Petitioners Brief — Bowen v. United States

Pe RSE Ee REY PEE REN SE YETI

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Supreme Court of the

United States

OCTOBER TERM, 1945.

BU \ccsiicanatasiiniaslh

LESLIE G. BOWEN, PETITIONER,

VS.

UNITED STATES OF AMERICA, RESPONDENT.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI.

IL

OPINION OF THE COURT BELOW.

The opinion of the United States Circuit Court of

Appeals for the Eighth Circuit is not yet reported. It is

set out in full in the record (R. 607-618).

IL.

JURISDICTION.

- 1. The date of the judgment to be reviewed is Febru-

ary 21, 1946 (R. 618).

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2. The statutory provisions which are believed to

sustain the jurisdiction of this Court are Section 240(a)

of the Judicial Code, the Act of March 3, 1911, Ch. 231,

Sec. 240, 36 Stat. 1157, as amended 43 Stat. 938 (28 U.

S. C. A., Sec. 347(a)); the Act of March 8, 1934, Ch. 49,

48 Stat. 399, as amended 48 Stat. 926 and 49 Stat. 1921

(18 U.S. C. A., Sec. 688); Rule 11 of the Rules of Criminal

Procedure after Plea of Guilty, Verdict or Finding of Guilt

of the Supreme Court of the United States, promulgated

by this Court May 7, 1934, as amended; and that provi-

sion of Rule 38(5)(b) of the Rules of the Supreme Court

of the United States, which provides that this Court may

grant certiorari where a Circuit Court of Appeals “has

decided a federal question in a way probably in conflict

with applicable decisions of this Court.”

3. After the jury had deliberated for some time, it

advised the Court by written message that it was dead-

locked 11 to 1 (R. 595). The Court thereupon called the

jury into the court rocm and stated that he assumed they

had not reached a verdict, to which the foreman replied

in the affirmative. The Court immediately gave a sup-

plementary instruction to the jury, stating that the case

should be decided, that the minority should consider the

cpinions of the majority and that they should consider

whether the petitioner was not guilty of some count. To

this action the petitioner excepted and moved that the

jury be discharged, which motion was denied. Upon ap-

peal, the petitioner assigned as error the foregoing action

of the trial Court. The Court of Appeals sustained the

trial Court and affirmed the conviction.

4. The judgment of the Circuit Court of Appeals

upon the foregoing question is in conflict with applicable

decisions of this Court in Burton v. United States, 196 U.

CIR ap gE PO SE VEE TN DESIR EBL

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S. 283, 49 L. Ed. 482 and Brasfield v. United States, 272

U. S. 448, 71 L. Ed. 345.

III.

STATEMENT OF THE CASE.

The petitioner has stated the case in the Summary

Statement of the Matter Involved, Part A of his foregoing

Petition for Certiorari, which statement is hereby adopted

and made a part of this brief.

IV.

SPECIFICATION OF ERROR.

The Circuit Court of Appeals for the Eighth Circuit

erred in sustaining the trial Court’s refusal to discharge

the jury after giving a supplementary instruction to the

jury urging agreement and directing the jury to consider

whether the petitioner was not guilty of some count, im-

mediately after the jury had voluntarily, by written mes-

sage, advised the Court it was deadlocked 11 to 1 and the

Court had verified the message by the general question

that he assumed they had not reached a verdict, to which

the foreman replied in the affirmative.

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V.

ARGUMENT.

The decision of the Court of Appeals sustaining the

trial Court’s coercive instruction to the jury after the Court

was advised of the jury’s numerical division, is in conflict

with applicable decisions of this Court.

After the trial Court had charged the jury and the

jury had deliberated for ten or twelve hours, the foreman

of the jury sent a written communication to the Court

(R. 591) which the Court told petitioner’s counsel stated

that the jury was hopelessly deadlocked. It later appeared

that the jury’s message actually read “‘This jury is dead-

locked on a 11 to 1 verdict. F. B. Alderson, Foreman” (R.

595). The Court thereupon called the jury into the court-

room and stated that he assumed they had not reached a

verdict, to which the foreman replied in the affirmative.

He then gave the supplemental charge appearing at R.

