Petition — Foster v. United States

83-1366 Office Supreme Court, US

- FILED

NO. FEB 16 1984

IN THE ALEXANDER L. STEVAS.

SUPREME COURT OF THE E ——

October Term, 1983

GREGORY FOSTER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Law Offices of

PANCER & SHERMAN

By: Michael Pancer

Suite 1100

520 “E”’ Street

San Diego, CA 92101-6278

(619) 236-1826

Attorney for Petitioner

The Brief Shop ¢ | cgal Printers ¢ (213) 877-8620

QUESTIONS PRESENTED

A. Should the trial court have granted

a mistrial rather than ordering the

seating of an alternate juror during the

sixth day of deliberations?

B. Did the change of circumstances

permit petitioner to withdraw from the

Stipulation which waived the manditory

requirements of Rule 24(c), Federal

Rules of Criminal Procedure?

C. Was it proper for the trial court to

give a modified Allen instruction?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

STATEMENT OF THE FACTS

REASONS WHY THE WRIT SHOULD BE

GRANTED

ARGUMENT

THE CIRCUMSTANCES SURROUNDING THE

JURY'S DELIBERATIONS NECESSITATED

THE GRANTING OF A MISTRIAL.

(1) Rule 24(c) Waiver

(2) Allen Instruction

CONCLUSION

APPENDIX A OPINION, UNITED STATES

COURT OF APPEALS FOR

THE NINTH CIRCUIT,

Filed July 26, 1983

TABLE OF AUTHORITIES

Cases

Jenkins v. United States (1965)

380 U.S. 445, 85 S.Ct. 1059 41

Leser v. United States

358 F.2d 313 (9th Cir.)

cert. dismissed, 385 U.S. 802 30

87 S.Ct. 10 (1966) 31, 34-36

United Staes v. Allison

481 F.2d 468, (5th Cir. 1973)

aff'd after remand,

487 F.2d 339 (5th Cir. 1973)

cert. denied, 416 U.S. 982

94 S.Ct. 2383 (1974) 29

United States v. Beattie

613 F.2d 762 (9th Cir.)

cert. denied, 446 U.S. 892

100 S.Ct. 2962 (1980) 39, 40, 45

United States v. Fioravanti

449 F.2d 407, (3rd Cir.)

cert. denied, 396 U.S. 837,

90 S.Ct. 97 (1969) 39

United States v. Goldstein (1973)

479 F.2d 1061 48

United States v. Hayutin

398 F.2d 944, (2nd Cir.)

cert. denied, 393 U.S. 961

89 S.Ct. 400 (1968) sub.app. 29, 30

iii.

U. S. v. Hillard

701 F.2d 1052 (2nd Cir.)

cert. denied,

103 S.Ct. 2431 (1983) 37, 38

United States v. Hooten

662 F.2d 628 (9th Cir. 1981) 45

United States v. Lamb

529 F.2d 1153

(9th Cirl975) (en banc) 30, 38

United States v. Mason

658 F.2d 1263 (9th Cir. 1981) 40, 47

United States v. Nash

414 F.2d 234 (2nd Cir.)

cert. denied, 396 U.S. 940

90 S.Ct. 375 (1969) 30

United States v. Phillips

664 F.2d 971 (Sth Cir. 1981)

cert. denied 102 S.Ct. 2965

(1982) 37

United States v. Seawell

550 F.2d 1159 (9th Cir. 1977) 47

United States v. Silvern

484 F.2d 879 (7th Cir. 1973)

(en banc) 39

United States v. Thomas

449 F.2d 1177

mC. Car. i973) 39

iv.

Statutes

California Penal Code § 1089 28

21 U.S.C. § 841 (a) (1) 2, 4, §

21 U.S.C. § 846 2, 28

28 U.S.C. § 1254(1) 8

Rules

Federal Rules of Criminal Procedure:

Rule 23(b) 17, 38

Rule 24(c) passim

Rule 24(0) 17

Texts

Orfield, Trail Jurors in Federal

Criminal Cases

29 F.R.D. 43 (1961) 26s a7

3 L. Ordfield, Criminal Procedure

Under the Federal Rules 94

(1966) 26, 28

Paisley, The Federal Rule on

Alternate Jurors

51 A.B.A.J. 1044 (1965) 28

C. Wright, Fed. Practice &

Procedure (1969), Vol. 2

§ 388, p. 52 31

Constitutions

United States Constitution:

5th Amendment 19

6th Amendment 19

Instructions

Allen Instructions 36-48

Miscellaneous

American Bar Association Project

on Minimum Standards for

Criminal Justice, Standards

Relating to Trial by Jury

(approved draft 1968)

§ 2.7 28, 29

Preliminary Draft of Proposed

Amendments to the Federal

Rules of Criminal Procedure

91 F.R.D. 338 (1981) 17

Report of the Jury Committee of

the Judicial Conference of

the United States

(March 1973 at 7-8) 29

vi.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

GREGORY FOSTER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

’ PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

This is a petition for GREGORY FOSTER

for a Writ of Certiorari to review the

Opinion filed by the United States Court

of Appeals for the Ninth Circuit on July

26, 1983, affirming petitioner's convic-

tion for conspiracy to possess heroin

with intent to distribute in violation

l.

of 21 U.S.C. §§ 841(a)(1) and 846, and

numerous substantive counts of posses-

sion of heroin with intent to distribute

in violation of 21 U.S.C. § 841l(a) (1).

The United States Court of Appeals for

the Ninth Circuit, among its various

rulings, held that the petitioner and

his counsel voluntarily chose to waive

the mandatory language of Rule 24(c),

Federal Rules of Criminal Procedure, in

agreeing to proceed with an 1l-person

jury. Specifically, the Court concluded

that neither the petitioner nor his

counsel were initially coerced into

stipulating to the substitution of an

alternate juror after deliberations had

begun, and that the subsequent change in

circumstances did not require the trial

court to relieve them from the stipula-

tion. In addition, the Court,of Appeals

2.

also held that the trial court did not

abuse its discretion by the giving of an

Allen charge on the fifth day of delib-

erations.

OPINIONS BELOW

To the petitioner's knowledge, the

Opinion in the United States Court of

Appeals for the Ninth Circuit, affirming

petitioner's conviction, has been offi-

cially reported at 711 F.2d 871 (1983).

(A copy of the Opinion is attached to

the Appendix hereto.)

JURISDICTION

1. On April 30, 1981, the Federal

Grané Jury for the Southern District of

California returned a 27 count Indict-

ment against petitioner and 30 other

persons. Count One charged all of the

defendants in a conspiracy under Title

21, United States Code Sections

841(a)(1) and 846, to possess with

intent to distribute heroin. The

remaining counts charged petitioner

individually and certain defendants on

specific dates with the substantive act

of possession of heroin with intent to

distribute in violation of Title 21,

United States Code Section 841(a)(1l).

2. On October 23, 1981, at the sug-

gestion of the trial court, a written

Stipulation was entered into whereby all

parties agreed to waive the requirement

of Rule 24(c), Federal Rules of Criminal

Procedure, and to the retention of the

first two alternate jurors. During the

sixth day of deliberations, after a

partial verdict had been returned

acquitting one of the defendants and the

trial court had given a modified Allen

charge, the court received a note from

the jury concerning the difficulties one

juror was experiencing and his wish to

be relieved. After meeting with this

juror in chambers in the presence of all

counsel, the court indicated its inten-

tion to release this juror. Counsel

objected to the juror being excused and

renewed their motion for a mistrial.

The court again denied the motion for a

mistrial and again stated that it was

prepared to substitute an alternate for

this juror pursuant to the Stipulation.

‘Seatentte:; six of the seven defendants

on trial indicated that they were wil-

ling to go with the 11 remaining jurors

rather than with the seating of the

alternate juror. The court agreed to

follow this procedure and instructed the

ll jurors to resume their deliberations

as to all of the defendants except the

one defendant who wanted the alternate

seated. In the afternoon of the follow-

ing day, the jury returned a verdict of

guilty against petitioner on Counts One-

Seven, Nine-Twenty and Twenty-Three.

3. On December 7, 1981, petitioner

was sentenced to the custody of the

Attorney General for a period of fifteen

(15) years and fined the amount of

$25,000 on Count One; a period of three

(3) years in custody and a fine of

$25,000 on Counts Two-Seven, to run

consecutive to the sentence imposed on

Count One; a period of fifteen (15)

years and a $25,000 fine on Counts Nine-

Twenty, to run concurrent with the sen-

tences on Count One and Counts Two-

Seven. In addition, a Special Parole

Term of Twenty (20) years was imposed on

Counts Two-Seven and Nine-Twenty, to run

concurrently. On Count Twenty-Three,

petitioner was placed on probation for a

period of five (5) years to run consecu-

tive to the sentences imposed on the

other counts. Petitioner thereafter

filed a timely Notice of Appeal.

4. On July 26, 1983, the United

States Court of Appeals for the Ninth

Circuit affirmed petitioner's convic-

tion. Petitioner sought further review

of the Panel's Opinion from the entire

Court by filing a Petition for Rehearing

and Suggestion for Rehearing En Banc,

but the suggestion for an en banc

rehearing was rejected on December 13,

1983.

5. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

1. Rule 24(c), Federal Rules of

Criminal Procedure.

"Rule 24. Trial Jurors

(c) Alternate Jurors. The court

may direct that not more than

6 jurors in addition to the

regular jury be called and

impanelled to sit as alter-

nate jurors. Alternate

jurors in the order in which

they are called shall replace

jurors who, prior to the time

the jury retires to consider

its verdict, become or are

found to be unable or dis-

qualified to perform their

duties. Alternate jurors

shall be drawn in the same

manner, shall have the same

qualifications, shall be

subject to the same examina-

tion and challenges, shall

take the same oath and shall

have the same functions,

powers, facilities and privi-

leges as the regular jurors.

An alternate juror who does

not replace a regular juror

shall be discharged after the

jury retires to consider its

verdict. Each side is enti-

tled to 1 peremptory chal-

lenge in addition to those

otherwise allowed by law if 1

or 2 alternate jurors are to

be impanelled, 2 peremptory

challenges if 3 or 4 alter-

nate jurors are to be impan-

elled, and 3 peremptory chal-

lenges if 5 or 6 alternate

jurors are to be impanelled.

