811 F. 2d 1453 - United States v. Rey

Appellant William Rey appeals his conviction for conspiracy to possess cocaine with intent to distribute, actual possession of cocaine with intent to distribute, and use of a telephone to facilitate the commission of the cocaine conspiracy. We affirm the judgment of the district court.

Rey contends that an undercover agent of the Drug Enforcement Agency, McCracken, selected him as the target of an investigation. Furthermore, Rey alleges that the DEA asked two informants, Badalich and Kulowitch, to participate in the investigation and, pursuant to a plea arrangement, promised them more lenient treatment with respect to criminal charges pending against them in return for their cooperation. According to Rey, the DEA's use of contingently motivated informants violated his due process rights under the doctrine announced by the former Fifth Circuit in Williamson v. United States, 311 F.2d 441 (5th Cir.1962).1

The government disputes Rey's factual allegations, claiming that informant Badalich suggested Rey as an investigatory subject. Moreover, the government denies that its agreement with Badalich was contingent on the investigation of Rey. Therefore, the government contends that its conduct did not violate Rey's due process rights under the Williamson doctrine.

The United States magistrate determined that Williamson is still good law in this circuit and recommended that the case against Rey be dismissed "because of a per se and a fortiori violation of the Williamson rule against contingently motivated informants." The district court rejected this recommendation, ruling that "the issue is one of entrapment and must therefore be decided by a jury."

In Williamson, supra, the government agreed to pay informant Moye an allowance of the ten dollars per diem, plus a two hundred dollar reward if he purchased moonshine whiskey from defendant Williamson leading to Williamson's conviction and a one hundred dollar reward if he made a like purchase from co-defendant Lowrey. 311 F.2d at 442-43; id. at 446 (Cameron, J., dissenting). A divided panel of the former Fifth Circuit reversed Williamson's conviction, holding that the government's conduct was improper.

Judge Rives held that defendants' convictions must be reversed on the issue of entrapment. Id. at 441. Judge Rives stated that:

It may possibly be that the Government investigators had such certain knowledge that Williamson and Lowrey were engaged in illicit liquor dealings that they were justified in contracting with Moye on a contingent fee basis, $200.00 for Williamson and $100.00 for Lowrey, to produce the legally admissible evidence against each of them. It may be also that the investigators carefully instructed Moye on the rules against entrapment and had it clearly understood that Moye would not induce them to commit a crime, but would simply offer them an opportunity for a sale. None of these facts or circumstances were developed in the evidence....

Without some such justification or explanation, we cannot sanction a contingent fee agreement to produce evidence against particular named defendants as to crimes not yet committed. Such an arrangement might tend to a "frame up," or to cause an informer to induce or persuade innocent person to commit crimes which they had no previous intent or purpose to commit....

Moye's deposition standing alone furnishes prima facie evidence of wrongdoing on the part of the Government investigators in employing Moye on a contingent fee basis. Lacking any contradiction, justification or explanation of such a basis of employment, the convictions of the defendants resulting from Moye's services cannot be sustained.

Id. at 444-45 (emphasis added).

In a special concurrence, Judge Brown held that the case did not involve entrapment. Rather, Judge Brown indicated, the government's conduct violated due process: "the means used to 'make' the case are essentially revolting to an ordered society." Id. at 445. Judge Cameron dissented. Id.

To the extent that Williamson held that the government's use of contingently-motivated informers creates an entrapment defense, it is no longer good law. The Supreme Court has subsequently held that the entrapment defense focuses on the subjective predisposition of the defendant to commit a crime, rather than on the conduct of the government. Where a defendant is predisposed to commit a crime, he cannot be entrapped, regardless of how outrageous or overreaching the government's conduct may be. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

Indeed, this circuit has held that "Williamson is not an entrapment case at all, since there was little question that the defendants were predisposed to commit the crimes for which they were convicted." United States v. Walker, 720 F.2d 1527, 1529 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984); see also United States v. Richardson, 764 F.2d 1514, 1520 n. 1 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 320, 88 L.Ed.2d 303 (1985). Therefore, the district court in the case sub judice erred by treating the Williamson issue as an entrapment defense.

