UNITED STATES v. BAILEY, 468 F.2d 652 (5th Cir. 1972)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. DARWIN CLARK BAILEY, DEFENDANT-APPELLANT.

No. 72-1799. Summary Calendar.[*] United States Court of Appeals, Fifth Circuit.
September 14, 1972. Rehearing Granted November 7, 1972.

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John B. Farese, Ashland, Miss., for defendant-appellant.

H.M. Ray, U.S. Atty., Alfred E. Moreton, III, Asst. U.S. Atty., Oxford, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

GOLDBERG, Circuit Judge:

[1] This case is a complex drama consisting of many acts and scenes and involving a cast of many players. It reaches us in the form of an appeal from a Mississippi Highway Patrolman’s conviction of robbery of a federally insured bank in violation of 18 U.S.C. § 2113(a) and (d). Our role as critics is limited, however, for although in reviewing this case we find much to criticize, we are compelled by precedent to affirm the conviction. For reasons shortly to be stated, we regret that it is not in our power to do otherwise.

[2] I. THE FACTUAL SETTING
[3] The factual setting from which this case arises is extremely complicated. Because the law to be applied turns on precise and narrow factual distinctions, it is necessary that we set out the facts in unusually great detail.

[4] This drama opened at approximately 10:45 in the morning of March 8, 1971, with the armed robbery of the Citizens Bank of Byhalia, Mississippi, by a gunman whose appearance and clothing a bank officer, an assistant cashier, and other witnesses were able to describe. The assistant cashier from who the robber took the money had the presence of mind to include in the cash handed over a bundle of “bait money.”[1] As the bank

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alarms sounded, a passing witness saw a car driving from a street behind the bank.

[5] The police were alerted and roadblocks were established. One of those assigned to man a roadblock was appellant, Darwin Clark Bailey, who remained at his post with police officer John Shaw until 2:30 that afternoon. At that time Shaw drove appellant to his home. From there, appellant drove the police car and Shaw drove appellant’s car to a spot where they left appellant’s car for his wife to have after she left work. The car was later described as similar to the one seen at the bank that morning. Later that night appellant went to the American Legion Hut in Holly Springs, Mississippi. Although it violated Highway Patrol rules and regulations, he often gambled at the Hut and he gambled there that night.

[6] Following an intermission of one week, Inspector H.H. Waycaster, appellant’s superior officer, ordered appellant to appear at the sheriff’s office in Holly Springs. Appellant later testified that Waycaster told him the meeting was to discuss appellant’s gambling activities. Appellant also testified, however, that he had been told by Patrolman Charles C. Hinds that the police suspected that appellant had spent some of the bait money taken in the robbery. Furthermore, Giles W. Crisler, Mississippi Commissioner of Public Safety, testified that he had been informed that day by Assistant Commissioner J.D. Gardner that the bait money had been traced to appellant, whereupon Crisler had ordered Gardner to send Inspectors Waycaster and Wood Stringer to Holly Springs to investigate the matter. Additionally, Stringer testified that he had advised Crisler of the bank robbery suspicions.

[7] Appellant went to the courthouse on March 15, 1971, and was taken to the Sheriff’s private office [Interrogation I]. Present were appellant, the Sheriff, FBI Agent Richard T. Rabideau, Stringer, and perhaps two other patrolmen. The purpose for which the meeting was ordered is now disputed. Appellant’s position is that he understood that his gambling activities were being investigated. Some of the government’s witnesses contend, however, that they thought all along that appellant understood the robbery was actually the object of their investigation. In any event, appellant signed a Miranda warning form [Miranda
Warning I], see Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, although he testified at his trial that he signed it without reading it.

[8] Rabideau testified that after appellant had received th Miranda warning Stringer advised appellant that the Highway Patrol desired to afford him an opportunity to account for his activities of the past week, that appellant indicated a willingness to discuss the matter, and that appellant spontaneously requested that a letter be placed in his file with the Highway Patrol exonerating him of any involvement in the bank robbery. During the course of the meeting, appellant described his actions from the date of the robbery, but he did not discuss further the robbery itself. The principal topic discussed was appellant’s gambling. At the conclusion of the meeting, appellant signed a waiver to permit a search to be made of his house and was ordered to appear in Jackson, Mississippi, before Commissioner Crisler the next morning. A search was subsequently conducted by Rabideau, another FBI Agent, and a Deputy Sheriff, but no evidence was seized [Search I].

[9] Appellant testified that later that day Hinds told him that three of the baited bills had been traced to appellant. He testified further that this was the first definite indication he had that he was implicated in the robbery.

[10] On the night of March 15, appellant apparently became despondent and began drinking. He went back to the American Legion Hut and gambled for a short while. He then went to the Colonial Restaurant in Holly Springs and drank black coffee for approximately two hours. About 1:00 a. m. Highway Patrolmen Billie Hastie and Bryant House

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arrived and took appellant to the police station lounge. The other two officers, knowing of appellant’s pending appointment in Jackson that morning, stayed with him at the police station for several hours. Appellant contends that he was kept up drinking coffee, but there was testimony that he managed to sleep part of the time. Sometime after 4:00 a.m. the two officers took appellant to his house, where he showered and changed clothes.

[11] From his house, appellant was taken by Patrolman House to Pontotoc, Mississippi, where he met Stringer. Stringer and appellant picked up Waycaster and all three drove to Jackson, arriving around 8:30 in the morning. While they were en route, another FBI Agent searched appellant’s house with the permission of appellant’s wife [Search II]. Again, however, no evidence was seized.

[12] In Jackson, appellant reported to the office of Personnel Assistant Charles E. Snodgrass. Appellant waited until 11:00 a. m. before he was called into Snodgrass’s office [Interrogation II]. Snodgrass testified that he warned appellant of his rights as a precautionary matter [Miranda Warning II], although no warning affirmatively appears in a typed transcript of the conversation. Appellant signed the transcribed statement, which related entirely to his gambling except for the following remark made by appellant:

“On the night of March 15 I was off duty and out of uniform. I was concerned because those officers investigating the bank robbery in Byhalia seemed to think I had something to do with the robbery and they indicated that three of the twenty-dollar bills taken in the robbery had been traced to me. . . .”

[13] After he signed the statement appellant was directed to the office of Commissioner Crisler, where he was told that he was to be temporarily suspended from the Patrol pending a hearing due to his gambling and drinking habits. Appellant testified that when he returned to Snodgrass’s office, Snodgrass interrogated him regarding the bank robbery. Appellant further testified that he denied any involvement in the robbery but that Snodgrass recommended that if he was guilty it would be better to confess. Appellant again denied guilt. Snodgrass, however, recalls that this conversation concerned gambling and that appellant brought up the matter of the robbery. He testified further that he actually advised appellant in purely an off-hand manner that it would be better to confess to any crimes he had committed.

