Petition for Writ of Certiorari — Meyers v. United States

: ee her te WAS

Oapceme Gaut af the Whited Sas

pace Term,.1969.

i? °

No. £2 L v

<) rY

F] -

<p ; 2 F

JoEL Sruon Meyers, q

Petitioner,

—V.—

Unirep States oF AMERICA,

Respondent.

Saaeieniaemenenineinnneed

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Auan H. Levine

c/o New York Civil

Liberties Union

156 Fifth Avenue

New York, New York °

THOMAS H. Barr

345 Park Avenue

New York, New York

Afgorneys for Petitioner

Sa

°¢.

TABLE OF CONTENTS .

Army Regulation 601-270 J. #4

Opinions Below iat weibiarbconbine inv sorasanAeiennin a caapibeniciatassalseics eS

Jurisdiction 022.2. eae eee ieconeiviucoiias 1

; ~~,

Questiong Presented - 2 se

Statutes and Regulations Involved ..........., die lssotitavnes

Statement of the Case .. | sian aot jbdainigtciesia acs

7 fat

Reasons ‘for. Granting ¢ the W eee Ressditmsnnnks varias 4)

1. Certiorari should be granted because the decision

of the Court below, upholding the failure to give

the warning prescribed by Army Regulations, is in

conflict with decisions of the Third, Sixth and

Ninth Aireuits and Violates established notions of -

+ due pfocess etitntintseaimanhsetioee Seance laeaeteuneennsinnazainainted ocan 5

‘2. Certiorari shoyil be granted so that this Court

may. re-examine the continuing validity of the

Allen charge, or at the least, reconcile the divergent

practices regarding its use. which have been adopted

in the circuit and district ing BO EI .10

ee Rianne ee : eat cae nd 16

APPENDIX ~

Opinion of the United States Court of Appeals

for the Second Cireuit 000002000 la

Military Selective Service Act of 1967, See. 12) . 10a

lla

-

PAGE

TasLe or AUTHORITIES 7

Cases: , , :

Allen v. . United States, 164 U. e 492 (1896) i ealialeetanmaatei 10

Anderson v. Hershey, —— F.*2 ye SSLR 3015

(April 11, 1969): ............. iclddaesieciasanailicdiainadadlatipalak ota ce aoe

Andiéws v. United States, 309 F. 2d 127 — Cir.),

d cert. denied, 372 U. S. 946 ai Pk OE

"Bowie v. Columbia, 378 U. S. 347 (1964) beau aie.

"Bowen v. United States, 153 F. 2d 747 (8th Cir?

ee eee peeeaaaiccd Giana 14) 18 <

’ Bradley v. United. States, 218 F. 2d 657 ‘(9th Cir.),

rev'd on other grounds, 348 U. S. 967 UGG? cota ©

Brasfield v. United States, 272 U. S. 448 (1926) ...... 10, oe

Briggs v. United States, 397 F. 2d 370 (9th Cir, 1968)-=:

Burton v. United States; 196 U.S S. 283- (1905) Hae) eee i

Chernekoff \ v. United States, 219 F. 2d 721 (th Cir.

a ee OM i NIE LEA CA eee Re RE RARE: 6, 7, 8,9 |

Corrigan vy. "Secretary of Army, 2u F. 2d 293 (9th

Cir. 1954) Gh. elt ed EE is 5)

Crowe v. State, 23 Ala. 271, 124 So. 121 (1929) inamauebas 11

; .-

Edwards vy. United States, 395 F. 2d 453, cert. denied,

ee eS S| eieerceeenmnmeraen alae eae eee

Estes v. Texas, 381 U. S..532 (1965) 0.0.0... ae |

Kstes v. United States, 335 F. 2d 609 (5th Cir. ), cert.

- denied,.379 U.S. 964 (BO65) eee ieeneenene i

Green v. United States, 309 F. 2d 852 (Sth Cir» 1962) .. -10

: oy)

/

f

f

/

il

= PAGE

Huffman v. United States, 297 F. 2d 734. (5th Cir, ), |

cert. denied, 370 U. ‘S. 955 (1962) Rtas Neo Meehsurguatens 10, 12

Irvin v. Dowd, 206K. S. 717 RENE F ctpeccnimervenes ovina 11

Jenkins v. United States, 380 U.S. 445 (1965) ou... 10°

Johnson v. — State ‘S, 285 F. 2d 700 (9th Cir. 1960) 8

Knox" v. . United States, 200 F. 2a 398 (9th Cir. 1952) a .

