# Petition for Writ of Certiorari — Adcock v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1590%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 939 ## Text “re 1 IN’ THE puG 31 ist Supe Court of the. Ynited States October bate 1971 L—— No. ...:....... ‘ee 3 1 4° cee WILLIAM F. ADCOCK, Petitioner, v. : _—_——— _UNITED STATES OF AMERICA, _ Respondent. PETITION FOR ‘A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT - | Avan ScripNER Counsel for Petitioner: 55 Liberty Street New York, New York 10005 (212) RE 2-6567 ec “2 , ea . rY > c ; vera Opogona RL T A ee or ee Tree im ARIS crBaagien : ‘ ' : : Fs o- *. : . . ‘ » - w , . . . * « “ . o 4 TABLE OF CONTENTS - ' Opinion. Below sa es ene acne Hiner S cee eangeay EE ne ect te EES TENOR 2 Nee Ge Qutctinnin nn ee aes 2 , Statement of the SM tether tite ets gc ie ak. Wodenek 3 “gy | _Staiement of Facts Per ae oon oeadiioa PROS Be ho ube a | ae ~The Gov ernment? Ee ete eo rae ee 3_7 Regarding Count _ Jeeta eh ore Ast PPR ne ; Pe Regarding Count 3 eR FLAN NNTlak ta ’ or 6 Regarding Counts 3° nts (not guilty) Ninel 7. Ctmer Sonilar Acta ooo cS, 78 ~ Regarding Count 1 hvds theese ie cle oP el oneal -- 8 The POON a5... : ReMi sean are a | Reasons for granting the writ . Aa SF imi unten ora Ne dR 12 I. The supplemental ‘Allen charge coerces the jury into reaching a verdittt, thus denying due process” and a fair trial. Because of the divi- sion among the federal circuits, this court ’ _ should consider whether the Allen charge .’ : should be permitted i in the federal courts a Il. Even if. tle Allen charge is not’ per se coer- | - _cive, the court’s supplemental charge in | le , -caSe was improper, the instruction. going far beyond the language of the Allen charge by exhorting the jury to consider the cost in time - and money of the present trial and any future - ERR NEW ce ARAN SAN MINEDE wS ARC cre SEB aS A. Ae | il es TABLE OF AUTHORITIES | Sr ee | PAGE Cases: | ac a a a 2 "Allen v? United diniia 164 U.S. 492 (1893) .......... ~ passim | ' Andrew SV. United States, 309 F.2d 127 ( oth Cir. 1962) 15 ~Brasfield v. United States, 272 U.S. 448 (1926) ..~.....17)19 - Burton V. United States, 196 U. S. 283 (1905) 2. EE thie v. United States, 309+ F.2d 852 (5th Cir. Caen yee perarnnaseneafialesenesi ee heal 13, 14, VW Huffman v. ‘United States, 297 Fad 754 (5th Cir. 1962) PR a Ese ape errneelineet eerste ebincentite 13, 15 Leach, v. People, 146 catia 1947) Pier nen 13 - Meyers v. United States, F.2d —— (2d Cir. dee. | July 27, cis os meer evar US ORES A COREE HY MOET 14 Powell’ v., United States, 297. F.2d 318 (5th Cir. 1964) PEE CET SEL ET eT Pry e settee eteeseseeeeseeeneeeeeenenes cseetestisstecaticreseesy 17 Sheppard v. Maxwell, 384 U.S. 333 (1966) aie ‘He State v. Nelson, 321 P.2d 202 (N.M. 1958) ................: sc Ae State v. Randall, 353 P.2d 1054 (Mont. 1960) ....0.30.... 13 State v. Thomas, 342 P.2d 197 (Ariz. 1959) ........... es Sullivan v. United States, 414 F.2d 714 (9th Cir. hk cs, IE ARRON AN 14, 17 Thaggard v. United States, 354 F.2d 735 (5th Cir, oe ae Gace inking. “WN = ~ United States v. Barnhill, 305 F.2d 164 (6th Cir, 1962) 14 ‘United States v. Brown, 411 F.2d 930 (7th Cir. 1969) 14 United States' v. Fioravanti, 412 F.2d 407 (3d Cir. ME pees ecctnremmsinoacesstonrcion tt sesevensenrecisesen hy 16 ae Neste ve aoe | Ae a ee " PAGE | United States v. Hynes, 424 F.2d 754 (2d Cir. 1970) “140 United States v. Kahaner, 317 F,2d 459 (2d Cir. 1967) 14. United States v. Martined*_. F.2d —— (2d Cir. Mie. Daily 25, WOT ia, tee eee . United, States v. Rao, 394 F.2d 364 (2d.Cir, 1968) 5 14 Te... SR Emte) ene ieee eu Pann Cts oe _. United States v. Thomas, 282 F.2d 141 (2d Cir. 1960) 14 United States v. Thomas, —— F.2d —— (D.C. Cir., "a ~ Nov..6, 1970) ooo lac RIOR (Non Sener ran? 14 United States v. Tolub, 309 F.2d 286 (2d Cir. 1962) ... 14 United States v. Wynn, 415 F.2d 135 (10th Cir. 1969) 14 | - ate G : Comment, On Instructing Deadlocked Juries, 18 Yale - L.J. 100 (1968) ....... CASE OOR Sole ae es Minch al 13, 20 Va. te Rev. 195 (0067) oe 13 ‘ Challenge of Crime in a Free Society, 128 (1967) 18 Wright, Federal Practice: and Procedure (Criminal) | CO oe ee —? 3 IN THE as | Sure Court aft the United States ; ‘October Term, ‘1971 | oh eee \ Me c ., Wrooam F, Apcock, - | b 3 es , Péitioner, am ‘ Je . Unrrep States oF AMERICA, — Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED ‘STATES COURT OF APPEALS __. FOR THE SECOND CIRCUIT . The petitions, William F. Tees, aalaaiay prays that a writ of certiorari issue to. review the. jydzment and opinion of the United States Court of Appeals for the Second Circuit entered in this nee on August 16, 1%; - Py ae “Opinion Below ao The opinion of the Court of Appeals, not ‘yet reported, . appears-in the Appendix’ to this brief. No opinion was. rendered |by the District’ Court. for the Southern District oA eH, | Sie ue oo Jurisdiction The judgment of the Court of Appeals ‘for tae ‘Samed - Circuit was entered on August 16, 1971. This petition for certiorari was filed within 30 days of that date. This Court’s jurisdiction:is invoked under 28 U.S.C. Section. - 1254 (1). : . . ae Questions Presented 1. Did the supplemental ‘‘Allen charge’’ [Allen v. United States, 164 U.S. 492, 501-2 (1893)] deprive the petitioner of his constitutional right te a fair trial? Should _ the ‘‘ Allen charge’’.be permitted in the Federal courts? 