[14] Stringer, Waycaster, and an Assistant Inspector drove appellant back to Holly Springs. They picked up Patrolman House at the courthouse then proceeded to appellant’s house. There appellant turned in his Highway Patrol uniform and equipment, pursuant to the suspension. House requested and received permission to drive appellant back to the Sheriff’s office alone. On the way, House, who had been appellant’s “riding partner,” engaged appellant in an emotional conversation relating to the robbery. House pled with appellant to give himself up if he was guilty, saying that it would be better for all concerned if he would do so. Both men began crying and appellant told House that he wanted to confess.

[15] When they arrived at the courthouse, appellant volunteered that he was the man the authorities were looking for. He signed Miranda warning form [Miranda Warning III], was questioned [Interrogation III], and signed a handwritten confession admitting the bank robbery and giving a fully detailed account of his involvement. He admitted owning and using the car and the apparel that the witnesses had described. Appellant was thereupon arrested. He then signed another waiver allowing a search of his home [Search III], and the ensuing search turned up the incriminating clothing.

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[16] II. THE TRIAL BELOW
[17] Appellant was first brought to trial before a jury in the United States District Court for the Northern District of Mississippi in October, 1971. The very able district judge conducted a lengthy pre-trial evidentiary hearing on appellant’s motion to suppress evidence of the confession on grounds of involuntariness. After taking two days of testimony, the district judge made detailed findings of fact and conclusions of law in which he held that the confession met constitutional standards of voluntariness.[2]

[18] After the case had been presented and the jury had retired to consider their verdict, the jury advised the judge that they were unable to agree to a verdict. The trial judge advised counsel in chambers that he intended to give the jury an Allen charge See Allen v. United States, 1896, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. Appellant’s attorney vigorously objected to any use of the Allen charge and argued alternatively that if the charge were to be given that an additional admonitory instruction should also be given to remind the jurors of their duty to abide by their own views of the case. The judge then gave the jury a Allen charge, set out below,[3] but he included the requested admonition. The jury remained hopelessly deadlocked, however, and a mistrial was declared.

[19] At appellant’s second trial in March, 1972, the district judge again found that the confession met all applicable standards of voluntariness and allowed it to be introduced into evidence. Furthermore, he submitted to the jury the question of the voluntariness of the confession. Exercising an abundance of caution, the judge instructed the jury that unless they found the confession to be voluntary beyond a reasonable doubt they were to disregard it altogether.[4]

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[20] The jury retired to consider the case at 11:30 a. m. Following a noon-hour recess for lunch, they sent the judge a note at 3:00 p. m. saying that they were unable to agree to a verdict. At 4:00 p. m. the judge called the jury in for additional instructions. He again gave an Allen charge, reproduced below,[5] but the language used differed somewhat from that used in the first trial. Although he had not notified the attorneys that he had received a note from the jury or that he intended to instruct the jury further, the trial judge afforded counsel an opportunity to object after the jury had returned to their deliberations.

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Appellant again entered a strong objection to use of the Allen
charge.

[21] At 5:30 p. m. appellant moved for a mistrial on the grounds that any verdict reached would be the result of judicial coercion. Factors cited by appellant to support his motion included the giving of the Allen charge, the lateness of the hour, the inclemency of the weather, the danger of travel on the roads, and the fact that it was a Friday evening and that many jurors were women. The motion was denied and at 5:50 p. m. the jury returned a verdict of guilty. Appellant appeals from the subsequent entry of a judgment of conviction and assigns three grounds of error. We discuss those contentions in ascending order of legal difficulty.

[22] III. EXCUSAL OF JURORS
[23] Appellant complains that the trial judge committed prejudicial error when he excused for cause two jurors who merely acknowledged their acquaintance with appellant. This argument is without merit. “[W]hile impaneling a jury the trial court has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefor.” Dennis v. United States, 1950, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734, 740. Absent a clear abuse of that discretion, the trial judge’s action will not be disturbed on appeal. We can find nothing abusive or prejudicial in the excusal of jurors admittedly acquainted, regardless how remotely, with one of the parties to the proceedings.

[24] IV. ADMISSION OF THE CONFESSION
[25] Appellant’s second assignment of trial court error is his assertion that “under the totality of circumstances, including inadequate Miranda warnings and [the] coercive atmosphere of a process of interrogation which resulted in [the making of a] confession after repeated denials by defendant, defendant’s confession should have been excluded from evidence.” Although appellant directly challenges the admissibility of the written confession obtained from Interrogation III, he suggests that the totality of circumstances must be studied and that they reveal as a matter of law that the confession was involuntary. Appellant’s basic argument is that the cumulative effect of all of appellant’s contacts and transactions with law enforcement personnel renders his confession involuntary as a matter of law. That conclusion rests on a series of assumed factual premises that the trial court found not to exist. Rather than laboriously retrace the relevant chronology step-by-step to show that the district court’s findings regarding voluntariness were justified and proper, we deem it sufficient to reproduce that court’s findings of fact in an appendix to this opinion.

[26] We have studied the record ourselves, and we find ample evidence to support the trial court’s findings. We find further that based on those findings of fact that trial court made proper conclusions of law, which we also reproduce in the appendix. The dispositive conclusion is as follows:

“The court can conclude from these facts, indeed it must conclude beyond a reasonable doubt that this confession was free and voluntary. And its voluntariness has been proved beyond a reasonable doubt.”

[27] We do not read the opposing briefs in this appeal as disputing the basic controlling law; rather, appellant seems to ask that the facts be determined anew. Finding no trial court error, we cannot redetermine the facts on our own. Measured by any standard of appellate review, the trial court’s findings of voluntariness were fully justified, proper, and supported by the record.

[28] Within his basic claim of involuntariness, appellant advances three specific arguments that deserve our attention. First, he suggests that constitutional standards governing “in custody” interrogations were not followed here. That precise point discussed at length in Miranda v. Arizona, supra, was considered

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by the trial court and it was rejected. The gist of the trial court’s reasoning is that whenever appellant was even arguably “in custody” and a warning therefore required, he was in fact properly warned.[6]

[29] The trial court found that the conversation between appellant and Patrolman House, for example, which appellant particularly attacks as tainting the signed confession, did not occur in a custody context and that appellant’s statements in that conversation were made knowingly and voluntarily. Furthermore, we note that the Miranda case itself stated,

“In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . . There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”

[30] 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed. 2d at 726. See also
United States v. Frazier, 5 Cir. 1970, 434 F.2d 994; Posey v. United States, 5 Cir. 1969, 416 F.2d 545, cert. denied, 1970, 397 U.S. 946, 90 S.Ct. 965, 25 L.Ed.2d 127.

