PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4959

EUGENE SHANER PENNIEGRAFT,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Thomas D. Schroeder, District Judge.

(1:08-cr-00231-TDS-2)

Argued: December 10, 2010

Decided: June 2, 2011

Before AGEE and DAVIS, Circuit Judges, and David A.

FABER, Senior United States District Judge for the

Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge Faber wrote the

opinion, in which Judge Agee and Judge Davis joined.

COUNSEL

ARGUED: Stacey Dawn Rubain, QUANDER & RUBAIN,

Winston-Salem, North Carolina, for Appellant. Lisa Blue

Boggs, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Anna

Mills Wagoner, United States Attorney, Greensboro, North

Carolina, for Appellee.

OPINION

FABER, Senior District Judge:

Appellant Eugene Shaner Penniegraft was convicted of

possession with intent to distribute cocaine base and aiding

and abetting, in violation of 18 U.S.C. §§ 841(a) and 2; possession of firearms in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c); and being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1). He

appeals his convictions on three grounds.1 First, he contends

there was insufficient evidence to support his convictions.

Penniegraft also contends that the district court erred in

admitting certain Rule 404(b) evidence. Finally, he argues

that the court erred in continuing to poll the jury after one

juror indicated that the verdict was not unanimous. Finding

Penniegraft’s claims to be without merit, we affirm. 

I.

Viewed in the light most favorable to the government, the

evidence at trial established the following. In December 2007,

based on information received from a confidential informant,

officers of the Greensboro Police Department began conducting surveillance of a residence located at 916 Willow Road in

Greensboro, North Carolina. During surveillance of that

address, law enforcement observed foot and vehicle traffic

that was consistent with drug trafficking. In addition, authori1Penniegraft has also filed a motion to file a pro se supplemental brief.

Because Penniegraft is represented by counsel and this appeal is not submitted pursuant to Anders v. California, 386 U.S. 738 (1967), that motion

is denied. 

2 UNITED STATES v. PENNIEGRAFT
ties arrested several people leaving the residence with crack

cocaine during that timeframe. 

Thereafter, on December 29, 2007, authorities obtained and

executed a search warrant for the residence at 916 Willow

Road. At the time of the search, Penniegraft, Juwana Bates,

Jeffrey Hampton, and Vermont Carmack were present at the

residence. Upon seeing authorities approaching, Hampton fled

into the bathroom carrying a firearm that he placed in the

sink.

During a search of the den/living room area, law enforcement found several caches of plastic baggies, marijuana, a bag

containing crack cocaine, a box of ammunition, a digital scale

with white residue, two crack pipes in the living room, and a

black airsoft pistol. They also discovered a black, unlocked

box containing crack cocaine, currency, and marijuana under

the couch in that room. Digital scales with white residue and

a bag of ammunition were recovered from the laundry room.

Also discovered in a bedroom closet were a bag of cocaine,

digital scales, and a loaded rifle. In that same bedroom, officers discovered a loaded 9mm handgun behind a dresser,

empty baggies, a bag of marijuana in the nightstand, two

pieces of glass with white residue, digital scales, and $135.00.

Finally, officers recovered the .357 Smith & Wesson handgun

that Hampton had placed in the bathroom sink. 

The occupants of the house were arrested and, upon searching Penniegraft, authorities discovered $1200 and a key to the

house on his person. 

II.

On June 30, 2008, a federal grand jury in the Middle District of North Carolina returned a six-count indictment charging Penniegraft, Bates, and Hampton with various drugs and

weapons offenses. Penniegraft was named in Counts Two,

Three, and Five of the indictment, charging him with (1) posUNITED STATES v. PENNIEGRAFT 3
session with intent to distribute cocaine base ("crack") and

aiding and abetting, in violation of 18 U.S.C. §§ 841(a) and

2; (2) possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (3) being a

felon in possession of firearms, in violation of 18 U.S.C.

§ 922(g)(1).