vais v. United States, 253 F. 2d 12 (6th Cir. 1958) ot

Middlestate Util. Co. v. Incorporated Tel. .Co., 222

Towa 275, 271 N. W. 18) (1987) 11

Mills v. Tinsley, 314 F.2d 311 (10th Cir. 1963) SN ee 13

- Muldrow vy. Daly, 329 F. 2d 886 (D. C. Cir. 1964) .. 138

Mullin v. United States, 356-F. 2d 368 (D. C. Cir. 1966) 14

q |

Oshatz v. United States, 404 F. Ge ANID vacsaseccdiieses _ 9

‘Parrott v. Unitea States, 370 F. 2d 38s, cert. de nied,

oor U.S, 908 (1967) rene wales 7,8

Service vy. Dulles, 354 U. S. 363 (1957) pt EPR pe ee a

Sheppard v. Maxwell, 384. U. S. 333: (1966). aati ieens 11

State v. Moon, 20 Idaho 222, 117 Pae. 757 (1911) aie 11

State v. Neff, 169 Kan. 116, 218 P. 2d 248 (1950) ou... 1]

"State v. Randall, 137 Mont. 534, 353 P. 2d 1054. (1960) 10 ©

State vy. Thomas, 86 “Ariz. 161, 342 DP. 2d 197 (1959) .. 10

Thaggard v. United States,” 304 I. 2d 735 (5th oir },

cert. denied, 383 U. S. 958 | ELAS ee 10

Tolub v. United States, -309 F. 2d 286 (2d Cir. 1962) .. 13

Turner v. Louisiana, 379 U. S. 466 (1965) penipalaiitaiasenes = Wa

~

lv

PAGE:

United States v. Dunkel, 173 I, 2d_506 (2d Cir. 1949) 14

United States v. Harris, 391 F. 2d 348 (6th Cir.),”

cert. denied, 393 U. S. 874- (1968) 2c. 12,16

_ United States v. Kroll, 402 F; 2d 221 (1968) ..2.2:.........° 7

United States v. Meisch, 370 F. 2d 768 (3d Cir. 1966) -13

._ United States v. Rao, 394 F. 2d 354 (2d Cir.), certs

“8 Geld, B08 EB, BAB: (VOGB) acsecceecsceerccosedesvecsciescesvontece 15

United States y. Rogers, 289 F. 2d°433 (4th Cir.

UNS icsisacssnsings siete ortier Sear ee Sime ee 12, 15

United States v. Sloan, 2 SSLR 004 Sao D. Cal,, a

PI Sty: IED sence tancsncieishinsisccensecontntpabsostcconksk detente v GNA

— United States v. Smith, 303 F. 2d 341 (4th Cir. 1962) .. 12

United States v. White, 382 F. 2d 445 (ith Cr, cer

— denied, 389 U. S. 1052 (1968) senses 2 ccseceleccsesenees 13-

Walker +. United States, 342 F. 2d 22 (5th Cir.), cert.

__ denied, 882 oi, Ws. CR CE eenieciScdseeseentcticooresicn ens 10

- Williams v. Unite y States, 338. F. 2d 530 (D. C. Cir.

BD sciinitechiieciglanesiiias es . 14

Winters v. New York, 333 U. S. 507 (1948) Rea STE

Wolin v. United States, 211 F. 2d 770 — Cir. 1954) 13

Constitutional Provisione:

' United States Constitution

Fifth Amendment ............. ee Oe TEE 2,3, 11

Sixth Amendment pate monenesaa presen baeemevansiqeesniosaecins me | |

Army Regubsition: : ~ |

601-270, para. 406 perce aioe Be Caan Deki See

2 PAGE

Statutes: : | : ?

28 U.S. C, §1254(1) J Ce RENE

Military Selective Service Act of 1967, 50 App. U. S. &:

‘eee ee rao detrspucin 3,4

Other Authorities:

AmeRIcAN Bar Ass’y Progsect on Mixinux STANDARDS.

FOR CRIMINAL JUSTICE, TRiaL BY J Susie. 146.56 (Tent.

Draft; 1968) : ~

Comment, “Deadlocked Juries and Dynainite: A Criti-

cal Look at the ‘Allen. Ghaage "oe ©, Cx. L. Rev.

