Petition for Writ of Certiorari — Hinton v. United States

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SEP 12 199)

RECORD NO.

OFFICE OF THE C4

IN THE

Supreme Court of the Cited States

October Term 1991

MICHAEL LOVELL HINTON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NORRIS C RAMSEY

2122 Maryland Avenue

Baltimore, Maryland 21218

(301) 752-1646

Counsel for Petitioner

Appellate Printing Services * 523 East Main Street + Richmond, VA 23219 * (800) 642-7780

eee:

CORR: Re 4

QUESTIONS PRESENTED

I. Should this Court resolve the direct conflict among

the Third, Fourth, Fifth, Seventh, Ninth, and Tenth Circuits and

establish a uniform rule concerning supplemental jury

instructions and the Allen charge.

II. Should this Court overrule, or at least limit its much

criticized supplemental jury instruction derived from Allen v.

United States, 164 U.S. 492 (1896).

III. Should this Court overrule the conviction of

Michael L. Hinton because the verdict was the product of the

use of a supplemental jury instruction derived from Allen v.

United States, 164 U.S. 492 (1896), which was proven to be

coercive and therefore a violation of the Sixth Amendment of

the Constitution of the United States.

IV. Should this Court find that the Court of Appeals

for the Fourth Circuit’s acceptance of evidence gained through

a wirctap where the government violated the minimization

requirement, was a violation of the Fourth Amendment of the

Constitution.

LIST OF PARTIES

Petitioner and Respondent are named in the caption and

were also parties before the U.S. Fourth Circuit Court of

Appeals. The following partics were before the Fourth Circuit

but are not before this Court by reason of this petition: Barry

Johnson, a/k/a William Brown, Derrick Scott Mitchell, and Hess

Victor Branch. Petitioner believes that these three (3) parties

may have an interest in the outcome of this petition for

certiorari filed by Petitioner. A notice complying with Rule 12.4

of the Court wili be served on each of these three (3) parties,

as well as upon all other parties to the proceeding below,

namely, the Respondent shown in the caption.

-

QUESTIONS PRESENTED

LIST OF PARTIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

ee ee le |

REASON FOR GRANTING CERTIORARI

I.

IT.

TABLE OF CONTENTS

THIS COURT SHOULD RESOLVE

THE DIRECT CONFLICT AMONG

THE THIRD, FOURTH, FIFTH,

SEVENTH, NINTH AND TENTH

CIRCUITS AND ESTABLISH A

UNIFORM RULE CONCERNING

SUPPLEMENTAL JURY

INSTRUCTIONS AND THE ALLEN

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THIS COURT SHOULD

ESTABLISH A UNIFORM RULE

CONCERNING SUPPLEMENTAL

JURY INSTRUCTIONS AND THE

ALLEN CHARGE, IN LIGHT OF

THE FACT THAT THE RULE

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ESTABLISHED IN ALLEN HAS

BEEN FREQUENTLY EXTENDED

AND EMBELLISHED FAR

BEYOND THE LANGUAGE SET

OUT IN THAT DECISIOfg

Ill. THIS COURT SHOULD OVER-

RULE THE CONVICTIONS OF

MICHAEL L. HINTON BECAUSE

THE VERDICT WAS THE

PRODUCT OF THE COERCIVE

USE OF THE ALLEN CHARGE

WHICH THEREFORE VIOLATED

THE CONSTITUTIONAL

GUARANTEED RIGHT TOA FAIR

i ree a 14

IV. IN REFUSING TO SUPPRESS

EVIDENCE OF AN INTERCEPTED

WIRE COMMUNICATION IN THE

ABSENCE OF ANY EFFORT TO

MINIMIZE, MICHAEL lL.

HINTON’S FOURTH AMENDMENT

RIGHT OF THE UNITED STATE

CONSTITUTION WAS VIOLATED. .... 17

RELIEF REQUESTED AND CONCLUSION ....... 21

PEL Rae Cea R eu ua eh ARO E Ce hee ee Oe en Al

TABLE OF AUTHORITIES

CASES PAGE

Allen v. United States, 164 U.S.

| na ere ee 1, 6, 7, 13

Andrews v. United States, 447 F.2d 894

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Edwards v. Butler. 882 F.2d 160

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Jenkins v. United States, 380 U.S.

a Ne en ROR SRA RENE RADA ERD 16

Kociemba v. G.D. Searle & Co.,

707 F. Supp. 1517 (D. Minn. 1989) ............... 16

Scott v. United States, 436 U.S. — ‘

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State v. Randall, 137 Mont. 534, 353

Fe Fee ee Ss SU ns hc bnct kde cvasieneees 11

State v. Thomas, 86 Ariz. 161, 342

of Gok, 4s Samet an 11, 15, 16

Thaggard v. United States, 354,

fe we sp fb a. re rermer re 9, 13, 14

United States v. Bottom, 638

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United States v. Brown, 411 F.2d 930 (7th Cir. 1969) ... 11

United States v. Clerkley, 556

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United States v. Fiovaranti, 412

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United States v. Fontaner,

7G F.20 33 (and Cir. 1989) ww. cece vencescccccs 16

United States Healthcare v. Blue Cross of Gr. Philadelphia,

898 F.2d 914 (3rd Cir. 1990) ...............0006. 16

United States v. Hernandez-Garcia, 901

Pee ee COE Ge, OUD oh bs Sav cewcrcesscceesues 16

United States v. Knaack, 409

F.2d 418 (7th Cir.), cert denied,

396 U.S. 831, 90 S.Ct. 87, 24 L.Ed.2d

APES ORES rare ee ry ee eiree te a)

United States v. Martin, 756 F.2d 323, 326

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United States v. Nickle, 883

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United States v. Sawyer, 423 ;

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United States v. Vachon, 869

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United States v. West, 877 F.2d 281 (4th Cir. 1989)

United States v. Williams, 447

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United States v. Wynn, 415

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CONSTITUTIONAL PROVISIONS

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STATUES

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SUPREME COURT RULES

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1991

MICHAEL LOVELL HINTON,

‘ Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Michael Lovell Hinton, Petitioner, asks this Court for writ

of certiorari to review the June 17, 1991 decision of the United

States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

Michael Lovell Hinton was convicted for conspiracy to

possess cocaine with the intent to distribute. Hinton was named

in Count One of four counts superseding an indictment filed in

the United States District Court for the District of Maryland, at

Baltimore, on November 4, 1989, charging him and thirteen

others with conspiracy to possess cocaine with the intent to

distribute, in violation of 21 U.S.C. § 846. The United States

Court of Appeals for the Fourth Circuit affirmed the decision

on June 17, 1991.

JURISDICTION

The Fourth Circuit Court of Appeals filed its opinion on

June 17, 1991. A. 2 Jurisdiction lies under 28 U.S.C. § 1254 (1)

for this Court to review the final decision of the Fourth Circuit

Court of Appeals. This petition for certiorari is being filed

under Rules 10.1 (a), 13.1 and 13.4 of this Court.

STATEMENT OF THE CASE

- This is an appeal, originating from the conviction of

Michael L. Hinton (petitioner here, appellant below) for

conspiracy to possess cocaine with the intent to distribute.

Hinton was named in Count One of four counts superseding an

indictment filed in the United States District Court for the

District of Maryland on November 30, 1989, charging him and

thirteen others with conspiracy to possess cocaine with the

intent to distribute, in violation of 21 U.S.C. § 846. The United

States Court of Appeals for the Fourth Circuit affirmed.

Hinton was tried before a jury commencing on May 1,

1990. The trial court concluded its instructions on the fourth

day of the trial, a Friday, and the jury retired to deliberate at

2:38 p.m. App. 19. At about 5:00 that evening, the court

liemieand the jury for the weekend. App. 20-21. The jury

returned on Monday, May 7, and began deliberations at 9:55

am. App. 26. At 2:45 p.m. the jury returned a note asking,

"what happens if we have reached verdict on two defendants but

are deadlocked about the third?” App. 27. The court instructed

the jury that it had the right to return a partial verdict, but that

such a verdict would not be subject to revision as the jury

continued to deliberate on the remaining issues. It also

instructed the jury, over objection as follows:

It is the desire of the court and ail parties that, if

possible, you return a verdict on all defendants if

you can do so without violating your individual

conscience; but, as I told you, you may return a

verdict as to less than one - - less than all

defendants if you wish to do that; and what I am

going to do now is ask you to go back in the jury

room and decide whether you wish to follow that

procedure or if you simply wish to continue your

deliberations until you have reached a unanimous

verdict as to all of the defendants. App. 30.

At 3:25 p.m. the jury returned with a note stating, "Will

you accept a deadlock as a verdict?” App. 32. The Court, again

over defendants’ objection, gave the modified Allen instruction

set forth in footnote 7 of United States v. Sawyers, 423 F.2d 1335

(4th Cir. 1970). App. 35-36. The jury again recessed at 3:38

p.m. The jury returned at 5:45 p.m., May 7, 1990 with guilty

verdicts as to all of the defendants, App. 41.

Michael L. Hinton was sentenced on July 23, 1990 to 151

months. App. 6 Count Two, Three and Four of the superseding

indictment were dismissed at that time. The United States

Court of Appeals for the Fourth Circuit affirmed the conviction.

Pertinent evidence in the case at bar involved a wire tap

which commenced on October 4, 1989 and continued until

November 20, 1989. Recordings of nineteen conversations

intercepted through the wire tap were played for the jury during

the trial. Several of the calls involved the discussion of drugs.

Others, however, were conversations between the defendants

and their attorneys.