Prior to trial, Penniegraft moved to exclude evidence of a

prior arrest that the government intended to introduce pursuant to Federal Rule of Evidence 404(b). Over Penniegraft’s

objection, the court found the evidence admissible. At trial,

Officer Mark Ingram testified that, on August 11, 2007,

defendant was arrested in possession of 3.2 grams (gross

weight) of a substance containing cocaine base or "crack". At

that time, Penniegraft told Ingram that he lived at 916 Willow

Road, the residence he shared with Bates. 

At the close of the evidence, defendant unsuccessfully

moved for a judgment of acquittal. The jury then returned a

verdict of guilty on all counts. At defendant’s request, the

court polled the jury. During the polling, the clerk had the following exchange with one of the jurors:

CLERK: Juror Number 5, Miss Underwood, does

the verdict as published constitute your individual

verdict in all respects?

JUROR NO. 5: Can you describe that one better for

me, put it in a different way?

CLERK: Is the verdict as read your true verdict?

COURT: Do you agree unanimously with all of the

- - with all of the answers to the questions in the verdict, that is, the guilty finding on all counts?

JUROR NO. 5: I’m still kind of iffy.

4 UNITED STATES v. PENNIEGRAFT
COURT: All right, ma’am. If you would, Ms. Solomon, complete polling the jury.

JA 629-30. Without objection from either party, the clerk

completed the polling and the remaining jurors indicated their

assent to the verdict. 

The court then held a bench conference whereupon Penniegraft objected to allowing the jury to continue deliberations

and requested a mistrial. The court took a brief recess to give

the attorneys an opportunity to research the issue and make

suggestions about how to proceed. After the recess, Penniegraft argued that the court should (1) declare a mistrial; (2)

inquire whether Juror No. 5 would feel comfortable deliberating further; or (3) give the jury a modified Allen charge. The

court denied the request for a mistrial but questioned whether

the court’s continued polling of the jury after one juror

expressed hesitation about the verdict in open court was coercive. The court also denied defendant’s request to question

Juror No. 5 further, finding that it would be coercive to do so.

The court then gave a modified Allen charge, to which defendant consented, instructing the jury to further deliberate. 

The jury again returned a verdict of guilty on all counts.

After the court denied defendant’s motion for a judgment notwithstanding the verdict based on sufficiency of the evidence,

the court reiterated its concern regarding the propriety of the

continued polling of the jury after Juror No. 5 had expressed

reservations. After another hearing, the court concluded that

it was without jurisdiction to entertain a motion for a new trial

on the polling issue but that the issue was preserved for

appeal. 

Penniegraft was sentenced to 327 months on Count Two,

60 months on Count Five to run consecutive to Count Two,

and 120 months of imprisonment on Count Three to run concurrent to Count Two, for a total of 387 months of imprisonment. Defendant filed a timely notice of appeal. 

UNITED STATES v. PENNIEGRAFT 5
III. Sufficiency of the Evidence

Penniegraft argues that there was insufficient evidence to

support the guilty verdicts on all counts of conviction. Specifically, Penniegraft argues that the evidence failed to establish

he possessed either the drugs or firearms as charged in the

indictment. Furthermore, according to Penniegraft, even if the

government could meet its burden of showing he was in possession of the firearms, the evidence did not show that his

possession was in furtherance of a drug trafficking offense.

A.

This court reviews the denial of a Rule 29 motion de novo.

United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005),

cert. denied, 547 U.S. 1113 (2006). In reviewing the sufficiency of the evidence following a conviction, the court is to

construe the evidence in the light most favorable to the government, assuming its credibility, and drawing all favorable

inferences from it, and will sustain the jury’s verdict if any

rational trier of fact could have found the essential elements

of the crime charged beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original);

United States v. Lomax, 293 F.3d 701, 705 (4th Cir.), cert.

denied, 513 U.S. 1135 (2002). "If there is substantial evidence

to support the verdict, after viewing all of the evidence and

the inferences therefrom in the light most favorable to the

Government," the court must affirm. United States v. Murphy,

35 F.3d 143, 148 (4th Cir. 1994), cert. denied, 513 U.S. 1135

(1995). Furthermore, this court "cannot make [its] own credibility determinations but must assume that the jury resolved

all contradictions in testimony in favor of the Government."

United States v. United Med. & Surgical Supply Corp., 989

F.2d 1390, 1402 (4th Cir. 1993). 