386 (1964) EE ALS A DS it-

Note, “Due Process, Judicial och and the Hung i

Jury: A Reexamination of the -Allen wang.% 53

Va. L. Rev. 123 (1967) 0.0.0.2... EE os

“Note, 34 Tunane L. Rey. 214 (1959) «0.0... ona Wet

lies,”

et’ In THE

- Supreme Court of the United States

Octower Term, 1969

aes

—i

JoeL Stmon Meyers, ® ;

_- Petitioner,

—V—

Unirep SraTes OF AMERICA,

. , Respondent.

— —-_4 es.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES. COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner pfays that’a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Second Cireuit entered in the above-entitled case on

January 28, 1969.

a Opinions Below a

The (lecision of the Court of Appeals is not officially re-

ported. It is unofficially reported at 1 SSLR 3335 and is’set

out in the Appendix, infra, pp. la-Ya. The (lissenting opin-

ion of Circuit Judge Smith is set out at p. 9a of the

Appendix. re | ’ |

aa

,

a |

- ‘Jurisdiction ©

The judgment of the Court of Appeals was entered on -

January 28, 1969. On February 19, 1969, Mr. Justice Har-

we

“3

lan entered an order extending .until March 29, 1969 the

time for filing a petition for writ of certiorari. On March

7, 1969, the Court of Appeals granted a motion for leave

’ to file a Petition for Rehearing and Rehearing in Banc, —

which Petition was denied on May 5, 1969. On June 9,

1969, Mr. Justice Harlan entered an, order extending until

July 3, 1969 the tithe for filing this petition for eertiorari:

Jurisdiction is conferred on this Court by 28 U. S. C.

§1254(1).

Questions Presented

1. Petitioner was forcibly ejected from the induction

station for leafleting «several hours before the ¢nduction

_ ceremony. Did the failure to give him the warning pre-

seribed by AR 601-270, paragraph 40c, or any other warn-

ing, at the time of his ejection from the station, that he

was subjecting himself to conviction for the felony of in-

duction refusal, deprive him of a clear opportunity Q know

the consequences of his actions in violation of Army Regu-

~. lations and the due process clause ef the Fifth Amendment?

2, The district court gave the “Allen charge” in a case

of a two-count indictment after a trial of just over one

day with only six witnesses, after less than three hours

of deliberations by the jury, and after the court had been :

advised that the jury was deadlocked 11-1 for conviction .

on both counts. Under these circumstances, does its use

(a) violate the due process clause of the’ Fifth Amendment,

or (b) so far exceed the limited circumstances under which

it has tustomarily been used as to justify the exercise of

this Court’s power of supervision to regulate the use of the

Allen charge. 7

?

oo

a -

3. Is the “Allen charge” inherently coercive ae

us depriving the petitioner of the fair .°~

minority of jurors

© which he is entitled under the due process

’ the Fifth Amendment?

Statutes and Regulations Involved

Military Selective Service Act of 1967, See. 12(a) ;-50

App. U.S. C. See. 462(a), is set out in the Appendix, infra,

pp. 10a-Lla.

Army Regulation 601-270, para. 40c, is Set put in ‘the

_ Appendix, infra, pp. lla-13a. N

Statement of the Case' .

Petitioner, registered with Local Board No. 35 in Brook-

lyn, was ordered to report for induction on May 4, 1967

at Fort Hamilton, New York. He arrived at the induction

center on that day at approximately 7 a.m., went to a con>

trol room where other inductees were sented waiting for

the pre-induction or entation, and handed out leaflets _pro- —

testing, fhe war in Vietnam. When -the enlisted man who

ran the orientation program entered the room, he asked

petitioner to stop leafleting. Petitioner continued to leaflet.

The military police arrived and led him to the back of the

room where they discussed his rights on a federal reserva-

tion (T. 146-47). They then physically removed petitioner

to the office of the Provost Marshal whereshe remained

*Except for those facts which are supported by references to

the transcript of trial (designated bythe letter “T’’), the State-

ment of the Case is based upon the opinion of the Court of Appeals.

a

rc

for about 15 minutes before being escorted out of the

Fort Hamilton gate (T. 148). The time was approximately

8:30 a.m. (T. 141-42; 148). The induction ceremony, gen-

erally takes place between 3 and 4:30 p.m. (T. 121).

The. petitioner was indicted on August 1, 1967 in a two-

count indictment charging him with failure to report for

and submit to induction (Count I) and hindering and inter-

fering, by force, violence: and otherwise, with the adminis-

tration of the Selective Service Act’ (Count II), in viola-

tion of Title 50 App., U.S. C. See. 462(a). His trial, which

was before a jury, lasted just over one day.? Six witnesses,

all government employees, testified.

The jury deliberated ‘approximately two hours and’ 50

minutes before reporting back to the judge at around 4:10

_ p.m. that they were deadlocked 11 to 1 for conviction on

each charge. The judge, after commenting on “the length

of the trial, the amount of testimony that was taken, the

number of witnesses that have been heard 4 i, (T. 289),

read the Allen charge. The jury left the courtroom and

_returned at around 4:30 p.m. with a verdict of guilty on

Count I and not guilty on Count II.

; Petitione® was sentenced to four years’ imprisonment.

_ The conviction was affirmed by. the Court of Appeals, Cir-

cuit Judge Smith dissenting, on January 28, 1969. Judge

Smith stated that petitioner should have been given an

opportunity to change his mind and take the oath before

being charged with a refusal to submit to induction (Ques-

* The trial began on April 3, 1968 at 11:30 a.m. and continued

that day until 4:30 p.m. The next day, court reconvened at 11 :30

a.m. and testimony. was taken for one hour, at which’ point the

Government and defense rested. Both sides gave summations and

the jury was charged the following morning.

‘3.

tion 1, supra) and that the giving of the Allen charge

under the circumstances’ of this case was improper (Ques-

tion 2, supra).

~

Reasons for Granting the Writ

1. Certiorari should bé granted because the decision

of the Court below, upholding the failure to give

the warning prescribed by Army Regulations, is in

conflict with decisions of the Third, Sixth and

Ninth, Circuits and violates established notions of

due process.

—Itisa fundamental principle of due process that one is

entitled to “fair warning” that conduct is criminal before

it may be the subject’ of prosecution. Bouie y. Columbia,

378 U.S. 347, 350 (1964). Accord, Winters v. New York,

333 U. S. 507 (1948). In accordance with that principle,

the army has adopted a series of regulations governigg

. induction station procedures which prescribe the actions to

be taken by station personnel when a registrant expresses

an intention not to submit to induction. AR 601-270, para.

40c, App., infra, pp. lla-13a, proyides that a registrant who

refuses to submit-to induction will be advised that he is ‘

. liable to conviction for a felony, with ‘@ maximum penalty

of five years’ imprisonment and $10,000 fine. He will then be

given a second opportunity to be inducted. The regulations

then prescribe that upon persisting in his refusal he will

be requested to execute a sighed statement that he refuses

to be inducted into the Armed Forces of the United States.

The procedure is designed to avoid any uncertainty as

to the moment when a civilian passes into military juris-

diction, Corrigan v. Secretary of Army, 211 F. 2d 293 (9th

Cir. 1954), and-dlso to give tht registrant a “last clear

, e

\

6

chance to change hfs mind.” Chernekoff v. U nited States,

§ 219 B. 2d 721, 725 (9th Cir. 1955).

tend to submit to.induction when he appeared at the Ex-

amining Station, such intention does not excuse the fail-

ure of the Army to give the warning required by its own

regulations. | :

Although the jury found that the saan not in-—

The holding of the majority below that the regulation

need not be followed where the registrant has manifested

an intent not to submit to induction directly ‘contradicts

the holding of the Court of Appeals for the Ninth Circuit

« in Chernekoff v. United States, supra. In that ease the

registrant reported to the induction station and gave a

statement that he refused to submi gs induction. Despite

this clear statement of intent, the court held that he

“should have been given the opportunity granted him by

the Army’s own regulation to seriously reflect... 919 F.2d

at 725. The court noted that it was not ane ant that he

might not have changed his mind, the regulation being |.

“couched in mandatory, not discretionary, language.”

Ibid. The regulation itself, providing for an elaborate

warning and a second opportunity to submit, reflects a

clear predisposition by its authors to go beyond initial

expressions of intent, however clear. The requirement is .

appropriate, amply justified by the tensions surrounding

the induction process and the not infrequent situation

.

where an initially hesitant registrant decides to accept in-

duction.