REASON FOR GRANTING CERTIORARI

The conflict between the approaches to the Allen charge

taken by the Courts of Appeals is reason enough to grant this

petition for uniformity and predictability in supplemental jury

instructions. A substantial argument has been advanced that the

rule established in Allen v. United States, 164 U.S. 492 (1986),

has been frequently extended and embellished, far beyond the

language set out in that decision.

In addition the Court of Appeals for the Fourth Circuit

violated the Fourth Amendment of the United States

Constitution when refusing to suppress evidence obtained

through an intercepted wire communication which ignored the

minimization requirement set out in 18 U.S.C. § 2518 (5).

In light of the strengths of the arguments, in reference to

the Allen charge and the Court of Appeals for the Fourth

Circuits violation of the Fourth Amendment of the Constitution,

I would grant this petition.

L

THIS COURT SHOULD RESOLVE THE DIRECT

CONFLICT AMONG THE THIRD, FOURTH, FIFTH,

SEVENTH, NINTH, AND TENTH CIRCUITS AND

ESTABLISH A UNIFORM RULE CONCERNING

SUPPLEMENTAL JURY INSTRUCTIONS AND THE

ALLEN CHARGE

The circuits have been and continue to be in conflict on

the viability of the Allen charge. The Allen charge, deriving its

name from Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41

L.Ed. 528 (1896), refers to "supplemental instructions urging a

jury to forego their differences and come to an unanimous

decision.” United States v. Bottom, 638 F.2d 786 n. 4 (Sth Cir.

1981).

A. THE THIRD CIRCUIT AND FOURTH CIRCUIT

The Third Circuit has outlawed future use of the Allen

charge and, where some form of supplementary jury instruction

seems appropriate, they have recommended and the Fourth

Circuit has approved a version of the Allen charge formulated

in Mathes & Devitt, Federal Jury Practice and Instructions, §$

79.01 which was adopted by the Judicial Conference of the

United States |! See, United Sates v. Fioravanti, 412 F.2d 407

(3rd Cir. 1969); United Sates v. Sawyers, 423 F.2d 1335, 1342 n.

7 (4th Cir. 1970.

' his your duty, as jurors, to consult with one another, and to

deliberate with a view to reaching an agreement if you can do so without viojence

to individual judgment. Each of you must decide the case for yourself, but to do

so only after an wunpartial consideration of the evidence in the case with your

fellow jurors. In the course of your deliberation, do not hesitate to reexamine

your own opinion, if convinced ut is erroneous. But do not surrender your honest

conviction as to the weight or effect of evidence solely because of the opinion of

your fellow jurors, or for the mere purpose of returning a verdict.

8

B. THE FIFTH CIRCUIT

The Fifth Circuit, although sometimes reluctantly, has

approved the Allen charge, while carefully assuring themselves

that there are no partial or one-sided comments within it and it

is issued in the proper circumstances. Thaggard v. United States,

354 F.2d 735, 739 (Sth Cir. 1965) cert. denied 383 U.S. 958, 86

S.Ct. 122, 16 L.Ed.2d 301 (1966). This charge, should make

plain to the jury that each member has a duty conscientiously to

adhere to his own honest opinion and avoid creating the

impression that there is anything improper, questionable or

contrary to good conscience for a juror to cause a mistrial.

C. THE SEVENTH CIRCUIT

The Seventh Circuit has advised that district judges should

be "sparing and cautious” in using Allen-type charges, United

States v. Knaack, 409 F.2d 418 (7th Cir.), cert. denied, 396 U.S.

831, 90 S.Ct. 87, 24 L.Ed.2d 83 (1969), and has recommended

use of the A.B.A. approved charge where one is necessary.”

2 The American Bar Association Project on Minumum Standards for

Criminal Justice and the Committee on the Operation of the Jury System of the

Judicial Conference of the United States Courts have both recommended that the

Allen charge no longer be given to deadlocked juries, and have recommended the

ollowing alternative leméntal instruction:

gs sup,

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;

(IV) that in the course of deliberations, a juror should not hesitate to

reexamine his own views and change his opinion if convinced i is erroneous.

(V) that each juror who finds humself in the minonitty shail reconsider his

view in the light of the opinions of the majority, and each juror who finds hunself

in the majority shall give equal consideration to the view 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 or returning a verdict.

10

United States v. Brown, 411 F.2d 930 (7th Cir. 1969).

D. THE NINTH CIRCUIT

Arizona and Montana have banned the Allen charge

entirely. State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (9th Cir.

1959); State v. Randall, 137 Mont. 543, 353 P.2d 1054 (9th Cir.

1960).

E. THE TENTH CIRCUIT

The Tenth Circuit has suggested that if an Allen charge

is given, it must be given in the main charge. United States v.

Wynn, 415 F.2d 135 (10th Cir. 1969).

(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 as provided in subsection (a). The court shall not require or threaic=:

to require the jury to deliberate for an unreasonable length of tume or for

unreasonable intervals. Subparagraph (V) was not included in the Amencan Bar

Association recommended charge.

11

IL

THIS COURT SHOULD ESTABLISH A UNIFORM RULE

CONCERNING SUPPLEMENTAL JURY INSTRUCTIONS

AND THE ALLEN CHARGE, IN LIGHT OF THE FACT

THAT THE RULE ESTABLISHED IN ALLEN HAS BEEN

FREQUENTLY EXTENDED AND EMBELLISHED FAR

BEYOND THE LANGUAGE SET OUT IN THAT

DECISION

Cases show that the exact form of the supplemental jury

instruction which did receive approval in the Allen has

frequently been extended and embellished, far beyond the

language original set forth.*

3 As taken from page 501 of 164 U.S. Reports, page 157 of 17 S.Ct.

the charge approved on appeal was as follows:

That, although the verdict must be the verdict of each individual they

Should examine the question submitted with candor, and with a proper regard and

difference to the opinions of each other; that it was their duty to decide the case

if they could conscientiously do so; that they should listen, with a disposition to

convinced, to each other ’s arguments; that, if much the larger number were for

12

Thaggard, 354 F.2d at 739. Due to the great deviations between

the original charge and the charges now being used in various

circuits, the charge hes often been criticized and discredited in

some circuits. United States v. Williams, 447 F.2d 894, 899 (Sth

Cir. 1971). As Justice Coleman stated:

I realize that as iong as Allen v. United States, . .

stands it is our duty to follow it. I entertain the

thought that if it were submitted to the Supreme

Court today the result might not be the same as it

was in 1896. I cannot see that the qualifications,

reservations, and escape clauses customarily used in

modern versions of the charge save it from being

what it is, and what the jury believes it to be, a

direct appeal from the Bench for a verdict.

conviction, a dissenting juror should consider whether his doubt was a reasonable

one which made no wnpression upon the minds of so many men, equally honest,

equally intelligent with humseif. If, upon the other hand, the majonty were for

acquittal, the minonty ought to ask themselves whether they might not reasonably

doubt the correctness of a judgment which was no concurred in by the majority.

13

Thaggard, 354 F.2d at 739 (Coleman dissenting).

IIL

THIS COURT SHOULD OVERRULE THE CONVICTION

OF MICHAEL L. HINTON BECAUSE THE VERDICT WAS

THE PRODUCT OF THE COERCIVE USE OF THE

ALLEN CHARGE WHICH THEREFORE VIOLATED THE

CONSTITUTIONAL GUARANTEED RIGHT TO A FAIR

TRIAL

The coercive tendency of the Allen charge violates the

Constitutional guaranteed trial by jury. That is, once the jury

has retired to consider of its verdict it should not be subjected

to so much as the appearance of any influence from ariy source

for the purpose of producing a verdict. The jurors should be

left to the unhampered expression of their own consciences,

independently arrive at. Thaggard 354 F.2d at 741 (Coleman,

concurring).

The Allen charge causes more trouble in the

administration of justice than it is worth. Andrews v. United

14

States, 309 F.2d 127, 129 (1962) (Wisdom, dissenting). Its time

saving merits in the district court are more than nullified by the

complications it cause on appeal when the reviewing court must

determine whether in the circumstances of a particular case the

trial judge applied the charge properly in substances and in

timing. /d. at 129.

The Arizona Supreme Court early on had enough of the

Allen charge. In State v. Thomas, the court stated:

When and wherever its use is called into question

it must stand or fall upon the facts and

circumstances of each particular case. It has given,

and we believe each use will give us, harassment

and distress in the administration of justice. No

rule of thumb can circumscribe definite bounds of

when and where, or under what circumstances it

should be given or refused.

It now appears that its continued use will result in

an endless chain of decisions, each link thereof

tempered and forged with varying facts and

15

a

circumstances and welded with ever-changing

personalities of the appellate court. This is not in

keeping with sound justice and the preservation of

human liberties and security. We are convinced

that the evils far outweigh the benefits, and decree

that its use shall no longer be tolerated and

approved by this court. Thomas, 342 F.2d at 200.

Most of the reported case law involving coercion turns

upon the permissible content of various versions of the Allen

charge. See e.g, U.S. v. Vachon, 869 F.2d 653 (1st Cir. 1989);

U.S. v. Fontanez, 878 F.2d 33 (2nd Cir. 1989); U.S. Healthcare

v. Blue Cross of Gr. Philadelphia, (3rd Cir. 1990); U.S. v. West,

877 F.2d 281 (4th Cir. 1989); Edwards v. Butler, 882 F.2d 160

(Sth Cir. 1989); Kociemba v. G.D. Searle & Co., 707 F.Supp

1517 (D. Minn. 1989); U.S. v. Hernandez-Garcia, 901 F.2d 875

(10th Cir. 1990); U.S. v. Nickell, 883 F.2d 824 (9th Cir. 1989).