6 UNITED STATES v. PENNIEGRAFT
B.

1.

In order to establish the offense proscribed by 21 U.S.C.

§ 841(a)(1), possession with intent to distribute cocaine base,

the Government had to prove beyond a reasonable doubt that

Penniegraft possessed cocaine base, that he did so knowingly,

and with an intent to distribute. United States v. Burgos, 94

F.3d 849, 873 (4th Cir. 1996) (en banc).

The law recognizes two kinds of possession: actual possession and constructive possession. See id. "‘Actual possession’

is defined as ‘[p]hysical . . . control over property.’" United

States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005) (quoting

Black’s Law Dictionary 1201 (8th ed. 2004)). The government may prove constructive possession by demonstrating

that a defendant exercised, or had the power to exercise

dominion and control over an item. Id.; see also Burgos, 94

F.3d at 873. "A person has constructive possession over contraband when he has ownership, dominion, or control over the

contraband itself or over the premises or vehicle in which it

was concealed." United States v. Armstrong, 187 F.3d 392,

396 (4th Cir. 1999). 

"In addition, [p]ossession need not be exclusive, but may

be shared with others, and is susceptible of proof by circumstantial as well as direct evidence." United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir.), cert. denied, 447 U.S.

925 (1980) (internal citations and quotations omitted). 

In arguing that there was insufficient evidence to show he

possessed the 13.6 grams of crack cocaine discovered in the

black box, Penniegraft relies upon Bates’ statements that he

had run out of drugs to sell that day, as well as her testimony

that he sold his drugs and she sold hers.

At trial, codefendant Juwana Bates testified that Penniegraft did not have legitimate employment from 2002 until the

UNITED STATES v. PENNIEGRAFT 7
time of his arrest. Bates also testified that she and Penniegraft

rented the residence at 916 Willow Road to sell drugs.

According to Bates, both she and Penniegraft sold crack

cocaine and marijuana and, on occasion, powder cocaine. 

Bates also testified that, in general, Penniegraft would sell

his drugs and she would sell hers. She further testified that

both she and defendant regularly stored drugs in the black box

located under the couch and that defendant also stored the

.357 revolver in that box when it was not on his person.

According to Bates, sometimes she and defendant would purchase drugs together because it was cheaper to purchase the

drugs in larger quantities and break them up for resale.

Finally, Bates testified that Penniegraft had run out of drugs

to sell the morning of the search and did not have any left at

the time of the search. 

Jeffrey Hampton testified that he would visit the residence

regularly to buy drugs from Penniegraft and had been purchasing drugs from him for one to two years, often in

exchange for doing chores for him. Hampton stated that on

the day of the search, he was at the residence with Bates, Carmack, and defendant and that defendant had promised to sell

him crack in exchange for cleaning the dog cage. 

In this case, the government presented substantial evidence

that defendant had the power to exercise dominion and control over the crack cocaine. This is not a case where Penniegraft’s guilt rested solely on his proximity to drugs in a

residence. Bates testified that she and defendant rented the

house together for the purpose of selling drugs. She also testified that the two would sometimes purchase drugs together.

Furthermore, she testified that both she and defendant would

often keep their drugs in the black box along with defendant’s

firearm. Also recovered during the search were drug paraphernalia, currency, and several firearms – all "tools of the

trade" for a drug dealer. Furthermore, the jury was instructed

that Penniegraft could be found guilty for aiding and abetting

8 UNITED STATES v. PENNIEGRAFT
another person’s possession with intent to distribute cocaine

base. 

Based on the foregoing, we find there was substantial evidence to support Penniegraft’s conviction on Count Two.

2.

As to the firearms, there was ample evidence that they

belonged to defendant. Both Bates and Joanne Bryant, Penniegraft’s girlfriend, testified that they had seen Penniegraft

with firearms like those charged in the indictment. Bates testified that she did not own firearms but defendant did. According to Hampton, he saw Penniegraft with guns on "numerous"

occasions. JA 253-54. Hampton went with Penniegraft to his

mother’s house so that he could change clothes and defendant

gave Hampton the .357 handgun to transport back to the residence. When Hampton returned to the residence at 916 Willow Road, he placed the gun on the table and retrieved it

when the police arrived and put it in the bathroom sink. 

