Certiorari Denied October 13, 1969. See 90 S.Ct. 97.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
This is an appeal from a conviction in a counterfeiting case in which the appellant was found guilty by a jury largely on the testimony of a Secret Service Agent who testified that the appellant and two other defendants, who pleaded guilty to the charges, had participated with him in the negotiations for and the delivery of a quantity of counterfeit money.
At trial, the agent testified on direct examination that, acting in an undercover capacity, he made arrangements with the co-defendant Pepe to purchase the counterfeit currency. The agent was instructed to meet Pepe's partner in a train station in Trenton, New Jersey. Co-defendant Fioravanti met him as planned and instructed him to go to the bar where a man would appear with the key to a locker containing the money. Appellant entered the bar, and being advised by Fioravanti that the secret agent was the man who came to purchase the counterfeit money, he reached into his pocket, took out a key, and handed it to Fioravanti, who in turn gave it to the agent. Fioravanti instructed the agent to go to the locker and examine the money. If satisfied, he was to return and pay Fioravanti.
The agent followed the instructions. Satisfied that the money in the locker was counterfeit, he gave a pre-arranged signal to other Secret Service operatives who pounced upon the group and placed all of them, including the agent, under arrest.
On cross-examination by appellant's counsel, the agent was asked to disclose the conversations between him and the appellant while both were confined in the bull pen. No mention of this conversation was made on direct examination by the government. In response to the question put to him by appellant's counsel, the agent reported that appellant said "that Mr. Fioravanti had too much heat, that if he had known I had come from New York, he would have delivered the money himself directly to me rather than come through Mr. Fioravanti, who had too much heat on him."
Appellant has made numerous assignments of error which we have carefully considered. We conclude, however, that only three of them warrant discussion in this opinion: (1) whether the lower court abused its discretion in disallowing certain discovery requests; (2)
I. DENIAL OF DISCOVERY
In a widely-ranging request for discovery, defendant asked the court to order the government to disclose "anything which is or could be helpful to the defendant in the preparation of his defense,"
The extent to which pretrial discovery should be permitted in federal criminal cases is admittedly a complex and controversial question.
First, an application for relief under the discovery rules is a matter within the sound discretion of the district court
Appellant suggests that the broad language of Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), automatically commands the district court to order a wholesale disclosure of "all evidence favorable to the accused." In Brady, the harm consisted of a withholding by the government of certain evidence which would have exculpated the defendant.
II. MIRANDA ARGUMENT
We now turn to the question whether the court committed plain error in admitting the statement made while in custody without previous Miranda warnings. To argue this point successfully appellant must surmount two obstacles: he must recognize that the record does not affirmatively disclose that the statement was the product of police interrogation; he must demonstrate that the reception of this evidence, without objection and at the instance of defense counsel, amounted to plain error.
The proscription of the Fifth Amendment does not foreclose the introduction of all testimony of the defendant; the mischief it seeks to avoid is the use of any process which compels a defendant to make testimonial utterances against his will. If no compulsion, active or constructive, has been used to elicit the utterance, then there has been no perforation of the constitutional shield.
Traditionally, the courts have been able to discern active forces which fashion a form of testimony which is not the product of a voluntary act.
Thus, in Miranda, and cases which inspired it, the Court determined that the presence of two conditions are capable of converting utterances from a voluntary to an involuntary status. The defendant's statement is enveloped by the protective shield of the Fifth Amendment when these two factors are present:
In Miranda the Court said: "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way." 384 U.S. at 44, 86 S.Ct. at 1612 (emphasis supplied).
The Court further defined the privilege of the Fifth Amendment and its relationship to custodial interrogation as a constructive force negating the voluntariness of a given statement: "The Fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." 384 U.S. at 478, 86 S.Ct. at 1630 (emphasis supplied).
Thus, Miranda has created a presumption of coercion by the mere presence of the dual factors of a police-initiated interrogation and the defendant's being in custody. The presumption is based on the common knowledge of the fear which may possess an ordinary citizen when confronted with the unfamiliar surroundings of the stationhouse, or the anxiety which may be generated by the relentless interrogation of an officer of the law in other surroundings where the defendant is deprived of his freedom of action.
Once the cloak of the presumption is removed, and with it the concept of constructive compulsion, the constitutional prohibition also falls; the statement then becomes a voluntary utterance.