[31] The second specific argument that appellant advances is that handing a written Miranda warning card to one being questioned will not suffice to satisfy the requirement of an effective
warning. This court held in Fritts v. United States, 5 Cir. 1968, 395 F.2d 219, 220, that presenting a 4 x 5 inch printed card containing the Miranda warnings and entitled “Your Rights” can suffice. We also stated that “the better practice would suggest that a statement of the defendant’s rights be presented to him in larger type and on a larger card or paper.” Id. See also United States v. Alexander, 3 Cir. 1971, 441 F.2d 403; United States v. Van Dusen, 1 Cir. 1970, 431 F.2d 1278; United States v. Osterberg, 9 Cir. 1970, 423 F.2d 704, cert. denied, 1970, 399 U.S. 914, 90 S.Ct. 2216, 26 L.Ed.2d 571. We note with approval that in the instant case the “better practice” was followed.[7]

[32] We do not mean to intimate, as counsel for appellant fears, that one schooled in the rights afforded by Miranda need not be effectively warned and told of his rights nonetheless, nor do we

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think that the decision of the trial court rested on such an erroneous view of the law.[8] We are merely unwilling to hold as a matter of law that a printed card, read by a person shown to have understood the warnings, cannot satisfy Miranda.

[33] Appellant’s third specific argument regarding the voluntariness of his confession is that this is a case of involuntariness due to an accumulation of psychological pressures constituting impermissible coercion. That argument, much like the other voluntariness claims, may be logical, but the test is not whether appellant’s view of the case is believable. Rather, the courts entrust to a factfinder, here the district judge, the serious duty of determining exactly what factual events occurred. His declaration of the facts will not be disturbed on appeal absent serious or plain error.

[34] Admittedly, it is the government that bears the “heavy burden” of demonstrating that a criminal confession was in fact and in law voluntary, see Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. 1602, 16 L.Ed.2d at 724, but the government has met that burden here. The trial court found that the facts occurred in the manner the government alleged, that is, that “[w]hen the defendant made these statements, his will was not broken nor was his intellect overpowered.”

[35] Appellant correctly states that police overreaching, mental coercion, and actual or implied promises — regardless of the motive of the person eliciting the confession — may render the statement obtained involuntary. Here, however, it was found that the impermissible police actions did not occur. Furthermore, we recognize that an appellate court reviewing a case in which an allegedly involuntary confession was introduced has a duty to consider the totality of the circumstances under which the statements were made and to ascertain whether the confession was the product of the defendant’s free and rational choice. E.g.
Greenwald v. Wisconsin, 1968, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77. But from the totality of the circumstances found to have occurred in the instant case, we are unable to say that appellant’s confession was involuntary as a matter of law due to psychological coercion.

[36] Finally, we note that appellant was actually afforded greater protection than he could have demanded in the determination process regarding his voluntariness claim. Only this year the Supreme Court held that the Constitution does not require as a precondition to the admission of a confession more than proof by a preponderance of the evidence that the confession was voluntary. Lego v. Twomey, 1972, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618. The court also held in that case that a defendant whose confession has been found to be voluntary by the trial judge is not constitutionally entitled to have the jury also consider his voluntariness claim.

[37] Here, however, the trial judge followed the practice commended by the dissent in Lego v. Twomey, supra, and held necessary by at least two federal circuits as an exercise of their supervisory powers, e.g., Ralph v. Warden, 4 Cir. 1970, 438 F.2d 786, 793, and Pea v. United States, 1968, 130 U.S.App.D.C. 66, 397 F.2d 627, of requiring proof beyond a reasonable doubt. The court below held the evidentiary hearing required by Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and found that the voluntariness of appellant’s confession was shown beyond a reasonable doubt. Nevertheless, the trial judge

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charged the jury that they too must find the confession voluntary beyond a reasonable doubt, which their verdict of guilty indicates they did.

[38] In sum, we agree with the trial court that the government has shown that no constitutionally invalid use has been made of involuntary statements made by appellant to law enforcement personnel.

[39] V. THE ALLEN CHARGE
[40] Appellant levels a triple-barrelled attack against the Allen
charge that was given to the jury that convicted him. His first volley consists of a lengthy argument that the supplemental instructions given in the court below cannot be squared with the language approved in existing cases. His second salvo is a thoroughgoing argument that the charge was in fact coercive in this case. His final fusillade is an exhaustive and sweeping onslaught assailing the use of any form or variation of Allen
charges.

[41] A. Stare Decisis the Allen Charge Below
[42] Appellant insists that even admitting arguendo the validity of supplemental charges generally, the instruction given here exceeded permissible limits enunciated in the reported cases. We cannot agree. The language selected by the trial judge[9]
closely paralleled that of the Allen case itself. In Allen v. United States, 1896, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528, the Supreme Court approved the giving of a supplemental charge that was “taken literally” from Commonwealth v. Tuey, 62 Mass. (8 Cush.) 1 (1851), and State v. Smith, 49 Conn. 376 (1881).[10]
The similarity between the charge given in appellant’s trial and that approved in Allen would justify our ending the matter at this juncture, but appellant casts his attack on Allen with such specificity that we think an enlarged analysis is appropriate.

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[43] Appellant argues that the language in the charge that urges the minority to “distrust” their own views is particularly prejudicial. But because the Allen case itself used virtually identical language, we are unable to deem that portion of the instant charge improper. See Sikes v. United States, 5 Cir. 1960, 279 F.2d 561. Although this Court in United States v. Williams, 5 Cir. 1971, 447 F.2d 894, 899, described as “borderline” a charge that did not even use the word “distrust,” there were other elements in Williams that clearly indicate the fault lay elsewhere than in the admonition to the minority to rethink their positions.[11] Similarly, Green v. United States, 5 Cir. 1962, 309 F.2d 852, which strongly criticized the Allen
charge there used is distinguishable from the instant case. First, the trial judge in Green gave an Allen charge before
the jury first retired to deliberate. Secondly, the Green
instruction unequivocally stated that “the majority will have better judgment than the mere minority.” 309 F.2d at 855. Neither of those circumstances is present here.

[44] The assumption that the minority is always wrong is illogical. Were the choice ours alone to make, we might agree with Mark Twain’s hyperbole, “Whenever you find that you are on the side of the majority, it is time to reform.” See id. We would certainly agree with the following position:

“The language of the Allen charge itself is inherently unbalanced, for the emphasis is always upon a reconsideration by the minority. The fact that the court takes care to point out that the recalcitrant minority may stand either for conviction or for acquittal cannot alter the fact that the thrust of the charge is to put pressure on the dissenters. It is only they who are instructed to reconsider their views. The majority can remain adamant and still not violate the judge’s instructions in any way. Such an inherently unbalanced charge places the sanction of the court behind the views of the majority, whatever they may be, and tempts the minority juror to relinquish his position simply because he has been the subject of a particular instruction.”

[45] Note, Due Process, Judicial Economy, and the Hung Jury: A Reexamination of the Allen Charge, 53 Va.L.Rev. 123, 129-30 (1967). Our own views notwithstanding, “no appellate court has [directly] required that an instruction aimed at producing a reconsideration by the minority be balanced by language requiring that the majority rethink its position as well.” Id. But see
United States v. Rogers, 4 Cir. 1961, 289 F.2d 433.