The principle that jurors may not be coerced into surrendering

views conscientiously held requires little citation. See, Jenkins

v. United States, 380 U.S. 445 (1965). The requirement of a

16

unanimous verdict means that the verdict must be that of each

member of the jury. Therefore, a verdict that is not that of

each juror, but simply the product of coercion, is not a true

verdict. See, United States v. Martin, 756 F.2d 323, 326 (4th Cir.

1985). Accordingly, the trial court may not employ coercive

measure to obtain a verdict, and if the verdict is the product of

coercion, it cannot stand.

IV

IN REFUSING TO SUPPRESS EVIDENCE OF AN

INTERCEPTED WIRE COMMUNICATION IN THE

ABSENCE OF ANY EFFORT TO MINIMIZE, MICHAEL L.

HINTON’S FOURTH AMENDMENT RIGHT OF THE

UNITED STATES CONSTITUTION WAS VIOLATED

Petitioner clearly had standing to seek the suppression of

improperly seized wire communications. 18 U.S.C. § 2518(10)(a)

provides:

Any aggrieved person in any trial . . . before any

court... may move to suppress the contents of any

17

wire or oral communication intercepted pursuant to

this chapter, or evidence derived therefrom, on the

grounds that:

(i) the communication was unlawfully intercepted;

(ii) the order of the authorization or approval

under which it was intercepted is insufficient on its

face; or |

(iii) the interception was not made in conformity

with the order of authorization or approval.

In addition, 18 U.S.C. § 2518 (5) requires that:

Every order and extension thereof shall contain a

provision that the authorization to intercept shall

be executed as soon as practicable, shall be

conducted in such a way as to minimize the

interception of communication not otherwise

subject to interception under this chapter, and must

terminate upon attainment of the authorized

objective, or in any event in thirty days. (Emphasis

added).

18

The court’s order required that the wiretap "be conducted

in such as (sic) way as to minimize the interception of

communications not otherwise subject to interception...” App.

14. The purpose of the minimization provision is to prevent

improper invasion of the right to privacy and to curtail the

indiscriminate seizure of conversations. United States v. Clerkley,

556 F.2d 709, 715 (4th Cir. 1977).

In determining whether proper efforts have been

undertaken to minimize interception of communications not

otherwise subject to interception, a court must objectively assess

the agents’ actions in light of the facts and circumstances

confronting them at the time of interception. This

determination must be made on a case by case bases. Scoit v.

United States, 436 U.S. 128 (1978). Such an analysis in the

present case demonstrates that the DEA agents who conducted

this wiretap interception did not make reasonable efforts to

minimize conversations that were wholly unrelated to the

investigation at issue.

The complete lack or reasonable minimization efforts is

19

demonstrated by the statistical analysis of the intercept activities.

App. 16-18. 6,453 calls were intercepted in the course of the

investigation. Of that number, oniy 742, or approximately 11.5

percent, were minimized. Only 414 of the total number of calls,

or approximately 6.4 percent were deemed pertinent, and only

244 or approximately 3.8 percent of the total calls were deemed

questionable. Thus, it would appear that 78.3 percent of the

calls intercepted in this wiretap were not pertinent, were not

even questionable, and were nevertheless not minimized in any

way.

The statistics demonstrate the lack of a minimization

effort in another way. The percentage of calls minimized does

not change significantly from the beginning days of the wiretap

to the concluding days. During the latter part of the wiretap,

the agents were engaging in such sophisticated stratagems as

"tickling the wire” by the issuance of subpoenas and target letter

to evoke incriminating discussion by the conspiracy’s

participants. [T.389] By that time, it could hardly be claimed

that the agents were not aware of the conspirators’ identities.

20

Nonetheless, this knowledge did not produce any appreciable

j

increase in the percentage of calls minimized.

21

RELIEF REQUESTED AND CONCLUSION

For the various reasons set forth above, this Petition for

Certiorari to the United States Supreme Court Should be

granted to answer the four questions presented by the

Petitioner.

Respectfully Submitted,

Norris C. Ramsey, P.A.

2122 Maryland Avenue

Baltimore, Maryland 21218

(301) 752-1646

Counsel for Petitioner

22

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 90-5079

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BARRY JOHNSON, a/k/a William Brown,

Defendant-Appellant.

No. 90-5080

UNITED STATES OF AMERICA,

Piainuff-Appellec,

versus

MICHAEL LOVELL HINTON,

Defendant-Appellant.

No. 90-5081

UNITED STATES OF AMERICA,

Plaintilf-Appellee,

versus

DERRICK SCOTT MITCHELL,

Defendant-Appellant.

No 90-5082

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HESS VICTOR BRANCH,

Defendant-Appellant.

Appeals from the United States District Court for the District

of Maryland, at Baltimore. Frederic N. Smalkin, District Judge.

(CR-89-434-S)

Argued: April 12, 1991 Decided: June 17, 1991

Before MURNAGHAN, Circuit Judge, CHAPMAN, Senior

Circuit Judge, and MICHAEL, United States District Judge for

the Western District of Virginia, sitting by designation.

Affirmed in part, vacated and remanded by unpublished per

A-2

curiam opinion.

ARGUED: W. Michel Pierson, Baltimore, Maryland, for

Appellant Mitchell; Robert T. Durkin, Jr., Baltimore, Maryland,

for Appellant Hinton. Harvey Ellis Eisenberg, Assistant United

States Attorney, Coordinator, ORGANIZED CRIME DRUG

ENFORCEMENT TASK FORCE, Baltimore, Maryland, for

Appelle. ONE BRIEF: Andrew Joseph Burns, Baltimore,

Maryland, for Appellant Johnson; Joseph S. Longo, Jr.,

Baltimore, Maryland, for Appellant Branch. Breckinridge L.

Willcox, United States Attorney, Baltimore, Maryland, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See I.0.P. 36.5 and 36.6.

PER CURIAM:

Seventeen individuals were indicted for conspiracy to

possess with intent to distribute cocaine in violation of 20 U.S.C.

§ 846. A number of these persons were charged in the same

indictment with violating other federal narcotics laws as well.

One of these individuals remains a fugitive and has not been

brought to trial. Shortly before trial, most of the aileged

conspirators entered into plea agreements with the government

which were accepted by the court. During trial, two of the

remaining defendants entered guilty pleas. When the trial was

concluded, only the appellants Barry Johnson, Michael Hinton

and Derrick Mitchell remained as defendants, and the jury

found them guilty of conspiracy to possess cocaine with intent

to distribute.

Johnson, Hinton and Mitcheil appeal their convictions

claiming that the jury verdict was coerced by the actions of the

trial judge, that it was error not to suppress evidence obtained

by the use of a court approved telephone wiretap, and that the

trial judge should have granted a mistrial after a government

A-4

witness testified that Barry Johnson had used heroin in his

presence and had referred to Johnson as a violent person with

a criminal record. In addition, appellants Mitchell and Johnson

appeal their sentences, claiming error in the findings of the

district judge as to the amount of cocaine that was involved in

the conspiracy and the amount that the appellants could

reasonably have foreseen as being involved in the conspiracy.

Finally, Hess Victor Branch, who entered a plea of guilty,

appeals his sentence claiming an incorrect application of the

guidelines, because his offense level was increased by two as a

result of the alleged use of juveniles by the drug conspiracy.

With the exception of Mitchell’s sentence, we find no merit to

any of these claims. Accordingly, we affirm the judgments of

the district court as to all appellants except Derrick Mitchell.

As to Mitchell we affirm his conviction, but we find that there

are not sufficient findings to support the conclusion that he

knew a major drug operation would involve more than 15

kilograms of cocaine; therefore, his sentence is vacated and his

case is remanded for resentencing.

A-5

I.

In November 1988, law enforcement officers seized five

kilos of cocaine at the Baltimore-Washington International

Airport. This cocaine had arrived from Long Beach, California.

The drugs were seized from one of the original defendants in

this case. Further investigation revealed a large drug conspiracy

and resulted in the indictments of seventeen persons, including

the four appellants. During the course of the investigation,

DEA agents obtained authorization from a United States

District Judge in Baltimore for a 30 day Title III intercept on

this telephone number (301)974-8263. Electron eavesdropping

on this telephone began on October 4, 1989, and as a result of

an extension granted by the district court, the intercept lasted 48

days. The intercepts revealed extensive use of the telephone in

furtherance of the sale of drugs and also extensive pager and

beeper activity from the targeted telephone. The wiretap

resulted in considerable evidence of drug distribution by

members of the conspiracy, and tapes of the intercepted

conversations were admitted into evidence. A large portion of

A-6

’

the evidence of the conspiracy and the participants therein and

their activities resulted from the testimony of a Maryland

undercover detective, who had infiltrated the conspiracy.

There is no claim that the evidence was not sufficient to

sustain the convictions, so a further recitation of the facts is not

required at this point. Facts necessary to an understanding of

our conclusions are set forth as required.

II.

Appellants Johnson, Hinton and Mitchell rely upon

Jenkins v. United States, 380 U.S. 445 (1965), to argue that the

jury verdict was coerced by the trial judge, and therefore it

cannot stand. However, the judge’s actions presently as issue

are not similar to those in Jenkins. The jury in Jenkins had been

deliberating just over two hours when it sent a note to the judge

advising him that it had been unable to reach a verdict "because

of insufficient evidence." The judge thereupon recalled the jury

to the courtroom and in the course of his response stated that

"you have got to reach a decision in this case." The jury then

returned a verdict of guilty on one court and not guilty on

A-7

another. The Supreme Court reversed and remanded for a new

trial, stating that "[u]pon review of the record, we concluded

that in its context and under the circumstances the judge’s

statement had the coercive effect attributed to it.” Jd. at 446.