Moreover, because "a jury’s finding of guilty may be supported by consciousness of guilt," United States v. Obi, 239

F.3d 662, 665 (4th Cir. 2001), the fact that defendant

attempted to have Hampton claim ownership of the guns was

evidence of his guilt. After his arrest, Penniegraft asked

Hampton to take responsibility for the guns in the home and,

in exchange, Penniegraft would "take care of" Hampton. JA

243-44. In addition, defendant contacted Bryant from jail and

asked her to convince Hampton to write a statement taking

responsibility for the firearms. In response, Bryant wrote several letters to Hampton in jail requesting that he write a statement saying the firearms were his and assuring him that he

would be taken care of. Bryant signed the letters in the name

of Penniegraft’s mother and enclosed money in some of the

envelopes. 

As well, at defendant’s request, Bates drafted a notarized

statement falsely attributing ownership of the firearms to

UNITED STATES v. PENNIEGRAFT 9
Hampton. Both Bates and Bryant, however, testified that the

firearms in the residence belonged to defendant and that they

had seen him with firearms on many prior occasions. Bates

also testified that, other than the day of the search, she had

never seen Hampton with a gun and, to her knowledge,

Hampton did not own any firearms. 

3.

We also reject Penniegraft’s claim that the evidence was

insufficient to show the firearms were possessed in furtherance of a drug trafficking crime. Factors a jury can consider

in determining whether firearms are possessed in furtherance

of drug trafficking include: "the type of drug activity that is

being conducted, accessibility of the firearm, the type of

weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded,

proximity to drugs or drug profits, and the time and circumstances under which the gun is found." United States v. Perry,

560 F.3d 246, 254 (4th Cir.), cert. denied, 130 S. Ct. 177

(2009) (quoting United States v. Lomax, 293 F.3d 701, 705

(4th Cir. 2002)). 

The evidence at trial established that Penniegraft both sold

drugs and possessed firearms. During execution of the search

warrant, loaded firearms and ammunition were found in different parts of the house at 916 Willow Road, a location

obtained for the purpose of selling drugs. Penniegraft had a

key to the residence. Drugs and drug paraphernalia were also

found at various locations in the house. When he was arrested,

Penniegraft was in possession of $1200.00. Furthermore,

Bates testified that Penniegraft often stored a firearm in the

same black box where the two of them would store drugs.

According to Jeffrey Hampton, "[w]henever [Penniegraft] had

a gun in his hand, he had dope in his pocket." JA 254. Based

on the foregoing, there was ample evidence to support the

jury’s guilty verdict on Count Three.

10 UNITED STATES v. PENNIEGRAFT
IV. Admission of Rule 404(b) Evidence

Penniegraft contends that the court erred in admitting evidence of the August 11, 2007, arrest because it was not similar to the offenses charged in this case. Specifically, he

contends that (1) he possessed a much smaller quantity of

drugs during the first arrest; (2) the first arrest did not occur

at 916 Willow Road; and (3) the first arrest took place four

months prior to the second arrest. 

A.

A district court’s determination of the admissibility of evidence under Fed. R. Evid. 404(b) is reviewed for an abuse of

discretion. United States v. Queen, 132 F.3d 991, 995 (4th

Cir. 1997). An abuse of discretion occurs only when "the [district] court acted arbitrarily or irrationally in admitting evidence." United States v. Williams, 445 F.3d 724, 732 (4th Cir.

2006) (internal quotation marks and citation omitted).

Rule 404(b) prohibits the admission of "[e]vidence of other

crimes, wrongs, or acts . . . to prove the character of a person

in order to show action in conformity therewith." Fed. R.

Evid. 404(b). However, such evidence is "admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident." Id. Rule 404(b) is an inclusionary rule, allowing

evidence of other crimes or acts to be admitted, except that

which tends to prove only criminal disposition. See United

States v. Sanchez, 118 F.3d 192, 195 (4th Cir. 1997).