[46] Appellant’s next specific attack on the language of the instant charge is his assertion that when giving such a supplemental instruction the trial judge has a duty to remind the jurors of the burden of proof. That duty clearly exists in the First Circuit,[12] and one of the cases relied on by the Supreme Court in Allen emphasized the reinstruction on the burden of proof.[13] But the Allen

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case rejected such a requirement and squarely held that the trial court, having once instructed the jury in its original charge regarding the presumption of innocence that the prosecution must overcome, “could not be required to repeat the charge . . .”164 U.S. 492, at 500, 17 S.Ct. 154, at 157, 41 L.Ed. 528, at 530. Although the issue has not heretofore been frontally decided in the Fifth Circuit, Estes v. United States, 5 Cir. 1964, 335 F.2d 609, 618-619, cert. denied, 1965, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed. 2d 559, makes clear that if the supplemental instruction admonishes as here that the jurors should not “acquiesce” in a verdict or do violence to their consciences, no harm will be found in the trial court’s failure to reinstruct regarding the burden of proof.

[47] Appellant’s final specific attack on the language used in the court below challenges what he interprets to be the judge’s telling the jury that they “must decide” the case. We find that interpretation misguided, and we reject it. Although the trial judge told the jury it was their “duty to decide this case,” he immediately added, “if you can conscientiously do so.” Because that language is taken almost verbatim from the Allen case, we are unable to declare it error.

[48] The trial judge also told the jury that he wished they “would pay heed” to his supplemental instructions. But unlike Huffman v. United States, 5 Cir. 1962, 297 F.2d 754, this is not a case where the judge “was laboring under a basic misapprehension: that a criminal trial must end with (1) a verdict of guilty or (2) a verdict of not guilty.” 297 F.2d at 758. Nor is this a case like Kesley v. United States, 5 Cir. 1951, 47 F.2d 453, where the judge told the jury, “Gentlemen, it is very apparent to me that some of you are violating the sacredness of your oaths as jurors. There is no doubt, as far as the facts are concerned.” Id. See also Bernal v. United States, 5 Cir. 1917, 241 F. 339, cert. denied, 1918, 245 U.S. 672, 38 S.Ct. 192, 62 L.Ed. 540, where it was held no error to imply that the jury was being stubborn and to say that “the most stubborn thing on the face of this earth is a jackass.” 241 F. at 343. Lastly, this is not a case like Jenkins v. United States, 1965, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957, where misstating the law by telling the jury, “You have got to reach a decision in this case,” was found to be coercive. Rather, the charge given in the instant case seems clearly to fall within the following holding in Thaggard v. United States, 5 Cir. 1965, 354 F.2d 735, 739, cert. denied, 1966, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301:

“Such a charge, so long as it makes plain to the jury that each member of the jury has a duty conscientiously to adhere to his own honest opinion and avoids creating the impression that there is anything improper, questionable, or contrary to good conscience for a juror to cause a mistrial, . . . is still a permissible charge to be given in proper circumstances in this Circuit.”

[49] See also Shaffman v. United States, 3 Cir. 1923, 289 F. 370, 374.

[50] Appellant further argues that the failure of the trial judge to notify counsel of his receiving the message from the jury and of his decision to give an Allen charge was prejudicial. The Ninth Circuit has found similar actions to be reversible error. United States v. Marken, 9 Cir. 1972, 457 F.2d 186. And the Supreme Court has spoken to this point in Shields v. United States, 1927, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787, but the Court’s central concern was the defendant’s unqualified right to be “present” at each stage of the proceedings against him. In the instant case, however, the record indicates that appellant was present when the charge was given and that he immediately objected. His complaint is in actuality that he was not forewarned that the Allen
charge would be given. Although at his first trial appellant’s objections were heard before the Allen charge was delivered, we find no precedents that would allow us to find a duty in the Fifth Circuit on the part of the trial judge to notify the parties, so

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long as they are present when the instruction is read to the jury, of his intention to do so.

[51] B. Whether the Charge Given Was Coercive
[52] Just as semantic deviation from the approved Allen charge can require reversal, see United States v. Prentiss, 5 Cir. 1971, 446 F.2d 923; Powell v. United States, 5 Cir. 1962, 297 F.2d 318, 322, so too may verbatim recitation of the Allen language be found coercive under all particular circumstances of a given case. Cf. Thaggard v. United States, 5 Cir. 1965, 354 F.2d 735, 739 (Allen charges are permissible “in proper circumstances.”). Appellant argues that this is such a case, that this verdict was “coerced” from the jury because they were improperly pressured by the following factors: the giving of the Allen charge, the lateness of the hour, the inclemency of the weather, the danger of travel on the roads, and the fact that it was a Friday evening and that many jurors were women. Appellant basically argues that the jurors were more interested in returning any verdict than in returning the “correct” verdict.

[53] We agree that there is a persuasive logic to appellant’s theory, but we are once again compelled by precedent to reject it. United States v. Betancourt, 5 Cir. 1970, 427 F.2d 851, is very much in point and controls the disposition of this argument. We there said,

“We are not blind to the fact that this trial had begun at 9 o’clock on the day of the verdict, that the jury did not get the case until 6:13 p. m., that it reported itself deadlocked at 8:26 p. m., and that it did not return its verdict until 10:23 o’clock of a stormy night.”

[54] Id. at 854. Nor are we here blind to the circumstances cited by appellant. Nevertheless, we are forced by Betancourt to conclude that “[w]e perceive no basis for saving as a matter of law that the use of the Allen charge under the circumstances recited had a coercive effect on the jury.” Id. (emphasis added).

[55] We do not mean to imply that appellant’s argument is entirely without legal merit. Portions of his theory deserve further mention.

“The timing of the Allen-type instruction has occasionally been a factor in appellate review of the instruction’s coercive effect. . . . [When] the charge is delivered after the jury has retired and has reported that it is unable to reach a verdict, two aspects of the timing of the instruction have been considered. First, the courts have asked whether the interval between the retiring of the jury and the delivery of the instruction was so short that the trial court abused its discretion in calling the jury back and urging them to reach agreement. The second issue is whether the period between the delivery of the charge and the rendering of the verdict was so brief as to give rise to an inference that the jury was coerced by the instruction.”

[56] Note, supra, 53 Va.L.Rev. at 132.

[57] We do not here have the timing that under the standing case law would allow us to find coercion as a matter of law. The instant instruction was given approximately 3 1/2 hours after the jury first retired to deliberate; yet giving the charge only 1 hour, 5 minutes after the jury retired has been found to be not improperly precipitous. Andrews v. United States, 5 Cir. 1962, 309 F.2d 127.[14] The jury here redeliberated after receiving the supplemental instruction for approximately 1 1/2 hours; ye Andrews refused to find that the jury’s returning their verdict only 25 minutes after receiving

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the Allen charge revealed coercion as a matter of law.