In light of the decisions rendered by this court, whether Williamson has continuing validity in this circuit as a due process doctrine is questionable. Prior to the division of the former Fifth Circuit into the present Fifth and Eleventh Circuits, the former Fifth Circuit never followed Williamson to reverse a conviction.2 Nor has the Eleventh Circuit ever applied Williamson to reverse a conviction. Instead, in more than thirty reported opinions decided subsequent to Williamson involving contingently-motivated informers, the Eleventh Circuit and its predecessor, the former Fifth Circuit, have continually distinguished Williamson and restricted it.3 It is interesting to note that even Judge Brown, the only judge on the original Williamson panel who treated the government's conduct not as entrapment, but as a due process violation, subsequently joined a per curiam opinion affirming Williamson's conviction after retrial on remand. Williamson v. United States, (Williamson II), 340 F.2d 612 (5th Cir.), cert. denied, 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 724 (1965).

In rare cases, use of a contingently motivated informer might, conceivably, be so outrageous as to violate due process. Cf. United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1953); United States v. Tobias, 662 F.2d 381, 385-86 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982).4 But this does not mean that the Williamson doctrine is good law, i.e., that absent justification or explanation, payment of an informer contingent upon obtaining the conviction of a specific person in itself violates due process.

We need not decide, as a general proposition, whether Williamson is actually the law in this circuit. Instead, we look to the concrete facts of this case. Agent McCracken participated as the would-be purchaser in the cocaine "buy" in this case. Where "the [drug] buy was not made by the informer, ... but rather by the agent, ... the problem noted in Williamson ... that a contingent fee arrangement might tend to a 'frameup' by an informer is not present." United States v. Jenkins, 480 F.2d 1198, 1199-1200 (5th Cir.), cert. denied, 414 U.S. 913, 94 S.Ct. 256, 38 L.Ed.2d 151 (1973); see also, United States v. McClure, 577 F.2d 1021, 1022-23 (5th Cir.1978) (participation of agent in drug buy eliminates possibility that informer fabricated evidence to collect a fee).

Moreover, the government did not call the contingently-motivated informers as witnesses in this case; instead, the informants were called by appellant to testify as part of his entrapment defense. Thus, the potential problem of a contingently-motivated informer being presented by the government as a witness and perjuring his testimony was not present in this case.

In contrast, during Williamson's first trial, the prosecution relied on the informant's testimony as part of the government's case. At the beginning of the government's case in chief, the government introduced the informant's deposition into evidence and read it to the jury. The informant had died prior to Williamson's first trial. Therefore, in Williamson the potential problem of perjury by a contingently motivated government witness was not only present, but aggravated by the fact that the jury heard the informant's testimony read from a cold deposition and was unable to observe the informant's demeanor when assessing his credibility.5

Even assuming that Rey's version of the facts is true,6 the government's use of contingently-motivated informers in this case did not violate due process. Although Rey may find the use of such informers to be unsavory, their use certainly did not rise to the level of a constitutional violation.7

If Williamson remains, in reality, the law of this circuit, it does not apply to the circumstances of this case.

The jury deliberated for approximately five and a half hours on Friday, November 22, 1985, and resumed its deliberations at 9:30 a.m. on Tuesday, November 26, 1985. At noon on Tuesday, the jury informed the judge that it could not reach a unanimous verdict. The judge called the jury into the courtroom and, over defendant's objection, gave the jury a modified Allen instruction.8 The jury resumed its deliberation at 12:10 p.m.

Shortly thereafter, the jury foreperson resigned, with the permission of the court; and the jury selected a new foreperson in her stead. At 1:45 p.m., the jury returned with a verdict of guilty on all three counts.

Rey argues that the giving of the modified Allen charge unduly coerced the jury into reaching a verdict and, thereby, violated his right to due process. Because of the terms, tone and timing of the charge, this panel is seriously concerned by the use of the modified Allen charge in this case.