When we view the actions of the trial judge in context

and under all the circumstances presented, we must conclude

that the trial judge did not coerce the jury during its

deliberations. From the record it is clear that the judge acted

in an appropriate manner and within his discretionary authority

during his contacts with the jury while it was deliberating.

The case went to the jury on the fourth day of trial,

Friday, May 4, 1990 at 2:38 p.m., the jury retired to deliberate,

and at 5:05 p.m., the court dismissed the jury for the weekend.

The jury returned on Monday, May 7, 1990 and resumed its

deliberations at approximately 9:55 a.m. At 2:45 p.m., on the

same date, the court received a note from the jury stating "What

happens if we have reached a verdict on two defendants but are

deadlocked about the third?”

The court discussed with the attorneys several

A-8

Oe ee...

alternatives for responding to the jury’s question. The judge

then recalled the jury and gave the following instructions:

We have got a note from you that says, "What

happens if we have reached a verdict on two

defendants but are deadlocked about the third?”

Federal law gives you the right at any time

during your deliberations to return a verdict or

verdicts with respect to a defendant or those

defendants as to who you have agreed. I would

tell you that any such what is called a partial

verdict is not subject to revision. You cannot

change your mind about that as you continue to

deliberate on any remaining issues in the case.

It is the desire of the court and all parties that,

if possible, you return a verdict on all defendants

if you can do so without violating your individual

conscience; but, as I have told you, you may

return a verdict as to less than one -- less than

all defendants if you wish to do that; and what I

A-9

am going to do now is ask you to go back in the

jury room and decide whether you wish to follow

that procedure or if you simply wish to continue

your deliberations until you have reached a

unanimous verdict as to all of the defendants.

Remember what I said, that, once you have

returned a ade as to any particular defendant,

that is not subject to revision, that is final.

Okay.

So, you all go ahead back in there and take your

time. Whatever you want to do in response to

what I have told you, you are the ones who

decide how you wish to handle that.

If you have any further communications, just tap

on the door to the Marshal, as you have done.

Appellant Mitchell’s attorney took exception to the

instruction and claimed that it was coercive.

At 2:35 p.m. on the same day, the jury forwarded a note

to the judge which stated: “Wiil you accept a deadlock as a

A-10

verdict?” The court, over defendants’ objection, gave the

instruction set forth in footnote 7 of United States v. Sawyers,

423 F.2d 1335 (4th Cir. 1970). The jury resumed deliberations

at 3:38 p.m. and returned a verdict of guilty as to all defendants

at 5:45 p.m. on the same day.

When we view this record in its context and under all of

the circumstances, as Jenkins directs, it is obvious that the jury’s

verdict was not coerced by the actions of the trial judge. From

the beginning, the judge was very considerate of the ii and

made no effort to hurry it to a verdict. The jury had been out

for just over two hours on Friday afternoon when the court

recessed from the weekend and allowed the jurors to return to

their homes. Many courts do not allow a jury to be in recess

once the case has been submitted to it. Juries that cannot reach

a verdict during normal working hours are often kept in

deliberation until late at night or overnight or over the

weekend. When the jury returned on Monday and began

further deliberations, the trial judge made no effort to hurry or

coerce the jurors into a decision. The court’s response to the

A-11

first note of inquiry from the jury followed the language of

instruction 9-8 of Sand, Modern Federal Jury Instructions and

also the requirements of Federal Rule of Criminal Procedure

31(b).

Appellants claim to reach a verdict on all defendants had

a coercive effect. However, a complete reading of the

instruction make it clear that this desire was conditioned upon

the ability of the individual jurors to reach an agreement

"without violating your individual conscience.” In answer to the

jury’s second inquire, the judge gave an instruction that is

commonly know as an Allen charge. This name is derived from

Allen v. United States, 164 U.S. 492 (1896). We have approved

a version of this charge as adopted by the Judicial Conference

of the United States and set forth in footnote 7 of United States

v. Sawyers, 423 F.2d 1335, 1342 (4th Cir. 1970).

The trial judge gave the jury the opportunity to return

a verdict as to some of the defendants and did not require a

verdict as to all of the defendants. After receiving the second

charge on Monday afternoon, the jury retired at 3:38 p.m. and

A-12

returned the guilty verdicts as to all defendants at 5:45 p.m.

The two hours of additional deliberations does not indicate that

the charge had a coercive effect. In United States v. Martin, 756

F.2d 323 (4th Cir. 1985) (en banc), we held that the lapse of

more than two hours between receiving an Allen-type charge

and reaching a verdict indicated the charge had no coercive

effect. When the jury deliberations and the court’s additional

instructions are viewed in context, the judge’s handling of the

jury’s inquiries by giving the additional instructions did not have

a coercive effect upon the jury’s verdict.

7.

Pursuant to 18 U.S.C. § 2518 (10)(a), the defendants

moved to suppress the evidence obtained by the telephone

wiretap. Their motion was denied, but they continue to argue

that the intercept did not comply with the district court’s order

requiring the wiretap to be conducted as to "minimize the

interception of communications not otherwise subject to

interception .. .” and did not comply with 18 U.S.C. § 2518 (5),

which requires that intercepts "shall be conducted in such a way

A-13

as tO minimize the interception of communications not

otherwise subject to interception under this chapter.”

The district court received affidavits from the parties, a

copy of the minimization instructions given by the United States

Attorney to the officers conducting the intercept, an analysis of

the intercept activities, and heard argument on the motion to

suppress. Prior to trial, a written order was filed denying the >

motion to suppress. The district court made findings of fact that

the United States had made the prima facie showing of its

reasonable efforts to minimize the intercept of innocent

communications and that pursuant to United States v. Armocida,

515 F.2d 29, 49 (3rd Cir.), cert. denied sub nom. Gazal v. United

States, 423 U.S. 858 (1975), the burden had shifted to the

defendants to demonstrate that there were more effective

alternate procedures for minimization which would permit the

government to achieve its purpose. The district court fourd

that the defendants offered only criticism of the method

employed and failed to suggest any effective alternative.

The minimization requirement does not leave all

A-14

innocent communications unheard. Unnecessary intrusions are

to be reduced as much as possible under the circumstances

presented. Efforts at minimization must be reasonable under

the circumstances and reviewed on a case by case basis when

testing compliance. We indicted the rule for this circuit in

United States v. Clerkley 556 F.2d 709, (4th Cir. 1977), cert.

denied sub nom. Genco v. United States, 436 U.S. 930 (1978),

as follows:

In analyzing a given case, the federal courts have

considered three principal factors: (1) the

nature and scope of the alleged criminal

enterprise; (2) the government’s reasonabie

expeciation as to the content of, and parties to,

the conversations; and (3) the degree of judicial

supervision while the wiretap order is being

executed.

Id. at 716.

While Clerkley involved the investigation of illegal

gambling, these same factors are applicable to a narcotics

a-15

conspiracy. In Clerkley we observed:

When law enforcement officials are confronted

with a large, far-flung and on-going criminal

activity involving multiple parties, they are

afforded great latitude in conducting wiretaps.

The Seventh Circuit, in considering a drug

conspiracy, held that

{ljarge and _ sophisticated narcotics

conspiracies may justify considerably more

interception than would a single criminal

episode. This is especially so where, as here, the

judicially approved purpose of the wiretap is not

so much to incriminate the known person whose

phone is tapped as to learn the identity of far-

flung conspirators and to delineate the contours

of the conspiracy

IV.

We find no merit to appellants’ argument that the trial

judge abused his discretion in refusing to grant a mistrial after

A-16

——

undercover Officer Toatley testified that appellant Johnson had

used heroin in his presence and alter referred to Johnson as a

violent person who had a criminal record. These responses

were invited by the persistent efforts of defense counsel, and

they were followed by cautionary instructions from the court to

the jury.

While cross-examining Officer Toatley, the defendants’

attorneys tried to convince the jury that the defendants knew

that Toatley was an undercover agent and that they were merely

Stringing him along with the intention of robbing him of his

cocaine purchase money when circumstances permitted. When

Toatley was asked if Johnson knew that he was an undercover

officer, he denied this without elaboration. The attorney

persisted in this line of questioning, asking for reasons

supporting Toatleys’s opinion. The officer answered that

Johnson had never stated that he thought Toatley was a police

officer and that Johnson was going through with the cocaine

deal. Counsel pressed the witness again and asked for the basis

of his belief that Johnson was not aware that he was a police

A-17

officer. Toatley answered that Johnson had used heroin in his

presence and Toatley had not arrested him, so it was doubtful

that Johnson thought he was a police officer. The trial court

granted a motion to strike and gave a curative instruction, but

stated that at the time answer was responsive to the question.

Cross-examination continued with the defense counsel

trying to elicit some type of concession from Toatley that

Johnson must have known he was an undercover agent.

Counsel finally asked Toatley why it was necessary for other

undercover agents to accompany him on a flight from Baltimore

to California for his protection. Again the response of Toatley

was invited by defense counsel’s question, and Toatley

responded that the other officers were there because "from his

[Johnson’s] record we knew he was a violent person.” A motion

to strike was granted anda second curative instruction was given

to the jury, although it was not necessary. When counsel insists

on pursuing a line of questioning that has thus far proved

fruitless and that has already produced one damaging answer

and a curative instruction to the jury, he returns to this line of

A-18

questioning at his peril. As a result, he will not be heard to

complain of an abuse of discretion by the district court, which

graciously gave him a second curative instruction, but denied his

motion for a mistrial.