[58] Lastly, we agree with appellant that the inference of coercion is here strengthened by the fact that a prior jury could not return a verdict in a trial of the same cause, even after the jury had received a somewhat “milder” Allen charge. The special concurrence in Thaggard v. United States, supra, thought it “significant that there had already been one hung jury in a previous trial.” 354 F.2d at 740. The conviction there was affirmed nonetheless. And although we find appellant’s argument that this verdict was coerced to be very persuasive, yet we are compelled by Betancourt, Andrews and Thaggard to reject it.

[59] C. Dynamiting the Jury: The Trouble with Allen
[60] The problem facing a trial judge when a jury is unable to reach a verdict is by no means new. Fourteenth century jurists devised perhaps the most effective solution — deadlocked jurors were locked into an oxcart and carried about with the judge while he rode circuit and were permitted to leave the cart only when a verdict was reached.[15] More recently, judges have seen fit to deal with recalcitrant jurors in the following ways: by requiring the jurors to deliberate throughout the night, Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65 (1959); by threatening to lock up the jurors from Friday to Monday morning, Erwin v. Hamilton, 50 How.Pr. 32 (N.Y. 1875); by threatening to deprive the jurors of food from Saturday to Monday, Cole v. Swan, 4 Green 32 (Iowa 1853); and by threatening to deprive a jury in the dead of winter of water and heat while they continued to deliberate, Mead v. City of Richland Center, 237 Wis. 537, 297 N.W. 419 (1941).

[61] The more subtle technique, however, was soon found to be the giving of supplemental instructions, which exhorted the jury to arrive at a verdict. Supplemental instructions were said to be in “familiar practice” and their use was approved by the Supreme Court in 1894. Allis v. United States, 1894, 155 U.S. 117, 123, 15 S.Ct. 36, 39 L.Ed. 91, 94. It was two years later, however, when the Supreme Court expounded the case that was to become the wellspring from which all future judges would draw the solution to jury deadlocks.

[62] In the October Term of 1896, the Supreme Court had before it the case of Allen v. United States. Alexander Allen was a fourteen year old “colored boy” who had been convicted of the murder of another youth in the Cherokee Nation. This was not the first time his case had reached the highest court in the land. He had been convicted of the murder in 1892, but the Supreme Court reversed that conviction due to a faulty jury instruction concerning justification or excuse for homicide. 1893, 150 U.S. 551, 14 S.Ct. 196, 37 L.Ed. 1179. Allen was again tried and was again convicted, but once more the Supreme Court overturned his conviction, this time because of a defect in the jury instruction regarding self-defense. 1894, 157 U.S. 675, 15 S.Ct. 720, 39 L.Ed. 854.

[63] Alexander Allen was tried and convicted yet a third time. Again his case worked its way to the Supreme Court. When this third decision was handed down, the following terse sentence headed the Court’s opinion: “No counsel for plaintiff in error [Alexander Allen].” Even more perplexingly, the opening paragraph of the Court’s opinion began,

“We are somewhat embarrassed in the consideration of this case by the voluminousness of the charge, and of the exceptions taken thereto, as well as by the absence of a brief on the part of the plaintiff in error . . . .”

Page 666

[64] 164 U.S. at 494, 17 S.Ct. at 154, 41 L.Ed. at 528 (emphasis added). The body of the opinion disposed of several legal points. After paraphrasing a supplemental instruction employed by the trial court, the Supreme Court added a one-paragraph statement treating the function of juries.[16] The Court then affirmed the conviction by analyzing the propriety of the original “Allen charge” as follows:

“There was no error in these instructions.”

[65] 164 U.S. at 502, 17 S.Ct. at 157, 41 L.Ed. at 531.

[66] The Allen case thus abounded with peculiarities and there is little wonder that many doubt whether the case would not be decided differently today. See Thaggard v. United States supra, 354 F.2d at 739 (Coleman, J., specially concurring). But that it should have become the foundationstone of all modern law regarding deadlocked juries is perhaps the greatest anomaly of the Allen case.

[67] By whatever label identified — the Allen charge, the dynamite charge, the third degree instruction, the shotgun instruction, or the nitroglycerin charge — the standard supplemental instruction has been well-received by the nation’s trial court judges. The charge is used precisely because it works, because it can blast a verdict out of a jury otherwise unable to agree that a person is guilty. Indeed, the charge has been the subject of much scholarly writing[17] and the basis for many an appeal. Hundreds of cases treat the Allen charge on the appellate level, and hundreds more have doubtlessly seen it used at the trial level. Every Circuit seems at one time or another to have accepted and approved the use of the dynamite charge.

[68] But it is the Fifth Circuit that seems to have had and that continues to have the most particularly troubled experience wit Allen. Judge Wisdom does not exaggerate when he says,

“The Allen charge causes more trouble in the administration of justice than it is worth. Its time-saving merits in the district court are more than nullified by the complications it causes on appeal . . . . `Like Banquo’s ghost it will not remain at rest.’ Justice Udall, dissenting in State v. Voeckell, 69 Ariz. 145, 210 P.2d 972 (1949). And in this Circuit the ghost seems especially restless.”

[69] Andrews v. United States, 5 Cir. 1962, 309 F.2d 127, 129 (Wisdom, J., dissenting).

[70] This Court has repeatedly grappled with the faults of th Allen charge,[18] and although the cases are already legion,[19] the number in which we are faced with Allen seems to be ever on the increase. See Huffman v. United States, 5 Cir. 1962, 297 F.2d 754, 759 (Brown, C.J., dissenting). But the problems caused by Allen are not endemic to this Circuit alone. Indeed, the charge has caused so much difficulty that the American Bar

Page 667

Association now recommends that it be replaced.[20] The other Circuits and many of the states have refused to cling t Allen as steadfastly as has the Fifth Circuit.

[71] (1) The District of Columbia Circuit has exercised its supervisory jurisdiction to abolish Allen and has replaced it with the ABA standard. See United States v. Thomas, 1971, 146 U.S.App.D.C. 101, 449 F.2d 1177, 1187 (en banc).

[72] (2) The First Circuit has said that the dynamite charge “should be used with great caution, and only when absolutely necessary.” United States v. Flannery, 1 Cir. 1971, 451 F.2d 880, 883. Although it did not require trial courts to employ the ABA standard, the First Circuit effectively ordered that if Allen
charges are to be used, the Allen language must be precisely followed.

[73] (3) The Second Circuit has such “grave doubts” about Allen
that it has given notice that it will not tolerate the slightest deviation from the approved language; furthermore, the Court stated that it permitted Allen to stand only by “the barest margin.” See United States v. Kenner, 2 Cir. 1965, 354 F.2d 780, 782-784.

[74] (4) The Third Circuit has flatly abolished the dynamite charge. “Hereafter this court will not let a verdict stand which may have been influenced in any way by an Allen Charge.” United States v. Fioravanti, 3 Cir. 1969, 412 F.2d 407, 420.

[75] (5) The Fourth Circuit has for a decade refused to allow trial judges to depart in the least from the language of the Allen
case itself. See United States v. Rogers, 4 Cir. 1961, 289 F.2d 433.