It is from this perspective that we must view the Miranda arguments advanced by appellant. And, so doing, we find them to be of no avail to him. There is no proof that the admittedly in-custody statement resulted from any police "interrogation" or "questioning" as contemplated by the Court in Miranda. The record discloses only that a statement was volunteered to the Secret Service Agent while both were in the bull pen. As Chief Justice Warren stated in Miranda: "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding."
Here, it is inconceivable that the defendant could have experienced the coercion-born type of fear and intimidation set forth in Miranda, because when he volunteered this incriminatory statement, he thought that he was conversing with a fellow partner in crime, not a policeman.
Even if the extra-judicial statement had emerged from police interrogation, it could not find comfort in the Miranda sanctuary because it was transformed into courtroom testimony through the action of defendant's own counsel.
III. THE ALLEN CHARGE
At the conclusion of its charge to the jury, the trial court made the following observations:
The defense thereupon took specific objection to the inclusion of this last sentence in what is commonly referred to as the "Allen Charge." The name is derived from the case of Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), in which the Supreme Court approved a similar charge, reprinted below.
Since its approval over seventy years ago, the Allen Charge has persisted through the years, not so much an object of commendation as it is a product of toleration.
So long as the unanimous verdict is required in criminal cases, there will always be three possible decisions of the jury: (1) not guilty of any charge; (2) guilty of one or more counts of the indictment; and (3) no verdict because of a lack of unanimity. The possibility of a hung jury is as much a part of our jury unanimity schema as are verdicts of guilty or not guilty. And although dictates of sound judicial administration tend to encourage the rendition of verdicts rather than suffer the experience of hung juries, nevertheless, it is a cardinal principle of the law that a trial judge may not coerce a jury to the extent of demanding that they return a verdict.
It is also suggested that the Allen Charge is justifiable because it encourages the minority to consider the viewpoint of the majority; that this invitation to see the other man's point of view will discourage stubbornness, narrowmindedness, and contrariness on the part of a few who would otherwise unnecessarily retard the workings of justice.
To accept the validity of this reasoning is to assume an inherently faulty major premise: that the majority is right and has reached its preliminary inclination by appropriately inspired processes, and that the minority in a given group possesses attributes of spurious rationality. But good reason does not depend upon numbers. A quantity of like impressions does not endow a conglomerate with the hallmark of sound judgment. Indeed, as the history of this nation has witnessed, it is often a conscientious and determined minority which proves to be the safeguard against outrageous conduct wrought by tides and currents of public opinion.
In order for the underlying postulate of the Allen Charge — an instruction to consider the point of view of others —
And such a charge, of course, would be an invitation to a frolic with Alice in Wonderland.
Thus is revealed the very real treachery of the Allen Charge. It contains no admonition that the majority reexamine its position; it cautions only the minority to see the error of its ways. It departs from the sole legitimate purpose of a jury to bring back a verdict based on the law and the evidence received in open court, and substitutes therefore a direction that they be influenced by some sort of Gallup Poll conducted in the deliberation room.
All of this constitutes an unwarranted judicial invasion into the exclusive province of the jury and adds the blind imprimatur of the trial court to a matter of which it has absolutely no information: the results of the preliminary ballotting in the jury room. To the product of this informal poll is added the gloss of trial judge approval. A syllogism employed by Justice Udall in State v. Voeckall, 69 Ariz. 145, 210 P.2d 972, 979 (dissenting opinion), aptly illustrates the effect which the Allen Charge might well have on the jury:
Moreover, the Allen Charge serves to substitute the coercive influence of any early polling of the jury for the give and take of group deliberation, a basic attribute of the jury system often expressed as a major characteristic justifying its continuance in our judicial system.
In reporting on psychological studies of small groups with decision-making tasks, Professor Charles W. Joiner, Dean of Wayne State University Law School, has said: "The give-and-take of group deliberation screens out errors, negates biases, and eliminates erroneous hypotheses to a far greater extent than individual deliberation. It was found that the interaction during deliberation was the crucial difference that made group decisions more just than a pooling of individuals without the give-and-take of deliberation."
The jury persists as the finder of fact because it is designed to be a deliberative body, charged with the responsibility of exchanging ideas, and with the concomitant practices of arguing and influencing. A judicial barrier should not be erected in the jury room to discourage free and open discussion.
