United States v. John Jay Beattie

613 F.2d 762 UNITED STATES of America, Plaintiff-Appellee, v. John Jay BEATTIE, Defendant-Appellant. No. 78-2381. United States Court of Appeals, Ninth Circuit. Feb. 4, 1980. Alexander Anolik, San Francisco, Cal., for defendant-appellant. Jo-Lynne Q. Lee, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before BROWNING and WALLACE, Circuit Judges, and CURTIS, * District Judge. WALLACE, Circuit Judge: 1 A jury found Beattie guilty on five counts of mail fraud, 18 U.S.C. § 1341 , and one count of conspiracy to commit mail fraud, 18 U.S.C. § 371 . Beattie appeals his conviction claiming that the trial judge erred when he instructed the jury, Sua sponte, in a manner similar to that approved in Allen v. United States, 164 U.S. 492 , 17 S.Ct. 154 , 41 L.Ed. 528 (1896). That instruction, Beattie claims, coercively produced the guilty verdict and deprived him of a fair trial. We reject his claim and affirm the conviction. 2 The jury began deliberating at 3:40 p. m. on May 30, 1978, following four days of prosecution and defense presentations, including the testimony of more than…

A jury found Beattie guilty on five counts of mail fraud, 18 U.S.C. § 1341 , and one count of conspiracy to commit mail fraud, 18 U.S.C. § 371 . Beattie appeals his conviction claiming that the trial judge erred when he instructed the jury, sua sponte, in a manner similar to that approved in Allen v. United States, 164 U.S. 492 , 17 S.Ct. 154 , 41 L.Ed. 528 (1896). That instruction, Beattie claims, coercively produced the guilty verdict and deprived him of a fair trial. We reject his claim and affirm the conviction.

The jury began deliberating at 3:40 p. m. on May 30, 1978, following four days of prosecution and defense presentations, including the testimony of more than 20 witnesses and the introduction of numerous exhibits. After deliberating for one hour the jury recessed for the night. Deliberations continued throughout the day on May 31, with the jury returning to the court once to be reinstructed on the elements of mail fraud, and once to hear the testimony of a prosecution witness read from the record. The following morning, after two hours of deliberation, the jury' submitted four questions to the district judge concerning substantive elements of the offense charged and…

concurring:

The court adequately distinguishes our decision in United States v. Contreras, 463 F.2d 773 (1972), and I therefore concur.

However, to my mind, the instruction in this case approaches the limits of acceptability under the law of this circuit. A barely acceptable instruction, once sanctioned, tends to become the new norm. By this process an instruction of dubious merit continues to deteriorate.

The paramount problem is the threat of coercion — a threat present even where, as here, the charge is found uncoercive “in its context and under all the circumstances” under Jenkins v. United States, 380 U.S. 445, 446 , 85 S.Ct. 1059, 1060 , 13 L.Ed.2d 957 (1965). The line between admonishing the jury “simply ... to keep trying,” Walsh v. United States, 371 F.2d 135, 136 (9th Cir. 1967), and encouraging jurors to surrender their beliefs is extremely fine. If the charge is truly effective, it must follow that it is also truly dangerous. As Judge Goldberg has said, “The charge is used precisely because it works, because it can blast a verdict out of a jury otherwise unable to agree that a person is guilty,” United States v. Bailey, 468 F.2d 652, 666 (5th Cir. 1972).

The Allen…