The need for the regulation’s warning of possible erimi-

nal prosecution is clearly demonstrated by the facts of this

_ ease. Although petitioner was leafleting during the orien- °

t 3

tation process against the wishes of the station personnel

who were present, he did not—according to thé jury’s ver-

dict or? Count IT of the indictment—“hinder. and inter-

fere” with the jnduetion process. Nev ertheless, when

he refused to desist, he vas forcibly ejected: with no warn-

ing at all that his leafleting had=subjected hirh to _two

félony prosecutions. i

The principle of Chernekoff has recently been ential

by the Third Cireuit in United States vy. Kroll, 402 F. 2d

221, 223 (1968) (“a registrant i is not guilty of a crime until.’

he has been given the prescribed warning concerning

penalties”) and ea Sixth Cireuit in Anderson vy, it ershey,

— F. 2d 2 SSLR 3015, 3016, n. 10 (April 11, 1969)

(“failure to warn a registrant, at the induction ceremony

of the consequences of refusing induction can invalidate .

‘a conv iction”). In: addition, the Ninth Circuit has on at

least three occasions cited its decision in Cherngkoff ap-

provingly. Parrott v. United States , 370 F. 2d 388, 399, cert.

denied 387 U. S. 908 (1967), Rawaids af United States, 395

F. 2d 453, 457, cert. denied 393 U. S. 845 (1968), Oshatz v.

United States, 404 F. 2d 9, 12 (1968). See also, United

States v. Sloan, 2 SSLR 3004 (N. D. Cal., Mar. 26, 1969)..

Petitioner seeks an endorsement of the principle that

selective service personnel are not free to ignore their

own regulations to the prejudice of individual registrants.

Cf. Service v. Pulles ,» 894 U.S. 363 (1957). We agree with

the court in Oshatz v. United States, supra, that, although

minor procedural irregularities not resulting in prejudice

to the registrant may not justify reversal of a conviction,

irregularities such as that in Che rnekoff and in the instant.

case are so fundamentally prejudicial as t6 deprive the

registrant of due process.’ It ‘is this approach which the

wy)

‘en 2

courts have cgnsistently followed with regard to selective

service regulations, Johuson vy. United States, .285 F.

2d 700 (9th Cir. 1960); Knox v. United States, 200 F. 24 ,

398 (9th Cir. 1952), and which he

States, 397 F. 2d 370, 373-(9t

urt in Briggs v. United

| With the exception of the cour below the diseinisin have

in fact adopted that approach with regard to AR 601-270.

Though minor deviations from its prescription have been.

tolerated, counsel has not found one reported case sustain-

. ing a conviction since its ‘promulgation where some warns

ing was not given to one who appeared at the inductioxl

sfation. Thus, in Bradley v. United States, 218 EF. 2d 657

- (9th Cir.), rev'd on other grounds, 348:U. S. 967 (1955),

the court held that the failure to administer the formal

induction ceremony prescribed by the. regulations did not

preclude conviction for refusal to submit. Nevertheless,

it was noted that the registrant had*been taken into another

room where a sergeant explained the penalty for refusing to

submit. The registrant then signed a statement that he

refused to be inducted. In the eourt’s words:

“He was told the penalty for refusal to submit to in-

duction, and he stated understandingly and positiv ely

that he would not submit.” Jd. at 460.

Similarly, in Parrott v. United States, eupra, there

was a slight deviation from the formal’ procedure required

by the regulations. Nevertheless,feiting Chernekoff, the

court found that the registrant “Yd not only warning, but

full knowledge of the precise penalty.” 370 EF. 2d at 399.

>

In other w ords, even where, for one reason or apbther,

the precise procedure may not or could not- have been ad-

- . ; @

: ( Cir. 1968), sas must be .

~~ applied to. the Army Regulatig ns.

-_ ministered, courts have at least demanded ‘that the regis-

trant be fully apprised of the consequences of his refusal

to submit. According to the Government’s testimony, sev-

eral persons could have warned the petitioner that his

actions were the equivalent of a refusal to submit to in-

duction. One member of the Military Police testified to a

conv ersation with the defendant at the time of his ejection

in which he stated his authority over civilians on a federal

reservation (T. 146-47). He or his partner, who was also

with the defendant, certainly could have added something

about the consequences of being ejected. He then testified

. that he and his colleagues took the defendant to fhe Mili-

tary Police station and subsequently to the Provost Mar- :

shal’s office, where he remained at least fifteen minutes.