991, 592 and 593, and which in substance advised the jury

that they should take proper respect to each other’s opin-

ions and that if the larger part of the panel were for con-

viction, a dissenting juror should consider whether his

doubt was reasonable; that if a majority were for acquittal,

the minority should consider their judgment, combined

with a direction to consider whether the defendant was

not guilty and a further direction to render a verdict of

guilty in the event they found a defendant guilty. To

this charge the petitioner excepted and moved that the

jury be discharged on the ground that the charge in-

vaded the province of the jury, was coercive and was an in-

vitation to render a verdict of guilty (R. 593).

The foregoing supplementary charge to the jury, given

by the Court after he was advised that the jury was divided

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eleven to one, and after the jury knew that the Court

was so advised, was coercive, and the petitioner’s ex-

ception and motion to discharge the jury should have been

sustained. The Court of Appeals sustained the trial Court.

Its action was contrary to applicable decisions of this

Court in Burton v. United States, 196 U. S. 283, 49 L. Ed.

482 and Brasfield v. United States, 272 U. S. 448, 71 L.

Ed. 345.

The supplemental charge is almost verbatim the

charge given in United States v. Allis, 73 Fed. 165, 1. c.

183 (1893), affirmed on appeal, Allis v. United States, 155

U.S. 117, 39 L. Ed. 91 (without consideration of this charge,

however). The Allis case was followed by Allen v. United

States, 164 U. S. 492, 41 L. Ed. 528 (1896), from which the

authority for the instruction is derived, sometimes called

the ‘Allen instruction.”

The petitioner is not concerned with the propriety of

the foregoing instruction, nor modifications of it, standing

alone and in a proper case. In any case such an instruction,

after the jury has deliberated for a period of time, is in

a sense coercive. It is given for that purpose—an en-

deavor by the court to exert pressure upon the jury to ar-

rive at a verdict. To a lay juror this instruction, even

standing alone, no doubt often creates the impression,

erroneous or not, that the kind of verdict desired is a ver-

dict of guilty. However, the courts usually hold that this

instruction is not coercive in a sense requiring reversal,

where it is given at a proper time, properly safeguarded,

and unattended by factors which render it prejudicial. In

the instant case there were other factors which did render

the instruction coercive, and prejudicial. The jury had

advised the Court they were deadlocked at eleven to one.

He had verified this information—cautiously, it is true, but

there could be no question to what he was referring. He

knew how they stood and they knew he knew.

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Inquiries by courts as to the numerical division of

juries were condemned by this Court in Burton v. United

States, 196 U. S. 283, 49 L. Ed. 482 (1905). In this case,

after deliberating for some time, jury was brought back to

the court room. The Court indicated he had received a

letter from them, and in connection with it he asked the

foreman how they were divided, stating that he did not

want to know how many stood one way and the other

way. The foreman stated that they stood 11 to 1 and the

Court stated that he gathered that from the communication.

He then gave the jury the instruction in the Allen case

(196 U. S. 305). Counsel then requested that he instruct

the jury that the requests of the defendant which were

given in his main charge were as much a part of the

Court’s charge as that which he read as emanating from

the Court itself. This he refused to do. In connection

with this action, and also in connection with his inquiry

as to the division of the jury, this Court stated 1. c. 196

U. S. 307:

“Balanced as the case was in the minds of some

of the jurors, doubts existing as to the defendant’s

guilt in the mind of at least one, it was a case where

the most extreme care and caution were necessary in

order that the legal rights of the defendant should

be preserved. * * * A slight thing may have turned the

balance against the accused under the circumstances

shown by the record, and he ought not to have longer

remained burdened with the characterization of his

requests to charge, made by the court, * * *

“We must say in addition, that a practice ought

not to grow up of inquiring of a jury, when brought

into court because unable to agree, how the jury is

divided; not meaning by such question, how many

stand for conviction or how many stand for acquittal,

but meaning the proportion of the division, not which

way the division may be. Such a practice is not to

be commended, because we cannot see how it may be

a

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material for the court to understand the proportion

of division of opinion among the jury. All that the

judge said in regard to the propriety and duty of the

jury to fairly and honestly endeavor to agree could

have been said without asking for the fact as to the

proportion of their division; and we do not think that

the proper administration of the law requires such

knowledge or permits such a question on the part

of the presiding judge’’ (Italics supplied).

