasis added). United States v.

Pfeiffer, 539 F.2d 668, 672 (8th Cir. 1976): It

is essential, when the witness' credibility is

critical to the Government's case, that defense

counsel be given maximum opportunity to test

that credibility by exploring the witness' motiva-

tion for testifying (emphasis added). And United

States v. Mayer, 556 F.2d 245,248-249 (5th Cir.

1977): A defendant's right to cross-examine fully

the witnesses against him is one of constitutional

dimensions, secured to federal defendants under

the confrontation clause of the Sixth Amendment,

and the exposure of a witness’ motivation in tes-

tifying is a proper and important function of the

constitutionally protected right of cross-exami-

‘nation; this is especially true where a prosecu-

tion witness has had prior dealings with the :

prosecution or with other law enforcement offi-

cials, so that the possibility exists that his

testimony was motivated by a desire to please the

II

prosecution in exchange for the prosecutor's

actions in having some or all of the charges

against the witness dropped.

In overruling Petitioner's objection, the

Court stated it was not the jury's prerogative

to know the penalty for the charged offense, or

“at least what Mr. Kutmus believes the penalty

to be." Petitioner countered, arguing that the

only question was what the witness thought the

penalty was, and that it was immaterial whether

that was in fact the penalty. The Court rejected

this argument.

The basic tenor of the above cited cases is

that the jury is entitled to know whether the

witness' testimony may be influenced by an expec-

tation of leniency or immunity. All of these cases

however, are rooted in the case of State v. Kent,

4N.D. 577, 62 N.W. 63I, 639 (1895), where the

Court reversed a Trial Court ruling excluding

defense counsel's inquiry of an admitted accomp-

lice whether he expected to be hung, and held

that it is proper to inquire of the accomplice-

witness what penalty he anticipates, as this shows

the degree of his motive for self-preservation,

and hence his level of credibility.

The same principle was applied in State v.

Armento, 256 N.W. 2d 228 (Iowa 1977), which was

brought to the Trial Court's attention during

Petitioner's arguments on his objection to the

exclusion. The Iowa Supreme Court in Armento

I2

first generally held that the defendant should

be allowed wide lattitude in seeking to show the

bias of an alleged accomplice in testifying for

the prosecution. It then ruled that in the spe-

cific instance, the witness should have been

allowed to testify to what he thought might be a

charge, since the jury's knowledge of what the

witness thought the penalty was would better

enable the jury to assess the witness' testimony.

Finally, this Court has held that the Trial

Court's discretion in limiting cross-examination

only comes into play once the defendant has sub-

stantially and thoroughly exercised the right of

cross-examination. Dickens, supra, at 96I. Here,

the Petitioner's inquiry was two-pronged: first,

on examination of the general immunity question,

and second, the specifics from which the witness

expected to be immune.

It is generally accepted that, absent a

statute or circumstances requiring denial of the

request, the interests of justice are better

served by allowing the jury to rehear testimony,

76 Am. Jur. 2d - Trial 81041. In this instance,

the Court made it abundantly clear to the jury

that fairness demanded they hear all the testi-

mony of the witnesses, whose partial testimony

they had requested. The Court then proceeded to

have read an edited version. This cannot have

escaped the notice of the entire panel, yet the

omission was unexplained, and the Court's words

indicated it had not even occurred. At least

I3

part of the panel had to have been affected by the

change, which clearly prejudiced the Defendant's

chances for a properly deliberated verdict.

The evidence adduced was clearly admissible

when first given; it would have been error to

exclude it either on the prosecution's motion, or

the Court's own motion. Nor, once admitted into

evidence, could the Court at some later time

reconsider that admission and attempt to withdraw

it from the jury's consideration, especially

having made a great point that the jury was being

re-read the entire testimony. Such actions con-

stituted error on the part of the Trial Court,

denying the Petitioner a fair trial.

Shortly before the jury's second report of

stalemate, a member of the panel requested to be

removed. He repeated that request immediately

following the re-reading of testimony. On

both occasions, Petitioner moved for mistrial,

contending that it was clear that no verdict

could possibly be delivered under these circum—

stances, without violating the Petitioner's

rights by coercing a verdict. At the time of the

second request, the jury had been deliberating

for approximately thirty-two hours, less time for

meals and rest.