For such evidence to be admissible, it must be "(1) relevant

to an issue other than the general character of the defendant;

(2) necessary to prove an element of the charged offense; and

(3) reliable." United States v. Hodge, 354 F.3d 305, 312 (4th

Cir. 2004) (citing Queen, 132 F.3d at 997). Additionally, the

probative value of the evidence must not be substantially outweighed by its prejudicial effect. Id.

UNITED STATES v. PENNIEGRAFT 11
B.

There was no error in admitting the evidence. The evidence

was relevant to prove Penniegraft’s knowledge and lack of

mistake and necessary to prove the element of intent. "A notguilty plea puts one’s intent at issue and thereby makes relevant evidence of similar prior crimes when that evidence

proves criminal intent." Sanchez, 118 F.3d at 196 (concluding

that evidence was admissible to prove defendant’s criminal

intent). Here, defendant was arrested with crack cocaine only

a few months prior to the search. His prior possession of crack

cocaine, therefore, demonstrated his knowledge of the presence of crack cocaine in the residence at 916 Willow Road.

As well, the fact that he identified 916 Willow Road as his

address to the arresting officer back in August undermines his

attempt to disassociate himself with that residence in the current case. Furthermore, the 404(b) evidence was reliable as

the arresting officer testified at trial. For all these reasons,

Penniegraft’s argument is without merit. 

V. Jury Polling Issue

Penniegraft argues that the district court’s continued polling of the jury after it became clear that the verdict was not

unanimous was reversible error.

A.

As defendant did not object to the court’s continued polling

of the jury, this issue is reviewed for plain error. United States

v. Farrior, 535 F.3d 210, 222 (4th Cir. 2008) (citing United

States v. Olano, 507 U.S. 725, 733-36 (1993)). Under the

plain error standard of review, to establish the authority to

notice an error not preserved by a timely objection, a defendant must demonstrate (1) that an error occurred, (2) that the

error was plain, and (3) that it affected his substantial rights.

See United States v. Promise, 255 F.3d 150, 154 (4th Cir.

2001) (en banc). If the defendant satisfies these threshold

12 UNITED STATES v. PENNIEGRAFT
requirements, correction of the error is within the appellate

court’s discretion, which is "appropriately exercised only

when failure to do so would result in a miscarriage of justice,

such as when the defendant is actually innocent or the error

seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings." Id. at 161 (quoting United States v.

Olano, 507 U.S. 725, 736 (1993) (internal quotation marks

omitted)).

B.

Unquestionably, it is plain error for a trial judge to inquire

as to the numerical division of a jury. The United States

Supreme Court so held in Brasfield v. United States, 272 U.S.

448, 450 (1926). In that case, the defendants were convicted

of conspiracy to possess and transport intoxicating liquors in

violation of the National Prohibition Act. After some hours of

deliberation the jury had not agreed on a verdict. The judge

called in the jury and inquired as to their division. The jury

foreman informed the court that the jury stood nine to three

without indicating whether the majority favored conviction or

acquittal. The Court, in an opinion by Justice Stone, held the

practice to be per se reversible error, declaring:

We deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be

regarded as ground for reversal. Such procedure

serves no useful purpose that cannot be attained by

questions not requiring the jury to reveal the nature

or extent of its division. Its effect upon a divided

jury will often depend upon circumstances which

cannot properly be known to the trial judge or to the

appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can

rarely be resorted to without bringing to bear in

some degree, serious, although not measurable, an

improper influence upon the jury, from whose deliberation every consideration other than that of the eviUNITED STATES v. PENNIEGRAFT 13
dence and the law as expounded in a proper charge,

should be excluded. Such a practice, which is never

useful and is generally harmful, is not to be sanctioned. 

Brasfield, 272 U.S. at 450.

But Brasfield, however strong the language of the Court

and inflexible the rule established, does not answer the present inquiry. In Brasfield, there was clearly no verdict and the

trial judge asked about the division sua sponte. Here, the situation is quite different – the trial judge, upon being informed

that there was a verdict, proceeded to poll the jury at the

request of the defendant. Jury polls are governed by Rule

31(d) of the Federal Rules of Criminal Procedure which is

designed to insure that the verdict is indeed unanimous and to

uncover coercion, if any exists. United States v. Edwards, 469

F.2d 1362, 1366-67 (5th Cir. 1972). The rule reads as follows:

After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may

on its own, poll the jurors individually. If the poll

reveals a lack of unanimity, the court may direct the

jury to deliberate further or may declare a mistrial

and discharge the jury.