The additional peremptory

challenges may be used

against an alternate juror

only, and the other peremp-

tory challenges allowed by

these rules may not be used

against an alternate juror."

2. Title 21, United States Code

Section 84l(a) (1).

"841 Prohibited Acts. A-Unlawful

Acts.

(a) Except as authorized by this

subchapter, it shall be

unlawful for any person know-

ingly or intentionally --

(1) to manufacture, distri-

bute, or dispense, or

possess with intent to

manufacture, distribute,

9.

or dispense, a controlled

substance.”

3. Title 21, United States Code

Section 846.

"846 Attempt and conspiracy.

Any person who attempts or

conspires to commit any

offense defined in this sub-

chapter is punishable by

imprisonment or fine or both

which may not’ exceed. the

maximum punishment prescribed

for the offense, the commis-

sion of which was the object

of the attempt or conspir-

acy.”

STATEMENT OF THE FACTS

At the suggestion of the trial

court, 2/ a written Stipulation was

entered into and filed October 23, 1981,

1/ The court specifically stated that

if a problem arose with one of the

jurors forcing a mistrial, counsel would

be required to retry the matter the next

week when the remaining defendants, who

had previously been severed, were sched-

uled for trial.

10.

whereby all parties agreed to waive the

requirement of Rule 24(c), Federal Rules

of Criminal Procedure, and to the reten-

tion of the first two alternate jurors.

After returning a partial verdict on the

fourth day of deliberations acquitting

one of the defendants, the court

received a note the following day which

stated that one of the jurors was

requesting to be released as the length

of the proceeding was causing a strain

on his family and job situation. After

discussion with counsel, the court

responded by asking the jury to continue

its deliberations.

Later that same day, the court

received another note stating that a

second juror wanted to be released as

the jury "seem[ed] to be at a stand off"

and "there is no clear end in sight".

When the court indicated that it was at

this point planning to give a modified

Allen charge, all counsel objected and

moved for a mistrial. The court denied

the motion, and again expressed its

intention that if the jury indicated it

was deadlocked, the court would give the

modified Allen instruction. When the

jury foreman indicated that a few of the

jurors believed they were “hopelessly

deadlocked", the court read this

instruction.

The following day, being the sixth

day of deliberations, the court again

received a note from the jury concerning

the difficulties the one juror was

experiencing and his wish to be releas-

ed. After meeting with this juror in

chambers in the presence of all counsel,

the court indicated its intention to

12.

release this juror. Counsel objected to

the juror being excused and again

renewed their motion for a mistrial.

The court again denied the motion for a

mistrial and again stated that it was

prepared to substitute an alternate for

this juror pursuant to the Stipulation.

Counsel thereafter met with their

clients to discuss the possibility of

going with an ll-person jury, rather

than seating the alternate. At this

point, one of co-counsel stated that

upon a re-reading of Rule 24(c), it was

apparent that the seating of an alter-

nate juror was not permissible under any

circumstances at this stage of the pro-

ceedings, and that counsel were request-

ing to withdraw from the stipulated

agreement. Counsel for petitioner con-

curred on the grounds that at the time

13.

the Stipulation was entered into, the

pending situation was never envisioned,

and that due to one of the defendants

already having been acquitted, it was

not appropriate to seat another juror

after six days of deliberations. The

court responded to these comments by

Stating that unless there was unanimity

among all of the defendants to go for-

ward with 11 jurors rather than insert-

ing the alternate, the court would pro-

ceed pursuant to the Stipulation and

seat the alternate. When one of the

defendants stated that he preferred the

alternate, the trial court excused the

juror, and indicated that an alternate

juror would be substituted on his

behalf.

On the following Monday, November 2,

1981, the six defendants who indicated

14.

that they would be willing to go with

the 11 remaining jurors rather than with

the alternate requested the court to

instruct those 1l to withdraw the one

defendant's case from their considera-

tions and to proceed with their deliber-

ations as to the other defendants.

After inquiring of the defendant and

counsel that this was their desire, the

court agreed to follow this procedure

and instructed the ll jurors to resume

their deliberations as to all of the

defendants except the one defendant.

In the afternoon of the following

day, November 3, 1981, the jury returned

a verdict of guilty against petitioner

on Counts One-Seven, Nine-Twenty and

Twenty-Three.

15.

REASONS WHY THE WRIT SHOULD BE

GRANTED

Most commentators and courts have con-

tinually doubted the desirability and

constitutionality of permitting an

alternate juror to be substituted if a

regular juror becomes unable to perform

his duties after the case has been sub-

mitted to the jury. There appears to be

universal agreement that the danger of

prejudice to the defendant is too great

to allow a juror who is unfamiliar with

the prior deliberations to suddenly join

the group and participate in the voting

without the benefit of earlier group

discussion. This is so because the

inherent coercive effect upon an alter-

nate who joins a jury leaning heavily

toward a guilty verdict may result in

the alternate reaching a_ premature

16.

guilty verdict. Conversely, a _ lone

juror holding out for acquittal may find

himself pressured to feign illness or

incapacity to place the burden of deci-

sion on a waiting alternate, thus, sig-

nificantly limiting the accused's right

to a mistrial.

Recognizing the inherent problems of

such a procedure, the Preliminary Draft

of Proposed Amendments to the Federal

Rules of Criminal Procedure, 91 F.R.D.

338 (1981), chose to recommend to amend

Rule 23(b) by permitting deliberations

to continue with 11 jurors rather than

amending Rule 24(0) and allowing the

substitution of an alternate once delib-

erations had begun. The Advisory Com-

mittee similarly commented on the con-

stitutional difficulties involved in the

substitution plan due to the inability

te

of a court to counter the influence and

intimidation the new juror would

undoubtedly be subject to by virtue of

being a newcomer to the deliberations.

It was precisely for these very rea-

sons that petitioner and his counsel

decided to proceed with an 1l-person

jury rather than agreeing to the seating

of the alternate. But, because of the

circumstances which had occurred during

the six days of deliberations, peti-

tioner and counsel were forced to agree

to this procedure as the “lesser of two

evils.” Once the jury had reached a

partial verdict and then indicated it

was “hopelessly deadlocked" on two occa-

sions, the only proper action that

should have been taken was the granting

of a mistrial. Instead, the trial court

gave a modified Allen instruction and

18.

then released the one juror setting up

the "dammed if I do, dammed if I don't"

decision. Considering the Fifth Amend-

ment due process and Sixth Amendment

ramifications of this situation, cert-

iorari must be granted to remedy the

injustice done in this case.

ARGUMENT

THE CIRCUMSTANCES SURROUNDING THE

JURY'S DELIBERATIONS NECESSITATED

THE GRANTING OF A MISTRIAL.

In order to properly evaluate the

issues involved in this argument, it is

first necessary to again review the

sequence of events which eventually led

to the jury's finding of guilty:

1. Toward the latter part of the

trial, the court first suggested the

possibility of stipulating to the reten-

tion of the alternate jurors, indicating

19.

that if a mistrial had to be declared

because of a problem with one of the

jurors, counsel would be required to go

to trial the following week with the

remaining severed defendants.

2. Just prior to the end of the

trial, the court again brought up the

idea of retaining the alternate jurors.

In fact, the court prepared the written

Stipulation wherein all parties agreed

to waive the requirements of Rule 24(c),

Federal Rules of Criminal Procedure, and

to the retention of the first two alter-

nate jurors.

3. After a partial verdict had been

returned on the fourth day of delibera-

tions acquitting one of the defendants,

the court received a note the following

day which stated that one of the jurors

was requesting to be released as the

20.

length of the proceedings was causing a

strain on his family and job situation.

After discussion with counsel, the court

responded by asking the jury to continue

its deliberations.

4. Later that same day, the court

received another note stating that a

second juror wanted to be released as

the jury "“seem[ed] to be at a standoff"

and “there is no clear end in sight."

When the court indicated that it was at

this point planning to give a modified

Allen charge, all counsel objected and

moved for a mistrial. The court denied

the motion and again expressed its

intention that if the jury indicated it

was deadlocked, the court would give the

modified Allen instruction. When the

jury foreman indicated that a few of the

jurors believed they were “hopelessly

21.

deadlocked" the court read this instruc-

tion.

5. During the sixth day of delibera-

tions, the court again received a note

from the jury concerning the difficulty

the one juror was experiencing and his

wish to be released. After meeting with

this juror in chambers in the presence

of all counsel, the court indicated its

intention to release this juror. Coun-

sel objected to the juror being excused

and again renewed their motion for a

mistrial. The court again denied the

motion for a mistrial and again stated

that it was prepared to substitute an

alternate for this juror pursuant to the

Stipulation.

6. Counsel thereafter met with their

clients to discuss the possibility of

going with an ll-person jury, rather

22.

than seating the alternate. At this

point, one of co-counsel stated that

upon a re-reading of Rule 24(c), it was

apparent that the seating of an alter-

nate juror was not permissible under any

circumstances at this stage of the pro-

ceedings, and that counsel were request-

ing to withdraw from the stipulated

agreement. Counsel for petitioner con-

curred on the grounds that at the time

the Stipulation was entered into, the

pending situation was never envisioned,

and that due to one of the defendants

already having been acquitted, it was

not appropriate to seat another juror

after six days of deliberations. The

court responded to these comments by

Stating that unless there was unanimity

among all of the defendants to go for-

ward with ll jurors rather than

23.

inserting the alternate, the court would

proceed pursuant to the Stipulation and

seat the alternate. When one of the

defendants stated that he preferred the

alternate, the trial court excused the

juror, and indicated that an alternate

juror would be substituted on his

behalf.

7. Prior to the alternate being

seated, the six defendants who indicated

that they would be willing to go with

the 11 remaining jurors rather than with

the alternate requested the court to

instruct those 1l to withdraw the one

defendant's case from their considera-

tion and to proceed with their delibera-

tions as to the other defendants. After

inquiring of the defendants and counsel

that this was their desire, the court

agreed to follow this procedure and

24.

instructed the 1l jurors to resume their

deliberations as to all of the defend-

ants except the one defendant.

