United States v. Foster - 711 F.2d 871 (9th Cir. 1983)

Rule:

In reviewing the propriety of an Allen charge, the court must examine the instruction in its context and under all the circumstances to determine whether it had a coercive effect. The United States Court of Appeals for the Ninth Circuit evaluates coerciveness on the basis of (1) the form of the instruction; (2) the period of deliberation following the Allen charge; (3) the total time of jury deliberations; and (4) the indicia of coerciveness or pressure upon the jury.

Facts:

Appellants Gregory Foster, Johnnie Gibson, Billy Jackson, and Ronald Wilson were each found guilty of conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In addition, appellant Foster was convicted of twenty counts of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); appellants Jackson and Wilson were found guilty of one count of possession of heroin with intent to distribute; and appellant Gibson was found guilty of two counts of possession of heroin with intent to distribute, all in violation of 21 U.S.C. § 841(a)(1). Gibson, Wilson, and Jackson contend that the evidence was insufficient to establish that they participated in the conspiracy charged in the indictment.

Issue:

Did the trial judge abuse his discretion in giving the Allen charge?

Answer:

No

Conclusion:

In reviewing the propriety of an Allen charge, the court must examine the instruction in its context and under all the circumstances to determine whether it had a coercive effect. The court evaluates coerciveness on the basis of (1) the form of the instruction; (2) the period of deliberation following the Allen charge; (3) the total time of jury deliberations; and (4) the indicia of coerciveness or pressure upon the jury. Relying on factors (3) and (4), Foster, Jackson, and Gibson contend that the Allen charge had a coercive effect on the jury. They emphasize that nearly all of the government's case rested on the testimony of informants, and that the charge came after two jurors had indicated their desire to be relieved of duty. Trial in this case lasted eight and one-half days; verdicts as to Foster, Jackson, and Gibson were rendered on the eighth day of deliberations. During those eight days, the jury considered numerous counts against eight defendants charged in a sophisticated drug-selling operation. In these circumstances, the court could not conclude that the Allen charge "coercively produced the result." he appellants' emphasis on the nature of the government's proof is unavailing. The length of the deliberations can also be viewed as reflecting a proper circumspection by jurors who had to consider the credibility of several, paid government informants with criminal records. Finally, the court found nothing in the record indicating an indicia of coerciveness or pressure upon the jury. In sum, the court held that 1) the evidence was clearly sufficient to prove the existence of the conspiracy charged in the indictment, 2) the affidavits established probable cause to search two appellants' residences, 3) that because no intent to elicit cooperation or assistance in achieving the common scheme was evident from contested hearsay coconspirator statements, it was error to admit these statements, but the error was harmless, 4) the trial judge did not abuse his discretion in giving an Allen charge, 5) appellants waivers pursuant to Fed. R. Civ. P. 24(c) were effective, 6) appellants did not establish that they suffered any prejudice from the trial court's resolution of the substitute juror problem, and 7) the trial court did not err in refusing to grant appellant's motion for a mistrial.