[76] (6) The Sixth Circuit has reversed convictions where only the slightest addition to the original Allen charge was made. See, e.g., United States v. Harris, 6 Cir. 1968, 391 F.2d 348, 355.

[77] (7) The Seventh Circuit has abolished the Allen charge in favor of the ABA recommendation. United States v. Brown, 7 Cir. 1969, 411 F.2d 930; Brandom v. United States, 7 Cir. 1970, 431 F.2d 1391.

[78] (8) The Eighth Circuit allows only the unadulterated recitation of the Supreme Court’s paraphrase of the trial court’s charge i Allen,[21] and even reading the Supreme Court’s “second paragraph” to the jury is prohibited. See Chicago E.I. Ry. v. Sellars, 8 Cir. 1925, 5 F.2d 31.

[79] (9) The Ninth Circuit allows a supplemental instruction that does not urge

Page 668

the minority to rethink their position, does not tell the jury they must reach a verdict, but that simply tells the jury to keep trying. See Walsh v. United States, 9 Cir. 1967, 371 F.2d 135.

[80] (10) The Tenth Circuit “cautiously” approves Allen, but it finds reversible error when any departures are made from the approved instruction’s language. Compare Burroughs v. United States, 10 Cir. 1966, 365 F.2d 431, with Thompson v. Allen, 10 Cir. 1956, 240 F.2d 266. See also Goff v. United States, 10 Cir. 1971, 446 F.2d 623.

[81] States too have joined the abandonment of Allen. Arizona has abolished Allen in its entirety. State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959). Montana has put Allen to rest. State v. Randall, 137 Mont. 534, 353 P.2d 1054 (1960). Kansas, Idaho, and Iowa disapprove of and discourage any use of the dynamite charge See, e.g., Eikmeier v. Bennett, 143 Kan. 888, 57 P.2d 87, 92
(1936); State v. Moon, 20 Idaho 202, 117 P. 757 (1911); and Middle States Util. Co. v. Incorporated Tel. Co., 222 Iowa 1275, 271 N.W. 180 (1937). Missouri allows only a “temperate and moderate” supplemental instruction. See State v. Bozarth, 361 S.W.2d 819, 826 (Mo.Sup. 1962).

[82] Although there “is small, if any, justification for its use,”see Green v. United States, supra, 309 F.2d 852, at 854, the Fifth Circuit has thusfar retained Allen. Although the indisputable modern trend is to abandon Allen, the Fifth Circuit has thusfar retained it. Although the judges of this Court have many times expressed discontent with the charge,[22]
the Fifth Circuit has thusfar retained it. Although the commentators uniformly criticize Allen,[23] the Fifth Circuit has thusfar retained it. Although we have the power under our supervisory jurisdiction to abolish Allen, to limit it, or to replace it with the ABA standard, the Fifth Circuit has thusfar retained Allen. Indeed, it almost seems that only in the Fifth Circuit are trial judges relatively free to detonate the charge that explodes a verdict from deadlocked juries.

[83] We entertain no doubts that taking any of these steps of reform would largely remove the possibility of prejudice that exists whenever supplemental instructions are given. In addition, reform would have the salutary effect of removing an overly fertile source of appeals. As a panel, however, we are not free to make that choice, for we can overrule Fifth Circuit cases only when we sit en banc.

[84] We thus are required to affirm the instant conviction. In doing so, we commend counsel for their excellent briefing, which we have found to be very elucidating. We fully concur in the government’s apparent desire to see this Circuit’s law on Allen
settled and clarified, and we agree with appellant when he argues in his brief:

“This Circuit should once and for all set down either a definite instruction . . . or adopt the recommendation of the ABA. To continue to decide each case on the particular instruction given, when so many trial judges deviate from Allen is to continue to invite appeals and to continue to confuse trial judges and attorneys.”

[85] As a panel, we can but conclude with the words of the dissent in Walker v. United States, supra, 342 F.2d 22, at 28-29:

“It was the Judges who first thought up the idea of the dynamite charge. It ought to be the Judges who put an end to it in a quick and not too decent a burial.
“And in these rites, for the requiem I would take the words of Mr. Justice Clark speaking, not ex cathedra, but rather as Chairman of the Joint Committee for the Effective Administration of Justice delivered on the fiftieth annual meeting of the American Judicature Society August 14, 1963, in the report of that Joint Committee under the title `Progress of Project

Page 669

Effective Justice.’ Reporting on the state and regional judge seminars, he first said:
`Our seminars do not attempt the transformation of the judge into a mechanical genius. We do not use Lee Loevinger’s gadget “jurimetrics.” Science may reach the moon but it will never reach the jury. It still takes more than “symbolic logic” to do that. It takes an effective counsel with a competent judge presiding.’

“The Justice then concluded:

`Nor do we circulate the “Allen charge” to the new judges as I used to do when heading up the criminal division in the Department of Justice. Allen is dead and we do not believe in dead law.'”

[86] VI. CONCLUSION
[87] We deeply regret being compelled to affirm this conviction. We do so only because we are bound by precedent. See United States v. Hereden, 5 Cir. 1972, 464 F.2d 611. Were the choice ours alone to make, we would put an end to the Allen charge in a “quick and not too decent burial.” It is our fervent hope that when appellant petitions this Court for rehearing en banc our learned and distinguished brethren will vote for en banc consideration. We would also hope that this Court will join the jurisdictions that have abolished this abusable relic. But whatever the outcome of such a hearing, the law cannot help but be vastly improved by our issuing a definitive statement regarding the further use of the dynamite charge.

[88] Affirmed.

APPENDIX

FINDINGS OF FACT[*]

At approximately 3:30 o’clock P.M. on March 15, 1971, the
defendant was first interviewed by law officers at Holly Springs,
Mississippi regarding possible criminal charges. At that time, he
was subjected to questioning by Chief Stringer and there was
present Special Agent Rabideau of the FBI. Rabideau presented to
the defendant the standard advice of rights forms, which the
defendant read and signed. The defendant himself was a highway
patrolman of some two years experience and had familiarity with
the rights form, understood the nature and content of the Miranda
warnings, having himself many times administered such advice to
other citizens in the course of his patrol duties.

Having signed the advice of rights forms at this occasion,
which was exhibit one in evidence — the defendant was then
questioned regarding his gambling activities and his whereabouts.
He undertook to give an account of his activities from the day of
the bank robbery. He was not directly questioned about the bank
robbery, but he himself wanted to have it understood that he did
not want the bank robbery on his record. He brought it up. But
there was a discussion generally about his activities and his
associations and the fact that he had been spending large sums of
money.

At the conclusion of this interview, the defendant executed a
waiver of search form that was presented to him — in evidence as
exhibit three — to allow a search to be made of his residence. He
understood the reason for the form and was told and was aware of
the fact that if this form was not executed then a search could
not be made of his premises, consisting of his home at 340
Tchulahoma Street in Holly Springs. The officers went there, if
my recollection serves me, in the company of the defendant and
the initial search was made of the house.