During this period before being ejected from the Fort,

there was absolutely no excuse why the warning ‘required

by the regulations could not have been giv eneto the peti-

tioner. As Circuit Judge Smith said in dissent, he was

“entitled to an opportunity to change his mind and take °

the oath before being charged with a refusal to submit to

induction. ” App., ‘infr, , p. 9a. |

W hether under the circumstances of this case it is the

requirement of due process or Army Regulations which

were offended matters little. Both protect persons from

running the risk of criminal prosecution witheut a clear

warning ‘of the consequences of their actions. W here, as

in this case, a warning could so easily have been given,

_ its absence is so prejudicial as to vitiate a conviction.

Petitioner respectfully submits that this Court’ should

resolve the conflict between the case at bar and the Cherne-.

koff line of cases so as to insure that induction station

personnel do not ignore procedures which have been estab-

lished to insure fairness to registrants. F

Sa ey

SS 10 %,

‘2. Certiorari should be granted so that this Court: may

re-examine the continuing validity of the~ Allen

’ charge, or at the least, reconcile the divergent prac-

tices regarding its use which have been = in

the circuit and. district courts,

Since the approval by this Court | in Allen v. United

States, 164 U. S. 492 (1896), of the supplemental charge

- to deadlocked juries now commonly known as the “Allen .

charge,” only two cases in this Court, Burton v. United

States, 196 U.S. 283 (1905) and Brasfield y. United States,

272 U. S. 448 (1926), have reviewed the propriety of the —

Allen charge. Both of those. dealt. only with ‘the limited

situation where a judge inquires as’ to the divi ision ‘of the

jury before giv ing the charge. The practice was con-”

demned.? But in recent years the use of the Allen charge

| itself has come under increasing attaeK. Sev eral opinions

in the Fifth Circuit point out the deficiencies of the chargé.

See Thaggard v. United States, 354-F. 2d .735, 739 (5th

Cir.), cert. denied, 383 U. S. 958 (1966) (Coleman, J., con-

curring); Walker v. United States, 342 F. 2d 22, 27 (5th”

Cir), cert. denied, 382 U. S. 859 (1965); (Brown, J., dissent- _

ing) ; fireen v. United - States® 309 F. 2d 882, .854 (5th

Cir. 1962); Andrews v. United States, 309 fF. 2d 127,.129

(Sth Cir.), cert. denied, 372 U. S. 946 (1965) (Wisdom, J.,

dissenting); Huffman v. United States, 297 F. 2a 754, 755

- (Sth Cir.), cert. denied, 370 U.S. 955 (1962) (Brown, Ex

dissenting). * In addition, commentators have pointed to the

*In Jenkins v. United States, 38) U.S. 445 (1988), tas Court

reversed a conviction because the Ilen charge wes given in con-

junction with a direction to the jury “to reach a decision i in \ this

case,” as

*In sities, two "states ae prohibited the use of the Allen

charge. . State v. Randall, 137 Mont. 534, 353 P. 2d 1054 (1960) ;

— v. Thomas, 86 Ariz, 161, 342 P. 2d 197 (1959). Courts in

~N

11

eo

‘inherently coercive nature of “the charge and hive: ‘called

for its abandonment. See Comment, “De: “idlocked Juries

and Dy namite: A Critical Look at the ‘Allén Charge’ ” 31 .

UC HI. L. Rev. 386: (1964) ; Note, “Due..Process, Judicial

Allen Charge” 53 Va."L. Rev. 123 (1967) ; Note, 34 ‘TULANE:

ha. Rey. 214 (1959) ; American Bar Ass’s Prosecr on Mini-

MUM STANDARDS ‘FOR CRIMINAL JUSTICE, Tria BY JURY, 146-

56 (Tent. Draft, 1968). tiie .

The Allen charge raises serious constitutional questiops

A defendant is entitled by the 5th and 6th amend ents

toa trial by a free and independent jury. This means _

and ought to mean‘a jury free of ¢ ry influence oe

the law and evidence. See, e.g., Irvin v. Dowd; 366 JU.

117 (1961); Sheppard v. Magwelt, 384°U. 8. 333 (i965)

_ Estes vy. Texas, 881 0. S. 532,(1965). See also, Turner v.

Louisiana) 379 U.S. = 0). See

The Allen charge is an invasion of the Jury ’s proyince

by the-court which encroaches upon the constitutional right

to .trial by jury. The qualifications frequently’ used in

modern versions of adhe charge -do not: save-it from being

takeh as a command from the bench for a verdict. The

Ww vords of Chief J udge Br own merit the serious considera-.

tion of this court : &

.