2. Was reversible error committed by adding to the ‘‘Allen charge’’ an instruction: that the jury should con- sider the expense in time and money of the trial and of a | future trial which would take place if a verdict was: not | reached? | , | Statement of the Lane William F. Adcock was charged by indictment 69 Cr. 407 in the United States. District Court for the Southern District of New York with five counts of making and caus- ing to be made false statements in various forms filed with the Immigration and Naturalization Seryice, in violation of 18.U.S.C. Section 1001 and 18 U.S.C. Section 2. Count’ 1 charged the petitioner with making a‘ false statement in | a notice of appearance form by alleging that he was an attorney in good standing in the State of Kentucky:and was’ not under a court or administrative order susperiding, en-. 3 joining, restraining, disbarring or otherwise restricting him in practicing law. Count 2 charged that the petitioner . made false statements on INS forms submitted on behalf of an alien with. respect to the alien’s employment and source of income, and that a false statement was made by the petitioner when he failed to sign the INS ‘form as the preparer. . Cotints 3 and 4 duplicated count 2, differing only in that the forms were prepared for other aliens. Count 5 charged that a false statement was made in the form of another alien-when the petitioner failed to sign the applica- . tion as preparer. rd ana was found guilty under counts 1, 2 and 5 of, the indictment, and was found pot guilty under counts 3 and 4, after a trial in the United States District Court for the Southern District of New York, before Hon.’ Irving Ben Cooper and a jury. On February 25, 197 e was sentenced to a term of one year in jail on counts I, 2 and 5, the ‘sen- tences to run concurrently. aa On appeal, the United States Circuit Court for. the Second Circuit reversed the convictions under counts 2° and 5, but affirmed the conviction under count 1 of the indictment. Statsmnnet of the Facts The Government’s Case “George Henry Lara, a supervisory immigration ex- _ aminer with the United States Immigration and Naturaliza- tion Service {hereafter INS), testified ‘that he is attached to the New York INS office where he adjudicates applica- tions by aliens, such as visa petitions, applications for 4 | permanent residency, and: applications for extensions of ” temporary stays (2-4).* “ty * bom explained that _— an alien receives a visa,. he he also gets a I-94 immigration departure form. An ap- plication to extend a stay is made on an I-539 form which ' solicits information about the alien, such as whether he. worked while in the United States. The form contains a -place for a signature, and another place where the preparer of the application, if other than the alien, is supposed to sig, since forms are often prepared for the alien by at- torneys, friends, family, and even travel agents (11-13, 43-6). A renewal officer checks to see that the passport is in order and that the alien has sufficient funds for ‘the _ length of time he wishes to extend his stay, since aliens on + temporary stays are not allowed to work. ‘The officer also checks to see that the visitor is m status, that is, that his ° visa has. not already expired or the terms -of the stay violated. If a visitor is found to have worked, he is ‘‘in * violation of status’’ and would be given 30 days to leave the — or be itso (13-17). Mr. Lara further testified that form G- 28 is a notice of entry of appearance and must be submitted by a lawyer or representative appearing for an applicant at an appeal, _ exclusion or deportation proceeding (24). It is like a notice. of appearance. in court and entitled lawyers to copies. of all papers, ete. Accredited organizations, such as Catholic Charities, may also appear for an alien and file a G-28 form (25, 36-7, 45). . The Board of Immigration Appeals. consists of a chairman and four members who hear appeals - * Refererices are to the pages of the appellant’s appendix in. the Court of Appeals. ; 5) from decisions of special inquiry officers in exclusion, de- — ‘portation, ‘and denial of visa cases (28). Since 1965, when the law was changed to allow sleep-i in . domestics permanent residency, there were many who came _ ,to the United States as tourists, and then obtained jobs . and permanent esidency (46- 9). Substantial numbers of aliens are known to violate status by working (52-4). Ev en when they are found to violate status, and are granted voluntary departure, the alien, if he had a labor certifica- tion as a sleep-in domestic, could be back in the United - States as an immigrant in a few months (58). iii Count 5 Volda Watson, a 29-year-old citizen of Jamaica, West Indies, testified that she is a teacher at the Crestview School for emotionally disturbed children .