8. In the afternoon of the following

day, the jury returned its verdict.

It is submitted that based upon these

events, the trial court should have

granted a mistrial when requested on

numerous occasions, and that its failure

to do so constituted an abuse of discre-

tion of such magnitude as to justify the

granting of certiorari to review the

injustice perpetrated by the jury's

verdict.

(1) Rule 24(c) Waiver

Rule 24(c) of the Federal Rules of

Criminal Procedure states in pertinent

part:

25.

"Alternate jurors in the order in

which they are called shall replace

jurors who, prior to the time _ the

jury retires to consider its verdict,

become or are found to be unable or

disqualified to perform their

duties. .. An alternate juror who

does not replace a reqular juror

shall be discharged after the jury

retires to consider its verdict.

- « «" (Emphasis added.)

The present language of Rule 24(c) is

little changed from a preliminary draft

prepared in February, 1944. 3 OL.

Orfield, Criminal Procedure Under the

Federal Rules 94 (1966). The draftsmen

had previously considered and discussed

the restriction against substituting an

alternate once deliberations have begun.

Id. at 94, 98; Orfield, Trial Jurors in

26.

Federal Criminal Cases, 29 F.R.D. 43,

46, 53 (1961). A preliminary draft

dated May, 1942, which contained a pro-

posed rule that would have allowed sub-

stitution of an alternate juror after

the jury retired for deliberations, was

submitted to the Supreme Court for com-

ment. The court queried the rules com-

mittee whether the committee had

Satisfied itself that such a procedure

would be desirable or constitutional.

Orfield, Trial Jurors in Federal

Criminal Cases, supra, 29 F.R.D. at

46. The draftsmen of the rules commit-

tee did not adopt that proposed rule.

It was feared that if such substitutions

were permitted "“[t]he members of the

regular jury might bring such influence

on a dissenter as to disable him and

then require an alternate. The

27.

alternate may have been exposed to

improper influences before he takes part

as he does not previously sit in the

jury room." 3 Orfield, Criminal

Procedure Under the Federal Rules supra,

at 94.

While some states have adopted statu-

tory criminal rules provisions allowing

substitution of an alternate juror after

deliberations have begun (e.q., Cal.

Pen. Code §1089 (West); see Paisley, The

Federal Rule on Alternate Jurors, 5l

A.B.A.J. 1044, 1045 (1965)), the

American Bar Association project on

Minimum Standards for Criminal Justice,

Standards Relating to Trial by Jury §2.7

(approved Draft 1968), rejected such

substitution provisions. The A.B.A.

advisory committee on the criminal trial

believed that it was undesirable to

28.

substitute a juror who had not had the

benefit of prior deliberations. Id.

§2.7 at 83. (See also Report of the

Jury Committee of the Judicial Confer-

ence of the United States (March 1973 at

7-8 (disapproving a proposed revision of

Rule 24(c) that would retain jurors for

possible substitution after delibera-

tions had begun)).

Two Circuit Courts of Appeals that

have considered the question have held

that the requirement that the alternate

"shall be discharged" after the jury

retires is a mandatory requirement that

"should be scrupulously followed."

United States v. Allison, 481 F.2d 468,

472 (5th Cir. 1973), aff'd. after

remand, 487 F.2d 339 (5th Cir. 1973),

cert.den., 416 U.S. 982, 94 S.Ct. 2383

(1974): United States vy. Hayutin, 398

29.

F.2d 944, 2nd Cir., cert.den., 393 U.S.

961, 89 S.Ct. 400 (1968), subsequent

appeal sub. nom., United States v. Nash,

414 F.2d 234 (2nd Cir.) cert.den., 396

U.S. 940, 90 S.Ct. 375 (1969). In Leser

v. United States, 358 F.2d 313 (9th

Cir.), petition for cert. dismissed, 385

U.S. 802, 87 S.Ct. 10 (1966), however,

the Ninth Circuit held that an alternate

juror could be substituted for a dis-

abled juror, even after deliberations

had begun, if the defendant had expres-

sly stipulated to such substition. Id.

at 317. While Leser has not been over-

ruled per se, it is clear that a later

Ninth Circuit decision, United States v.

Lamb, 529 F.2d 1153 (9th Cir. 1975) (en

30.

banc), has totally undermined that hold-

ing. 2/

In Lamb, a case factually similar to

the one at bar, the district court judge

directed an alternate juror to “stand

by" in case she was needed, but then

discharged her when the jury returned a

verdict of guilty after four hours of

deliberations spread over two days. The

court, however, refused the verdict

because it was inconsistent with the

instructions. When one of the original

jurors requested to be excused due to a

2/ one of the Nations most prestigious

legal commentators, Professor Wright, in

criticising the Leser decision, con-

Cluded that "... it is reversible

error, even though defendant may have

consented, to permit an alternate to

stay with the jury after they have

retired to deliberate or to substitute

an alternate. after deliberations had

begun." C. Wright, Fed. Practice §&

Procedure §388, Vol.2 at p. 52 (1969),

quoted in U.S. v. Lamb, supra, at 1156.

31.

personal problem, the court recalled the

alternate and asked her to return to

court. Over defense counsel's objection

and motions re: mistrial, the court

impaneled the alternate in the place of

the other juror. The court then rein-

structed the jury and told it to begin

its deliberations anew. The newly con-

stituted jury returned a guilty verdict

after only 29 minutes of deliberations.

After the final verdict was returned,

the court sought and received assurances

from the jury foreman and the alternate

who had been substituted that the jury

had begun deliberations anew and had

discussed all the points of evidence.

In reversing the conviction, the

Court, with only two dissenters, con-

cluded that the brief amount of time in

which the second verdict was reached

32.

clearly demonstrated that the alternate

had been impermissibly coerced and that

the newly constituted jury did not give

conscientious, careful consideration to

the case despite the trial court's

instruction that it begin anew. Id. at

1156. The Court did not base the rever-

sal on the length of the deliberations,

however, stating that this factor was

"essentially irrelevant" (Id. at 1156,

n. 7), but rather rested its decision on

the mere fact that the mandatory provi-

sion of Rule 24(c) was violated. The

Court noted some of the reasons under-

lying Rule 24(c), most significantly the

"inherent coercive effect" upon = an

alternate juror who joins a jury after

it has deliberated for some length of

time and the possibility that a juror

who disagreed with the other jurors

33.

might be coerced into feigning

incapacity to continue sitting on the

jury. (Id. at 1156.)

Relying on the Leser decision, the

Government attempted to argue that there

had been a stipulation by counsel per-

mitting seating of the alternate juror.

The Court rejected this contention but,

for the purposes of the instant case,

stated that even if there had been such

a stipulation before the jury retired,

"we could not hold that such a stipula-

tion would remain effective after

dramatic changes of circumstances,

including the original jury's arrival at

a guilty verdict and the court's, tele-

phone call to the alternate is to

advise her that her services wo /! no

longer be required because the original

jury had reached a verdict." Id. at

34.

1157.

Turning to the situation in the case

at bar, there can be no doubt that the

proposal to retain the alternate jurors

Originated with the trial court, was

"strongly" urged by the trial court, and

put in terms that if such a stipulation

was not entered into, counsel and their

clients would find themselves in trial

again the following week in the event a

mistrial was declared due to a problem

with one of the jurors. This "set of

facts" clearly distinguishes this case

from Leser, where the district court

judge did not urge the parties to enter

into the stipulation and, indeed gave

the parties every opportunity to refuse

to do so. Leser v. United States, supra,

358 F.2d at 317. It is appellant's

first contention, therefore, that the

35.

apparent Rule 24(c) waiver approved in

Leser, if still a viable precedent,

cannot be applied to the instant case as

the Stipulation was not entered into

"freely and voluntarily,” and without

any coercion.

Beyond this question of the validity

of the Stipulation, however, appellant

additionally contends that he and his

co-defendants had the absolute right to

withdraw from the Stipulation due to the

"dramatic changes of circumstances." As

previously indicated, the jury had been

deliberating for six days, had reached a

partial verdict, had indicated they were

"hopelessly deadlocked," received an

Allen instruction, and, at least two of

the jurors, had sent notes to the court

stating that they wanted to be excused

to go home. Under these circumstances,

36.

which were totally unforeseen when the

Stipulation was executed, counsel and

their clients had every right to request

to withdraw from the Stipulation, and to

seek the declaration of a mistrial when

the court indicated its intention to

release the one juror. The failure of

the court to permit withdrawal from the

Stipulation and the intention to proceed

under its terms to seat the alternate

(which forced the decision to go with

the 11 remaining jurors), constituted a

clear abuse of discretion, and an even

Clearer violation of Rule 24(c).

Petitioner does recognize that in the

recent decisions of United States v.

Phillips, 664 F.2d 971 (5th Cir. 1981),

cert.den., 102 S.Ct. 2965 (1982), and

United States v. Hillard, 701 F.2d 1052

(2nd Cir.), cert.den., 103 S.Ct. 2431

37.

(1983), both Circuit Courts of Appeals

held that a violation of Rule 24(c) does

not require a, reversal per se, absent a

showing of prejudice. The Hillard Court

specifically distinguished the Lamb case

on the basis that there was no sugges-

tion of a coercive effect on the ater

nate juror, and that the district judge

took sufficient precautions to ensure

that they were not prejudiced. See,

discussion, 701 F.2d at 1059-1061.

While the proposed changes to Rule

23(b) and 24(c) will undoubtedly elimi-

nate the necessity of having to consider

this issue again in the future, the fact

remains that at the time the instant

case was decided, Lamb was the prevail-

ing law in the Ninth Circuit. Due to

the split of the Circuits on this impor-

tant issue, therefore, it is

38.

respectfully submitted that the granting

of certiorari is imperative in this

case.