Economy and the-Hung Jury: A Reexamination of the.

4

s

“The fact is that in many - phases’ of criminal law we |

- have come a long, long way since 1896. There is no -

longer any place for the Allen charge ... In the final

spas siszthe Allen charge itself does ae make sense.

Idaho, Towa, Alabama and nae have discouraged the use of tlie

charge. State v. Moon, 20 Idaho 222, 117 Pae. 757 (1911) ; Middle- - .

statg Util. Co. v. Incorporated Tel. Co., 222: Towa 275, 271 N. W.

180 (1937) ; Crowe v. State, 23 Ala. 9717124 So. 121 (1929) ; State

v. Neff, 169 Kan. 116, 218 P. 2d 248 (1950). :

@

.

a

>

Ss

a?

“Mould sanction the indiserimi

12

All it may rightfully say is tHat there is.a bite to

consider the views of others but that a conscientious

person has finally the right and duty to stand by con-

science. If it says that and nothing more it is a super-

fluous leeture in citizenship, If it says more to declare |

that there is a duty’ to decide, it is legally ineorrect

‘as an interference with that rightful independence.”

Huffman v.. United States, supray 297 F. 2d at 759

(dissenting opinion). . :

F . . . , . :

a bey Allen charge is not repudiated @utright, this Court

shoiNd at least delineate the circumstances under which

it may properly be given. Whagever guidelines. governing

its use hate been articulated by yeult Burts were. ignored

by the district court. If allo stand, the opjnion below

and sweep asice the repeated warnings that',the charge

“approaches the limits” to which a trial court should £0

in asking jurors to reconsider their-views, Sve, e.g., United

States v. Har ris, 391 F. 2d 348, 354. Sth Cir,), cert. denied,

393 U. S. 874 (1968) ; United States vy. Rogers, 289 F. od

433, 435 (4th Cir. 1961). Accord, United States vy. Smith,

303 F. 2d 341, 343 (4th Cir. 1962). ;

In the Allen charge cases since L896, several indicia of

coercion haye emerged which, either by#themselves or in

combination, havegjustified reversal of ’a comection ; this

ease has the rathd? extraordinary distinction of hains the

first: to have every One of those indicia.

a. Length and complexity of trial. The two counts of

petitioner’s indictment grew out of one brief incident at

the induction ‘certer. The testimony at trial, which took

_ Just over one day, was simple and uncontradicted. By con-

tfist,. every single court, including eight of the circuits,

«

Ded . &

e use of the “Allen charge ,

13 -

which has discussed. this question has noted, when up-

holding the charge, the length or complexity of the indict-

ment or trial. See, e.g., Estes v. United States, 335 F. 2d

609 (5th Cir.), cert. denied, 379 U.S. 964 (1965) (17

day trial); Tolub v. United States, #9 F. 2d 286 (2d Cir.

1962) (12 count indictment); Bowen v. United States, 153

F. 2d 747 (8th Cir. 1946) (13 count indictment); Mills v.

Tinsley, 314.F. 2d 311 (10th Cir. 1963) \ (ten day trial) ;

Muldrew y. Daly, 329 F. 2d 886 (D. C. Cir., 1964) (eight

day trial) ; United States v. White, 382° F. 24 445 (7th Cir.),

cert. denied, 389 U. S. 1052 (1968) (8 count indictment) ;

Wolin v. United States, 211 F. 2d 770. (4th Cir. 1954) (one

week trial); Logsdon v. United States, 253 F. 2d 12 (6th

Cir. 1958} (35 count indictment). ) ’ :

Judge Bruchhausen, after a trial of barely one day with

only six witnesses, explained the Allen charge by “consider. -

ing the length of the trial, the amount of testimony that

was taken, the number of witnesses that have been heard

- +.” (T. 289). But these boilerplate references did not

apply to this trial and, in J udge Smith’s words, “the Allen

charge was uncalled for in the cireumstance8 of this brief

trial... .” App., infra, p. 9a.