(60). She en- tered the United States in September, 1967 as a visitor for. four months and stayed with her father in: Mount Vernon (61). Although she knew she was not supposed to work when she got the visa (138), she nevertheless obtained a job at the Cr estview Nursing Home in n October 1967 (61-2). A a ‘ The Setendant was hired by the witness’ father, and Miss Watson saw Adcock first in May, 1968 at the defend- ant’s office (62-3). There, she asked about an extension of her stay, because’ the first extension she had received ' was going to expire shortly. The first extension had been obtained by sending her passport and $10 to the defendant, and she later received the passport: and an extension for three months from INS (67-8, 135). She also asked wheth- er it was all right to work, and the defendant “told her it 6 was since her permanent residency papers were being proc- - essed (66). The defendant also remarked that it was easier for her to become a permanent resident as a domes- tic (67). — - While in the defendant’s office, he gave her an 1-539 ‘form, the application for an extension of stay: (Exh'. 5, 594-5). She signed it in blank, and did not put the infor- mation contained on it in the form. She first § saw the typewritten material when-it-was shown to. her by a gov- ~~ ernment investigator: Although the defendant did some ty ping when she was in his office, she did not know whether he was typing her form. She paid Adcock $15 or $25, for his services, $10 of which was for the filing fee (69-74, cig 80, 129). | Miss Watson knows she can be deported after her testi-- mony (119-20) and related that the INS has her passport with instructions not to return it without the approval of . Mr. Gottlieb, an INS inspector (129). The information contained on the application was cor- rect. (121-4). on Regarding Count 2 Rosetta Norman, a citizen of Jamaica, West Indies, entered the United States on August 1, 1967 for a three-. month temporary stay to visit relatives (83-5). Although she .knew she was not allowed to work, she nevertheless obtained a job three weeks later (85- 6). Ld ‘The witness saw the Pere in his office in Novem- - ber, 1967, and told him that her time was running out and : " she wanted to extend her stay. She gave Adcock $10 and her passport (87-8, 90). The defendant asked her if she was working, and she admitted to him that she was, and told him where (91- 2). Adcock then gave her a form to sign (Exh. 2, 588-9), and she signed it in blank. Nothing was written on it, except: for printed matter (93-4, 97-8). She did not support herself by savings, as it was alleged © _on Exhibit 2, but by working (98), although when she first. came to this country she had $1,000 in a Jamaica bank and ° $400 in savings (159-61). After she signed the blank form, . she left it with the defendant, and a few weeks later re- ceived an extension for four months (99). The w itness ‘also had discussed obtaining permanent residency with the defendant, and he gave her some papers for her employer to fill out. She returned these a few’ weeks later-“(91, 99- 101). In July, 1967, the INS asked the witness to leave - the country ona voluntary departure basis, but she became a penn resident in December, 1968 (156, 162-4, 299).- Regarding Counts 3 and 4 (iat guiliy) Cynthia Mulligan Hill, a citizen of Trinidad, works in _ the United States as an assistant nurse at Beth Israel _ Medical Center (170). She entered the country on January 30, 1967 as a visitor on a six-month visa (171-3). In August, 1967 she obtained a job as a domestic, though - she knew visitors were not allowed to work (174-5). She also had obtained an extension by personally going.to the — INS and filling’ out forms (171- 3), and supported herself _ through savings until she obtained the job as a domestic casi es a “She first saw the defendant at his office in August, 1967 (176-9, 186) and asked him to help with papers to become - a permanent resident ( 180). In November she saw Adcock about obtaining an extension, and the defendant gave her: a blank form to sign (Exh. 3, 590-1). In January. 1968 @ - she saw the defendant for another extension, and again - signed a blank form (xh. 4, = 2). ._ Other Similar Acts: Elsie Reid, a.citizen of Jamaica, entered the United States in September, 1967 as a one-month visitor (267-8). She saw Adcock at his office to obtain an extension and he typed a form which she signed. She gave him $10 and received an extension to December (270). In October she was employed as a sleep-in domestic, ‘although she knew she was not allowed té work (271-2). Later, she obtained permanent residency forms from the defendant (273). Regarding Count 1 . Kevin J. McInerney, a former Assistant United States Attorney for the Soutern District of New York, testified that be was in charge of the investigation of the defendant? s * case, and identified Adcock’s signature on a bail bond. He . also stated that when he saw the defendant during the ' grand jury proceedings, Adcock gave him proof that he was admitted to practice law in the State of Kentucky, as well as in the Federal District Court for the Western Dis- trict of Kentucky, and in - Tax Court of the United States (264). Joseph A. Farrell, a criminal investigator for INS, saw the defendant at the INS offices on April 18, 1968. Adcock was with a Ruthel Blair, an alien,:and Miss Blair said that the defendant was her lawyer. Adcock submitted a notice of appearance form = by Kan (281- 7 Restituto Estacio, a aeichaie at eee ‘inne Hos- . pital, was born in the Philippines. His wife, Carmen Ks- tacio, is also a medical doctor, and they came to the United . _ States in 1960 as exchange visjtors (317-19). The witness met the defendant in his office in 1966, and o | asked Adcock to obtain permanent residency for him and~ his wife. He supplied the defendant with papers and paid him.a retainer of $50.00 (321-3). Adcock wae his lawyer until 1969, and was his lawyer in July 1968 (343), when : Exhibit 1 (486-7), a notice of appearance form, was filed. | Saul Fine, formerly with INS, witnessed the defendant’s signature on October 12, 1953 o na document (348-50). - As a result, the defendant’s certification of admission be- fore the Board of Tnnigration Appeals was surrendered. - (351- 2). Exhibit 21, the defendant ’s consent to disbarment from re the INS, dated October 12, 1953, was then introduced in - evidence (358, 596-9), along with Exhibits 22B and 23, the order of disbarment from the Board of Immigration Ap- peals and the Attorney General’s approval (358, 600-4). Lestie €, Whitmer, a lawyer and assistant director of the Kentucky State\Bar Associagion, keeps: official rosters of aiforneyvs in- Kentueky, and colleets dues fron’ members of the bar and proseentes diseiplinary eases (370-6), Tn 1966. to 1968 is was necessary to be a member of the Bar Association in order to practice law in Kentucky OQ : & , . see 10 » 7 where, since 1936, there. has been | an ‘integrated’? Bar (377-81). : The witness checked the roster for 1966- 68 and found the defendant’s name does not appear for those years | (381). The defendant’s ‘name does’ not appear on the ‘roster for any year since the integrated Bar has been in operation (382). - Adcock was therefore not authorized to practice law in Kentucky and not a member in good stand- . ing of the Kentucky Bar. (382). The records : do inidicate, however, that the defendant ‘ was admitted to practice law in Kentucky. in 1927. Adcock did not automatically become a ‘member of. the Bar when it ° ‘was integrated. Members were notified. that they could not practice until they became members of the Bar Association | when the Bar was integrated (390), but Adcock did not apply for ‘admission = the Bar after integration (382-3). The witness believed that. deferidant’s Exhibit F (613- 14), a certificate of good standing in the Kentucky Court of Appeals, and Exhibit G.(615-16), a green membership card ~ in the ‘Kentucky Bar, both in the name of the defendant, were erroneously’ issued to Adcock, since-only the ‘official . computerized roster contains the names of Bar members, and. Adcock’ s name: ‘is not on it (389, 393, 396-8, 403- 13). Henry Harned, dieses of the Kentucky Bar Associa- tion, testified that he received an application for reinstate- . ment from the defendant dated October 26, 1970 (438-9 ; Exh. 30, 605-12): The application was not, approved, since it was not presented to the Board of Governors which ° decides on readmissions —_ 6, 449). Reinstatement ap- ee a & : “se a plications for non-payment of dues must be submitted to the Board of Governors for approval (460). A check from the defendant: for two years’ non-resident dues of $35 was received on November 5, 1970, but was erroneously depos- ited. -It should not have been accepted until Adcock was reinstated and procedural technicalities were passed upon (447-9). Adeock was not on ae official hihi for 1967- 68 (458, 456). - Exhibit G, the green’ membership card, was issued 7 by the Bar Association ‘through error’’ and is therefore not a valid card. It is not, however, a forgery (457-61). Phyllis Wigglesworth, a clerk in the office of the Court. of Appeals of Kentucky, testified that she received a letter from the defendant’s trial attorney, Mortimer Todel, Hsq., asking if Adcock was. admitted to practice in Kentucky, the letter being received on November 16, 1970 (467-9). She looked at the attorney roster j in the Court of Appeals and,found Adcock’s name there as having been admitted to’ practice on June 17, 1927. She then telephoned. the Bar Association to ascertain if he was in good standing .(469- 70). The witness was told that Adcock had paid his dues and was ‘‘O.K.’’, but to call back in several days since the official roster book was in the bindery. (472-3). When ~ _ the witness called back, the party at the Bar Association oe could not find Adeock’s name, but .saw that he had paid oo his recent dues and again said. he was ‘‘O.K.’’ (474), As a result, the witness issued the certificate of good standing tere (Exhibit F, 613-14). on December. ‘fp 1970 sce 80). i The Defense Sol Marks, a Deputy Digector of the INS, testified, that formerly an attorney had to be admitted to practice before the INS, and needed a certificate of admission. The rule was changed i in 1958, so that any attorney could practice before the INS, and no certificate of admission was re- , quired (483-7). “An attorney admitted in one state could represemt anyone before the INS in any state, but he still musf file a notice of appearance (489-90). Howev er, a disbarred attorney cannot practice before the INS (491-2). Stipulation—It Was stipulated that the defendant is ad- mitted to practice ate the United States District Court for the Western District of Kentucky (Exh. I, 617-18), and - that the fact that an attorney has been disbarred from . \ one coust does not mean he is disbarred before a different court (495-6). : — . Reasons for Granting the Writ l The supplemental “Allen charge” coerces the jury into reaching a verdict, thus denying due process and a fair trial. Because of the division among the Federal —- this Court should consider whether the “Allen . charge” should be permitted i in thé Federal courts. After the jury had. been deliberating for about four and a half hours, it sent a note to the court asking: ‘‘Must we have a unanimous decision on each count? _ Can’ we return a.unanimous verdict on \some counts . not others?”’, and ‘‘If the decision i is not unanimous on any count, is the defendant considered not guilty on this y count?’’ (549). Before. the jury returned, the Arial judge told counsel that he would ‘“‘give\them the equivalent of the Allen charge”’ [ Allen v. United States, 164 U.S. 492 (1893) ] (549). The court then charged the jury (553-60), reading from the Allen opinion (558), paraphrasing it, and adding material he — relevant. - The Allen charge, emphasizing that the jurors in the ‘minority should listen with a view to- being convinced to. the arguments of the majority, ‘is designed to blast loose a deadlocked jury”’ [Green v. United States, 309 F.2d 852, 804 (Sth Cir. 1962)]. It has thus received uncomplimentary sobriquets, | such as the **dynamite charge?’ [Green United States, 309 F, 2d 852, supra], the “nitroglycerin charge’’ [Huffman v. United States, 297 F. 2d 754, 759 (5th Cir. 1962) ], the ‘‘third degree instruction’’ [Leach v. People, 146 P. 2d 346, 347 (Colo. 1947)] or the ‘‘shotgun ~ instruction’’ [State v. Nelson, 321 P. 2d 202, 204 (N.M. 1958) ]. The Arizona Supreme Court ruled that “its use» shall Ye longer be tolerated’’ [State v. Thomas, 342 P. 2d 197, 200 (Ariz. 1959) J, and Montana has similarly banned ~ its use [State v. Randall, 353 P.2d 1054 (Mont. 1960)], while commentators have severely criticized its application [see,“ €.g.5 2 C. Wriglit, Federal Practice and Procedure (Crim- inal), see. 502 at 360,1969; Comment, On Instructing Dead- locked Juries, 78. Yale LJ. 100,’ 1968; Note, Due Process,* Judicial Economy and the Tlung Jury: A Re-examination of the Allen Charge, 53 Va. L. Rev. 123, 1967]. Moreover, both the American, Bar Association Project on Minimum _ Standards for Criminal J ustice and the Committee on the : Operation of the Jury System of the Jidicial-Conference - _ ° of the: United States Courts have both recommended that the Allen charge no longer be given to deadlocked juries, | 14 instead oe alternative instructions [see. United ae sv. Sawyers, 423 BP. 2d 1335, 1346 (4th Cir. 1970)]. ~ / In the Federal courts the circuits are els divided. . The-Second Cireuit, for instance, has consistently upheld | the use of the Allen charge [United States v. Thomas, 282 © F.2d 191, 195 (2d Cir. 1960); United States v. Tolub, 309 F.2d 286 (2d Cir. 1962); United States v. Kahaner, 317 * F.2d 459 (2d C ir. 1967) ; United States v. Rao, 394 F.2d 554 (2d Cir. 1968); United States v. Hynes, 424 F.2d 754 (2d Cir. 1970); United States v. Martine 2, ~— F, 2d —— (2d . C1 ir. dee. July 15, 1971): 3 Meyers v. United States, —— F.2d has also approved its use [United States ¥, Barnhill, 305 EF. 2d 164 (6th Cir." 1962 )I, as has the Fourth. Circuit: (United States v. Sawyers, 423 F.2d (4th Cir. 1970); but see United States v. Rogers, 289 F.2d 433 (4th Cir. 1961) ], >aand the Ninth’ Cireuit (Sullivan, v. United States, 414 F.2d 714 (9th Cir, _ 1969) 4. 5 In contrast, the Third Circuit has outlawed future use of the Allen charge [United. States v. Fioravanti, 412 F.2d {07 43d Cir. 1969) ], as has the District of Columbia Ciréuit » [United States v. Thomas, F.2d (D.C. Cir. 1970) ], ¥; dnd the Sev enth Cireuit [United States v. Brown, 411 F.2d . 930 (7th Cir. 1969) ].. The Tenth Cireuit has suggested. that: if an Allen charge be given, it must be given in the main ~ .eharge- and not as a supplemental instruction [United | States v. Wynn, 415 F.2d 135 (10th Cir. 1969)], while the Fifth Cireuit has often severely criticized its application [Thaggard v. United States, 354 F.2d. 735 (Sth Cir. 1965) ; Green v. United States, 399 °F:2d 852 (Sth Cir. 1962); Powell v. United States, 297 F.2d,818/ (5th Cir. 1964) ; ‘(2d Cir, dee. July 27, 1971)], and-the Sixth Circuit 7 - | ae: Huffman v. ‘United States, 297 F.2d 754 (5th Cir. 1962)]. Consequently, in view of: the serious divisions among. the - Federal circuit courts, and the great amount of litigation engendered by the uncertain situation respecting the Allen . charge, petitioner urges that this Court review and settle the issues involved in the exercise of its supervisory pow- ers over the Federal courts. As stated in the opinion of % ge Judge Wisdom in Andrews v. United States, 309 F.2d. . 