Fed. R. Crim. P. 31(d).

Accordingly, when Penniegraft asked for a poll the trial

court was under a mandate to comply – it had no choice in the

matter. Defendant contends that, when the court continued the

poll after Juror No. 5 said she was "still kind of iffy" about

the defendant’s guilt, it brought the case within the inflexible

rule of Brasfield, with the result that reversal is required. We

disagree.

The United States Court of Appeals for the Sixth Circuit

was confronted with this issue in Lyell v. Renico, 470 F.3d

14 UNITED STATES v. PENNIEGRAFT
1177 (6th Cir. 2006). There, the defendant was convicted in

state court of assault with intent to commit murder and

brought a claim for habeas corpus relief in federal court. In

that case, the judge, having been informed that there was a

unanimous guilty verdict, polled the jury at defendant’s

request. During the poll, the first eleven of fourteen jurors

concurred in the guilty verdict, but Juror No. 12 responded,

"No. I am sorry, Judge." Id. at 1181. The court continued the

poll and both of the remaining jurors concurred in the guilty

verdict. The defendant did not object to the continued polling,

but moved for a mistrial after the court gave the jury a truncated Allen charge and sent them out to continue deliberations. An hour later, the jury came back with a unanimous

verdict; Juror No. 12 had joined the majority.

The Court of Appeals for the Sixth Circuit concluded that

the trial court did not commit reversible error in continuing to

poll the jury after learning the verdict was not unanimous.

Acknowledging Brasfield, the court explained why that decision did not control the inquiry in the case before it:

Brasfield and all of the other cases upon which Lyell

relies stem from judicial inquiries into the numerical

division of a deadlocked jury. Yet there is a world of

difference between juror-coercion claims arising

from deadlocked juries and those arising from postverdict juror polling. In the former situation, there is

never any reason to expose the numerical division of

the jurors. The trial court may decide to give a seemingly deadlocked jury an Allen charge to urge it to

continue its deliberations in good faith, but the court

has no reason to ask, or find out, which jurors stand

where on the charges.

The same is not true with juror polling. There, it is

not only necessary but desired (at least from the

defendant’s perspective) for the public to learn that

UNITED STATES v. PENNIEGRAFT 15
at least one juror has opted to take a stand against

conviction.

Id. at 1183. The Lyell court continued:

[T]here seemed to be little point to continuing to poll

the last two jurors (save with defense counsel’s consent) because one holdout suffices to send the jury

back to deliberate. But there is nothing about the

judge’s actions that suggests that this was anything

more than a slip in inertia after polling the first 12

jurors. Nor, it bears adding, did defense counsel do

anything to stop the judge, which itself suggests a

non-coercive environment. 

Id.

The decision on this point in Lyell is weakened somewhat

by the fact that defendant’s conviction was overturned on

other grounds and because one of the three appellate judges

filed a concurring opinion that vigorously disagreed with the

majority on the polling issue. The concurring judge argued

that there is nothing in Brasfield that narrows its holding to

deadlocked jury cases where the court inquires, on its own

motion, how the jury stands numerically. According to the

concurrence, Brasfield extends to any disclosure of numerical

division "regardless of whether a jury is deadlocked, at an

impasse, or in a different stage of jury deliberations." Id. at

1190 (Clay, J., concurring).

Other circuits, however, have reached the same conclusion

on the polling issue as the majority in Lyell, and the weight

of authority is of the opinion that Brasfield does not apply

where the judge continues to poll the jury after learning there

is not a unanimous verdict. In United States v. Gambino, 951

F.2d 498 (2d Cir. 1991), numerous defendants were tried on

various narcotics offenses. After five days of deliberation, the

foreperson of the jury sent a note to the court informing it that

16 UNITED STATES v. PENNIEGRAFT
the jury had reached a verdict. Counsel for two of the defendants requested a poll. Both Juror No. 2 and Juror No. 7 indicated that they did not agree with the guilty verdict. On each

occasion, counsel moved for a mistrial but did not object to

continued polling of the jury. The court denied the motions

for mistrial and indicated it would instruct the jury to resume

deliberations, but insisted nevertheless on completing the poll.