The instruction of which Rey complains derives its name from Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), in which the Supreme Court upheld an instruction urging the jury to reach a verdict.9 Subsequently, courts adopted many variations of this jury instruction.

The modern judicial trend, however, is against the Allen charge. In the exercise of their supervisory power, three federal circuit courts have prohibited Allen charges since 1969;10 and four other federal circuit courts have sharply curtailed their use.11 Moreover, during the last twenty-seven years, at least eighteen states have rejected the Allen charge.12

Scholars have sharply criticized the Allen charge because of its coercive impact on juries.13 Also, the American Bar Association has recommended against the use of the Allen charge and proposed guidelines for less coercive instructions.14

In 1973, the former Fifth Circuit considered the propriety of the Allen charge. United States v. Bailey, 480 F.2d 518 (5th Cir.1973) (en banc). The court split on this issue, with a majority of nine judges upholding use of the Allen charge. Seven judges, however, joined a dissenting opinion advocating prohibition of the Allen charge.

After passage of more than thirteen years, the time is ripe for reconsideration of the Bailey decision. The composition of this court has changed markedly since the Bailey decision. Indeed, only two judges who participated in the Bailey decision remain as active judges in this circuit--and both of these joined the dissenting opinion against the Allen charge. Moreover, the movement in opposition to the Allen charge has continued to grow since the Bailey decision in 1973: at least five more jurisdictions have rejected the Allen charge.15

The charge given by the trial judge was virtually identical to the pattern Allen instruction for this circuit. Although it lacked some of the most offensive provisions of other Allen-type charges, it still tended to coerce the jury into reaching a verdict. Two aspects of the instruction seem particularly improper. First, the trial judge stressed that:

the trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution.... Obviously, another trial would only serve to increase the costs to both sides. (emphasis added).

The practical effect of such an instruction is to discourage jurors in the minority and to pressure them to abandon their honestly held beliefs, not in response to considerations regarding the guilt or innocence of the defendant, but in response to the expediency of saving expenses. By stating that "obviously" the "only" effect of a new trial would be "to increase ... costs," the judge effectively tells the minority that holding out for their position is pointless, because the majority view will prevail on retrial.

Second, the Allen charge in this case included the following language:

[I]f a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one, since it appears to make no effective impression upon the minds of the others.

On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again and most thoughtfully whether you should accept the weight and sufficiency of the evidence which fails to convince your fellow jurors beyond a reasonable doubt.

Because this instruction asks jurors to discount their views if they are in the minority or in the majority, it virtually guarantees jury confusion. "Such a charge is so difficult to comprehend that ... it is 'an invitation to frolic with Alice in Wonderland.' " State v. Nicholson, 315 So.2d 639, 642 (La.1975) (quoting United States v. Fioravanti, 412 F.2d 407, 417 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969)).

This instruction can intimidate individual jurors. After hearing this confusing instruction, a juror will likely remember only that the judge wants them to reach a verdict and that they should reconsider their opinions. Practically, the pressure to change position will fall most heavily on the minority.

"[T]he central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence." Rose v. Clark, --- U.S. ----, 106 S.Ct. 3101, 3105-06, 92 L.Ed.2d 460 (1986) (quoting United States v. Nobles, 422 U.S. 225, 230, 95 S.Ct. 2160, 2166, 45 L.Ed.2d 141 (1975)). Under the Sixth Amendment, a person charged with a serious federal crime has the right to have the factual question of his guilt or innocence determined by a jury of his peers. See Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). Where a federal defendant avails himself of this right, he may be convicted only if the jury unanimously finds him guilty. Fed.R.Crim.P. 31(a); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); United States v. Smedes, 760 F.2d 109, 111 (6th Cir.1985).

In other contexts, courts have been careful to ensure that the jury performs its crucial fact-finding role free of prejudice, improper influences, and coercion. See, e.g., Isaacs v. Kemp, 778 F.2d 1482 (11th Cir.1985) (pretrial publicity); United States v. Delaney, 732 F.2d 639 (8th Cir.1984) (juror communication with policeman during trial); United States v. Richardson, 651 F.2d 1251 (8th Cir.1981) (publicity during trial). Yet, this circuit condones the Allen charge which has a potential for serious interference with the fact-finding process.