127 (5th Cir. 1962) : “The Allen charge causes more trouble in “the admin- istration of justice than it is worth. Its time-saving merits in the district-court are more than nullified by the complications it causes on appeal when the review- ing court must determine whether in the circumstances -ot a particular case the trial judge applied the charge . properly—in substance and in timing, ‘like Banquo’s ghost it will not remain at rest’ * * * And in this Cir- " cuit the ghost: seems especially restless,”’ : Clearly, the ghost is haunting all th other circuits as - well, — | 7 at tn addition, petitioner urges that the alienate Allen, charge per se exercises a coercive influence on the jury, thereby. denying Sixth Amendment rights to trial-by | an impartial jury [cf., Sheppard v. Macwell, 384 U.S, 333° (1966) ; Turner v. Louisiana, 379 U.S. 466 (1965) ]. United States v. Fioravanti, 412 F.2d 407, supra, recognizes Quite explicitly the constitutional infirmities of the Allen charge. For despite language about each j juror deciding for himself, the Allen charge, as used i in the courts, intends, encourages * and specifies that the minority reconsider the views of the majority ‘‘with a disposition to be ‘eonvineed”? [Allen v. United States, 164 U.S. 492, 501, supra]. However, there es 16 # is no reason to believe the majority ‘is right and has reached its preliminary inclination by appropriately .in- spired processes, and that the minority in @ given group possesses attributes of spurious ‘ationality’’. United States v. Fioravanti, 412 F.2d at 416, supra. “Thus, the. “yery: rei ul treachery of the Allen charge’’ is the failure to tell the majority to*reexamine its position, and the in- struction ‘serves to substitute the coercive influence ‘of any early polling of the jury for the give and take of group ‘deliberation’? (id. at-417). Consequently, the Allen in- struction ‘allows, indeed subtly encourages, the minority to be coerced by numbers, a clear violation of the jury trial ee ineiple pr otect ed by the Sixth Amendment. e * veh, ¢ her ea verdict of guilty i is generated by the proe- ess of being influenced by |a preliminary vote of the majority ‘instead of, subjective convineement *beyond a reasonable doubt, at best we have a situation where two separate portions of the charge are at logger- heads; at worst, we have a\serious question that the charge may have become constitutionally delinquent, in derogation of the defendant’s traditional right of trial by jury.’? [United States v. Fioravanti, 412 F.2d at 419, supra]. Consequently, petitioner urges that this Court grant certiorari to review the constitutional implications of the Allen charge in the light of, Twentieth Century develop- ments. As Judge Brown stated in Huffman’ vy. United States, 297 F.2d 754, 759 (5th Cir. 1962) : | ‘*The fact is that in many phases of criminal law we have ¢ome a long, long way since 1896. There is - ’ no longer auy place for the Allen charge.”’ 17 II. Even if the -Allen charge is not per se coercive the - Court’s supplemental charge in: this case was improper, the instruction going far: beyond the language of the Allen charge by exhorting the jury to consider the cost in time and money of mm present trial and any future trial.” . SRS In the present case, the court was not content to rest on the language of the Allen charge alone. Instead, the . . ne. ° court improperly added to and went beyond the boundaries of the Allen charge by specifically exhorting the jury to- deliberate on improper and irrelevant considerations, namely, the cost in time and money of the trial and of a future trial if the jury-remainied undecided. , It is clear that even among the circuits holding the’ Allen charge ‘not per se coercive, it nevertheless “ap. proaches ultimate permissible limits’? in instructing an undecided jury [Sullivan v. United States, 414 F.2d 714, 716, supra; United States v. Rogers, 289 F.2d 433, 435-7, supra; Powell v. United States, 297 F.2d 318, supra; Green _v. United States, 309 F.2d 852, supra; also see, Burton v. United States, 196 U.S. 283 (1905); Brasfield v. United States, 272 U. S. 448 (1926) ]. And in the se die case, the : court below ov erstepped that limit. : The trial judge told the vay that ‘‘T want you to listen with care to what really should govern your efforts as -_—— = you continue deliberation’’ (555).° After a sentence dis- avowing any attempt to coerce a ver diet, the court stressed © that ‘‘this is an important case, important to the defendant,’ important. to the Government, important to the commu- ‘ nity.’’ The court then talked about the expense of the trial, , ii ‘ 18 _— and told the jury to consider the possibility ‘and waste in ° time and money of a retrial: ~ | “The trial has been expensive. If you should fail to agree on a verdict with regard-to any. count, that | count. is left open and undecided. Like all cases, it must be disposed of some time. ‘‘There appears absolutely no reason to. believe: that another trial would not be equally expensive, nor does there appear any reason whatsoever to believe _that the case can be tried again more expertly or more | exhaustively than it has been on either side. Any future jury must be selected in the same manner and ~ from the same source as you were chosen. There ap- pears to this Judge no reason to believe that the case would ever be submitted to twelve jurors more intelli- gent, more impartial or more competent to decide.it or ‘that more or clearer evidence would be produced on. - behalf of either side’’ (556). Such considerations have no place in a jury’s delibera- _tions. Particularly, they are inappropriate heading a dis- ’ eussion of ‘‘what really should govern your efforts as = | continue deliberation’’ (555). by It is true that courts are now constantly concerned with . obtaining dispositions in order to unclog overcrowded °- calendars. Such concerns, however, have been severely criticized when they become a consideration in the rendition ‘ of justice, since an individual defendant is entitled to a ‘decision on the merits