If the validity of the unanimous jury verdict requirement is to persevere, appropriate respect must be extended and due protection afforded to the incidence of group interaction, for this is the only justification for a verdict requiring a quantum of agreement in excess of a simple majority.
The requirement of a unanimous jury verdict for criminal cases in the federal
In addition to the unsettling effect which a strategically inserted Allen Charge might have on the constitutional requirement of unanimity, its effect on the necessity for proof beyond a reasonable doubt makes it doubly circumspect.
We are convinced that the traditional measure of proof in criminal cases envisions a "subjective standard" — viz, each individual juror must be convinced of the defendant's guilt beyond a reasonable doubt. To maintain that an objective standard governs could nullify the constitutionally mandated requirement of unanimity of verdict. Under any standard other than an individual juror's determination, would not "the doubt of a single juror in the face of eleven votes for conviction [be] * * * per se unreasonable?"
Where a verdict of guilty is generated by the process of being influenced by a preliminary vote of the majority instead of subjective convincement beyond a reasonable doubt, at best we have a situation where two separate portions of the charge are at loggerheads; at worst, we have a serious question that the charge may have become constitutionally delinquent, in derogation of the defendant's traditional right of trial by jury.
We do not re-examine the constitutional question; in the view we take of this case, it does not become necessary to do so. The conviction will not be reversed for the dual reasons that first, the Allen Charge was incorporated into the body of the main charge and not used in its usual ominous context, that of a supplemental or "dynamite charge"
After the most careful consideration of the Allen Charge and the context in which it was presented in this case, we have concluded that its use here was not so prejudicial as to deprive appellant of a fair trial and a unanimous verdict based on proof beyond a reasonable doubt.
Our refusal to reverse this conviction should not be taken to mean that we have tacitly approved of the Charge or that we intend, in the future, to ponder each case on its peculiar facts. On the contrary, we know from the experience in this circuit
Hereafter, in this circuit, trial judges are not to give instructions either in the main body of the charge or in the form of a supplement that direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his. Such an instruction will be deemed error, normally reversible error. Conceivably, in very extraordinary circumstances the error may be found so inconsequential as to avoid the necessity of reversal on appeal. But hereafter this court will not let a verdict stand which may have been influenced in any way by an Allen Charge.
We predicate our decision on the basis of the potential for prejudice its future use may generate and the profound difficulty in confining its use within just and equitable bounds. Its peccancy comes from its tendency to hurt, from its tendency to erode the jurors' capacity for meaningful group deliberation with its concomitant arguing, influencing, and exchange of views. As a prophylactic device to eliminate future vexation, our prohibition shall have prospective application only in those jury trials which shall be conducted hereafter.
The judgment of conviction will be affirmed.
More recently, the Court indicated in United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), that although knowing use of perjured testimony would create a problem of constitutional dimensions (citing Brady v. Maryland, supra, and Mooney v. Holohan, supra), denial of a motion to produce under the Jencks Act did not, because of the discretion vested in the trial judge.
The district court has discretion in ordering the production of statements qualifying under the rule. Walsh v. United States, 371 F.2d 436 (1 Cir. 1967); Loux v. United States, 389 F.2d 911 (9 Cir. 1968); Kreuter v. United States, 376 F.2d 654 (10 Cir. 1967).
Appellant's position here is less tenable than the defendant in United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528 (1969), where the Court discussed whether written notes of a government agent should have been given to the defendant at trial upon his request pursuant to the Jencks Act. In the case before us the appellant did in fact obtain the notes at trial, and was denied them only at the discovery stage.
In Augenblick the Court held that it was not error to deny the production at trial, stating:
Numerous cases hold that a defendant is not entitled in discovery proceedings under 16(a) to admissions summarized in internal governmental memoranda because those memos are not "statements" within the meaning of the rule. See, e. g., Kaplan v. United States, 375 F.2d 895 (9 Cir. 1967); United States v. Federman, 41 F.R.D. 339 (D.C.N.Y.1967); Walsh v. United States, 371 F.2d 436 (1 Cir. 1967). Others hold that the government need not produce any statement that it does not intend to use and does not use at trial in its case in chief. See United States v. Louis Carreau, Inc., 42 F.R.D. 408 (S.D.N.Y.1967). In Walsh v. United States, supra, at 437 the court said that it was not error to refuse production in discovery proceedings where there were no formal statements of the defendant, but only conversations between defendant and an F.B.I. agent, which the agent had summarized in a report and turned over to defense counsel pursuant to the Jencks Act. The within case is on all fours with Walsh.