In some cases, the duty of a juror is rigorous. Deliberations can be long, hard and heated. It is each juror's duty to stand by his honestly held views; this can require courage and stamina. A majority of jurors eager to go home can exert tremendous pressure on a minority juror who is seriously trying to do his duty. The last thing such a minority holdout juror needs is for the trial judge--cloaked with the full authority of his office--to even hint that holding out will be futile in the long run and that a verdict could be reached if the holdout would just reconsider.

The jury trial system has not malfunctioned when the jury cannot reach a verdict. One of the safeguards against the conviction of innocent persons built into our criminal justice system is that a jury may not be able to reach a unanimous verdict. Furthermore, a hung jury does not necessarily result in a retrial: one or both parties frequently change their view of the case so that a plea arrangement is reached or charges are dropped. Consequently, there is no necessity for judges to force a verdict.

As we see it, the Allen charge interferes with the jurors when they are performing their most important role: determining guilt or innocence in a close case. It unjustifiably increases the risk that an innocent person will be convicted as a result of the juror abandoning his honestly-held beliefs.

If this were a question of first impression, we would find the Allen charge in this case impermissible. But we are bound by precedent. Our predecessor, the former Fifth Circuit, gave a general imprimatur to Allen charges in the en banc Bailey decision. This circuit has upheld an Allen charge that employed very similar language. United States v. Alonso, 740 F.2d 862, 876-78 (11th Cir.1984), cert. denied, 469 U.S. 1166, 105 S.Ct. 928, 83 L.Ed.2d 939 (1985). Also, the former Fifth Circuit has upheld Allen charges under circumstances that suggest more coercion than in the present case. See, e.g., Andrews v. United States, 309 F.2d 127, 129 (5th Cir.1962), cert. denied, 372 U.S. 946, 83 S.Ct. 939, 9 L.Ed.2d 970 (1963) (Allen charge given only 1 hour and 5 minutes after the jury began its deliberations, and jury deliberated for only 25 minutes after hearing the Allen charge before returning verdict).

To distinguish his case from our binding precedents, appellant makes much of the resignation of the jury foreperson. Appellant contends that this demonstrates that the Allen charge had such a severely coercive impact that we can grant him relief notwithstanding our precedents. The fact that the foreperson resigned does not, however, make this case materially different: every time an Allen charge effectively dynamites a jury, at least one juror changes his mind. The charge is no more coercive because that juror may happen to be the foreperson.

While we think the full court ought to reconsider Bailey and its progeny, we are, for now at least, overcome by precedent. Accordingly, the district court judgment must be AFFIRMED.APPENDIX

I'm going to ask you to continue your deliberations in an effort to reach an agreement upon a verdict and dispose of this case.

Now I have a few additional comments at this time that I would like for you to consider as you do so: This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution.

Now, if you should fail to agree upon the verdict, the case will be left open and may have to be tried again.

Obviously, another trial would only serve to increase the costs to both sides. And there's no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.

Any further jury must be selected in the same manner and from the same source as you were chosen, and there's no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial or more competent to decide it or that more or clearer evidence could be produced.

Now, if a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one, since it appears to make no effective impression upon the minds of the others.

On the other hand, if a majority or even a less number of you are in favor of an acquittal, the rest of you should ask yourselves again and most thoughtfully whether you should accept the weight and sufficiency of the evidence which fails to convince your fellow jurors beyond a reasonable doubt.

Remember at all times, no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence. But after full deliberation and consideration of the evidence in the case, it's your duty to agree upon a verdict if you can do so.

You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt, the defendant should have your unanimous verdict of not guilty.

You may be leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.

I'm going to ask you to retire once again and continue your deliberations with these additional comments in mind, to be applied of course in conjunction with all of the other instructions I have previously given you.