of his case alone, without extraneous adminis ative factors interfering with or influencing the ~ result {see, Report of the President’s Crime Commission, — "The Challenge of Crime in a Free’ Society, 128 (1967)]. How much more improper it is when these factors, rather ae than playing a subtle and disturbing background role in the administration of criminal justice, are openly used to — pressure a jury into reaching a verdict. The Allen charge allows a court to tell jurors that they should be amenable to reconsidering their views in order to reach a decision. It does not authorize a court to instruct the jury that ex- penditures and savings in time and money should be con-— sidered as a factor in its deliberations. For a jury should reach a verdict solely if it is convineed one way or the other ‘by the merits of the case, and not because it feels a decision will help to avoid administrative burdens. As the Supreme _ Court stated in Brasfield v. United States, 372 U.S. 448 ae 1926), fh’reversing a conviction because of a judge’s pres- sure on an undecided jury, there can be no ‘‘improper in- - fluence upon the. jury, from whose deliberation every consideration other than that of the evidence and the law ae should be excluded”’ (id. at 450). The expense in time and money is neither evidence | nor law.. - Indeed, in Pima v. Usited Siokes. cen, GA —, (D.C. Cir. Nov. 6, 1970), the trial court similarly told the jury that ‘‘we have‘a substantial backlog of work, and to: spend another day before another jury retrying this case "just doesn’t make sense to.me.’? The court, reflecting on this addition to. the Allen charge, wrote: _ “We have no doubt whatever that the. judge acted out of the best of motives, and that any coercion of the -- jury was entirely unintended. The events transpiring, : however, invoke our responsibility to appraise the ac- tivities complained of, not by the good intentions be- hind them,. but according to whether, all circumstances considered, they strayed beyond legitimate bounds with a snbatantial probability of prejudice to the accused. _—— Se ee 20 ee _ “Phe events shown on the record make a strong . elaim to reversal of appellant’s conviction for actual, though undesigned, coercion of the jury that pro- claimed it.’’ Moreover, thorough and scholarly analysis of the problems associated with the Allen charge (Comment, On Instructing Deadlgcked Juries, 78 Yale L. J. 100, 1968) points out‘in a section entitled “What the Judge Should Avoid’’ that references to the expense of a new trial defi- . nitely should be avoided. “Such references, like post-deliberation comments . on the case or the evidence, tend to identify the judge with one jury faction. The expense of a new trial falls more heavily on the plaintiff‘or prosecution than on the —-; In most criminal cases, it will not be the defendant who suffers from a new trial, but the “government., Jurors realize that retrials seldom oc-— * - eur when the first jury hangs, and the judge rarely points out that arly time the defendant serves before | conviction will not count against his sentence. Harm is compounded by the indiscriminate way judges mix together references to expenses incurred by the gov- ~ eynment as prosecutor with those incurred as forum. The jury-is led to associaté a saving of the judge’s time with a saving’of the prosecutor’s since both are” expenses tobe borne by the ‘taxpayer.’ » (id. at 139). Indeed, the result of this expanded Allen charge is clearly seen in the verdict here. For the decision in the present case was announced an hour and a half after the court’s supplemental instruction (561-2), and the ver- . dict was an inconsistent ‘one. The defendant was found guilty on two counts (2 and 5) on which the evidence was | virtually the-same as on the two counts for which he was 21 ~ acquitted (3-and 4) (compare Hxhs. 2, 3, 4, 5, 588-95). Obviously, the jury’s indecisiveness on the/issue of “guilt - was transformed by the court’s pressure to reach a verdict. into a split decision to satisfy the instruction to dispose of the case. Under such circumstances, a fair trial was not had, and a new one should be granted. | Conclusion Petition for a writ’ of certiorari should be granted. Respectfully submitted, ALAN ScriBNER Counsel for Petitioner san 55 Liberty Street: New York, New York 10005 (212) RE 2.6567: et ° . > ° : . - < eo - . ‘ ’ : ; . . . . 2, . . A 3 ’ | ‘ . % . | ; . ° 2 -= | . . | . -"¢ , . | . . ‘ 77 . . _ a ’ » . ‘ . > | > I : a ° - a . $ . » \ \y ; . " \ * . . . . . e . . . . ; . > ' . * \ . : 3 . \ . aa 2 a . 7 ‘ \ ° oe : > | . . - * ho” Opinion of the Court of Appeals UNITED STATES COURT OF APPEALS’ | For the Second Circuit i No. 977—Septem er Term, 1970 (Argued June 11, 1971. Desided August 16, 1971.) a . . Docket No. 71- 1289 ss aacebeidiiieieeadae sea: Unrrep States or América, . 