Following that interview and search, the defendant left the
company of these officers, was on his own and went out and —
being notified that he was to report in Jackson the following day
— started drinking some. He drank some alcoholic beverages, he
drove around the

Page 670

town, he got somewhat tight, according to his own testimony,
ending up at a restaurant at Holly Springs drinking coffee. He
was drinking coffee and in the process of sobering up when two
patrolmen came in and took him to the police station lounge,
where they continued efforts to sober him up. He was given more
coffee, he was allowed to sleep several hours.

At 4 A.M., he was awakened according to plan and accompanied
other officers to Pontotoc, where Chief Stringer was met. They
went to Jackson, Mississippi, arriving there at approximately 9
o’clock in the morning. They had no definite appointment
time-wise with the Commissioner, but they were there for the
purpose of having Commissioner Crisler determine whether or not
there was cause to suspend the defendant as a patrolman because
of his violation of the regulations against gambling. The day
before, being the first interview, the defendant had admitted
gambling activity on his part extending over a period of some
days and virtually conceded that he had violated the regulations.

At the headquarters office, he was interviewed by Mr.
Snodgrass, a supervisory officer, in the company of Chief
Stringer. This interview began approximately 11:10 in the
morning, but it was not started until Mr. Snodgrass himself had
read the rights form to the accused, who understood, who said
that he was ready to talk. Snodgrass was conducting this
interview as part of an administrative procedure leading to the
likely suspension of this defendant, if grounds existed.

Snodgrass also knew that because of marked money and other
circumstances that the defendant was a suspect in the bank
robbery, and as a matter of precaution, he gave the advice in the
Miranda warning to the defendant purely out of precautionary
measures. Actually, during the course of the statement that
followed, there was a reference, appearing on page seven, dealing
with the bank robbery, in which the defendant brought up himself,
without any direct questioning, this statement: “On the night of
March 15, I was off duty and out of uniform. I was concerned
because those officers investigating the bank robbery at Byhalia
seemed to think that I had something to do with that robbery and
they indicated that three of the twenty-dollar bills taken in the
robbery had been traced to me.” A question and answer statement
was taken of the defendant by Snodgrass and was signed by the
defendant. This statement was then sent to the Commissioner, who
read it and found it an adequate basis for suspending the
defendant from the patrol for thirty days because of violation of
the anti-gambling regulations.

At the time of this interview and during the course of the
taking of it, Snodgrass exercised no coercion of any kind. There
were no threats, there were no intimidations, there were no
promises made to the defendant to induce him to talk. The Court
rejects the defendant’s version of what happened at the interview
conducted by Mr. Snodgrass and finds as a fact that Snodgrass
made no representations of help or assistance to the defendant if
he made a statement implicating himself in the bank robbery.

On the other hand, after giving a statement to Mr. Snodgrass —
exhibit four — the defendant himself voluntarily brought up in
the conversation that some officers seemed to think he was
involved in the bank robbery. This was a refrain of what the
defendant had brought up in the conversation the day before, that
is, he injected the bank robbery into the conversation. At that
point, Snodgrass told the defendant that he was not interested in
that matter, that he was concerned with carrying out his
administrative review, but that if the defendant was involved in
such a crime, he should think enough of the uniform that he wore
to get it straightened out. There were no inducements, no
statements of any kind it would be better for the defendant to
make any statement of any kind regarding his implication.

Page 671

After Commissioner Crisler told the defendant that he was
suspended for an infraction of the anti-gambling regulations, the
defendant was then dismissed, the mission was over and he came
back in the highway patrol car to Holly Springs. There was no
interrogation of him regarding either the gambling activities or
the bank robbery or anything else on this return trip. In fact,
there had been no discussion enroute to Jackson from Holly
Springs regarding any of these matters. They went to Jackson for
the purpose of the administrative procedure, the administrative
procedure was conducted, a decision was made by the Commissioner,
that concluded the object and purpose of their trip.

Arriving back at Holly Springs at approximately 6 o’clock P.M.,
Chief Stringer was under a duty to enforce the Commissioner’s
order to put the suspension into effect and the first step of
that was to get the uniforms and equipment and the other official
paraphernalia out of the possession of the defendant. It was for
that purpose that several of the highway patrolmen went in one
patrol car and Mr. Bailey, the defendant, and another patrolman
went in a separate patrol car. No arrest had been made at that
point, there had been no intention to make an arrest at that
point. All of the men, including the defendant, arrived at the
defendant’s residence, where he got the uniform and the other
equipment, it was checked off according to a list, it was turned
over to the officers.

Now, at that point, the defendant had, at about 3:30 P.M. on
the day before and at approximately 11 A.M. that day, been given
the full Miranda warning rights, which he fully understood and
appreciated. It is most significant that at each time the rights
were given him he denied any connection with the bank robbery and
sought to turn aside insinuations that other persons thought that
he was connected with the bank robbery. At no time did he make
any statement that incriminated him in the bank robbery.

Now, the defendant had a good friend attached to the highway
patrol, Bryant House, a man with whom he had served since
beginning his patrol job and upon whom he depended for fatherly
advice. At approximately 7 o’clock P.M., Bryant House asked the
defendant to get in the patrol car with him, telling him that he
wanted to talk to him. The defendant agreed to ride with Bryant
House, but this was not at all unusual, as it was customary for
patrolmen to ride together in patrol cars.

Bryant House knew that damaging evidence had been obtained to
implicate the defendant on the bank robbery charge, and he told
him so. In fact, he told defendant he could expect to be arrested
for it at any time. With that, the elderly man began crying with
a burst of emotion because of his attachment to the defendant.
Out of concern, House made the statement to Bailey that if he did
rob the bank it would be better for him — the defendant — to
plead guilty, that he could expect a lighter sentence from the
court.

The defendant himself then became emotional, saying, in effect,
he was ready to admit that he did it, and was ready to confess
that he robbed the bank. At that moment, the defendant was not in
custody, no arrest had been made by House or any other law
officer, no order had gone out for the defendant’s arrest. The
defendant was still in company with a man that he well knew,
worked with, riding in cars that he had familiarity with and
going to the court house, a place he would frequent daily and
regularly. When he went into the court house, it was not as one
who had been arrested or in custody but as a person who wanted to
make a statement to the law-enforcing officers and voluntarily
give himself up. Upon reaching the court house, he saw first in
the hall and later in the Sheriff’s Office, the law officers to
whom he then made the voluntary statement that he was the one who
had robbed the bank and was ready to give himself up.

Page 672

As soon as these local law officers heard this statement, they
notified the FBI agent, who had left for his home at Oxford. The
FBI agent, upon his return, went into the Sheriff’s Office and
asked the defendant if he wanted to talk, and the defendant said
he did, and thereupon the agent gave him the rights form to be
executed. The third rights form was executed by defendant at the
court house — exhibit number five. Following the execution of
that form, the defendant gave a factual statement to the FBI
agent outlining his participation in the bank robbery and how it
was accomplished. The statement was orally given to the FBI agent
in the Sheriff’s Office quite a little while before the writing
was actually signed by the defendant.