The Federal Rules of Criminal Procedure, Rule

24(c), contemplates the occasion of a juror re-

questing removal prior to the beginning of delib-

erations, and replacing that juror with an alter-

I4

nate. No similar provision exists for the problem

if it arises after deliberations have begun. The

fact of the Rule, to be applied to problems ari-

sing before deliberations begin, obviously con-

templates the possibility of a juror finding dur-

ing the course of trial that he is unable to sit

in judgment on the case. The absence of a correl-

ative provision to be applied when the problem

arises during deliberations leaves only two op-

tions available to the Court: declare a mistrial,

or deliver an "Allen" charge. A circumstance such

as in this case, where the hour was late, the

jury had already had to spend a night in a hotel,

and apparently only one person was preventing the

entry of a verdict, lends itself more to the im-

plication of compromise of conscience. At such a

point in the deliberations, when the jury was at

a stalemate and one juror repeatedly requested to

be removed rather than do an injustice, the only

proper choice the Court could make was to declare

a mistrial. 3

Failure to do so was clear error.

I5

CONCLUSION

For these reasons a Writ of Certiorari

should issue to review the judgment and opinion

of the United States Court of Appeals for the

Eighth Circuit.

Respectfully submitted,

MLd-

CLARK HOLMES

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

United States of America, * Appeal from the

Appellee, United States District

* Court for the Southern

Vv. District of Iowa

*

Edward Patrick O'Brien,

Appellant. ee

Submitted: November 8, 1979

Filed: November 20, 1979

Before GIBSON, Chief Judge, ROSS and STEPHENSON,

Circuit Judges.

PER CURIAM.

Appellant was convicted on Count Ix (sub-

stantive count) and Count XIV (conspiracy count)

of a fourteen-count indictment charging the

2a

interstate transportation of motor vehicles,

knowing them to be stolen, in violation of I8

u.S.c. 882312, 2 and 37I;. This appeal is limited

to claims of trial court error in refusing to

read to the jury during its deliberations all of

the cross-examination of the witness Schlotzhauer,

and further error in connection with the trial

court's refusal to grant a mistrial when one

juror, after deliberations had begun, requested

to be removed from the jury panel "due to the fact

that my decision would not be fair to the U.S.

people or to the defendant." We affirm.

After approximately five and one-half hours

of deliberation, the jury delivered a note to the

court indicating it had reached a stalemate. The

matter was discussed in chambers with counsel.

Defendant's counsel's motion for a mistrial on

the grounds that to continue deliberations would

be coercing a verdict was denied. The jury was

then brought into the courtroom, at which point

the foreman requested a transcript of the testi-

mony of two government witnesses, Schlotzhauer

and LoHoff. Later it was alternatively requested

that the testimony be read to the jury. Defense

counsel, out of the presence of the jury, object-

ed to a reading of the testimony. The court ad-

vised the jury that the request would be consider-

TThe Honorable Donald E. O’Brien, United

States District Judge for the Northern and South-

ern District of Iowa, presiding, imposed con-

current sentences of four years of imprisonment.

3a

ed and suggested the jury should consider retir-

ing for the evening, which it did.

The next morning, in a conference with the

court, counsel agreed that the transcript of tes-

timony should not be read at that time and the

court should admonish the jury to continue its

deliberations. This was done.

That afternoon the court received two

notes. One, from a juror, stated:

I, Charles Beidler, would like to ask

the Court to be removed from the jury,

due to the fact that my decision would

not be fair to the U.S. people or to

the defendant.

The second note, which was from the foreman,

indicated the jury remained at a stalemate.

In chambers defendant moved for a mistrial

based on juror Beidler's note, which motion was

denied. Defendant again objected to the reading

of the transcript but, without waiving his earlier

objections, agreéd to an Allen charge. The govern-

ment objected to an Allen charge and recommended

that the transcript of the testimony be read to

the jury.

The parties arrived at a compromise regarding

the reading of the testimony which would allow the

jury to hear the portion of the testimony request-

ed, plus cross-examination and the defendant's

4a

entire testimony. Thereafter the court announced

that the testimony would be read as agreed, except

that a short passage of the cross-examination

of the witness Schlotzhauer regarding the max-

imum sentence for interstate transportation

of a stolen motor vehicle would be omitted for

the reason “that it is not the jury's prerogative

to know that five years for each count of inter-

state transportation of a motor vehicle is, in

fact, at least what Mr. Kutmus believes the pen-

alty to be."* The defendant strenously objected

to the reading with the objectionable material

omitted.