The jury deliberated two more hours and returned unanimous

verdicts of guilty. 

The Second Circuit affirmed the convictions holding that

continued polling violates a defendant’s rights only when it is

coercive. According to the Gambino court:

[W]hen the trial judge continues to poll the jury after

one juror disagrees with the verdict, reversible error

occurs only when it is apparent that the judge

coerced the jurors into prematurely rendering a decision, and not merely because the judge continued to

poll the jury.

* * *

Whether the method employed in conducting a jury

poll is coercive must be evaluated on the facts and

circumstances of the particular case and not simply

because the trial judge continued to poll the jury

after a juror dissented from the reported verdict. 

Id. at 501-02.

Three other circuit courts of appeal have joined the courts

in Lyell and Gambino. In United States v. Fiorilla, 850 F.2d

172 (3d Cir. 1988), the court continued to poll the jury after

Juror No. 10 indicated he disagreed with the verdict of guilty

as to defendant John Fiorilla.2 Instructed to resume delibera2The jury also returned guilty verdicts as to three of the other four

defendants: Mary Fiorilla, Thomas Fiorilla, and Frances Scullion. DefenUNITED STATES v. PENNIEGRAFT 17
tions, the jury reached a unanimous verdict of guilty as to

defendant John Fiorilla after two additional days.3 The Third

Circuit reviewed the facts and circumstances of the case and

found continued polling to be non-coercive. The court summarized the rationale for its conclusion as follows:

Here, the trial court carefully considered and

rejected appellants’ request for a new trial. In so ruling, the court referred to a number of factors surrounding the continuation of the jury poll after Mr.

Fonseca’s dissent. They include counsels’ failure to

voice a specific and contemporaneous objection to

the polling, which demonstrates to some degree the

absence of a coercive atmosphere. Upon learning of

the dissidence, the trial judge dismissed the jurors

for the day. This removed Mr. Fonseca from the

immediate "attacks" of his peers. Before deliberations resumed the next day, the trial judge delivered

a cautionary instruction asking the jurors to carefully

weigh and consider the views of their fellow jurors.

Most important was the trial court’s reliance on the

deliberations having continued for an additional two

days before the jury returned unanimous guilty verdicts against the appellants. The district court concluded that this lapse of time before the return of

guilty verdicts demonstrated that the lone dissenting

juror was not coerced by the poll to capitulate to the

views of the majority. Cf. Brooks, 420 F.2d at 1353-

54 (jury’s returning verdict after twenty minutes of

deliberations after poll upheld). Although Mr. Fonseca initially stood as the lone vote for acquittal on

dant Charles Hirschkind was found not guilty on all counts. Upon further

questioning, Juror No. 10 stated that he also disagreed with the guilty verdicts against Thomas Fiorilla and Scullion. 

3The jury, however, changed its earlier guilty verdict as to Thomas

Fiorilla and Frances Scullion, completely exonerating them. 

18 UNITED STATES v. PENNIEGRAFT
Thomas Fiorilla’s and Frances Scullion’s verdicts,

the jury ultimately acquitted them. His view on these

two defendants in the end carried the day. Thus, it

was plain to the district judge, as it is to us, that Mr.

Fonseca was not afraid to stand up for his convictions and that his peers took his opinions seriously

during their two days of further deliberations.

Id. at 176-77.

In United States v. Amos, 496 F.2d 1269 (8th Cir. 1974),

the jury announced it had reached a verdict of guilty as to all

counts in a fourteen-count indictment for tax fraud. A poll of

the jury, however, revealed that Juror No. 8 had consented to

the verdict of guilty only as to count four. The judge continued the poll as to count four only, said it would receive the

guilty verdict on count four, and indicated it would send the

jury back for further deliberations on the remaining counts. At

this point, counsel for defendant Amos asked the judge to

repoll the jury on count four only and the court did so. After

the repoll and hearing Juror No. 8’s response, the judge

changed his mind about accepting a partial verdict and

instructed the jury to resume deliberations on all counts. After

twenty-five minutes the jury found Amos guilty on all fourteen counts. The court repolled the jury again and made further inquiry of Juror No. 8 to make sure he agreed with the

guilty verdict on all counts.

