No. 96-1369

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Derek Edward Benedict, * * Appellant. *

Submitted: July 11, 1996 Filed: September 11, 1996
Before FAGG, LAY, and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

Derek Edward Benedict, convicted of one count of a multi-coun t indictment, argues that the court erred by instructing the jury to announc e verdicts o n three counts before it had ended its deliberations on on e closely-related count. We reverse and remand
.

I.
Benedict was charged in a four-count indictment with conspiracy t o burglariz e a post office in violation of 18 U.S.C. § 371 (Count I) , conspiracy to steal post office property in violation of 18 U.S.C. § 371 (Count II), aiding and abetting post office burglary in violation of 1 8 U.S.C. § 2115 (Count III), and aiding and abetting theft of post offic e property in violation of 18 U.S.C. § 1707 (Count IV).

### 2 After a t wo-day trial, the jury began its deliberations late in the afternoon; forty-five minutes later the jury retired for the day. The jur y resumed deliberations at 8:30 the following morning. At 11:25 a.m., the jury sent a note to the court explaining that th ey were "having difficulty differentiating between" the charges in Count II (conspiracy to steal post office property) and Count IV (theft of post office property). The court
co nsulted with counsel and responded to the note at 1:35 p.m. b y instructing the jury that "the difference between Counts 2 and 4 is that Count 2 charges a con spiracy to commit larceny, while Count 4 charges the offense of larceny itself." (R. at 57.)
About two hours later the jury sent out a second note stating:
We have come to verdicts on 3 of the indictments. W e have b een undecided on 1 indictment for about 1 1/ 2 ho urs. What do you suggest we do? (We are split 11 t o 1.) [/s/ Jury Foreperson] 3:44 p.m. 11/9/95 Als o, on this indictment we were at 10 to 2 about 1/ 2 hour ago.
[/s/ Jury Foreperson] (R. at 5 8.) In response to the note, the court conferred with counse l about the possibility of taking a partial verdic t. The government took no position except to express concern over the possibility of creating a n issue for appeal. Defense counsel, noting that the jury had only bee n deliberati ng for a day, requested that the court instruct the jury t o continue deliberating. (R. at 475.) Over Bened ict's objection, the court decided to take final verdicts on the three counts and to send the jur y back to continue deliberations on the remaining count. The cour t instructed the jury to report to the courtroom to announce its verdict; th e jury, however, indicated that they were making

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progress and asked to continue deliberating. (Trial Tr. at 478.) Twenty minutes later, the jury informed the court that it was in the same positio n as it was before. (Trial Tr. at 479.) The court then decided that th e jury should announce its verdicts on the three counts.
The jury found Benedict not guilty of the charges in Counts I a nd III relating to the post office burglary and guilty of theft of post offic e property as charged in Count IV. The jury had n ot reached an agreement on Count II, conspiracy to steal post office proper ty. The court ordered the verdicts as to Counts I, III, and IV entered as final judgments. Benedict
mov ed for a mistrial on Count II. The government opposed the motion , arguing t hat the jury was not deadlocked. The court denied the defens e motion, excused the j ury for a three-day, holiday weekend, and instructed themto report back on Monday morning to continue deliberations on Count II. The following Monday, the defense renewed its objection to the jury's continued deliberations. In the alternative of a mistrial on Count II , Benedict argued that the jury should be permitted to deliberate on all of the counts in the indictment, particularly because the conspiracy charge in Count II was inext ricably linked to the offense for which the jury had alread y announced a guilty verdict. The court rejected Benedict' s arguments and instructed the jury to resume its deliberations on only Coun t II. After approximately forty minutes of delibe rations, the jury sent out a note stating:
We are deadlocked at 11 to 1 on indictm ent #2. No one is budging.

10:05 a.m. 11-13-95 /s/ Jury Foreperson

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(R. at 5 9.) At that point, the government agreed to dismiss Count II
. (Trial Tr. at 497.) Benedict appeals.