When the defendant had come into the Sheriff’s Office and made
known that he was the bank robber, he also expressed a wish to
talk to Giles Crisler, Commissioner of Public Safety, whom he had
seen at Jackson earlier that day. Crisler was gotten on the line
and asked Bailey if he wanted to give himself up to the patrol.
Bailey said that he did. Then Crisler made special arrangements
to fly to Holly Springs with an FBI agent from Jackson. Upon
arrival, they talked briefly to the defendant and when he had
done so he said he was ready to sign the statement.

At the time that he was talking to Patrolman House, the
defendant was in possession of his mental faculties, he was
responsive and he was quite aware of his rights and of the
situation before him. He had been told that much evidence had
been secured against him and that he was going to be arrested for
the bank robbery. He weighed that fact. He had had on his mind
the burden about committing the bank robbery, but up to that
point had concealed it successfully. The defendant himself says
in his testimony that his friend House did not make inducements
or promises but simply was giving him fatherly advice, i. e. he
could expect a lighter sentence if he pled guilty.

At the time the defendant returned to the court house and began
voluntarily making impromptu statements to several officers
concerning his guilt, he was undoubtedly in possession of his
faculties. He had been crying, which had been brought on by
communications with his wife and talked about their young
children. Indeed, Bailey broke down and wept; he was emotionally
upset as might well be expected under such circumstances, but his
mind was not affected, his will was not overpowered.

Now, my conclusions of law are as follows:

CONCLUSIONS OF LAW

First, that on the facts found by the Court and considering all
of the circumstances in this case, which are indeed unique and
unusual, the Court holds that there was an adequate and
sufficient giving of the Miranda warning rights and that they did
comply with the standards required by the law in order to put
this defendant on notice that he was not required to give
compulsory incriminatory statements. He knew that he was not
required and he knew that he did not have to talk and he knew
that if he started talking he could terminate it at any time,
that he had the right to the assistance of an attorney. Now, he
was schooled in the knowledge of those rights as much as a
lawyer, indeed as much as a judge. So he knew intellectually that
he had those rights and he understood what those rights meant for
him in this situation.

As found by the facts, a Miranda warning was specifically given
to him at 3:30 P.M. on the afternoon of March 15 and at
approximately 11 o’clock A.M. on the morning of March 16. He
understood them. The rights were not merely given to him as forms
to sign, but they were complied with by the officers
investigating these matters. There was no overreaching on the
part of Stringer, Rabideau or Snodgrass in their questioning of
the defendant. He was not coerced, intimidated or pressured in
any way. When he talked, he talked freely

Page 673

and voluntarily to those men. And later in the day, at
approximately 9 o’clock P.M., when FBI Agent Rabideau returned to
the court house at Holly Springs, before any interrogation of the
defendant, he presented the rights form to the defendant, the
defendant read it, understood it and signed it. And there was no
overreaching of the defendant by Special Agent Rabideau or the
other officers who might have been present in the court house at
the time the written factual statement was prepared.

The unique situations presented by this evidence centers upon
the legal significance to be accorded the conversation between
Patrolman Bryant House and the defendant. The question is whether
under all these circumstances the failure of Bryant House to give
the Miranda warnings plus the affirmative statements that he made
to the effect that it would be better on the defendant to plead
guilty in that he would get a lighter sentence by so doing,
whether that makes the ensuing confession, which was the first
incriminatory statement, involuntary and coerced as a matter of
law. The case seems to be one without any exact factual
precedent.

The Court has no difficulty in holding, first, that under those
circumstances the Miranda warnings did not have to be given by
House for several reasons. First, he was not going to conduct an
interrogation; secondly, the defendant was not arrested and was
not in custody at that time. And, technically, the giving of the
Miranda warnings as a condition precedent to talking to the
defendant was not required.

That brings the Court to what it regards as the ultimate
question in this case — whether the statements that Bryant House
told the defendant and which House admitted on the stand making
constituted enough to be psychological inducements that would
invalidate the confession. That is, did he say enough to really
overpower the defendant’s mind, deprive him of his free will, and
cause him to make involuntary statements? The defendant himself
on the stand said that House did not make any promises, did not
promise him anything, but yet House did suggest to him that it
might be to the defendant’s benefit if he would plead guilty in
that he would get a lighter sentence.

The Court holds that these cases cited by the Government,
United States v. Ferrara, 2 Cir., 377 F.2d 16, and United States
v. Frazier, 5 Cir., 434 F.2d 994, are very much in point. In the
first place, the Frazier case is a Fifth Circuit opinion and it
adopted the rule of the Ferrara case. The Frazier case is a 1970
decision. In Frazier, the court said that defendant’s confession
was not rendered involuntary by reason of the single fact that
the FBI agents told him that if he cooperated with them his
cooperation would be made known to the United States Attorney and
that there might be some consideration given by the United States
Attorney but that the agents could make no promises. Now, the
Fifth Circuit said, “Standing alone this was not sufficient to
establish that appellant’s in-custody statement was involuntary,”
citing United States v. Ferrara.

In Ferrara, the testimony was that the confession was obtained
only after an FBI agent admittedly told the accused, “If we
cooperated with the United States Attorney, he felt sure that we
could get out on reduced bail.” The Court holds under the
evidence that House made no promise of any kind to the defendant
and therefore his statements did not partake of such nature as to
make them inducements to the defendant.

Now, the defendant might at any time he saw fit decide freely
to confess the crime, get it off his conscience, be unburdened to
that extent. The Court concludes that that is what he did on this
occasion when talking to his friend, Patrolman House, and that
his statements were in no way induced by coercion of any kind,
either direct and physical or indirect and psychological. The
conclusion is reinforced by the fact that he was not under arrest
at the time, there had

Page 674

been no threat by House that he was going to arrest him.

The Court can conclude from these facts, indeed it must
conclude beyond a reasonable doubt that this confession was free
and voluntary. And its voluntariness has been proved beyond a
reasonable doubt. When the defendant made these statements, his
will was not broken nor was his intellect overpowered. At most,
he was emotionally upset because of the implications to his wife
and children as well as to himself, but he was not without either
his will or his reason when he made these statements to House.
This is also borne out by the fact that he followed through
involuntarily and in an impromptu manner making other
statements of guilt to officers whom he knew at the court house.

Considering all the facts, the Court holds that the motions to
suppress the evidence are not well taken. The Court further holds
that the evidence produced by the several searches made in this
case were constitutionally and legally obtained on valid consent
waivers. That will be the Order of the Court.

[89] ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

BY THE COURT:

[90] A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.

[91] It is ordered that the cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk shall set a briefing schedule for the filing of supplemental briefs.

Page 677