The United States Court of Appeals for the Eighth Circuit

indicated that whether the judge’s actions were erroneous

depends on "whether it is likely that the proceedings conducted by the trial court coerced the juror in arriving at his

final verdict." Id. at 1272. The court noted further that "since

the trial judge is present on the scene, we must pay due deference to his views on whether the recalcitrant juror’s ultimate

acquiescence in the verdict came freely, without pressure

from the court." Id. at 1273. The court found no error in the

trial court’s actions, noting that it gave an objective and balUNITED STATES v. PENNIEGRAFT 19
anced instruction to the jury to resume deliberations, that it

made specific inquiry of the reluctant juror after the second

verdict was returned, and that defendant did not object to the

court’s action or move for a mistrial.

In United States v. Brooks, 420 F.2d 1350 (D.C. Cir. 1969),

the defendant requested that the court continue the poll after

one juror disagreed with the verdict of guilty on a certain

count. Further polling revealed that a second juror also had

reservations regarding the same count. The appellate court

found no error in the judge’s action indicating that "the trial

judge is in a much better position than an appellate tribunal

to determine whether a recalcitrant juror’s eventual acquiescence in a verdict was in fact freely given." Id. at 1353.

Acknowledging that a majority of the federal appellate

courts to have considered the issue have rejected his argument

that it is plain error to continue to poll a jury after one juror

indicates there is a lack of unanimity, Penniegraft directs the

court’s attention to United States v. Spitz, 696 F. 2d 916 (11th

Cir. 1983). In Spitz, after one juror dissented from the verdict,

the judge continued to poll the jury. Upon completing the

poll, the judge directed the dissenting juror to stand and

ordered her once again to repeat in open court that she disagreed with the verdict. While the juror was still standing, the

judge proceeded to give an Allen charge and then excused the

jury to return to its deliberation. The jury returned a half hour

later with a unanimous guilty verdict.

The United States Court of Appeals for the Eleventh Circuit found that the trial court’s failure to stop polling as soon

as the lack of unanimity was revealed was reversible error.

We reject the rigid rule of Spitz4 and conclude that each case

4

Spitz is also distinguishable on its facts. Absent from the instant case

is the type of coercive conduct present in that case, i.e., making the dissenting juror stand and repeat her objection to the verdict and giving an

Allen charge while she remained standing. 

20 UNITED STATES v. PENNIEGRAFT
involving continued polling of a jury after one juror dissents

must be viewed on its own merits (or demerits), considering

all the facts and circumstances and giving due deference to

the trial judge. Here we find no error. There was no objection

to continued polling of the entire jury.5 The court denied

defendant’s request to question the recalcitrant juror further,

fearing that singling the juror out would be coercive. In fact,

a review of the record makes clear the district court in this

case took great pains to avoid doing anything that the jury

would perceive as coercive. Furthermore, the court gave a fair

and perfectly balanced Allen charge when it instructed the

jury to deliberate further.

In conclusion, we join the majority of circuits to have considered the issue and hold that in conducting a poll of the jury

at defendant’s request, pursuant to Fed. R. Crim. P. 31(d),

when the trial judge continues the poll after a lack of unanimity is revealed, absent an objection by the defendant, "reversible error occurs only when it is apparent that the judge

coerced the jurors into prematurely rendering a decision, and

not merely because the judge continued to poll the jury."

Gambino, 951 F.2d at 501. Accordingly, we find the district

court’s continued polling of the jury in this case was not

reversible error.

VI.

For the foregoing reasons, we affirm Penniegraft’s convictions.

AFFIRMED

5We also conclude that some deference to trial counsel is warranted. In

some circumstances, it might be beneficial to the defendant to continue

polling if such polling shows additional jurors who are uncomfortable with

the verdict. 

UNITED STATES v. PENNIEGRAFT 21