II.
Benedict 's primary contention on appeal is that the court erred i n taking a partial verd ict. Benedict challenges the court's authority as a matter of law to take a partial verdict in a case involving multipl e charges against a single defendant. In the alternative, Benedict argues that the court abused its discretion in doing so in this case.
We reject Benedict's broad contention that a district court lac ks the legal authority to take a partial verdict in any criminal case involving multiple counts against a single defendant. Alt hough this circuit has not yet confronted the issue, all other circuits to consider the question have approved the practice
. See , e.g. , United States v. Ross , 626 F.2d 77, 81 (9th Cir. 1980); United States v. DeLaughter , 453 F.2d 908, 910 (5th Cir.) , cert. denied , 406 U.S. 932 (1972); United States v. Barash , 412 F.2d 26, 31-32 (2nd Cir.), cer t. denied , 396 U.S. 832 (1969) (citing United States
v. Cotter , 60 F.2d 689, 690-91 (2nd Cir.), cert. denied , 287 U.S. 66 6 (1932)). Similarly, we hold that the practice o f taking a partial verdict in a single-defendant case is not per se invalid.

Rec ognizing that partial verdicts may be appropriate in certai n circumstances, we tur n to the specific facts of this case, reviewing the district court's decision for an abuse of discretion. See United States v. Wheeler , 802 F.2d 778, 781 (5th Cir. 1986), cert. denied , 480 U.S. 908 (1987). The danger i nherent in taking a partial verdict is the premature conversion of a tentative jury vote into an irrevocable one. See id. ; United States v. DiLa pi , 651 F.2d 140, 147 (2nd Cir. 1981), cert. denied , 455 U.S. 938 (1982). It is improper for a trial court to intrude on the jury's deliberative process in such a way as to cut short its opportunity

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to f ully consider the evidence. Such an intrusion would deprive th e defendant of "the ver y real benefit of reconsideration and change of mind
or heart." United States v. Taylor , 507 F.2d 166, 168 (5th Cir. 1975); se e also United States v. Nelson , 692 F.2d 83, 95 (9 th Cir. 1982) (noting that contin ued jury deliberations can alter the jury's views on charge s previously considered).
Under the circumstances of this case , we find error in the manner in which the district co urt conducted the jury deliberations. When the jury first indicated that it was split on one remaining count, deliberations ha d been in progress for approximately seven hours; only two hours had passed since the jury received its requested clarification between two of th e counts. The jury had reached tentative agreement on three of the fou r counts in the indictment and all implications were that the jury was makin g progress towards unanimity on the undecided charge. The vote had move d from 10-to-2 to 11-to -1 just half an hour before the jury asked the court for guidance. Nothing in the record suggests that the jury had reported
a deadlock. To the contrary, after taking verdicts on the three counts, the court instructed the jury to continue deliberating on the remainin g charge. Moreover, the government subsequently opposed Benedict's motion for a mistrial on Count II on the theory that the jury was not ye t deadlocked. Neither party requested a partial verdict. Moreover, unlike the case in which the court leaves it to the jury's discretion whether to announce a partial verdict after fully explainin g the consequences of such course to the jury, see , e.g. , United States v. Ross , 626 F.2d 77, 80-81 (9th Cir. 1980), the court here simply instructe d the jury to announce its partial decision without first informing the jury that doing so woul d render those decisions final.
Finally, it is particularly troublin g that the outstanding charge of
cons piracy to commit post office theft was so closely related to th e substantive theft offense for which the jury

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ann ounced a guilty verdict and to which the jury was not permitted t o return during the remaining deliberations. It is difficult to imagine tha t the jury could continue to deliberate on the conspiracy charge withou t reweighing the eviden ce with respect to the substantive offense where, as here, the government's evidence on both counts was virtually the same. Th e jury expressed as much when it asked for clarification between the tw o charges. Under the c ircumstances of this case, we hold that the district court abused its discretion by instructing the jury to announce verdicts
on three c ounts before it had ended its deliberations on one closely

related count.

CONCLUSION
We reverse Benedict's conviction and remand the case to the district
cou rt. We do not consider whether jeopardy has attached such tha t additional criminal proceedings for the same conduct would be barred by th e Fifth Amendment. In our view, that question is best resolved by th e district court in the first instance if and when it is presented.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.