There is no necessity to review this episode on a

harmless error basis because there was no error and no abuse of

discretion by the trial judge in the manner in which he handled

the two responses by Officer Toatley. The witness had

answered the same question several times in a harmless way, and

when pressed he finally responded with what he really thought.

A defendant may not invite such a response and attempt to use

it as a basis for a mistrial.

V.

Appellants Johnson and Mitchell claim that the

sentencing judge erred in finding that it was reasonably

foreseeable to them that the drug conspiracy in which they were

engaged involved at least 15 kilograms of cocaine. The findings

of fact by the district court at sentencing must be accepted by

us, unless they are clearly erroneous, and the standard of proof

A-19

Ditmas

on disputed factual issues at sentencing is a preponderance of

the evidence. United States v. Vinson, 886 F.2d 740, 742 (4th

Cir. 1989), cert. denied, 110 S.Ct. 878 (1990). At the sentencing

of both Johnson and Mitchell, the district court stated that it

found by a preponderance of evidence that had been presented

at the trial and at the sentencing hearings that it was reasonably

foreseeable to Johnson and to Mitchell that the drug conspiracy

involved at least 15 kilograms of cocaine.

The significance of 15 kilograms is set forth in the

United States Sentencing Guidelines, which establish a base

offense level of 34 for drug trafficking or possession with intent

to distribute at least 15 kilograms of cocaine. See U.S.S.G. §

2D1.1(a)(3). Section 2D1.4 provides that the base offense level

of a defendant convicted of conspiracy involving a controlled

substance "shall be the same as if the object of the conspiracy or

attempt had been completed.”

In Vinson we stated:

According to the Commentary to

Guidelines § 2D1.4, a defendant convicted of

A-20

conspiracy shall be sentenced "only on the basis

of [his] conduct or the conduct of co-co-

conspirators in furtherance of the conspiracy

that was know to the defendant or was

reasonably foreseeable.” Since the base offense

level in drug cases, both conspiracy and

otherwise, is directly determined by the type and

amount of drugs involved, the determination of

the foreseeability of the extent of the overall

conspiracy is often critical. It is clearly a

question of fact which will only be overturned

on appeal if it is clearly erroneous.

Vinson, 886 F.2d at 742. Therefore, we must examine the

record to determine if there is evidence to support the district

court’s finding that it was "reasonably foreseeable” to Johnson

and/or Mitchell that the conspiracy involved at least 15

kilograms of cocaine.

A.

Barry Johnson argues that the evidence reflects that he

A-21

conspired only with Tracy Brown, the cocaine source in

California, that none of the intercepted telephone calls were

cither to him or from him, and that during the time that Officer

Toatley was associated with Johnson there was no reference to

co-conspirators Mitchell, Hinton and Stansbury. He claimed at

sentencing that he handled less than five kilograms of cocaine.

He also argued that only his association with Tracy Brown and

the drugs that they handled could be considered in determining

drug weight. Although Johnson acknowledged telling Officer

Toatley that he had smuggled over ten kilograms of cocaine, he

claims this statement should be disregarded because he was

simply “bragging,” and this statement was not corroborated by

other evidence. Johnson also claims that he was not in the

conspiracy prior to July 1989.

The district court had information from a number of

sources relating to Johnson's involvement in the conspiracy and

the amount of drugs that he could have reasonably foreseen as

being involved. In addition to the trial testimony in Johnson's

case, the court had accepted the guilty pleas of the thirteen co-

A-22

defendants and the factual statements accompanying these pleas.

The court also had the presentence investigation report

prepared by the Probation Office on Johnson, and the court

conducted a sentencing hearing prior to making its findings of

fact as to Johnson’s involvement and what he could have

reasonably foreseen.

At sentencing the court found:

The Court finds by a preponderance of

the evidence, based on the testimony at trial and

the evidence adduced here at the sentencing

hearing, that it was reasonably foreseeable to

this defendant that the conspiracy would

reasonably involved at least 15 kilograms. I base

that finding, as I said, on the evidence at trial.

The calculation of the drug amounts,

setting the base offense level in conspiracy cases

is not dependent on how much actually passes

through the defendant’s hands or how much the

defendant physically saw. It’s dependent on the

A-23

defendant’s activities and his position to be in a

position to know what was going on.

I find here, based on the relationship between

the defendant, Barry Johnson, and the kingpin

of this conspiracy and the many trips to

California, despite the way Mr. Johnson seeks to

characterize them, that these circumstances,

given his involvement in this drug conspiracy, is

enough to warrant by a preponderance of the

evidence and it so does warrant a finding of a

base offense level of 34.

The July 1989 trip to California was made by Johnson,

Tina Brown, Louis Edwards and Officer Toatley to purchase

three kilograms of cocaine from Tracy Brown. Prior to this trip,

Johnson had told Toatley that he had previously received

approximately ten kilograms of cocaine from Tracy Brown and

that he had delivered approximately $100,000 to Tracy Brown

in California. This was confirmed by Tracy Brown at the trial.

Brown gave conflicting testimony as to the amount of cocaine

A-24

ees

he had provided to Johnson. On direct examination, he stated

that there were five or six trips to California for cocaine and

that the amounts involved one-half to one kilogram. On cross-

examination he stated that the first sale was one-half kilogram

and that thereafter the amounts grew to one to two kilograms

for each trip.

Although Johnson would have us limit his contracts to

Tracy Brown, the record reflects that he knew and dealt with at

least four other co-conspirators, two of whom accompanied him

on the trip to California in July 1989. ‘The court was aware that

Tracy Brown was Johnson’s cousin and that in July 1989

Johnson - the person who arranged purchases from Tracy

Brown. Johnson was also aware that co-conspirator Raymond

Watts had $40,000 to pay Tracy Brown, so he was aware of

Watts’ involvement with the cocaine supplier.

It is obvious that appellant Joh son’s role was not as

minor as he contends, and there is a preponderance of evidence

to support the trial judge’s finding that Johnson could

reasonably foresee that cocaine in excess of 15 kilograms was

A-25

involved in the conspiracy during the time that he was a

member.

B.

Appellant Mitchell was found to know or should have

reasonably foreseen that the conspiracy involved at least 15

kilograms of cocaine, and he was given a two level reduction as

a minor participant. However, he claims that there are no facts

from which the court could infer that he had knowledge or

should have reasonably foreseen that such a quantity of drugs

was involved.

The district court considered the evidence from the trial,

the presentence investigation report on Mitchell, the prior

sentencing hearings and the sentencing hearing of Mitchell.

The evidence showed that Mitchell leased seven telephone

pagers or beepers. These instruments were leased at various

times over a period of approximately six months. It is common

knowledge that pagers are used in the sale and distribution of

illegal drugs. One of these pagers was used by co-conspirators

Stansbury, and during one 60-day period this pager was activated

A-26

oe net

2,050 times. Additional charges are made for calls in excess of

200 per month, so Mitchell was aware that Stansbury had used

his pager extensively and aware that Stansbury was a distributor

of cocaine.

There was no direct evidence that one of the pagers was

used or carried by Mitchell, except that after he was arrested he

returned one of the instruments to the leasing company.

Mitchell was involved in one direct sale of at least one quarter

kilogram of cocaine in Annapolis, Maryland in either October

or November 1989.

In finding that a base offense level of 34 was appropriate

for Mitchell, the court stated:

The Court finds that by a preponderance of the

evidence the base offense level for this

defendant should be 34. The reason I find that

is because the question is not how much he had

in his person possession, the question is not how

he directly facilitated or dealt. The question is

what amount should be reasonably foreseeable

A-27

——

to the defendant.

As i view 2D1.4 and 3B1.3 and 1.4 and all of the

other hodgepodge of guidelines that goes into

calculating one of these drug conspiracy

sentences, here the defendant was not -- even

though he might have been a minor participant,

the question of whether he was a minor

participant or not does not bear directly upon

the degree of activity involving drugs that is

reasonably foreseeable to him, and I find by a

preponderance of the evidence tiat he either

personally leased or is responsible for leasing a

large number of beepers over a long period of

time, which is indicative to somebody, except

someone who had\s willfully blinded himself to

it, that he is involved in a major drug operation,

and a major drug operation would involved more

than 15 kilograms, as charged by the

government, or at least 15 kilograms.

A-28

the fall of 1989.

Over this particular period of time he himseif

was involved in one deal that involved more

than a coupe of ounces, involved at least a

quarter of a kilogram of drugs; and, given the

extent of this conspiracy and the fact that this

defendant was to simply a courier but was, as I

find by a preponderance, in a position where he

knew or reasonably should have known that it

was an extensive and large conspiracy, 34 is the

proper offense level. I find that by a

preponderance of the evidence as a matter of

fact.

A sentence should be imposed only on the basis of the

defendant’s conduct, or in a conspiracy, the conduct of co-

conspirators that was known to the defendant or reasonably

foreseeable by him. The only evidence of Mitcheli’s sale of

cocaine was the one quarter of a kilogram sold in Annapolis in

leased at various times over a period of six months seven pagers

A-29

It is obvious from the record that Mitchell

or beepers and these instruments were used by other co-

conspirators. The seven pagers were not all leased at the same

time. The number of pagers grew from one to a total of seven

over a six month span of time. Mitchell claims that he was

involved in "free enterprise,” the leasing and subleasing of

pagers. The record supports a conclusion that he was aware of

the illegal activities of Stansbury and others in the conspiracy,

but the difficult question remains as to what amount of drugs he

could reasonably have foreseen as passing through the

conspiracy. The district court found that his leasing of the

beepers over a long period of time was indicative that he was

involved in a major drug operation, and then concluded that a

major drug operation would involved more than 15 kilograms.

