United States v. Glenn Dale Seawell

The question presented is whether the giving of a second modified Allen charge, 1 in response to a jury’s report of deadlock, has such coercive implications that it should, as a sound rule of practice, be prohibited. We conclude that it has.

Seawell was convicted for armed bank robbery and the use of a firearm hi its commission. He was found to be one of three masked robbers and, specifically, the one who guarded the front door of the bank during the robbery. His trial lasted four and one-half days, from Monday to Friday, in the course of which the jury heard the testimony of twenty-two witnesses. There followed closing arguments and the court’s instructions. The jury then deliberated for two hours on Friday afternoon before recessing for the weekend.

On Monday, two notes were sent to the judge after the jury had deliberated approximately one and one-half hours. The first note said, “[t]he jury is at a ten-to-two impasse. The two state that nothing we can say will convince them otherwise. What course of action should we now take?” The second note, received minutes later, asked that a certain witness’s testimony be read. Assuming that the second note had superseded the first, the…

concurring and dissenting:

I concur in that portion of the majority opinion which deals with the alleged prein-dictment delay. Appellant has shown neither an intentional device by the prosecution nor substantial prejudice.

With due respect to the views of the majority, I dissent from that portion of the opinion which holds that it was reversible error to repeat the so-called Allen charge under the circumstances of this case. I strongly disagree with the per se rule that is now adopted because I feel that it is an *1165 unwarranted intrusion into the area of trial court discretion.

Consideration of the judge’s role in trial proceedings convinces me that there was no coercion in this case. The trial judge has a duty “to guide the jury by appropriate legal criteria through the maze of facts before it . ” Bollenbach v. United States, 326 U.S. 607, 613 , 66 S.Ct. 402, 405 , 90 L.Ed. 350 (1946). This responsibility has been upon the judge from early times.

In 1901 the Supreme Court stated:

Patton v. Texas and Pacific Railway Company, 179 U.S. 658, 660 , 21 S.Ct. 275, 276 , 45 L.Ed. 361 (1901).

*1166 Indeed, the judge’s duty to guide and direct the jury has been said to be an…

550 F.2d 1159 44 A.L.R.Fed. 450 UNITED STATES of America, Plaintiff-Appellee, v. Glenn Dale SEAWELL, Defendant-Appellant. No. 76-1369. United States Court of Appeals, Ninth Circuit. Feb. 11, 1977. Rehearing and Rehearing En Banc Denied March 21, 1977. Anne Flower Cumings (argued), of Cumings & Jordan, San Francisco, Cal., for defendant-appellant. Larry Edelman, Asst. U.S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee. Before MERRILL and WRIGHT, Circuit Judges, and PALMIERI, * District Judge. MERRILL, Circuit Judge: 1 The question presented is whether the giving of a second modified Allen charge, 1 in response to a jury's report of deadlock, has such coercive implications that it should, as a sound rule of practice, be prohibited. We conclude that it has. 2 Seawell was convicted for armed bank robbery and the use of a firearm in its commission. He was found to be one of three masked robbers and, specifically, the one who guarded the front door of the bank during the robbery. His trial lasted four and one-half days, from Monday to Friday, in the course of which the jury heard the testimony of twenty-two witnesses. There followed closing arguments and the court's…