(2) Allen Instruction

Unlike the three Circuits which have

disapproved the giving of the Allen

charge, >/ the Ninth Circuit has in

"countless cases" approved an Allen

charge. See United States v. Beattie,

613 F.2d 762-764 (9th Cir.), cert.den.,

446 U.S. 892, 100 S.Ct. 2962 (1980), and

cases cited therein. Even some of the

Court's decisions, however, have expres-

sed dissatisfaction with the giving of

3/ See U.S. v. Silvern, 484 F.2d 879,

883 (7th Cir. 1973) (en banc); U.S. v.

Thomas, 449 F.2d 1177, 1187 (D.C. Cir.

1971); U.S. v. Pioravanti, 412 F.2d 407,

420 (3rd Cir.), cert.den., 396 U.S. 837,

90 S.Ct. 97 (1969).

39.

the Allen charge. As recently stated by

Judge Kennedy in United States vy. Mason,

658 F.2d 1263, 1266 (9th Cir. 1981):

"We have noted... that it

"stands at the brink of impermis-

sible coercion,' United States v.

Seawell, 550 F.2d 1159, 1163 (9th

Cir. 1977), and that ‘even in the

most acceptable form, [the Allen

charge) approaches the ultimate

permissible limits to which a

court may go...‘ Sullivan yv.

United States, 414 F.2d 714, 716

(9th Cir. 1969)."

As a result, close scrutiny must be

given to the actual charge and the cir-

cumstances in which it was given to

determine if it had a coercive effect

upon the jury. United States v. Mason,

supra; United States v. Beattie, supra;

40.

see also Jenkins v. United States, 380

U.S. 445, 446, 85 S.Ct. 1059, 1060

(1965).

In the instant case, after initially

indicating that it rarely gave an Allen

instruction, the court told counsel hat

it was planning to give a modified Allen

charge at the conclusion of the fifth

day of deliberations if the jury indi-

cated it was deadlocked. 4/ During the

subsequent inquiry of the jury foreman,

the court made the following statement:

"Now, secondly, Ladies and

Gentlemen, I, in speaking for all

the parties here, deeply appreci-

4/ All counsel objected to the giving

of any type of Allen charge and moved

for a mistrial. The court denied the

motion, and again expressed its inten-

tion that if the jury indicated it was

deadlocked, the court would give the

modified Allen instruction.

4l.

ate the work and intentions and

the conscientious care given by

this jury to the resolution of

this case. This case is a very

important case for the government

and for each individual defen-

dant. It's extremely important,

if the matter be resolved under

the instruction of the _ court,

that it be resolved. You all

understand that. As I say, we're

deeply appreciative of the work

that you have done for the past

several days.

Concerned that the emphasized language

constituted the very essence of an Allen

charge, counsel for appellant’ immedi-

ately brought the matter to the court's

attention and requested that another

Allen instruction not be given. The

42.

court responded that it did not consider

this language to be an Allen instruction

in

any way, and thereafter gave

following modified Allen charge:

"Ladies and Gentlemen, I am

going to ask that you resume your

deliberations for a further

period of time in an attempt to

return a verdict. As I have told

you, each of you must agree in

order to return a verdict. You

have the duty to consult with one

another and to deliberate with a

view of reaching an agreement if

this can be done without violence

to individual judgment.

"Each juror must decide the

case for himself or herself, but

only after impartial considera-

tion of the evidence with his or

43.

the

her fellow jurors. During the

course of your deliberations,

each of you should not hesitate

to re-examine your own views and

change your opinion if convinced

it is erroneous. No juror, how-

ever, should surrender his or her

honest conviction as to- the

weight and effect of ewidence

sOlely because of the opinion of

your fellow jurors or for the

mere purpose of returning a ver-

dict.*

To determine whether the use of this

modified Allen charge was appropriate,

an appellate court should look at four

factors:

l. The form of the instruction;

44.

2. The period of deliberation

following the Allen charge;

3. The total time of jury deliber-

ation; and

4. The indicia of coerciveness or

pressure upon the jury.

See United States v. Hooton, 662 F.2d

628, 636 (9th Cir. 1981), discussing

United States v. Beattie, supra.

While the first two factors were not

in dispute, petitioner submits that a

close examination of the latter two

factors should have led to the conclu-

sion that the Allen charge was in fact

coercive, and should not have been

given.

It must be remembered that even

though the number of transcripts appear

to make this case very lengthy, there

were only 6-1/2 days in which evidence

45.

was presented, the other 2 days being

closing arguments. When the number of

trial days, then, is taken into consid-

eration with the fact that most of the

evidence presented against the defen-

dants involved direct sales of heroin to

informants who were being monitored by

Surveilling agents, there can be no

question that the wording of any Allen

charge, no matter how moderate, had to

have a substantial coercive effect when

given during the fifth day of delibera-

tions.

A similar argument can be made with

regard to the last factor. At the time

the modified Allen instruction was read,

the court had already received two spe-

cific statements from the jury that they

"seem([ed) to be at a standoff", and

later that they were "hopelessly

46.

deadlocked.” The court responded to

these statements first with the

introductory remarks that this was a

very important case for the Government

and the individual defendants, and that

if the jury could reach a decision under

the instructions, that they should do

so, >/ and thereafter with the reading

of the modified Allen charge. Again, no

matter how moderate the language used,

the reading of the instruction had to

have a coercive effect upon the jury.

5/ This statement was not balanced at

all by a reminder to the jurors of their

duty and obligation not to surrender

consciously held beliefs simply to

secure a verdict for either party. See

U.S. v. Mason, supra, 658 F.2d at 1268.

Accordingly, the statement should have

been considered an Allen charge by the

court as counsel contended, and the

giving of a second charge thus consti-

tuted automatic reversible error. See

U.S. v. Seawell, 550 F.2d 1159, 1163

(9th Cir. 1977).

47.

It is therefore submitted that con-

Sidering all of these circumstances in

which the modified Allen charge was

given, that the case at bar was clearly

not an appropriate one for such an

instruction to be given after so many

days of deliberations. It cannot be

forgotten that the possibility of a hung

jury is as much a part of our jury una-

nimity scheme as are verdicts of guilty

and not guilty. The declaration of a

mistrial because of the inability of a

jury to reach a unanimous verdict serves

to protect the interests of the defen-

dant in many cases. As the Second

Circuit noted in United States v.

Goldstein, 479 F.2d 1061, 1068 (1973):

"Requiring a jury to continue

deliberations despite genuine and

irreconcilable disagreement more

48.

often than not defeats the ends

of public justice; not only will

such compulsion needlessly waste

judicial resources, it may coerce

erroneous verdicts."

CONCLUSION

For the above-mentioned reasons,

petitioner GREGORY FOSTER, respectfully

requests that this Honorable Court grant

the instant Petition for Writ of Cert-

iorari.

Dated: February 6, 1984

Respectfully submitted,

LAW OFFICES OF

PANCER AND SHERMAN

MICHAEL PANCER

Attorney for Petitioner

49.

APPENDIX A

For Publication

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

GREGORY FOSTER

JOHNNIE LEE GIBSON

BILLY JACKSON

RONALD H. WILSON,

Defendants-Appellants.

Nos. 81-1765

81-1779

81-1778

82-1057

DC No. CR-81-0584-WBE

OPINION

FILED

JUL 26, 1983

PHILLIP B. WINBERRY

CLERK, U.S. COURT OF APPEALS

Appeal from the United States

District Court for the Southern

District of California

William B. Enright, District Judge,

Presiding

A-l.

Argued and submitted November 4, 1982

Before: ROBB,* SCHROEDER and ALARCON,

Circuit Judges.

ALARCON, Circuit Judge:

Appellants Gregory Foster, Johnnie

Gibson, Billy Jackson, and Ronald Wilson

were each found guilty of conspiracy to

possess heroin with intent to distrib-

ute, in violation of 21 U.S.C. §§ 841

(a) (1) and 846. In addition, appellant

Foster was convicted of twenty counts of

@®@Sssession of heroin with intent to

distribute, in violation of 21 U.S.C. §

841(a)(1); appellants Jackson and Wilson

were found guilty of one count of pos-

session of heroin with intent to dis-

tribute; and appellant Gibson was found

guilty of two counts of possession of

* Hon. Roger Robb, United States Cir-

cuit Judge for the District of Columbia

Circuit, sitting by designation.

A-2.

heroin with intent to distribute, all in

violation of 21 U.S.C. § 84l(a)(1). We

affirm the convictions on all counts.

Appellants have raised numerous

issues on this appeal which we discuss

below.

I.

SUFFICIENCY OF THE EVIDENCE

A. Conspiracy

Gibson, Wilson, and Jackson contend

that the evidence was insufficient to

establish that they participated in the

conspiracy charged in the indictment.

When reviewing the sufficiency of the

evidence to support a criminal convic-

tion, the critical inquiry is whether,

"after viewing the evidence in the light

most favorable to the prosecution any

rational trier of fact could have found

A-3.

the essential elements of the crime

beyond a reasonable doubt." Jackson v.

Virginia, 443 U.S. 307, 319 (1979)

(emphasis in original).

We must determine whether the trier

of fact could reasonably arrive at its

conclusion. All reasonable inferences

must be drawn in favor of the govern-

ment, and circumstantial evidence is

sufficient to sustain a_ conviction.

United States v. Fleishman, 684 F.2d

1329, 1340 (9th Cif.), cert. denied;,

103 S.Ct. 464 (1982).

In reviewing the sufficiency of the

evidence, we must first determine

whether the charged conspiracy was

proved.

The government produced evidence at

trial which showed that Foster was the

head of a group of persons who were

engaged in the illegal distribution and

sale of heroin in the San Diego area.

The organization operated in the fol-

lowing manner. The heroin was sold in

the streets by pushers. When a customer

was obtained for a supply of heroin, the

pusher would telephone an answering

service number and leave a message for

his supplier. The supplier in turn

would be contacted through his beeper.

The supplier would obtain the telephone

number of the pusher and determine the

amount of heroin necessary to fill the

order, This amount would then be deliv-

ered to the pusher. Foster and others

obtained and packaged the heroin for

such distribution and sale. fThe heroin

was cut with dextrose and placed in

balloons which were placed in plastic

bags. Each plastic bag contained eleven

A-5.

balloons. The wholesale price to the

pusher for eleven balloons was $195.00.