Mitchell contends that this is a double inference drawn from the

one fact of his leasing seven pagers. First, he claims that there

is an inference from the number of pagers leased and the time

for which they were leased that he knew that he was involved

in a major drug operation. Actually, this is not an inference

because he did know that some of the beepers, particularly the

A-30

one furnished to Stansbury, were being used in furtherance of

the drug conspiracy. However, the second claim of inference

presents a more troubling issue. The district court found that

Mitchell knew from the number of beepers that he was involved

in a major drug operation and "that a major drug operation

would involved more than 15 kilograms of cocaine.” Technically,

this is not an inference built upon an inference, because there

is evidence of his knowledge of the use of some of the beepers

to distribute cocaine. However, without more evidence than

appears on the present record, there is nothing to support the

inference that Mitchell should know "a major drug operation

would involved more than 15 kilograms.” Without more detailed

findings of fact, we find that this inference is insupportable, and

the sentence of Mitchell must be vacated and his case remanded

for resentencing.

VIL.

We find not merit to Hess Victor Branch’s appeal.

Branch entered a plea of guilty and as a result of a plea

agreement, which he and his attorneys negotiated, stipulated to

re? |

and refused to withdraw when offered an opportunity to do so

by the district court. In paragraph 5(d) of the plea agreement,

it is stipulated that an upward adjustment of two levels is

appropriate pursuant to U.S.S.G. 5K2.0 because of the use of

juveniles by the conspiracy. The agreement states that use of

juveniles ia an aggravating circumstance of a kind, or to a

degree, not adequately taken into consideration by the

Sentencing Commission in formulating the guidelines. Branch

makes a convoluted argument that the agreement does not

contain a departure stipulation which is unpersuasive. He freely

and voluntarily entered into the plea agreement, he was aware

of its terms, and he was given the opportunity to withdraw it.

This court will not aid him in his effort to avoid the obligations

of the agreement.

The sentence of Derrick Mitchell is vacated and his case

is remanded for resentencing. All convictions are affirmed, as

are the sentence of the other appellants.

AFFIRMED IN PART; MITHCELL’S SENTENCE IS

VACATED AND REMANDED FOR RESENTENCING

A-32

Ginited States District Court

District of _ Maryland

UNITED STATES OF AMERICA

V. Judgment Including Sentence

Under The Sentencing Reform Act

MICHAEL LOVELL HINTON

Cased Number S-89-0434

Harvey E. Eisenberg & Barbara S. Skalla

Attorney for United States

Robert T. Durkin, Jr.. (Apptd)

Defendant’s Attorney

THE DEFENDANT:

pleaded guilty to count(s)

was found guilty on count(s)__One (1) after a

plea of not guilty.

Accordingly, the defendant is adjudged guilty of such count(s),

which involve the following offenses:

Title & Section Nature of Offense Count Number(s)

21:846 Conspiracy to possess with |

intent to distr. Cocaine,

a Sch. II CS

The defendant is sentenced as provided in pages 2 through

4_ of this judgment. The sentence is imposed pursuant to the

A-33

Sentencing Reform Act of 1984.

The defendant has been found not guilty on count(s)

and is discharged as to such count(s).

Count(s) (is)(are) dismissed on the motion of the

United States.

The mandatory special assessment is included in the portion

of this Judgment that imposes a fine.

It is ordered that the defendant shall pay to the United States

a special assessment of $_50.00_, which shali be due

immediately.

It is further ordered that the defendant shall notify the

United States Attorney for this district within 30 days of any

change of residence or mailing address until all fines, restitution,

costs, and special assessments imposed by this Judgment are

fully paid.

Defendant's Soc. Sec. Number:

217-86-2318 July 23, 1990

Date of Imposition of Sentence

Defendant’s mailing address:

245 A Boxwood Rd., Apt 202

Signature of Judicial Officer

Annapolis, Maryland 21403 Frederic N. Smalkin, Judge U.S.

Dist. Court

Name & Title of Judicial Officer

Defendant’s residence address:

S/A July 24, 1990

Date

Judgment - Page 2 of 4

Defendant: MICHAEL LOVELL HINTON

Case Number: S-89-0434

IMPRISONMENT

The detendant is hereby committed to the custody of the

United Sates Bureau of Prisons to be imprisoned for a term of

151 months

The Court makes the following recommendations to the -

Bureau of Prisons: That defendant be placed in an institution

near the Balto/Wash. Metre are.

The defendant is remanded to the custody of the United

States Marshal.

The defendant shall surrender to the United States Marshal

for this district, after 9/15/90,

a.m.

at p.m. on

as notified by the Marshal, Defendant shall be on home

monitoring pending surrender to the Marshal.

The defendant shall surrender for service of sentence at the

institution designated by the Bureau of Prisons

before 2 p.m. on

as notified by the United States Marshal.

as notified by the Probation Office.

A-

36

RETURN

I have executed this Judgment as follows:

Defendant delivered on to at

, with a certified copy of this Judgment.

United States Marshal

Deputy Marshal

Judgment - Page 3 of __4_

Defendant: MICHAEL LOVELL HINTON

Case Number: S-89-0434

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on

supervised release for a term of Five (5) Years

While on supervised released, the defendant shall not commit

another Federal, state, or local crime and shall comply with the

standard conditions that have been adopted by this court (set

forth on the following page). If this judgment imposes a

restitution obligation, it shall be a condition of supervised

released that the defendant pay any such restitution that

remains unpaid at the commencement of the term of supervised

release. The defendant shall comply with the following

additional conditions:

The defendant shall pay any fines that remain unpaid at the

commencement of the term of supervised release.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

IN THE MATTER OF THE $:

APPLICATION OF _ THE:

UNITED STATES FOR AN:

ORDER AUTHORIZING: MISC. NO. 3876

THE INTERCEPTION OF:

WIRE COMMUNICATIONS :

ORDER AUTHORIZING INTERCEPTION

OF WIRE COMMUNICATIONS

Application under oath having been made before me by Harvey

Ellis Eisenberg, an "investigative or law enforcement officer of

the United States” as defined in Section 2510 of Title 18 of the

United States Code, for an order authorizing the interception of

wire communications pursuant to Section 2518 of Title 18 of the

United States Code, and full consideration having been given to

the matters set forth therein, the court finds:

A. There is probable cause to believe that Troy Donyel

A-39

Stansbury, Hess Victor Branch, Desi Coates, Kevin Ronald

Adams, Tracy Tilghman Brown and others as yet unknown have

committed and are committing offenses involving the

distribution of controlled substances, conspiracy to do same and

the use of a communication facility to commit violations of Title

21 of the United States Code, in violation of Sections 841, 843

and 846 of Title 21 of the United States Code.

B. There is probable cause to believe that particular

wire communications concerning these offenses will be obtained

through the interception for which authorization is herewith

applied. In particular, these wire communications will concern

the distribution of controlled substances, conspiracy to do same

and the use of a communication facility to commit violations of

Title 21 of the United State Code.

C. Normal investigative procedures have been tried and

failed, reasonably appear unlikely to succeed if continued,

reasonably appear unlikely to succeed if tried, or are too

dangerous.

D. There is probable cause to believe that the

A-40

telephone subscribed to by Reginald Simms and Reginald

Simms, Sr., located at 1150 Madison Street, Apartment S-1,

Annapolis, Maryland, and bearing telephone number 301-974-

8263, has been and is being used by Troy Donyel Stansbury,

Hess Victor Branch, Desi Coates, Kevin Ronald Adams, Tracy

Tilghman Brown and others as yet unknown in connection with

the commission of the above-described offenses.

WHEREFORE, IT IS HEREBY ORDERED that the

Drug Enforcement Administration (DEA) and DEA-deputized

officers of the Maryland State Police and the Anne Arundel

County Police Department are authorized, pursuant to an

application authorized by an appropriate official of the Criminal

Division, United States Department of Justice, pursuant to the

power delegated to that official by special designation of the

Attorney General under authority vested in him by Section 2516

of the Title 18 of the United States Code: to intercept wire

communications from Troy Donyel Stansbury, Hess Victor

Branch, Desi Coates, Kevin Ronald Adams, Tracy Tilghman

Brown and others as yet unknown concerning the above-

A-41

described offenses to and from the telephone subscribed to by

Reginald Simms and Reginald Simms, Sr., and bearing telephone

number 301-974-8263. Such interception shall not 2utomaticaily

terminate when the type of communications described in

paragraph B have first been obtained but shall continue until

communications are intercepted that reveal the manner in which

Troy Donyel Stansbury, ~— Victor Branch, Desi Coates, Kevin

Ronald Adams, Tracy Tilghman Brown and others as yet

unknown participate in the specified offenses and that reveal

the identities of their co-conspirators, their places of operation,

and the nature of the conspiracy involved therein, or for a

period of thirty (30) days, whichever is earlier; pursuant to

Section 2518(5) of Title 18 of the United States Code, the time

set forth in the order shall run from the earlier of the day on

which the investigative or law enforcement officer first beings ~

conduct the interception or ten (10) days from the date of this

order.

