# Petition — O'Brien v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1420%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 961

## Text

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

Xs

to

PES

tid

7

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1420%3A1. Public record. Not legal advice.