The pusher could then sell the heroin at

$25.00 for each balloon. The pusher

thus realized a profit of $80.00 for

each package of eleven balloons sold.

The foregoing evidence is clearly

sufficient to prove the existence of the

conspiracy charged in the indictment.

We next proceed to analyze the evi-

dence offered by the government to con-

nect Gibson, Wilson, and Jackson.

1. Gibson was linked to the Foster

enterprise by a substantial amount of

evidence. Minyon Logan testified that

Gibson gave her a beeper and that on

numerous occasions she received packages

of heroin from him to sell. Logan's

ledger contained many references to drug

transactions involving Gibson. Her

A-6.

ledger also contained many names of

persons given to her by Gibson as poten-

tial “runners” (pushers). Further, she

testified that she observed Foster and

Gibson, together, cutting and filling

balloons.

A beeper was found during the search

of Gibson's residence. Invoices for the

beeper showing Gibson's name were also

discovered. Gibson was also linked to

the Foster organization through the

controlled heroin purchase made by

Harvey Callier and Marco Banks, on Sep-

tember 25, 1979. This purchase involved

the use of beepers. Gibson was con-

nected to the purchase because the

delivery of the heroin was made in a car

registered to him. 1/

2. Wilson

Dixie Boyles testified that she made

several heroin purchases directly from

Wilson, including one purchase on May 8,

1980 involving two bags of heroin.

Wilson's residence was searched on

May 8, 1981. A traffic ticket was dis-

covered during the search. It was

received by Wilson while he was driving

a car registered to Foster. Wilson's

personal phonebook contained the names

Gibson, Turner, and the initials "F.A."

The evidence showed that Turner and Fred

Arnold were members of the Foster enter-

prise.

The evidence also showed that Wilson

had rented a beeper from the same firm

used by other members of the Foster

group. Wilson was shown to have

received numerous calls on the beeper. 2/

A-8.

3. Jackson

On December 13, 1979, Harvey Callier

purchased two balloons of heroin from

Jackson. This transaction was recorded.

Jackson's statements during the course

of the transaction showed familiarity

with the Foster organization. Jackson

told Callier that Greg (Foster) had quit

and that neither he nor his "“lieuten-

ants” had any drugs. Moreover, Jackson

referred to the recent arrest of two

members of the organization. He stated

that the arrests had scared Foster and

that he was going to lay low for awhile.

Evidence was introduced that the ini-

tials "B.J." were found on pieces of

paper at the homes of Foster, Fulford

and Cordova. Fulford and Cordova were

heavily involved in the Foster organiza-

tion.

Logan stated that Gibson had given

her the name of "B.J." as a potential

runner. This was corroborated by the

fact that "B.J." was written in her

ledger. There was evidence in the

record that Jackson was known by the

initials B.J.

"Once the existence of a conspiracy

is shown, ‘evidence establishing beyond

a reasonable doubt a connection of a

Gefendant with the conspiracy, even

though the connection is_ slight, is

sufficient to convict him with knowing

participation in the conspiracy.'"

United States v. Fleishman, 684 F.2d at

1340-41 (quoting United States v. Dunn,

564 F.2d 348, 357 (9th Cir. 1977)

(emphasis in original)).

We are persuaded from a review of the

entire record and the specific evidence

A-10.

summarized above that there was ample

evidence of more a than slight connec-

tion between Gibson, Wilson and Jackson

to the conspiracy.

B. Substantive Counts

Wilson challenges his conviction on

Count Thirteen for possession of two

balloons of heroin on May 8, 1980 with

intent to distribute. Wilson was

charged in this count with a sale of

heroin made to Boyles. Boyles' uncor-

roborated testimony was heavily

impeached by prior inconsistent state-

ments.

Boyles' testimony was not inherently

implausible. Her testimony was suffi-

cient to support the conviction.

Because a witness' credibility is a

matter for the jury to resolve, there

A-ll.

was sufficient evidence to support the

conviction on the substantive count.

United States v. Rojas, 554 F.2d 938,

943 (9th Cir. 1977).

Jackson challenges his conviction on

Count Seven for possession of two bal-

loons of heroin on December 13, 1979,

with intent to distribute. Jackson

contends that there is no proof that the

drug purchased was in fact heroin. We

disagree.

Agent Ashcraft testified that the two

balloons sold by Jackson on that date

were later determined to be heroin.

The above testimomy is arguably hear-

Say. Jackson, however, did not object

to its admission.

Thus, the general rule applies that

"where there is no objection to hearsay

evidence, the jury may consider it for

A-12.

whatever value it may have; such evi-

dence is to be given its natural proba-

tive effect as if it were in law admiss-

ible." United States v. Johnson, 77

F.2d 1304, 1312 (5th Cir. 1978); United

States v. Bey, 526 F.2d 851, 855 (5th

Cir.), cert. denied, 426 U.S. 937

(1976).

It is also possible that Ashcraft was

testifying as to his own opinion based

on his prior education and training,

field observations, and a chemical anal-

ysis of the contents of the balloons.

It is true that no foundation for

such an opinion appears in the record.

There was no objection on this ground.

An objection would have afforded the

government an opportunity to present

whatever evidence was available to lay a

foundation for the admission of the

contents of the balloons.

It is our view that sufficient evi-

dence was introduced to support

Jackson's conviction on the substantive

count.

II.

SUFFICIENCY OF THE AFFIDAVIT

On May 8, 1981, government agents

executed a series of search warrants at

the residences of the defendants. The

warrants were based on allegations con-

tained in a single affidavit presented

to the magistrate by Agent Williams.

Conceding that the affidavit con-

tained sufficient information to justify

their arrest, Foster and Gibson instead

contend that the affidavit did not

establish probable cause to search their

A-14.

residences. Foster additionally argues

that the trial court should have granted

his motion for a hearing under Franks v.

Delaware, 438 U.S. 154 (1978), because

Agent Williams intentionally omitted

from his affidavit allegedly exculpatory

information.

The trial court rejected the probable

cause challenges’ before trial. We

review the court's determination that

the affidavit was sufficient to provide

probable cause to issue the warrant

under the clearly erroneous’ standard.

See United States v. O'Connor, 658 F.2d

688, 690-91 & n.5 (9th Cir. 1981).

The appellants are correct that prob-

able cause to search a residence does

not automatically follow from probable

cause to believe a suspect guilty of a

crime. United States v. Valenzuela, 596

A-15.

F.2d 824, 828 (9th Cir.), cert. denied,

441 U.S. 965 (1979). To justify the

search of a residence, the facts sup-

porting the warrant must show probable

cause to believe that the evidence

sought is presently in the place to be

searched. Id.

The affidavit in support of a warrant

is to be given a common sense and real-

istic interpretation. United States v.

Chesher, 678 F.2d 1353, 1359 (9th Cir.

1982), Such a reading may support an

inference of probable cause "to believe

that criminal objects are located in a

particular place to which they have not

been tied by direct evidence.”

Valenzuela, 596 F.2d at 828.

A-16.

A. Foster

Read as a whole, the affidavit in

this case suffices to justify the search

of Foster's residence. The affidavit

disclosed that Foster headed a major

heroin distribution ring. On several

occasions during the investigation,

narcotics were seen at Foster's resi-

dence. One informant had overheard

Foster admit that he maintained phony

records to deceive the Internal Revenue

Service (hereinafter IRS).

Moreover, Williams stated in the

affidavit that based on his eleven

years' experience as a narcotics agent,

he believed that evidence of the defen-

dants' drug dealings would be found at

defendants’ residences. Williams’

Opinion was an important factor to be

considered in the magistrate's

A-17.

determination whether probable cause

existed. See United States v. Johnson,

660 F.2d 749, 753 (9th Cir. 1981), cert.

denied, 455 U.S. 912 (1982); Valenzuela,

596 F.2d at 828-29; cf. United States v.

Dubrofsky, 581 F.2d 208, 213 (9th Cir.

1978), cert. denied, 454 U.S. 950 (1981)

("(h)eroin importers commonly have

heroin and related paraphernalia where

they live"). In these circumstances,

the trial court did not err in finding

the affidavit sufficient to permit an

inference that evidence would be found

in Foster's residence.

Foster argues that the information

contained in the affidavit was too

"stale" to support a finding of probable

cause. He points out that the most

recent of the affidavit's references to

A-18.

his residence concerns a February 1980

drug sale.

The passage of time is not neces-

sarily a controlling factor in determin-

ing the existence of probable cause.

The court should also evaluate the

nature of the criminal activity and the

kind of property for which authorization

to search is sought. United States v.

Reid, 634 F.2d 469, 473 (9th Cir. 1980),

cert. denied, 454 U.S. 829 (1981).

Tested under this standard, Foster's

contention fails.

First, contrary to Foster's argument,

the affidavit linked Foster to a heroin

sale in February 1981, only three months

before the warrant was executed. Cf.

id. at 472-73 (probable cause to believe

that documents would be found in May

1978 though events described in

A-19.

affidavit had occurred in February and

March 1977); United States v. DiMuro,

540 F.2d 503, 515-16 (lst Cir. 1976),

cert. denied, 429 U.S. 1038 (1977)

(information in affidavit some four

months old; finding of probable cause

upheld).

Second, the affidavit sought evidence

of a large-scale, ongoing criminal

organization, not evidence relating to a

completed criminal act. See United

States v. Huberts, 637 F.2d 630, 638

(9th Cir. 1980), cert. denied, 451 U.S,

975 (1981). Foster admitted that he

maintained bogus records to deceive the

IRS, suggesting that he was in the busi-

ness of selling the heroin linked to him

but did not wish to disclose his income

from illegal transactions. This state-

ment supports an inference that the

criminal conduct was of a continuing

nature. Id. Based on this information,

the trial court could properly find

probable cause to search the Foster

residence for evidence of such activity.

Foster also contends that the trial

court erred in denying his motion: for

Pranks' hearing because Agent Williams

intentionally omitted from his affidavit

reference to three tape-recorded conver-

sations suggesting that Foster had

retired from the drug selling business.