The only difference between the Burton case and the

present case, upon the question under discussion, is that

there the Court verified the communication he had by

asking the jury if it were correct, and here the Court

after receiving the message stated he assumed they were

unable to agree, and the foreman said that was correct.

After the Burton case, the appellate courts disagreed

whether it was authority for holding the inquiry alone

was prejudicial. Finally the conflict was resolved by the

case of Brasfield v. United States, 272 U. S. 448, 1. c.

449, 71 L. Ed. 345 (1926), where it was held, 1. c. 272

U.S. 449:

“The jury having failed to agree after some hours

of deliberation, the trial judge inquired how it was

divided numerically, and was informed by the fore-

man that it stood nine to three without indicating

which number favored a conviction.

“In Burton v. United States, 196 U. S. 283, 307,

49 L. Ed. 482, 490, 25 Sup. Ct. Rep. 243, where a

conviction was reversed on other grounds, this court

condemned the practice of inquiring of a jury unable

to agree, the extent of its numerical division, although

a response indicating the vote in favor of or against

conviction was neither sought nor obtained. This

court then said (p. 308): ‘We do not think that

the proper administration of the law requires such

knowledge or permits such a question on the part of

the presiding judge.’ * * *

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“We deem it essential to the fair and impartial

conduct of the trial, that the inquiry itself should be

regarded as ground for reversal. Such procedure

serves no useful purpose that cannot be attained by

questions not requiring the jury to reveal the nature

or extent of its division. Its effect upon a divided

jury will often depend upon circumstances which

cannct properly be known to the trial judge or to the

appellate courts and may vary widely in different

situations, but in general its tendency is coercive.

It can rarely be resorted to without bringing to bear

in some degree, serious although not measurable, an

improper influence upon the jury, from whose de-

liberations every consideration other than that of the

evidence and the law as expounded in a proper charge,

should be excluded. Such a practice, which is never

useful and is generally harmful, is not to be sanc-

tioned.”

The conflict of the decision of the Court of Appeals

upon the question under consideration with the decisions

in the Burton and Brasfie’i cases, is clear. In those cases,

the condemnation of this Court was directed against the

coercive effect of such an inquiry standing alone, that

is to say, the coercive effect arising from the fact that

the Court knows how the jury stands and the jury knows

that he knows. How much more coercive upon the jury

must it be when the Court is advised in writing of the

numerical division of the jury, recalls them to the court

room, states that he assumes that they have not reached

a verdict (which remark could not possibly refer to any-

thing except the message), the foreman replies in the

affirmative and the Court thereupon gives a coercive in-

struction, which of itself has been often criticized.* The

*Indeed, the Court which rendered the decision here, said,

with reference to this type of instruction in Nick et al. v. United

States, 122 Fed. 2d 660 (C. C. A. 8th, 1941), 1. c. 674:

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rule of the Brasfield case, contrary to the holding of the

Court of Appeals, does not need to be extended to cover

this situation. The rule of the Brasfield case extends

beyond the boundaries of the question here presented.

The Court of Appeals in passing upon the appli-

cability of the Burton and Brasfield cases stated (R. 616)

that it was asked to expand the rule of the Brasfield

case and to hold that if the foreman of a jury without

any inquiry informs the Court that the jurors stand 11

to 1, reversible error is committed, or that in any event,

the trial judge must not give any supplemental instruction

to the jury. That is not the application which the peti-

tioner urges the Brasfield case has to the facts here at

issue. When a message of this sort is received, the

Court may certainly and with propriety advise the jury

that it is improper to send such information and for them

to continue their deiiberations. It might not then be

improper at a later stage and after further deliberation,

for the Court to give some further instruction depending

on circumstances, and making clear that there is no refer-

ence to any message. But, where the Court is advised

of the numerical division of the jury, verifies the in-

formation, and immediately directs the minority to con-

sider the opinions of the majority, such action is squarely

within the reason upon which the condemnation in the

Brasfield case is based.

