United States v. Muhammad Jalal Deen Akbar, AKA Gerald Leland Marity

concurring:

I concur in the judgment. I do not believe the serious deficiencies in the interro *381 gation procedure followed by the trial judge in this case warrant reversal. The substantial time that it took to read the testimony, and the further deliberations, persuade me that any coercive pressure was eliminated and that the jury’s verdict was freely reached. I write separately because the case comes close to presenting reversible error and such interrogations should not be repeated.

As the questioning proceeded, juror-by-juror, it should have become increasingly apparent that the jurors took different views as to the necessity for hearing the additional evidence. An individual poll in this circumstance came perilously close to intruding upon the jurors’ deliberations. The error in procedure was compounded when the court continued to question juror No. 7. The court’s objective in inquiring which juror wanted the testimony is puzzling. In any event, it does not justify a series of questions each of which tended to isolate the requesting juror.

Akbar was convicted of one count of air piracy, in connection with the April 9, 1980 *379 hijacking of a commercial airplane from Ontario, California to Havana, Cuba. Seven crew members were on board during the flight. Akbar surrendered to Cuban officials in Havana and reappeared in Miami on November 18, 1981.

The hijacker was described by crew members as a black man with a mole on the left side of his nose. The descriptions of his height and weight varied significantly. Four of the seven crew members who viewed a photospread five weeks after the hijacking identified Akbar as the hijacker.

On December 16, 1981, 20 months after the hijacking, Akbar was arrested near Ontario, California. A United States passport with four Cuban immigration stamps was found in his possession, along with airline tickets, including one for a Cuban airline.

At trial, four government witnesses identified Akbar as the hijacker. Circumstantial evidence also linked him to the crime: he owned the type of gun used, lived and worked in Ontario, California, and belonged to the Black Muslims. The last was relevant because, during the flight, the hijacker said, “I’m one of Muhammed’s.” Akbar did not…

698 F.2d 378 12 Fed. R. Evid. Serv. 630 UNITED STATES of America, Plaintiff-Appellee, v. Muhammad Jalal Deen AKBAR, aka Gerald Leland Marity, Defendant-Appellant. No. 82-1244. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 7, 1982. Decided Jan. 31, 1983. Karen R. Smith, Sr. Deputy Federal Public Defender, Carl E. Douglas, Asst. Fed. Public Defender, Los Angeles, Cal., for defendant-appellant. Eric L. Dobberteen, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before WRIGHT, KENNEDY, and BOOCHEVER, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 Akbar was convicted of one count of air piracy, in connection with the April 9, 1980 hijacking of a commercial airplane from Ontario, California to Havana, Cuba. Seven crew members were on board during the flight. Akbar surrendered to Cuban officials in Havana and reappeared in Miami on November 18, 1981. 2 The hijacker was described by crew members as a black man with a mole on the left side of his nose. The descriptions of his height and weight varied significantly. Four of the seven crew members who viewed a…