We have reviewed the affidavit care-

fully, and find that only one of the

statements -- Foster's January 28, 1980

assertion to Logan that Foster had

"quit" -- could arguably have affected

the finding of probable cause to search

Foster's residence.

A-21.

In Pranks, the Supreme Court held

that when a defendant makes a substan-

tial showing that an affidavit contains

a false statement, knowingly or reck-

lessly made and necessary to the finding

of probable cause, a hearing must be

held at the defendant's request. If the

defendant's contention is established by

a preponderance of evidence, and after

deletion of the false material the affi-

davit is insufficient to establish prob-

able cause, the search warrant must be

set aside and the fruits of the search

suppressed. 438 U.S. at 155-56; United

States v. Maher, 645 F.2d 780, 782 (9th

Cir. 1981) (per curiam) (Pranks applies

to allegedly material omissions; sub

Silentio); see also United States vy.

Willis, 647 F.2d 54, 58-59 (9th Cir.

1981).

Here, the failure to disclose

Poster's exculpatory statement was not

prejudicial. The affidavit links Foster

to a heroin sale that occurred on

February 26, 1981. Thus even had the

magistrate known of Foster's statement,

he could reasonably have determined that

there was probable cause to search

Foster's residence in May 1981.

B. Gibson

Gibson attacks the warrant as lacking

in information to establish probable

cause and as “stale”. We disagree.

Five informants identified Gibson as

a ‘Lieutenant in Foster's organization.

William's affidavit details three sales

by Gibson and two others in which a car

registered to Gibson was used. Although

the most recent sale in which Gibson

i

A-23.

himself participated occurred in May

1980, business records showed that

Gibson had rented a beeper like those

used in organization and had made pay-

ments on it through March 1981.

When considered together with

William's opinion that evidence of

Gibson's drug dealings, including drug

paraphernalia, would be found at

Gibson's residence, this information is

sufficient to uphold the trial court's

determination of probable cause. See

United States v. Dubrofsky, 581 F.2d at

213 (warrant may be upheld when the

nexus between the items to be seized and

the place to be searched rests upon the

type of crime, nature of the items, and

usual inferences where a criminal would

likely hide contraband).

A-24.

Gibson urges, however, that no fac-

tual allegations in the affidavit link

him to the Oak Park residence. The

affidavit concludes, in summary fashion,

that the address is Gibson's. But the

affidavit also states that the San Diego

Gas & Electric Company suscriber at the

address is Gibson's wife, Lera lL.

Gibson. The magistrate need not be

convinced beyond a reasonable doubt that

the facts in an affidavit are true. We

find that the magistrate properly relied

on the gas company records as justifying

an inference that Gibson resided there

because his wife did.

Finally, Gibson's challenge to the

warrant on grounds of “staleness" is

without merit. The affidavit disclosed

that Gibson had made a payment on the

rented beeper in March 1981, two months

before the search warrant was executed.

Much of what we have said concerning

Foster's "“"staleness" argument applies

with equal force here. The continuing

nature of the drug dealing organization

fully justified a search of Gibson's

residence for evidence of such dealing.

III.

ALLEGED PROSECUTORIAL MISCONDUCT

BEFORE THE GRAND JURY

Foster argues that prosecutorial

misconduct before the grand jury consti-

tuted an impermissible infringement on

the exercise of the grand jury's inde-

pendent judgment. Foster cites six

incidents of alleged misconduct, which,

he urges, together required dismissal of

the indictment.

A-26 .

The record does not demonstrate such

misconduct. Foster did not designate as

part of the record on appeal portions of

the grand jury proceeding transcripts on

which he relies. Foster has therefore

failed in his burden of establishing

error “not by assertion, but by the

record." L & E Co. yv. U.S.A. ex rel.

Kaiser Gypsum Co., 351 F.2d 880, 883

(9th Cir. 1965).

IV.

ADMISSIBILITY OF COCONSPIRATOR

HEARSAY STATEMENTS

Foster and Gibson contend that the

district court erred in admitting cer-

tain extrajudicial statements offered by

the government under the coconspirator

exception to the federal rules of evi-

dence. See Fed. R. Evid. 801(d)(2)(E).

A-27.

The appellants urge that the statements

failed to meet the foundational require-

ments of Rule 801(d)(2)(E) and that

admission of the statements violated

their rights under the confrontation

clause.

A. Foster

Over Foster's objection, Agent

Ashcraft testified concerning statements

made by defendant Jackson on two occa-

sions. The first statement occurred

during a heroin sale to Callier.

Jackson told Callier that "Greg"

(Foster) had quit selling drugs; that

Foster's lieutenants had no drugs; and

that Foster was scared over the arrest

of other conspirators. In the second

Statement, Jackson told Gentry that

"Greg" had stopped selling heroin

A-28.

because someone had taken a large sack

of money from him. Jackson also related

that Foster planned to renew selling

heroin as soon as he recovered the

money.

It was error to admit these state-

ments. Hearsay statements are admis-

sible under the coconspirator exception

only if made in "furtherance of the

conspiracy.” Fed. R. Evid. 801(1)

(2) (E); United States v. Perez, 658 F.2d

654, 658 (9th Cir. 1981). Both state-

ments by Jackson were mere narrative

declarations insufficient to satisfy the

Strict requirements of the rule. See

United States v. Fielding, 645 F.2d 719,

726 (9th Cir. 1981).

We do not agree with the government

that the statement to Gentry must be

construed as an attempt by Jackson to

A-29 .

nurture Gentry's continued interest in

the organization by predicting that

Foster would soon be selling heroin

again. Unless the declarant is * 'seek-

ing to induce [the listener] to deal

with the conspirators or in any other

way to cooperate or assist in achieving

the conspirators’ common objective,'"

the declaration is inadmissible. Id.,

quoting United States v. Moore, 522 F.2d

1068, 1077 (9th Cir. 1975), cert.

denied, 423 U.S. 1049 (1976). State-

ments concerning activities of the con-

spiracy, including future plans, also

are not admissible unless made with such

intent. Id. No intent to elicit coop-

eration or assistance in achieving the

common scheme is evident from the state-

ments. 2/

A-30.

The improper admission of Jackson's

Statements under Rule 801(d)(2)(E) was

not, in this case error of constitu-

tional dimension. See United States v.

Castillo, 615 F.2d 878, 883 (9th Cir.

1980). Therefore, reversal is required

only if it is more probable than not

that the error materially affected the

verdict. United States v. Rasheed, 663

F.2d 843, 850 (9th Cir. 1981), cert.

denied, 454 U.S. 1157 (1982) United

States v. Valle-Valdez, 554 F.2d 91l,

916 (9th Cir. 1977). We are satisfied

that the error was harmless. Almost

every witness implicated Foster, and the

evidence against him was overwhelming.

Foster also contends that his Sixth

Amendment confrontation right was vio-

lated by admission of Jackson's state-

ments. 4/ We disagree.

Confrontation claims are _ reviewed

under a two-track approach that tests

the necessity and reliability of the

challenged testimony. Ohio v. Roberts,

448 U.S. 56, 65-66 (1980). Concerning

the necessity requirement, the prosecu-

tion must either produce or demonstrate

the unavailability of the declarant

whose statement it intends to offer

against the defendant. Id. at 65. The

Supreme Court has suggested, however,

that complience with this requirement

might not be mandatory when the testi-

mony is neither “crucial” to the prose-

cution nor “devastating” to the defen-

dant. Dutton v. Evans, 400 U.S. 74, 87,

89 (1970).

Although Foster contends that

Jackson's hearsay statements were both

"crucial" and "devastating", he concedes

that Jackson was unavailable within the

meaning of the Sixth Amendment. Accord-

ingly, even if Jackson's statement is

viewed as “crucial” and “devastating,”

the rule of necessity inherent in the

confrontation clause can not be said to

have violated in Foster's case.

The reliability of a coconspirator's

statements are tested under four

indicia: (1) whether the declaration

contained assertions of past fact; (2)

whether the declarant had personal know-

ledge of the identity and role of the

participants in the crime; (3) whether

it was possible that the declarant was

relying upon faulty recollection; and

(4) whether the circumstances’ under

which the statements were made provided

reason to believe that the declarant had

misrepresented the defendant's involve-

ment in the crime. Dutton v. Evans, 400

U.S. at 88-89; United States v. Perez,

658 F.2d at 661.

Foster challenges the admissibility

of Jackson's hearsay statements only on

the basis of factors (1) and (4).

Although some of the statements made by

Jackson referred to Foster's having

previously quit the dru@ selling busi-

ness, their introduction into evidence

did not amount to a constitutional vio-

lation. All four Dutton elements need

not be present for the proper admission

of hearsay statements over a confronta-

tion clause objection. Id. Moreover,

there was little risk that the jury

would give undue weight to such state-

ments of past fact. See Dutton, 400 U.S.

at 88. Evidence that Foster had quit

A-34.

selling heroin could only have assisted

his defense.

Foster urges that Jackson's state-

ments to Callier included references to

Poster only beceuse Callier “errone-

ously" believed that Foster was

Jackson's supplier, and Jackson hoped to

stall Callier until he could find a

supply of heroin to sell Callier. How-

ever, because Jackson believed Callier

to be a potential customer, not a gov-

ernment agent, Jackson would have had

little apparent motive to falsify

Foster's role in the crime. See United

States v. Snow, 521 F.2d 730, 735 (9th

Cir. 1975), cert. denied, 423 U.S. 1090

(1976).

B. Gibson

Boyles testified that Sears told her

that Sears’ source of heroin was

A-35.

"Johnnie Blue” (Gibson). Gibson chal-

lenges Boyle's testimony as_ incred-

ible. °>/ Credibility determinations,

however, are matters for the jury. See

United States v. Brady, 579 F.2d 1121,

1127 (9th Cir. 1978), cert. denied, 439

U.S. 1074 (1979).

Gibson also contends that Sears'

statement was “crucial” to the prosecu-

tion and “devastating” to his defense.

