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-count

indictment, argues that the court erred by instructing the jury to announce

verdicts on three counts before it had ended its deliberations on one

closely-related count. We reverse and remand.

I.

Benedict was charged in a four-count indictment with conspiracy to

burglarize 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 18

U.S.C. § 2115 (Count III), and aiding and abetting theft of post office

property in violation of 18 U.S.C. § 1707 (Count IV). 
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After a two-day trial, the jury began its deliberations late in the

afternoon; forty-five minutes later the jury retired for the day. The jury

resumed deliberations at 8:30 the following morning. At 11:25 a.m., the

jury sent a note to the court explaining that they 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

consulted with counsel and responded to the note at 1:35 p.m. by

instructing the jury that "the difference between Counts 2 and 4 is that

Count 2 charges a conspiracy 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. We

have been undecided on 1 indictment for about 1 1/2

hours. What do you suggest we do? (We are split 11 to

1.)

[/s/ Jury Foreperson]

3:44 p.m.

11/9/95

Also, on this indictment we were at 10 to 2 about 1/2

hour ago.

[/s/ Jury Foreperson]

(R. at 58.) In response to the note, the court conferred with counsel

about the possibility of taking a partial verdict. The government took no

position except to express concern over the possibility of creating an

issue for appeal. Defense counsel, noting that the jury had only been

deliberating for a day, requested that the court instruct the jury to

continue deliberating. (R. at 475.) Over Benedict's objection, the court

decided to take final verdicts on the three counts and to send the jury

back to continue deliberations on the remaining count. The court

instructed the jury to report to the courtroom to announce its verdict; the

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 position

as it was before. (Trial Tr. at 479.) The court then decided that the

jury should announce its verdicts on the three counts.

The jury found Benedict not guilty of the charges in Counts I and III

relating to the post office burglary and guilty of theft of post office

property as charged in Count IV. The jury had not reached an agreement on

Count II, conspiracy to steal post office property. The court ordered the

verdicts as to Counts I, III, and IV entered as final judgments. Benedict

moved for a mistrial on Count II. The government opposed the motion,

arguing that the jury was not deadlocked. The court denied the defense

motion, excused the jury for a three-day, holiday weekend, and instructed

them to 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 inextricably linked to the offense for which the jury had

already announced a guilty verdict. The court rejected Benedict's

arguments and instructed the jury to resume its deliberations on only Count

II. After approximately forty minutes of deliberations, the jury sent out

a note stating:

We are deadlocked at 11 to 1 on indictment #2. No one is

budging.

10:05 a.m.

11-13-95

/s/ Jury Foreperson
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(R. at 59.) 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 in

taking a partial verdict. Benedict challenges the court's authority as a

matter of law to take a partial verdict in a case involving multiple

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 lacks the

legal authority to take a partial verdict in any criminal case involving

multiple counts against a single defendant. Although 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.), cert. denied, 396 U.S. 832 (1969) (citing United States

v. Cotter, 60 F.2d 689, 690-91 (2nd Cir.), cert. denied, 287 U.S. 666

(1932)). Similarly, we hold that the practice of taking a partial verdict

in a single-defendant case is not per se invalid.

Recognizing that partial verdicts may be appropriate in certain

circumstances, we turn 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 inherent in taking a partial verdict is the premature

conversion of a tentative jury vote into an irrevocable one. See id.;

United States v. DiLapi, 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 fully consider the evidence. Such an intrusion would deprive the

defendant of "the very real benefit of reconsideration and change of mind

or heart." United States v. Taylor, 507 F.2d 166, 168 (5th Cir. 1975); see

also United States v. Nelson, 692 F.2d 83, 95 (9th Cir. 1982) (noting that

continued jury deliberations can alter the jury's views on charges

previously considered).

Under the circumstances of this case, we find error in the manner in

which the district court conducted the jury deliberations. When the jury

first indicated that it was split on one remaining count, deliberations had

been in progress for approximately seven hours; only two hours had passed

since the jury received its requested clarification between two of the

counts. The jury had reached tentative agreement on three of the four

counts in the indictment and all implications were that the jury was making

progress towards unanimity on the undecided charge. The vote had moved

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 remaining

charge. Moreover, the government subsequently opposed Benedict's motion

for a mistrial on Count II on the theory that the jury was not yet

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 explaining 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 instructed the jury to announce its

partial decision without first informing the jury that doing so would

render those decisions final. 

Finally, it is particularly troubling that the outstanding charge of

conspiracy to commit post office theft was so closely related to the

substantive theft offense for which the jury
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announced a guilty verdict and to which the jury was not permitted to

return during the remaining deliberations. It is difficult to imagine that

the jury could continue to deliberate on the conspiracy charge without

reweighing the evidence with respect to the substantive offense where, as

here, the government's evidence on both counts was virtually the same. The

jury expressed as much when it asked for clarification between the two

charges. Under the circumstances of this case, we hold that the district

court abused its discretion by instructing the jury to announce verdicts

on three counts before it had ended its deliberations on one closelyrelated count.

CONCLUSION

We reverse Benedict's conviction and remand the case to the district

court. We do not consider whether jeopardy has attached such that

additional criminal proceedings for the same conduct would be barred by the

Fifth Amendment. In our view, that question is best resolved by the

district court in the first instance if and when it is presented.

A true copy.

Attest:

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