United States v. Glenn Dale Seawell

583 F.2d 416 44 A.L.R.Fed. 463 UNITED STATES of America, Plaintiff-Appellee, v. Glenn Dale SEAWELL, Defendant-Appellant. No. 77-3076. United States Court of Appeals, Ninth Circuit. June 28, 1978. Rehearing and Rehearing En Banc Denied Sept. 27, 1978. Certiorari Denied Nov. 27, 1978. See 99 S.Ct. 591 . 1 Anne Flower Cumings (argued), of Cumings, Jordan & Morgan, San Francisco, Cal., for defendant-appellant. 2 Eb. Luckel, Jr., Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee. 3 Before ANDERSON and HUG, Circuit Judges and MUECKE, District Judge. * 4 MUECKE, District Judge. 5 This is a straightforward attack on the giving of an Allen instruction, with the sole claim of error that such a charge has inherent constitutional defects and therefore should be abolished as a matter of judicial policy. 6 The appeal in this case arises out of a retrial and second conviction of appellant for violation of 18 U.S.C. § 2113 (a), (d), armed bank robbery and the use of a firearm in the commission. 7 In the first trial, this court reversed the conviction 1 and remanded the matter for a new trial on the grounds that the giving of a second modified Allen charge, in…

This is a straightforward attack on the giving of an Allen instruction, with the sole claim of error that such a charge has inherent constitutional defects and therefore should be abolished as a matter of judicial policy.

The appeal in this case arises out of a retrial and second conviction of appellant for violation of 18 U.S.C. § 2113 (a), (d), armed bank robbery and the use of a firearm in the commission.

In the first trial, this court reversed the conviction 1 and remanded the matter for a new trial on the grounds that the giving of a second modified Allen charge, in response *417 to a jury’s report of deadlock, has such coercive implications that it should, as a sound rule of practice, be prohibited. This court concluded that permitting the Allen charge to be given twice in a federal prosecution would be an unwarranted expansion of its use, and is error per se.

Appellant now seeks a ruling that the giving of the Allen 2 instruction even once, as in this retrial, is error per se.

*418 There is no argument by appellant that a consideration of all the circumstances in the case warrant a finding of error, which is the general test usually applied. Jenkins v. United States,…

concurring:

The majority opinion concludes that it is the law of this circuit that the Allen charge is proper absent unusual circumstances of coercion. With this I agree. The final observation of the opinion is that there is no reason to change this view. With this I disagree. The Allen charge itself, regardless of timing or circumstances, puts unjustified pressure on the minority of jurors to surrender their honest convictions. It indicates that a second trial will be necessary, which is not the fact. It emphasizes the costs of another trial, which clearly is an inappropriate consideration for the jury. This type of charge has been disapproved by three circuits 1 and 23 states 2 and has been severely criticized by numerous commentaries.

*419 Nevertheless, although I am of the belief that there are compelling reasons for changing this circuit’s rule, I concur in this case only because of the well established principle that a panel of this court may not reexamine and reverse the existing case law. That is a task more properly left to this court sitting en banc. United States v. McLennan, 563 F.2d 943, 948 (9th Cir. 1977).

. See United States v. Fioravanti, 412 F.2d 407 (3rd…