Because Gibson did not preserve this

issue by a proper objection at trial, we

review the issue under the plain error

doctrine. See note 5, supra.

Gibson emphasizes that Sears' state-

ment was highly incriminating. Even so,

the prosecution's failure to produce the

seemingly available witness did not

render admission of the statement erro-

neous. The confrontation clause's rule

A-36.

of necessity is not absolute, and

production of the declarant/witness is

not required when the “utility of trial

confrontation [is] remote." Ohio ¥v.

Roberts, 448 U.S. at 65 n.?7. In this

case, Boyles also testified that she had

herself purchased heroin from “Johnnie

Blue.” Any cross-examiation of Sears

regarding his statement would, there-

fore, have served little purpose. We

find no error in the trial court's

admitting Boyle's testimony,

Vv.

ADMISSIBILITY OF THE LEDGER

Over Gibson's objection, Logan's

ledger was admitted into evidence under

the business record exception of Fed. R.

Evid. 803(6). The ledger, which con-

tained records of drug transactions,

A~3?7.

implicated Gibson in the conspiracy.

Gibson contends that the ledger was

improperly admitted because the records

were not kept in the course of regularly

conducted business activity and because

the entries were untrustworthy. ©/

To be admissible as a business record

under Rule 803(6), the record must have

been kept in th® “regular course” of a

business activity. Clark v. City of Los

Angeles, 650 F.2d 1033, 1036 (9th Cir.

1981), cert. denied, 456 U.S. 927

(1982). A record is considered as

having been kept in the regular course

of business when it is made pursuant to

established procedures for the routine

and timely making and preserving of

business records, and is relied upon by

the business in the performance of its

functions. Id. at 1037.

Logan testified that she kept a

record of most of her large drug trans-

actions. She stated that it was her

regular practice to enter into the led-

ger the number of balloons that went out

on a particular day and how much money

she took in. The transactions were

recorded contemporaneously, and Logan

relied on them. This evidence was suf-

ficient to satisfy Rule 803(6).

The fact that the ledger was an

incomplete record of Gibson's drug deal-

ings and contained several blank pages

and unrelated entries did not render the

ledger inadmissible. The accuracy of

the remaining pages was not altered

simply because Logan did not record

every heroin sale that occurred. See

United States vy. Baxter, 492 F.2d 150,

A-39.

165 (9th Cir. 1973), cert. denied, 416

U.S. 940 (1974).

Nor does the fact that the entries

were made out of sequence destroy their

accuracy. The entries were made at or

near the time of the events described

and they satisfied the regularity

requirement. Their sequence was there-

fore irrelevant. United States v.

McPartlin, 595 F.2d 1321, 1348 (7th

Cir.), cert. denied, 444 U.S. 833

(1979).

Gibson argues that the entries were

nonetheless untrustworthy. However,

because Logan had to rely on the

entries, there would have been little

reason for her to distort or falsify

them. See id. at 1347.

A-40 .

vi.

ALLEGED PROSECUTORIAL MISCONDUCT

IN CLOSING ARGUMENT

During closing argument, the prosecu-

tor reminded the jury that Agent

Ashcraft had testified that one of the

defendants had given the government

information to support a warrant for the

search of Logan's residence. He argued

that none of the defense counsel had

inquired of Ashcraft whether it was his

client who had provided the information.

The prosecutor then suggested that the

defendants were “hanging together" to

conceal their guilt, as they had

throughout the conspiracy, and that

defense counsel were acting in support

of that goal. Foster's counsel objected

to this line of argument.

A-41.

The prosecutor may well have exceeded

the wide latitude permitted counsel in

closing argument. See United States v.

Parker, 549 F.2d 1217, 1222 (9th Cir.),

cert. denied, 430 U.S. 971 (1977). The

next morning, however, defense counsel

agreed to the prosecutor's offer to

correct any misconception. The prosecu-

tor then told the jury that he was

referring to the defendants only and did

not mean to imply that defense counsel

were part of a conspiracy.

Improprieties in counsel's arguments

to the jury do not constitute reversible

error “unless they are so gross as prob-

ably to prejudice the defendant, and the

prejudice has not been neutralized by

the trial judge.” Id. In this case,

the trial court left it to defense coun-

sel to decide whether the prosecutor

A-42.

should correct his statement. If any

prejudice to Foster resulted from the

prosecutor's argument, it was neutral-

ized by counsel's corrective statement.

vir.

ALLEN CHARGE

The jury acquitted defendant

Henderson on the fourth day of deliber-

ations. On the afternoon of the fifth

day, the trial judge received a note

requesting that one of the jurors be

released because of the strain on the

individual's family and job. After

discussing the matter with counsel, the

judge responded with a note asking the

jury to continue its deliberations.

Later that afternoon the court

received a second note: "Another juror

wants to be released. We seem to be at

A-43. °

a standoff, and she feels that there is

no clear end in sight." The judge

informed counsel that he was considering

giving the jury a modified version of

the Allen charge, prompting defense

counsel to move for a mistrial.

The jury was then summoned, and the

foreperson indicated that no other ver-

dict had been reached. The judge

reminded the jurors of the importance of

the case and thanked them for their

work. At the judge's suggestion the

jury retired to consider whether it

would like a day off to address the

concerns expressed in the notes. When

the jury returned the foreperson stated

that the majority of the jurors wished

to return the next day, but that a few

members thought that “discussions [were]

A-44.

hopelessly deadlocked and no _ further

progress [could] be made."

The court then gave the modified

Allen charge’/ and excused the jury for

the day . 8/ Three days later an eleven-

person jury returned with verdicts as to

Foster, Jackson, and Gibson. See discus-

sion infra.

In reviewing the propriety of an

Allen charge, the court must examine the

instruction in its context and under all

the circumstances to determine whether

it had a coercive effect. United States

v. Hooten, 662 F.2d 628, 636 (9th Cir.

1981), cert. denied, 455 U.S. 1004

(1982). This circuit evaluates coer-

civeness on the basis of (1) the form of

the instruction; (2) the period of

deliberation following the Allen charge;

(3) the total time of jury

A-45.

deliberations; and (4) the indicia of

coerciveness or pressure upon the

jury. United States v. Beattie, 613

F.2d 762, 765-66 (9th Cir.), cert.

denied, 446 U.S. 982 (1980).

Relying on factors (3) and (4),

Foster, Jackson, and Gibson contend that

the Allen charge had a coercive effect

on the jury. They emphasize that nearly

all of the government's case rested on

the testimony of informants, and that

the charge came after two jurors had

indicated their desire to be relieved of

duty.

The total time of juror deliberation

is relevant as to the coercive effect

that an Allen charge may have had in

relation to the difficulty of the task

before the jury. See United States v.

Moore, 653 F.2d 384, 390 (9th Cir.

A-46.

1981). Trial in this case lasted eight

and one-half days; verdicts as _ to

Foster, Jackson, and Gibson were ren-

dered on the eighth day of delibera-

tions. During those eight days, the

jury considered numerous counts against

eight defendants charged in a sophisti-

cated drug-selling operation. In these

circumstances, we cannot conclude that

the Allen charge "“coercively produced

the result." United States v. Beattie,

613 F.2d at 766.

The appellants' emphasis on the

nature of the government's proof is

unavailing. The length of the delibera-

tions can also be viewed as reflecting a

proper circumspection by jurors who had

to consider the credibility of several,

paid government informants with criminal

records.

A-47.

Finally, we find nothing in the

record indicating an indicia of

coerciveness or pressure upon- the

jury. First, the jury in this case

rendered discriminating verdicts,

acquitting three codefendants after the

judge read the Allen charge. This fact

Significantly weakens the appellant's

argument that the jury was coerced by

the Allen charge. Second, although the

jury had twice indicated that they were

deadlocked, the record does not reveal

that either the jury or the judge had

expressed "a sense of frustration at the

jury's failure to reach a_ verdict."

Moore, 653 F.2d at 390; cf. id. (Allen

charge properly given after trial judge

had received two notes indicating that

jurors were deadlocked). Moreover,

because the trial judge in this case was

unaware of how the jury stood, there was

no danger that the Allen charge would

"suggest to the minority position jurors

that [the judge) was speaking directly

to them," Beattie, 613 F.2d at 766.

We conclude that the trial judge did

not abuse his discretion in giving the

Allen charge. Id.

VIII.

RULE 24(c) WAIVER

During the settling of instructions,

the trial court suggested that’ the

parties stipulate to a waiver of Fed. R.

Crim. P. 24(c). The judge expressed his

concern that the trial had been lengthy

and outlined his proposal for the sub-

stitution of any juror determined to be

unable to continue: "Retain the alter-

nates, maintain the confidentiality, use

A-49 .

{an alternate] if good cause appears

{and] insert [the alternate] in the jury

room if the need arises."

On the last day of trial, defense

counsel agreed to the stipulation

prepared by the judge, with the modifi-

cation that only the first two alter-

nates be retained. All defendants and

their counsel signed the _ stipulation

without further discussion or objection.

During the sixth day of jury deliber-

ations, the court received a third note

from the jury (see part VII, supra).

The foreperson informed the judge that a

juror was encountering marital and busi-

ness problems and wished to be released.

The note indicated, however, that the

rest of the jury was still deliberating

and that the court should not infer that

A-50 .

the reluctant juror was holding out one

way or the other.

In the presence of all counsel, juror

Perez was examined in chambers. There-

after the court stated its intention to

dismiss the juror for good cause. After

denying counsels‘ motion for a mistrial,

the court asked counsel for suggestions,

referring to the Rule 24(c) waiver.

Counsel for Foster initially indica-

ted that he wished to continue with an

eleven-member jury. But when counsel

for defendant Norman indicated that upon

rereading Rule 24(c) he did not think

the rule could be waived, counsel for

Foster stated that when he agreed to

waive Rule 24(c), he could not have

envisioned the unusual turn of events

that had occurred.

A-51.

The court responded that unless the

parties unanimously agreed to the pro-

posal for an eleven-person jury, he

would hold them to the _ stipulation.