3 = Appellee, ° v. | : Wiis F. Apcock, » de : | Appellant. Before: | Friendly, Chief Judge, =e and Oakes, Cireuit Judges, iia from a judgment of conviction entered after ‘jury trial in. the United States District Court for the South- ern District of New York, Irving Ben Cooper, Judge, on three edunts of making and causing to be made false state- * ments in violation of 18 U.S.C. §1001 and 18 U'S.C. §2. Affirmed as to Count I, reversed as to Counts II and V.. Maurice M. McDermott, Assistant United States At- torney (Whitney. North - Seymour, Jr., United States Attorney for the Souther District of New York, of. counsel), for Appellee. pane Alan Scribner, Esq., New York, New York, for Ap- 4 —— : Von SO LEE re ee at 24 Per Curiam: Appellant attacks his conviction after a guilty, verdict on Counts I, IT and V of an indictment charging that. he had made and caused to be made false statements to the Immigration and Naturalization Service in violation of 18. U.S.C. §1001 and the aiding, abetting or causing section, 18'U.S.C. §2.. He complains that after the jury deliberated one evening and resumed deliberation the’ next morning, for a total of four and one-half hours, the trial judge gave. a modified ‘‘Allen’’ charge. Allen v. United States, 164 “U.S. 492, 501-2 (1893). The, trial court, however, serupu- lously followed the rule in this circuit, by emphasizing that no juror was expected to yield a conscientious conviction. United States v. Bowles, 428 F.2d 592 (2d Cir.), cert. de- * nied, 400 U.S. 928 (1970) ; United States v. Barash, 412 F.2d 26, 32 (2d. Cir.), cert. denied, 3963U.S. 832 (1969). . . We are satisfied that the judge below conscientiously 2 phrased. the charge so that no juror felt coerced to aban- don his personal conviction. ; Counts II and V on which appellant was eonivieted were based on his failure to sign as. preparer an. LN.S. form . seeking an extension of stay by an alien, when he in fact — prepared the form for the alien. The Government’s rather ‘ ee far-fetched argument is that by preparing the form but failing to sign it ds preparer, appellant had ‘‘caused”’ a false statement to be made by the applicant ‘who merely signed as such. . Nowhere does the. form contain’ any asser- tion by the applicant that he himself prepared the form. Even the Government admits that the ‘‘failure to complete ~ the ‘ ‘preparer’s box strictly speaking did not result in a direct false statement by him to I.N.S. but rather resulted ~ in one unwittingly made by the applicant, to the effect that -— t ee a see AK Ney PAMELA PONS ODN Se _ she alone prepared the document”? omiliaiie supplied). (Appellee’ 8 Brief,/p. 10.) The Government points to no ‘. ease which would support this tenuous position, which would doubtless put behind bars thousands of people who have assistes valiens’ having trouble. with‘ the I.N.S. forms or the Emeglish language. We believe a ‘‘statement’’ is re- quired | to create an.offense under 18 U.S.C. §1001 and that one has not been made here. ’ See United ‘States v. McCue, 301 F.2d. 452, 454 (2d Cir. 1962); United Siates v. Stark, 131 F-Supp. 190, 205 (D. Md: 1955). See also United States v. Diago, 320-F.2d 898,905 (2d Cir. 1963). Nor do we agree with the Government’s argument that’ ‘the judgment on Count II should be affirmed because it. contained three assignments of falsity and defendant did _ not request a special verdict. See United States v. Gold-'— stein, 168 F.2d 666, 671 (2d Cir. 1948); United States v. . Mascuch, 111 F.2d 602 (2d Cir.), cert.” denied, -311 ‘U.S. | 650 ( ¥ Special verdicts-as to a ‘single count are im- proper and in and of themselves erronéous. United States _v. Spock; 416 F.2d 165, 182-3 (1st Cir. 1969) ; Gray v. United States, 174 F.2d 919 (8th Cir.), cert. denied, 338 U.S. 948 (1949). No provision is made for them in the. ‘Federal Rules of Criminal Procedure. See United States v. Noble, 155 ‘F.2d 315, 317 wi. 4. . (3rd Cir. 1946) ;. see generally 2 Wright, Federal Practice and Procedure §912, pp. 364-65. (1969): Thus, the verdict on Count II-as well as Count V must fall. Street v. New York, 394 U,S. 576, 585-88 (1969) ; Yates v. United States, 354-U.S. 298, 312 (1957) ; Strom- — v. California, 283 U.S, 359 (1931). | Because there was a valid conviction on- Count I for making a false statement in his own Notice of Appearance Kor an sppliceat—the only complaint being « on the Allen : a” ee . 26 charge—and because the appellant received concurrent ~ sentences on all three counts, we affirm under United States v. Febre, 425 F.2d 107, 113 (2d Cir.), cert. denied, 400 U.S. 849 (1970); United States ex rel. Weems v. Follette, 414 . F.2d 417, 419 (2d Cir. 1969), cert. denied, 397 U.S. 950 ~.. (1970) . We might remand for a new trial: on Connt I if we felt that there was a ‘‘spill over.’ of the evidence that ~. affected the Count I conyiction.*. See Hays, J., dissenting - in United. States v. Febre, supra at 114. Or we might re- mand for resentencing if we felt that the: convictions on the reversed counts may have affected the sentences im- posed on the remaining counts. - See U mited States.v. Hines, 256 F.2d 561 (2d Cir. 1958). We are aware of the admoni- ; ‘tion i in Benton v. ‘Maryland, 395 U.S. 784, 789 (1969), re-/ _ garding the concurrent senterice doctrine. But here, ‘as‘in” _ Febre, supra, and Weems, supra, we conclude that ‘‘no | undesirable collateral consequences” would ensure from its. application. Therefore, we affirm the conviction on | ~~ Count I of the indietmen rent and reverse those on Counts I and V. a ; \ a a 4. * In this case we would dontiGiegs remand on Count II also for reconsideration of the allegations in Count II that the defendant had Ree ee | seas Me wee ps --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1590%3A1. Public record. Not legal advice.