PROVIDING THAT, this authorization to intercept

wire communications shall be executed as soon as practicable

A-42

EE

after the signing of this order and shall be conducted in such as

way as to minimize the interception of communications not

otherwise subject to interception under Chapter 119 of Title 18

of the United States Code, and must terminate upon attainment

of the authorized objective or, in any event, at the end of thirty

(30) days measured from the earlier of the day on which the

investigative or law enforcement officer first begins to conduct

the interception or ten (10) days from the date of this order.

PROVIDING ALSO, that Harvey Ellis Eisenberg shall

provide the court with a report on or about fifteen (15) days (or

on or about the next court day following the fifteen (15) days

period) following the date of this order showing what progress

has been made toward achievement of the authorized objective

and the need for continued interception.

IT IS FURTHER ORDERED that two (2) certified

copies of the order shall be provided by the Clerk of this Court

to the Office of the United States Attorney for the District of

Maryland.

October 4, 1989

Date United States District Judge

A-44

WIRETAP LOG ANALYSIS

Total DEA Note Tynea Maria

Date Calls P O Minimized Total Min. Total Min.

10/5/89 168 8 4 4 14 0 17 O

10/6/89 195 5 9 21 24 7 le. &

10/7/89 132 20 3 12 18 1 17 2

10/8/89 218 39 3 19 26 A 18 10

10/9/89 160 11 14 10 20 2 19 #5

10/10/89 89 4 2 12 6 2 a

10/11/89 98 1 2 10 3 1 40 3

10/12/89 141 6 8 15 28 & «4 3

10/13/89 139 8 9 12 15 3 18 6

10/14/89 243 24 5 22 15 6 32. «10

10/15/89 109 13 4 11 7 2 10 4

10/16/89 100 15 0O 5 15 3 13 l

10/17/89 116 4 4 9 23 3 17 4

10/18/89 121 19 2 18 23 5 18 «8

10/19/89 137 7 13 19 17 6 38 15

10/20/89

10/21/89

10/22/89

10/23/89

10/24/89

10/25/89

10/26/89

10/27/89

10/28/89

10/29/89

10/30/89

10/31/89

11/1/89

11/2/89

11/3/89

11/4/89

11/5/89

11/6/89

11/7/89

103

115

11

12

16

51

34

30

12

14

28

10

11/8/89 111 2

11/9/89 119 18

11/10/89 167 10

11/11/89 200 18

11/12/89 179 2

11/13/89 138 10

11/14/89 94 15

11/15/89 115 22

11/16/89 107 10

11/17/89 161 1

11/18/89 176 22

11/19/89 148 12

11/20/89 42 2

LISTOS16.KGC

16

24

A-47

11

11

nN

A

14

With your jury service. So, you need not respond to any such

inquiry.

Do you all understand that?

(Affirmative Response)

The Court: Now, if you have anything in the jury

room, go in and get it through this door and come out this door,

please, so that we know that you are not in there anymore.

(Alternate Jurors Excused)

The Court: Mr. Clerk, if you would give the Exhibits,

please.

All right, ladies and gentlemen, I instruct you, then, to

retire to deliberate upon your verdict.

Court will stand in recess pending the return of the

petit jury.

(Jury Out at 2:38 p.m.)

The Court: Thank you, counsel.

Will you all be around?

Mr. Pierson: Yes, your Honor.

Mr. Burns: Yes, your Honor.

A-48

Mr. Durkin: Yes, your Honot.

The Court: So we know where to find you on short

notice.

Court stand in recess.

(Recess had at 2:40 p.m.)

The Court: I am going to bring the jury back in and

let them go for the weekend, tell them to come back on

Monday morning. It is five o’clock now, and we have had no

communication from them.

There is a maior traffic snarl here in Baltimore.

Believe it or not, the city is closing down Pratt Street at 5:15,

rush hour on Friday night, to accommodate the Donald Trump

Bike Race. So, I don’t want the jurors to be caught. They still

have enough time to get out. So, I am going to go ahead and

let them go for the night and tell them to get out quickly.

Ron, bring them on in.

(jury in)

The Court: Go ahead and just sit down, ladies and

gentlemen. It’s just about five o’clock here, and I think we are

A-49

going to let you go home for the weekend and come back on

Monday morning to resume your deliberations.

Unfortunately, there is major traffic tie up. They ciose

Pratt Street at 5:15, they are going to close it in fifteen minutes,

to be accommodate the Donald Trump bike race.

So, if I were you, I would get out of town as soon as

you can and preferably head west, and you'll be all right. Some

people might be going cast.

If you come back Monday morning, which would be

the 7th, is there anybody who can’t be here by, let’s say, 9:30,

anyone to whom that presents a problem?

(no response. )

The Court: Well, then, I am going to let you go until

9:30 on Monday morning.

Yes, sir?

A Juror: Is there a possibility to stay a little longer

and ict this traffic go?

The Court: No, I don’t think we can do that.

The Marshal: It is going to be going until cight

A-50

o'clock tonight, your honor.

The Court: I don’t think that that is a reasonable

alternative.

So, we will see you on Monday morning at 9:30.

When you come into the jury room, don’t start

deliberating until everybody is here. When all twelve of you are

here, just knock on the door, and we will bring you in court and

call the roll and make sure you are all here, and then you start

deliberations, but you should not deliberate unless all tweive of

you are their; and, of course, it’s vitally important that you not

have any discussions with any outsiders or amongst yourselves

from now until you meet again all together on Monday morning

at 9:30.

So, you will report to the jury room by 9:30 on

Monday morning to resume your deliberations, and we will see

you then. Have a nice weekend.

(Thereupon, at 5:05 p.m. an adjournment was had in

this matter until May 7, 1990 at 9:30 a.m.)

a

I hereby certify that the foregoing is a true and

accurate transcript of the proceedings indicated.

Fred Sapperstein

Chief Official Reporter

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

The United States of America )

)

VS. ) Criminal No. S-89-0434

)

Tracy Tilghman Brown, et a/_)

May 7, 1990

Baltimore, Maryland

The Above-entitled matter was continued on trial

before the Honorable Frederic N. Smalkin and a jury at 9:30

a.m.

APPEARANCES

On behalf of the Government:

Harvey E. Eisenberg, Esq.

Barbara Skalla, Esq.

A-53

On behalf of the Defendant Michael Hinton;

Robert T. Durkin, Esq.

On behalf of the Defendant Derrick Mitchell;

W. Michael Pierson, Esq.

On behalf of the Defendant Barry Johnson;

Andrew Joseph Burns, Esq.

The Court: Bring in the jury, please.

The record will reflect that all parties are present in

person and by counsel.

(jury in)

The Court: Ladies and Gentlemen, just take your

seats. As formality, we call the roll and then send you back in.

The Clerk: Ladies and Gentlemen, please respond to

roll call.

(roll called.)

The Court: All right. The record reflects the jury

have all answered to roll call.

We are going to send you back in to continue

deliberating.

Madam Forelady, if around, oh, elevenish you decide

you want some lunch menus, just tap on the door, and we will

send in some lunch menus for you. It will not cost you anything.

Lunch is free. So, if you anticipate that you will be here over

lunch, just tap on the door at maybe 11:15 or so and ask for the

A-55

menus.

Court will recess pending the return of the petit jury.

(Jury out at 9:55 a.m.)

(2:45 p.m.)

The Court: All right, we have a note from the jury

that says, "what happens if we have reached a verdict on two

defendants but are deadlocked about the third?"

What I propose to do is to give the instruction

essentially that is in sand, instruction 9-8, which says that it is

the desire of the court and of all of the parties that, if possible,

you return a verdict on all defendants, if you can do so without

violating your individual conscience. However, if after

conscientious deliberations you are only able to reach a verdict

concerning one of the defendants, you may return a verdict

concerning that defendant or those courts. Partial verdicts are

not subject to revision.

Now, we have several alternative ways of proceedings

here. I can simply tell them something like that.

The jury under rule 31 is entitled at any time to return

A-56

a

a verdict or verdicts with respect to a defendant as to whom it

has agreed and says, if the jury cannot agree with respect to all,

the defendant or defendants as to whom it does not agree may

be tried again.

How do you all wish me to proceed on this? I will

take suggestions from you.

Mr. Pierson: May we have a moment to consult, your

honor.

The Court: Sure.

The Court: It is Rule 31(B).

Mr. Pierson: Your Honor, I think it is the joint

feeling of those - - of those at this table that we have no

objection to the court taking the verdict as to two, but each of

us would prefer that your Honor not give any further instruction

to the jury as to the remaining one because we feel that that

might have a coercive effect.

Mr. Eisenberg: As you have probably gathered, we

have a different view on this side of the room.

Your Honor, we feel that they have deliberated now

A-57

for, if my math is correct, six and a half or seven hours; and, it

being three o’clock now, if your Honor would give them the

charge that you suggest and let them try for another two hours,

unless they indicate to you clearly that they cannot reach it.

The Court: Well, I will tell them that they have a

right to do this, that they have a right to return a partial verdict

and to continue deliberating on the other and that the partial

verdict is not subject to revision, but they haven’t indicated now

that they want to return a partial verdict. They just said what

happens if. So, I will answer it that way.

All right, bring them in.

(jury in)

The Court: We have got a note from you that says,

"what happens if we have reached a verdict on two defendants

but are deadlocked about the third?"

Federal law gives you the right at any time during your

deliberations to return a verdict or verdicts with respect to a

defendant or those defendants as to whom you have agreed. I

would tell you that any such what is called a partial verdict is

A-58

Ee

net subject to revision. You cannot change your mind about

that as you continue to deliberate on any remaining issues in the

case.