Wilson stated that he preferred to pro-

ceed with the alternate, but each of the

remaining defendants personally waived

his right to a twelve-person jury. See

Fed. R. Crim. P. 23(b). The court then

excused juror Perez.

The next day the parties agreed that

because only Wilson wished to proceed

with the alternate juror, the jury

should be instructed, before the alter-

nate was seated, that it should not

consider Wilson's case until it had

finished deliberations on the remaining

defendants. The alternate would then be

seated and the jurors would begin delib-

eration anew on the counts against

A-52.

Wilson. Wilson agreed to this proposal

in open court, and the jurors were

instructed accordingly.

The jury returned verdicts on Foster,

Jackson and Gibson on the afternoon of

the eighth day of deliberations. The

alternate was installed the next day,

and the court instructed the jury to

begin deliberations anew. Wilson was

found guilty on the tenth day of delib-

erations.

Fed. R. Crim. P. 24(c) provides in

part that alternate jurors "shall

replace jurors who, prior to the time

the jury retires to consider its ver-

dict, become or are found to be unable

or disqualified to perform their

duties. ... An alternate juror who

does not replace a regular juror shall

be discharged after the jury retires to

A-53.

consider its verdict." This court has

held that the provisions of the rule may

be waived by stipulation. Leser v.

United States, 358 F.2d 313, 317-318

(9th Cir.), cert. dismissed, 385 U.S.

802 (1966).

In this case, the appellants uncon-

ditionally waived the discharging of the

first two alternate jurors and stipu-

lated that, for good cause, an alternate

could. be substituted after deliberations

had begun. Each appellant and his coun-

sel signed the written stipulation with-

out objection. The appellants do not

contend that their waivers were unintel-

ligent. Thus we are loath to find that

the Rule 24(c) waivers were ineffective.

The appellants urge that the trial

judge coerced them into making the stip-

ulation. See Leser, 358 F.2d at 317.

A-54 .

The record, however, belies any such

interpretation of the circumstances.

Admittedly, the judge suggested the idea

of the waiver and prepared the

stipulation. Appellants aand_ their

counsel, however, fully acquiesced in

the waiver, insisting on the retention

of only the first two alternates.

The appellants also contend that the

dramatic turn of events -- the rendering

of a partial verdict, the notes from

jurors seeking release, indications that

the jury was deadlocked, and the giving

of an Allen charge on the fifth day of

deliberations?’ -- required that’ the

court relieve them from the stipulation.

In support of their argument, they cite

this court's decision in United States

v. Lamb, 529 F.2d 1153 (9th Cir. 1975)

(en banc).

A-55.

In Lamb, the court held that the

trial court's failure to follow the

mandatory requirements of Rule 24(c)

mandated a reversal of the appellant's

conviction in the circumstances. Id. at

1156-1157. Although Lamb did not

involve an express waiver, the court

stated in dicta that even had there been

such waiver .it would not have remained

effective due to the “dramatic change in

circumstances" that had occurred after

the jury first begain to deliberate.

Id. at 1157,10/

We are not persuaded that the dicta

in Lamb should be applied in this case.

As we have indicated, the original Rule

24(c) waiver was valid as to each

appellant. Upon dismissal of the regu-

lar juror, the court accommodated

defense counsels' request that six of

A-56.

the defendants be permitted to proceed

with eleven jurors. The court carefully

instructed the jury as to their obliga-

tions concerning these deliberations.

Similarly, the court followed the

literal wording of the Rule 24(c)

Stipulation when it instructed’ the

newly-constituted jury to begin deliber-

ations anew as to Wilson. In these

circumstances, we decline to presume

that the jury failed to follow the

court's instructions. }1/

Finally, the appellants have not

established that they suffered any prej-

udice from the trial court's resolution

of the substitute juror problem.

Indeed, on his record such a _ showing

presents a difficult task. Those appel-

lants who chose to proceed with eleven

jurors validly waived the provisions of

A-57 .

both Rules 24(c) and 23(b). By his

choice to have the alternate participate

in the deliberation of his case, Wilson

agreed to a permissible Rule 24(c)

waiver twice. We conclude that the

triak court did not err in refusing to

grant the appellant's motion for a mis-

trial. 12/

Ix

NEW TRIAL MOTION

Six days after the jury returned its

verdict against him, Wilson filed a

motion for a new trial pursuant to Fed.

R. Crim. P. 33. The trial court denied

the motion on the ground that Wilson had

failed to satisfy the requirements for

granting a new trial set forth in United

States v. Brashier, 548 F.2d 1315, 1327

(9th Cir. 1976).

A-58 .

Wilson argues that the court should

not have applied the Brashier standard

in evaluating his motion, but rather

should have assessed his request under a

rule that favors granting new trial

motions based on newly discovered

evidence if the request is made within

seven days of the verdict and if it is

in the interest of justice to do so.

See 3 C. Wright, Federal Practice and

Procedure § 557 (1982). We need not

express any opinion on such a standard

because Wilson did not argue this theory

in the trial court. Wilson instead

attempted to fit his motion within the

Brashier guidelines. He does not chal-

lenge the trial court's denial of the

motion under Brashier, and we decline to

review his argument raised for the first

time on appeal. See Collins v.

A-59 .

Thompson, 679 F.2d 168, 171 (9th Cir.

1982).

All appellants' convictions on all

counts are AFFIRMED.

A-60 .

FOOTNOTES

1/ No identification was made of the

person or persons within Gibson's car.

2/ 154 calls were the maximum number of

calls allowed without incurring addi-

tional charges. In October 1979 Wilson

received 359 calls. In December 1979 he

received 261 calls.

3/ Such intent is evident, however, in

a series of conversations between

Callier and Hamilton, Davis and Turner,

in which they referred to Foster as the

head of the organization and as a sup-

plier of heroin. Callier had approached

these individuals claiming that he was

having difficulty getting a steady sup-

ply of heroin and was willing to sell in

the downtown area where Foster allegedly

needed a distributor. The references to

Foster were aimed at meeting Callier's

purported need and were therefore made

to induce Callier to join the conspir-

acy.

4/ It is unclear from the_- record

whether Foster preserved this issue by a

proper objection at trial. Following

the Government's opening statement, at

which the prosecutor read the entire

Jackson/Callier conversation to’ the

jury, Foster moved for a mistrial, rais-

ing the confrontation issue. During the

government's case-in-chief, Foster again

vaguely alluded to the confrontation

problem that Agent Ashcraft's testimony

would present. Foster also raised

A-61.

several, more specific objections; all

were overruled. The record does not

establish, however, whether the trial

judge intended to overrule a

confrontation objection.

Even if the record does not establish

a proper objection at trial, we review

the issue under the plain error doc-

trine. See United States v. Traylor,

656 F.2d 1326, 1333 (9th Cir. 1981).

5/ Gibson's contention based on the

admissibility of statements under Fed.

R. Evid. 801(d)(2)(E) relates only to

the Jackson/Callier conversation

described above. Gibson was never men-

tioned by Jackson in these statements.

Thus there is no basis for Gibson's

challenge that the trial court violated

Rule 801(d) (2) (E).

6/ This court has held that the running

accounts of illicit enterprises are

"business records," subject to the ordi-

nary requirements regarding the admissi-

bility of writings. See United States

v. Baxter, 492 F.2d 150, 165 (9th Cir.

1973), cert. denied, 416 U.S. 940

(1974); Arena v. United States, 226 F.2d

227, 234-35 (9th Cir. 1955), cert.

denied, 350 U.S. 954 (1956).

1/ The judge instructed the jury as

follows:

Ladies and Gentlemen, I am going

to ask that you resume your

deliberations for a further

period of time in an attempt to

return a verdict. As I have told

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you, each of you must agree in

order to return a verdict. You

have the duty to consult with one

another and to deliberate with a

view of reaching an agreement if

this can be done without violence

to individual judgment.

Each juror must decide the case

for himself or herself, but only

after impartial consideration of

the evidence with his or her

fellow jurors. During the course

of your deliberations, each of

you should not hesitate to reex-

amine your own views and change

your opinion if convinced it is

erroneous. No juror, however,

should surrender his or her

honest conviction as to the

weight and effect of evidence

solely because of the opinion of

your fellow jurors or for the

mere purpose of returning a ver-

dict.

8/ We agree with the trial judge that

his earlier remarks about the importance

of the case did not constitute an Allen

charge. The judge told the jury that

the case was very important for the

government and for each defendant. He

added that it was extremely important

that "if the matter [can] be resolved

under the instructions of the court,

that it be resolved.” These remarks did

not approach an instruction "admonishing

{the] jurors to reconsider their posi-

tion," United States v. Beattie, 613

F.2d 762, 765 (9th Cir.), cert. denied,

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446 U.S. 982 (1980). We therefore

reject the appellants' contention that

the trial court gave two Allen instruc-

tions, triggering this circuit's rule of

per se reversal in such circumstances.”

See United States v. Seawell, 550 F.2d

1159, 1163 (9th Cir. 1977), cert.

denied, 439 U.S. 991 (1978).

9/ As indicated above the trial judge

was within his discretion in giving the

Allen charge.

10/ In Lamb, the trial judge discharged

an alternate juror but instructed her to

stand by in case she were needed.

During the course of the jury's deliber-

ations, the judge received a note from a

juror asking to be excused. The judge

then called the alternate and asked her

to return. Subsequently, the judge was

informed that a verdict had _ been

reached. He called the alternate again

and told her not to return.

The judge refused to accept’ the

verdict, however, because it was incon-

sistent with the instructions. He then

questioned and excused the juror who had

written the note. Over defense

counsel's objection, the alternate was

recalled and joined the jury, which was

instructed to begin deliberations anew.

The jury returned with a quilty verdict

twenty-nine minutes later. 529 F.2d at

1154-55.

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11/ As it had done with the regular

jurors, the court admonished the _ two

retained alternates to maintain’ the

confidentiality of the proceedings.

12/ It should be noted that the Supreme

Court has approved changes in the crim-

inal rules which would permit the dis-

trict court to excuse a juror and obtain

a verdict from 1l jurors without a

stipulation. 51 U.S.L.W. 4501, 450

(U.S. May 3, 1983).

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