As to the Fourth Amendment argument, the Court said: "What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area. * * * It is obvious that the petitioner was not relying on the security of his hotel suite when he made the incriminating statements to [the informer]. * * * Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." 385 U.S. 301-302, 87 S.Ct. 413.
Regarding the Fifth Amendment claims, the Court held: "In the present case no claim has been or could be made that the petitioner's incriminating statements were the product of any sort of coercion, legal or factual. The petitioner's conversations * * * were wholly voluntary. For that reason, if for no other, it is clear that no right protected by the Fifth Amendment * * * was violated in this case." 385 U.S. 304, 87 S.Ct. 414.
The Court also made clear that the use of secret informers is not per se unconstitutional as a deprivation of due process of law based on the notion that such a practice is "unfair" or "offend[s] those canons of decency and fairness which express [our] * * * notions of justice * * *." 385 U.S. at 310-311, 87 S.Ct. at 418.
Unlike the situation in Hoffa, the Secret Agent in the instant case was "arrested" and placed in the cell to preserve his "cover" and for his own self-protection, not to spy on the accused.
"* * * although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority."
We are somewhat more hesitant to make generalizations about the acceptance of the Allen Charge by the various courts. Because of the myriad of factual situations in which the propriety of the so-called Allen Charge may have been questioned, and the absolute lack of a paradigmatic case which can be used as a base of comparison, we have concluded that each of the decisions must be considered on the peculiar facts presented to the appeals court.
For example, the appropriateness of the charge has depended upon such varied circumstances as the degree of emphasis placed upon the conflicting considerations of the desirability of agreement as opposed to the duty of each individual juror not to surrender his individual conscientious judgment. Costello v. United States, 255 F.2d 389, 398 (8 Cir. 1958), cert. den. Cannella v. United States, 358 U.S. 830, 79 S.Ct. 51, 3 L.Ed.2d 69; Wegman v. United States, 272 F.2d 31, 35 (8 Cir. 1959); United States v. Curcio, 279 F.2d 681 (2 Cir. 1960); White v. United States, 279 F.2d 740, 750 (4 Cir. 1960); Walker v. United States, 342 F.2d 22 (5 Cir. 1965), the length of time for which the jury had been deliberating when the charge was given Andrews v. United States, 309 F.2d 127 (5 Cir. 1962); Walker v. United States, supra; United States v. Tolub, 309 F.2d 286, 289 (2 Cir. 1962), and the precise wording of the charge itself, Powell v. United States, 297 F.2d 318, 322 (5 Cir. 1961). On occasion, relief has been denied not because the charge was approved, but because of the court's belief that its use did not amount to "plain error." Williamson v. United States, 365 F.2d 12 (5 Cir. 1966).
Out of the plethora of cases researched, few consistent patterns have emerged, although some general condemnations of the Allen Charge have been proffered. A strong plea for the demise of the Charge was made in Huffman v. United States, 297 F.2d 754, 755, 759 (5 Cir. 1962) (dissenting opinion). See also Jenkins v. United States, 117 U.S.App.D.C. 346, 330 F.2d 220, 221 (1964) (dissenting opinion); Andrews v. United States, 309 F.2d 127 (5 Cir. 1962) (dissenting opinion); Green v. United States, 309 F.2d 852 (5 Cir. 1962); State v. Voeckell, 69 Ariz. 145, 210 P.2d 972 (1949) (dissenting opinion); State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959).
It is doubtful, however, whether Bloom means that the states are now obligated to comply with all past interpretations of the Sixth Amendment. But, as Justice White indicated in Bloom, supra, at pp. 158-159, 88 S.Ct. at p. 1452 footnote 30, "most of the States have provisions for jury trials equal in breadth to the Sixth Amendment * * *. Indeed, there appear to be only four States in which juries of fewer than 12 can be used without the defendant's consent for offenses carrying a maximum penalty of greater than one year. Only in Oregon and Louisiana can a less-than-unanimous jury convict for an offense with a maximum penalty greater than one year."
Whether in Meisch we would have reversed and remanded solely on the basis of the erroneously given Allen Charge were there not other grounds to do so is problematical. What is important is that the use of the Allen Charge was, in that case, on facts substantially similar to the case at bar, condemned. Two years later, from the same district court, it appears again.