The reading of the testimony to the jury,

including breaks, took approximately three hours.

Following the reading, juror Beidler inquired

2The pertinent testimony read to the jury--

questions by defense attorney Kutmus and answers

of witness Schlotzhauer--is set out below. The

omitted testimony is underscored.

Q. How many charges could they file

against you a hundred?

A. Probably.

Q. Do you know what the punishment is?

A. Yes.

Q. What did they tell you?

5a

through the marshal to the court as to when he

(Beidler) would get an answer to his note. The

‘court did not respond to Beidler'’s note. Defend-~

ant again moved for a mistrial, noting the earlier

reports of deadlocks, the lengthy deliberations,

the one juror's inability to reach a verdict, and

the lateness of the hour. At II:55 p.m. the jury

A. Probably put me in jail and put the

key away and send my mail to a groundhog.

Q. Did they tell you that a stolen

vehicle in interstate commerce is five

years each count?

A. Yeah.

Q. Could you have gone, technically, to

perhaps 500 years in prison? .

A. Probably.

Q. Is that motivating you to testify

today?

A. That had nothing to do with testi-

fying today.

Q. How about last week or whenever, the

threat of 500 years doesn't botner you?

A. No, it doesn't bother me.

6a

returned its verdict of guilty on the two counts.

Defense counsel then polled the jury, and each

of the jurors, including Beidler, stated that it’

was his verdict.

We are not persuaded that the trial court

abused its discretion in refusing to highlight

by reading to the jury the testimony as to the

maximum penalty for the crime with which the

defendant was charged. The matter of assessing

penalty is exclusively within the province of the

court, and the jury's sole purpose is to determine

the facts and thereby the guilt or innocence of

the defendant. United States v. Wilson, 506 F.2d

52I, 522 (9th Cir. 1974); United States v. Johnson,

502 F.2d 1373, 1377-78 (7th Cir. 1974), cert.

Genied, 420 U.S. 977 (1975); United States v.

Ramantanin, 452 F.2d 670,672 (4th Cir. I97I);

United States v. Del Toro, 426 F.2d I8I, 184

(Sth Cir.), cert. denied, 400 U.S. 829 (1970). To

emphasize the penalty tends to draw the attention

of the jury away from their chief function as sole

judges of the facts, to open the door to compro-

mise verdicts, and to confuse the issues to be >

decided. Del Toro, supra. See I Devitt & Blackmar,

Federal Jury Practice and Instructions § 18.02

(3d ed. 1970).

Furthermore, the cross-examination of wit-

ness Schlotzhauer had been thorough and searching.

The omission from the reading to the jury of that

portion of testimony of the brief reference to

the penalty involved was clearly within the

7a

discretion of the trial court. United States v.

Headid, 565 F.2d 1029, I03I (8th Cir. 1977);

see also United States v. King, 552 F.2d 833,

849-50 (9thCir. I976), cert. denied, 430 U.S.

966 (1977). 3

Appellant's final contention is that the

court erred in not granting a mistrial in view

of juror Beidler's request that he be removed

from the jury because his decision “would not be

fair to the U.S. people or to the defendant." We

disagree. It is our view that under the circum-

stances the court's patience in allowing the jury

to continue its deliberations without comment was

a proper exercise of discretion.? It is not un-

common for jurors to become frustrated during the

course of their deliberations. They have a diffi-

cult task. Patience and understanding on the part

of the trial court is often helpful. In this case

the trial court's decision was the most reasonable

alternative. The jury returned its verdict less

than three hours after the juror's inquiry as to

when he would get an answer to his note requesting

3Cf£. United States v. Weiner, 578 F.2d 757,

764-6 (9th Cir.), cert. denied, 439 U.S. 98I

(1978) (court gave a modified Allen instruction);

United States v. Dozier, 522 F.2d 224, 227-28

(2d Cir.), cert. denied 423 U.S. I02TI (1975)

(jury was instructed to continue its deliberations) ;

I Devitt & Blackmar, Federal Jury Practice and

Instructions 8 18.14 (3d. ed. I970).

8a

release as a juror. The jurors, including Beidler,

were individually polled, and each juror affirmed

the verdict without reservation.

Affirmed.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.