United States v. William Todd Armstrong, Kenneth W. Myrick, and Owen K. Stephenson,defendants-Appellants

654 F.2d 1328 UNITED STATES of America, Plaintiff-Appellee, v. William Todd ARMSTRONG, Kenneth W. Myrick, and Owen K. Stephenson,Defendants-Appellants. Nos. 80-1507 to 80-1509. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 13, 1981. Decided Aug. 17, 1981. 1 Anne Flower Cumings, Cumings & Jordan, San Francisco, Cal., for armstrong. 2 Stephen Zalkind, San Francisco, Cal., for Stephenson. 3 No appearance for Myrick. 4 John Burns, Asst. U. S. Atty., San Francisco, Cal., for United States. 5 Appeal from the United States District Court for the Northern District of California. 6 Before MERRILL and WRIGHT, Circuit Judges, and EAST, * District Judge. EAST, District Judge: 7 The above-named defendants-appellants (Armstrong, Myrick, and Stephenson) appeal their respective judgments of conviction and sentence for federal frauds. We note our jurisdiction under 28 U.S.C. § 1291 and affirm. BACKGROUND 8 Appellants were engaged in a scheme soliciting advance fees for loan guarantee agreements. Myrick and Stephenson were the principals of a trust fund whose assets were to secure the guarantees. Armstrong acted as a finder, charging a fee to put financially…

The above-named defendants-appellants (Armstrong, Myrick, and Stephenson) appeal their respective judgments of conviction and sentence for federal frauds. We note our jurisdiction under 28 U.S.C. § 1291 and affirm.

BACKGROUND

Appellants were engaged in a scheme soliciting advance fees for loan guarantee agreements. Myrick and Stephenson were the principals of a trust fund whose assets were to secure the guarantees. Armstrong acted as a finder, charging a fee to put financially troubled people in touch with Myrick and Stephenson. The two trustees would enter into an agreement with the *1331 individual, for an additional fee, providing that the trust would guarantee certain loans. The trust’s balance sheet was supplied to the individuals to assist in obtaining these loans. The balance sheet, however, listed assets which were overvalued or nonexistent. The appellants were indicted based on this activity.

Myrick and Stephenson were tried on 15 counts including mail fraud ( 18 U.S.C. § 1341 ), wire fraud ( 18 U.S.C. § 1343 ), inducement to travel interstate in order to defraud ( 18 U.S.C. § 2314 ), and giving false information in a loan application ( 18 U.S.C. § 1014 ). The two…

concurring:

I concur in Judge East’s opinion but would like to add a word respecting the Allen charge.

I find nothing coercive or otherwise objectionable in giving a properly balanced Allen charge before the jury retires to deliberate. It seems to me to be sound advice, given in the abstract, as to how the jurors should handle a problem they are quite likely to encounter in the course of their deliberations. Further, I see nothing coercive or improper in permitting the jurors to have such an “outset Allen charge” in the jury room during deliberations. In neither case is the judge addressing the jury in the context of a deadlock.

It is in that context that the danger of coercion can arise from the giving of the charge. The danger is that the jury might conclude from the language of the charge and the refusal of the judge to accept the jury’s report of deadlock that in the public interest a verdict must be reached. If, given in the context of deadlock, the charge sounds in terms of assistance — of advice as to how the jury might solve the problem it now faces — it is not per se coercive. If coercion exists it must be found not in the fact that the jury was directed to continue to…