The one ease which has discussed this’ issue directly

condemned the use of the Allen charge when the indictment

- was “but a single count, and that was not complex.” United

States v. Meisch, 370 F. 2d 768, 774 (3d Cir. 1966). The

court observed additionally that the testimony of the two

Witnesses was “brief and to the point.” lbid.

b. Disclosure by the jury that itgtands divided for con-

viction. When the jury reported that it was. deadlocked, the

foreman volunteered the information that the jnrors stood

11-1 for conviction on both counts. At that point, the trial

~

-

14

° .

judge ga ,e the Allen charge. As Judge Smith pointed out, -

the charge was “necessarily coercive here, since the lone

dissenter presumably knew that the judge had been in-

formed that only one juror was holding out for acquittal.”

aoe heirs p. 9a. ° ;

One circuit court has explicitly — Judge Smith’s

position. In Mullin v. United States, 306 F. 2d 368 (D. C.

Cir. 1966), Judge (now Chief Justice) Burger approved

the declaration of a mistrial where the jury revealed that

it stood 7 to 4 for conviction, with one undecided, “espe-

cially in a case involving less than two trial days.” ZJd. at

39%). Scé also, Williams v. United States, 338 F. 2d 530

AD. C. Cir. 1964).

It is true that most of the reported cases condemning .

Sata & have involved requests for that information

by fe judge. E.g., Brasfield v. United States, 272 U. S. 449

(1926) ; United States v. Dunkel, 173 F. 2d 506 (2d Cir.

1949). However, the principle underlying such cases is

that a small minority of jurors will tend to be coerced if,

knowing that the judge knew of their numerical division,

they believe tha? the warning to reconsider their views is

directed at them.. Their belief being the relevant factor,

whether or not the judge acquires that knowledge by in-

quiry makes no difference. The pre judice to the defendant

is the same whether the misconduct was the jury’s or the

judge’s. ;

* The majority below vited Bowen v. United States, 153

F. 2d 747 (Sth Cir. 1946) to the contrary, but in fact

Bowen intimated that if, as here, the court had been ad-

vised that the jury was split eleven to one on erery issue, .

the charge would have been defective. But the court said

that the jury’s note revealed dis@greement only on sone

15

issues. It is pertinent to note, in addition, that recogniz-

ing some impropriety in even this limited disclosure, the

court felt a mistrial inappropriate after such a “long and

“expensive trial” involving three defendants. Id. at 752.

Moreover, the jury in Bowen did not disclose whether it

stood for tenviction or acquittal. Though the Second Cir-

, cuit did ngt comment on this factor below, ironically it

suggested only last’year that an Allen charge following a

. jury’s disclosure of its division may only have been saved“

by the fact that “the jury did not reveal whether the ma. .

jority were for acquittal or Gonviction. . . .” United States

-V. Rao, 394 F. 2d 354, 356 (2d Cir.), cert.-denied, 393 U. §.

845 (1968). :

e. Length of deliberation between Allen charge dad ver-

dict. After the’jury reported that it was deadlocked 11-1

for conviction on both counts, the trial judge gave the Allen

charge. The jury reported back less than twenty minutes

later with a clear compromise verdict of guilty on Count I-

and not guilty on-Count II. During that time, the lone dis-

senter was persuaded to join his co-jurors in finding peti-

_ tioner guilty of failure to report, while eleven jurors who,

during almost three hours of deliberation, had thought peti- —

tioner also guilty of interfering with the induction process,

were persuaded to join the lone dissenter in acquitting on

this_charge. That all ‘twelve jurors changed their votes

during the twenty minutes following the Allen charge is

dramatic evidence that they understood the charge to be

a command to reach a verdict.

_ The language of the court in United ‘States vy. Rogers,

289 F. 2d 433, 436 (4th Cir. 1961) commenting on the short

interval between the Allen charge and the verdict is par-

ticularly appropriate:

io ae ® oo. ~

He .

16

. . e -

“The ‘tinie interval was quite long enough for accept-

ance of a theory of majority rule, but was hardly long

enough to have permitted_a painstaking re-examina-

tion of the views which the minority had held stead- :

fastly until the charge was given.”

This reasoning was approved by the Sixth Cireuit in

United States v. Harris, 391 F. 2d 348 (6th Cir.’ 1968)

where there was also a short interval between the charge

° ee °

and the jury’s decision. -

in short, it may be said that no court has ever approved

the use of the Allen charge under the circumstances of this

case. Without further review by this Court its use may

become indiscriminate.

q? ~ CONCLUSION ;

For the reasons stated above, certiorari should be

granted. , :

Respectfully submitted,

Auan H. Levine ,

c/o New York Civil —

Liberties Union

156 Fifth Avtnue

New York, New York

THOMAS H. Barr

345 Park Avenue

New York, New York

Attorneys for, Petitioner

July 3,/1969.

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