“There have been criticisms of this general character of

instruction in several cases cited by appellants. It seems to

us any vice in this kind of statement depends upon the situa-

tion at the time it is given and upon the Janguage used by the

court. The objection is, of course, that such character of

instruction may have coercive effect upon jurors. If such

statement is made in the face of an existing disagreement in

the jury it is quite evident that its entire force would be felt

as applying to an existing situation which had developed.

Language which might be innocent if uttered before submis-

sion of the case to the jury might be regarded as harmful if

applied to a specific existing disagreement” (Italics supplied)

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The Court of Appeals was not entirely satisfied with

the logic of its position with reference to the alternatives

offered the trial judge. Later (R. 617) it stated the

jury had thirty-four issues of fact to decide, that is, there

were three defendants, thirteen counts were submitted

against two of them and eight counts against the third.

The Court then observed:

“We think it is safe to say that to any competent

and experienced trial judge, the foreman’s note would

mean nothing more than that the jury had been un-

able to agree on all issues and were split eleven to

one on some issue. The note reasonably could not

be taken to mean that the jurors were divided eleven

to one on every issue submitted.”

We do not believe that the foreman’s note would have

had such meaning. The petitioner was charged with de-

vising a fraudulent scheme, the same scheme was charged

in each count, which were merely charges of various uses

of the mail in furtherance of the scheme. The use of the

mails as charged in all of the counts was admitted (R.

584). The only question was whether the mailings were

done in pursuance of the same fraudulent scheme. The

message of the jury, in the light of the facts, or of common

forensic experience, could have meant nothing except that

the jury was divided 11 to 1 on the general proposition of

guilt of devising a fraudulent scheme, and doing various

things to further it. In the present case, the trial court

did not first inquire as to the division, he was told. But

precisely the same harm was done here as if he had made

the initial inquiry.

The appellee in the Court of Appeals contended that

it was the public disclosure of the jury’s division which this

Court holds works the harm. It is submitted that the

manner of the disclosure has nothing to do with the ques-

GREE OED ITEMS ERLE IF ELLIE ILLES LENO LEAR ILI AIEEE ASE AR _—

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tion at issue. After the judge is possessed of knowledge

of the jury’s numerical division, no matter how he acquires

jit, and the jury knows he knows, anything the judge does

will be interpreted by the majority on the jury as support-

ing their position, and by the minority as casting the weight

of the court’s influence into the scales against them. Here

the Court, after receiving the message, and verifying it,

instructed the jury that “a dissenting juror should consider

whether a doubt in his own mind is a reasonable one” and

that, “in order to acquit”—not “in order to convict”—they

must find the defendant not guilty of any of thirteen counts,

and if they found him guilty of any, they “should return a

verdict of guilty” (R. 592). Under the circumstances, how

could this have been anything but a ready tool for the

majority to impress a dissenting juror with the argument

that the court was demanding a verdict of guilty? How

can it be contended that this was not “A slight thing

(which) may have turned the balance against the accused”

within the condemnation of this Court in the Burton case,

or the bringing to bear of an “improper influence upon the

jury” condemned in the Brasfield case?

The Court of Appeals stated that if a new trial had

been granted there would not have been “the slightest

assurance that a second trial would benefit anyone” (R.

618). The question presented to the Court was not whether

a new trial would benefit anyone. The question was

whether error was committed in the trial of the case before

it. The conviction of the appellant depended upon estab-

lishing his guilty intent. The proof of that intent was

circumstantial, and the evidence was conflicting. He had

a right to have the question of his intent decided by the

unanimous agreement of a jury of twelve men, uninflu-

enced by any outside pressure of any kind or degree. That

right, under the circumstances here, this Court has pre-

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served to him in its decisions in Burton v. United States,

196 U. S. 283, 49 L. Ed. 482 and Brasfield v. United States,

272 U. S. 448, 71 L. Ed. 345. That right was denied him

by the judgment of the Court of Appeals.

CONCLUSION.

It is therefore respectfully submitted that this case

is one calling for the exercise by this Court of its super-

visory powers by granting a Writ of Certiorari, and

thereafter reviewing and reversing said decision.

Respectfully submitted,

Dupuy G. WARRICK,

1415 Commerce Building,

Kansas City, Missouri,

Counsel for Petitioner.

CHARLEs F. LAMKIN, JR.,

1415 Commerce Building,

Kansas City, Missouri,

Of Counsel.