It is the desire of the court and all parties that, if

possible, you return a verdict on all defendants if you can do so

without violating your individual conscience; but, as I told you,

you may return a verdict as to less than one - - less than all

defendants if you wish to do that; and what I am going to do

now is ask you to go back in the jury room and decide whether

you wish to follow that Oa of if you simply wish to

continue your deliberations until you have reached a unanimous

verdict as to all of the defendants.

Remember what I said, that, once you have returned

a verdict as to any particular defendant, that is not subject to

revision, that is final. Okay.

So, you all go ahead back in there and take your time.

Whatever you want to do in response to what I have told you,

you are the ones who decide how you wish to handle that.

If you have any further communications, just tap on

A-59

the door to the Marshal, as you have done.

All Right. Court will stand in recess pending a call.

(jury out at 3:00 p.m.)

The Court: Mr. Pierson.

Mr. Pierson: I just want to place on the record my

exception to the court instructing the jury that it is the desire of

the court and all parties that they reach a verdict, because I

believe that is coercive.

The Court: I don’t think it is coercive at all. I think

that that is the standard instruction out of Sand, 9-8, and I said

if you can do so without violating your individual conscience,

which balances it.

All right. Your exception is noted, but I don’t think -

- it certainly didn’t have any coercive effect. I didn’t tell them

to abandon any positions or to agree or whatever.

I don’t think under the circumstances a full Allen

charge is required. So, I didn’t give one. If I were, I would use

the one out of U.S. v. Sawyers, but I haven’t done that because

they haven’t reported any particular deadlock. This is a what if

A-60

—o._— ee

question.

So, I think that the instruction given is appropriate

under the circumstances.

All right. Court stands in recess pending call.

(Recess taken from 3:05 p.m. until 3:25 p.m.)

The Court: The record will reflect that all parties are

here in person and by counsel.

We have another question from the jury. It says, “will

you accept a deadlock as a verdict?" Now maybe they can’t

decide as to anybody, in which case we will just stari all over

again on Monday of next week with another jury, if the

government wants to reprosecute the case.

The government seems to have some difficulty here

with jury trials late lately.

What I would propose to do is to give the instruction

as set forth in footnote seven of United States versus Sawyers,

423 F..2d 1335 at 1342, which is the judicial conference version,

which says the court informs the jury that in order to return a

verdict, each juror must agree to it, that jurors have a duty to

A-61

consult with one another and to deliberate with a view to

reaching an agreement, if it can be done without violence to

individual judgment, that each juror must decide the case for

himself, but only after an impartial consideration of the evidence

with fellow juror, that in the course of deliberation a juror

should not hesitate to reexamine his own views and change his

own opinion if he thinks it is erroneous. Obviously, I will make

this his or her. That each juror who finds himself in the

minority shall reconsider 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, and

that no juror should surrender his honest conviction as to the

weight or effect of the evidence solely because of the opinion

of fellow jurors or for the mere purpose of returning a verdict.

So, that is what I propose to do unless there is any

exception to that.

Mr. Eisenberg: None from the government.

Mr. Pierson: Would your Honor consider the

alternative in light of the sequence of these two notes of

A-62

Pei nr

inquiring of the jury if they are now telling us that they no

longer have a partial verdict? I mean, I must say I don’t

understand it.

The Court: I don’t understand it either.

Mr. Eisenberg: It can be interpreted in one of several

ways, but I don’t think we ought to make an inquiry of the jury

at this time.

The Court: Weli, I am not. I am going to read them

this and send them back in.

Although the rule says that they have got the absolute

right to return a partial verdict, and I will remind them of that

at the beginning, and then I will read this.

Mr. Pierson: I except to it, your Honor.

The Court: Why?

Mr. Pierson: I except to the modified Allen charge,

the judicial conference Allen, the watered-down Allen. or any

version of Allen because I submit it is coercive.

The Court: The Fourth Circuit has repeatedly

disagreed with that so long as the instruction is in a form not

A-63

stronger than that which is found in footnote 7 of the Sawyers

case.

Your exception is noted. You are doing your job.

Anything else?

All right, bring them in.

The question is somewhat ambiguous, I must say

(jury in)

The Court: Be seated, ladies and gentlemen.

Your question says, "Will you accept a deadlock as a

verdict?”

As I told you before, you can - - your question is a

little bit ambiguous. You can return, if you wish, a unanimous

verdict as to any defendant at any time you wish, either guilty or

not guilty, as you vote, not subject to revision as to that verdict

once it is returned.

Now, I would say that, in order to return any verdict,

each of you must agree to it. You 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

A-64

judgment.

Each juror must decide the case for yourself, but only

after an impartial consideration of the evidence with fellow

jurors, and in the course of deliberation you should not hesitate

to change your opinion and reexamine your own views if you

become convinced it is erroneous, and each of you who finds

himself or herself in the minority shall reconsider your views in

light of the opinions of the majority, and each of you who finds

himself or herself in the majority shall give equal consideration

to the views to the minority, but none of you should surrender

your honest conviction as to the weight or effect of the evidence

solely because of the opinion of fellow jurors or for the mere

purpose of returning a verdict.

I am going to request that you resume your

deliberations in light of the instructions I have given you, and

we will be here again to answer any other notes or questions

you might have.

All right, go ahead out.

Court will stand in recess pending the return of the

A-65

jury.

(jury out at 3:38 p.m.)

Mr. Pierson: If it please the court, I would like to be

heard briefly your Honor. ——

The Court: Yes, Sir.

Mr. Pierson: The jury’s question was ambiguous.

What troubles me is the fact that what may have been just a

simple question - - I mean, this jury does not know that it is not

possible to reach a verdict, it was never been told that. For all

the jury knows, maybe they are going to stay here until

doomsday until it reaches a verdict.

Now, the jury’s question in light of that may have

simply meant - -

The Court: It might have, but we don’t ask questions

to the jury. They ask questions to us. |

Mr. Pierson: Well, it seems to me it is simple

communication with the jury. The Court's communications, it

seems to me, are somewhat oblique, not directly answering the

jury’s questions.

Ee

The Court: Well, but you don’t conduct a colloquy

with the jury because that’s fraught with error or the possibility

of error. So, I am not going to sit here and conduct a colloquy

with them. There are twelve of them and only one of me.

Do you want to take exception to what I did?

Mr. Pierson: No. I am not doing this for the purpose

of taking exception. I’m trying to - - it does seem to me that - -

I will say it does seem to me that them coming in with a

question like that the court sending them right back out with an

instruction like that does have a coercive tendency.

As I say, the other problem is that just my perception

is the jury is coming in with these questions, and they are not

getting answers to them.

The Court: Well, I think it certainly couldn't have

been clearer with regard to partial verdict, and I think they are

just asking that again essentially with regard to deadlock, and I

thint: it’s entirely appropriate to ask them to keep on with their

deliberation.

I suppose they want to know is - - perhaps they want

A~-67

to know is "deadlock" a verdict; and, if I wanted them to know

that, I would have told them that to begin with, and the answer

is, no, it’s not a verdict. So, I could have easily told them that;

but, if I told them that, then you would say that is coercive, too,

because that would not have told them that they have a right

not to make a decision, and they technically don’t have a right

not to make a decision. They have got a right to continue to

deliberate until they make a decision or I in the exercise of my

discretion determine that it is not appropriate to keep them

locked up anymore, and I haven’t gotten to that point yet.

Mr. Pierson: I am not asking for colloquy, but it

seems to me if the court were to say, juror number one, are you

all deadlocked - -

The Court: You can’t do that. I can’t do that. That

also violates the supreme court’s admonition, which was made

in the 19th century, that the court is never to inquiy as to the

present state of jury deliberations. I can’t do that. This is why

we tell them never to report out how they stand numerically.

It’s an offshoot of that case which was decided in the 1880's,

A-68

and I can’t remember the name.

All right: Everybody stay close. We are on the verge

of something.

(recess taken from 3:45 p.m. until 5:45 p.m.)

The Court: We have a note from the jury that says

they have reached a verdict. So, do you want to bring them in,

Ron.

It doesn’t say verdict. It says we have reached a

decision.

(jury in)

The Court: Be seated, please, ladies and gentlemen.

We have received a note saying that you have reached a

decision.

Mr. Clerk, call the roll, please.

The Clerk: This is the verdict in criminal docket

number S-89-0434, United States of America versus Michael

Lovell Hinton, Barry Johnson, and Derrick Scott Mitchell.

The Court: The record will reflect all parties are

present in person and counsel.

A-69

The Clerk: Members of the jury, will you please

respond to roll call.

(roll called.)

The Clerk: Members of the jury, are you agreed of

your verdict?

The Jurors: We are.

The Clerk: Who shall say for you?

The Jurors: Our foreperson

The Clerk: Would the forelady please stand.

What say you, is the defendant, Michael Lovell

Hinton, guilty or not guilty of the matters wherein he stand

indicted?

The forelady: The jury finds Michael Lovell Hinton

guilty.

The Clerk: What say you, does the jury find the

dolentent. Barry Johnson, guilty or not guilty of the matters

wherein he stand indicted?

The forelady: The jury finds Barry Johnson guilty.

A-70

The Clerk: As to defendant, Derrick Scott Mitchell,

does the jury find him guilty or not guilty of the matters wherein

he stand indicted?

The forelady: The jury finds Derrick Scott Mitchell

guilty.

The Court: All right. Does anyone desire a poll?

Mr. Pierson: I would request a poll.

Mr. Burns: I would, your Honor.

The Court: All right. Poll the jury, please.

The Clerk will simply ask each of you if that is the

unanimous decision.