United States v. Leon Dudley Noah, Ronnie Kinsey, and Joseph Corre Lamb, Jr., Defendants

The appellants, in a jury trial, were convicted of a number of federal crimes. After the jury had begun its deliberations, it was recalled to the courtroom and the district judge made inquiry of the jury as to its numerical division. This was plain error. Brasfield v. United States, 272 U.S. 448 , 47 S.Ct. 135 , 71 L.Ed. 345 (1926). Accord, Jordan v. United States, 22 F.2d 966 (9th Cir. 1927). 1 In Brasfield , Mr. Justice Stone, for a unanimous Court, wrote, in part:

272 U.S. at 450 , 47 S.Ct. at 135, 136 .

In the present case, the inappropriate inquiry was not only made once, but was made twice, once on two separate days. Cf. United States v. Seawell, 550 F.2d 1159 (9th Cir. 1977) (giving two so-called Allen charges held erroneous). It is highly significant also that when the first inquiry was addressed to the jury, the appellants and their attorneys were not even present, nor had their attendance been invited, although it is not disputed that they were readily available. See Rule 43 Fed.R.Crim.P.

We do not reach other significant contentions. Because of the circumstances briefly set forth above, the appellants are entitled to a new trial.

REVERSED AND REMANDED. 2

. The…

dissenting:

This eighteen day trial covering an entire month, with a transcript of testimony consisting of nineteen volumes, in addition to a clerk’s record of 490 pages, should not be overturned on what I believe to be harmless error, if any.

I.

It is my considered judgment that the procedural prohibition against a trial judge’s asking jurors their numerical standing, as stated in Brasfield v. United States, 272 U.S. 448 , 47 S.Ct. 135 , 71 L.Ed. 345 (1926), did not survive the adoption by the Supreme Court of the Federal Rules of Criminal Procedure.

Brasfield was decided by the United States Supreme Court on November 22, 1926, long prior to September 1, 1945, the effective date of F.R.Crim.P. These rules were authorized by the Act of Congress of June 29, 1940, 54 Stat. 688 , and promulgated by the United States Supreme Court by order dated December 26, 1944. They were promulgated and adopted to govern all criminal proceedings thereafter commenced and insofar as just and practicable all proceedings then pending. Rule -59, F.R. Crim.P.

Rule 52(a), F.R.Crim.P., provided and now provides:

My belief that Brasfield can no longer be considered as authoritative and that the act of…

594 F.2d 1303 UNITED STATES of America, Plaintiff-Appellee, v. Leon Dudley NOAH, Ronnie Kinsey, and Joseph Corre Lamb, Jr., Defendants- Appellants. Nos. 78-1283 to 78-1285. United States Court of Appeals, Ninth Circuit. April 11, 1979. John S. Obenour, Asst. U. S. Atty. (argued), Seattle, Wash., for the U. S. David M. Shelton (argued), Irwin Schwartz (argued), Robert L. Butler (argued), Seattle, Wash., for defendants-appellants. Appeal from the United States District Court for the Western District of Washington. Before ELY and KILKENNY, Circuit Judges, and FERGUSON, * District Judge. PER CURIAM: 1 The appellants, in a jury trial, were convicted of a number of federal crimes. After the jury had begun its deliberations, it was recalled to the courtroom and the district judge made inquiry of the jury as to its numerical division. This was plain error. Brasfield v. United States, 272 U.S. 448 , 47 S.Ct. 135 , 71 L.Ed. 345 (1926). Accord, Jordan v. United States, 22 F.2d 966 (9th Cir. 1927). 1 In Brasfield, Mr. Justice Stone, for a unanimous Court, wrote, in part: 2 We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground…