758 F.

2d 879
55 A.F.T.R.2d 85-1337, 85-1 USTC P 9317

UNITED STATES of America

v.
GRAHAM, Robert B.
Appeal of Robert B. GRAHAM Sr.
UNITED STATES of America
v.
GREENSPUN, Milton, Appellant.
UNITED STATES of America
v.
KIRBY, William P.
Appeal of William P. KIRBY.
UNITED STATES of America
v.
BALCHAITIS, Joseph, Appellant.
Nos. 83-1797, 83-1798, 83-1805, 83-1810, 83-1836, 83-1837,
83-1932 to 83-1935.

United States Court of Appeals,

Third Circuit.
Argued Dec. 13, 1984.
Decided March 20, 1985.
Rehearing and Rehearing In Banc Denied
April 22, 1985 in Nos. 83-1798 & 83-1810,
83-1805 & 83-1836 and
83-1837 & 83-1935.

Robert B. Graham, Sr., Holland, Pa., pro se.

Ronald Brent Boutwell (argued), Las Vegas, Nev., for appellant, Graham.
Edward S.G. Dennis, Jr., U.S. Atty., Chief of Appeals, Walter S. Batty,
Jr., Asst. U.S. Atty., Chief of Appeals, Edward F. Borden, Jr. (argued),
Asst. U.S. Atty., Philadelphia, Pa., for appellee.

David E. Shapiro (argued), Philadelphia, Pa., for appellant, Greenspun.

Stephen P. Patrizio (argued), Dranoff & Patrizio, Philadelphia, Pa., for
appellant, Kirby.
Joseph Balchaitis, pro se.
Bonnie B. Leadbetter (argued), Leadbetter & Becker, Philadelphia, Pa.,
for appellant, Balchaitis.
Before GARTH and HIGGINBOTHAM, Circuit Judges, and McCUNE,
District Judge.* OPINION OF THE COURT
GARTH, Circuit Judge:

Robert B. Graham was convicted of conspiracy to defraud the United States, 18

U.S.C. Sec. 371, and aiding the filing of false tax returns. 26 U.S.C. Sec.
7206(2). William Kirby was convicted of conspiracy to defraud. Joseph
Balchaitis was convicted of conspiracy to defraud, filing a false W-4 exemption
certificate, and failure to file income tax returns. Milton Greenspun was
convicted of conspiracy to defraud the United States. Each appealed.

All the appellants were involved in a group called the Committee for
Constitutional Taxation. This group conducted a series of public seminars
directed at educating citizens about tax protest, the constitutional aspects of
income tax reporting, and the methods by which they could avoid paying taxes
and thwart IRS investigations. At these seminars, attendees were instructed
about how to file "fifth amendment tax returns" which disclosed little or no
information about the taxpayer's income, but which contained entries stating
"OBJECT--FIFTH AMENDMENT." They were also advised to set up foreign
bank accounts and they were instructed to claim loss of memory if called by a
grand jury.

The defendants challenge their convictions on a great number of grounds, all of

which we find to be without merit.1 Only a few of the alleged errors warrant
discussion. Perhaps the most troubling challenge concerns a supplemental
charge given to the jury after it had indicated that it was deadlocked. However,
finding no reversible error preserved for review, we affirm all the judgments of
conviction.

I.

The defendants' trial started on Wednesday, August 31, 1983. On Monday,

September 12, while testimony was still being heard and two days before
deliberations began, one juror sent the judge the following note:

5Your Honor,
6

I would like to request of the court on behalf of the Jewish juror's [sic] and
possible others, that we be dismissed on Friday at 4:00 P.M. This is the eve of
Yom Kippur which starts the beginning of a 24 hour fast. We must be home to
prepare and eat dinner before 6:00 P.M. in order to begin the holiday tradition
of synagogue and our fast.

Thank you very much for your consideration.

Susan Ball
Seat # 12
8

Ct. Ex. # 3. The district court judge never directly responded to the jury with
respect to this request. No member of the jury ever raised the issue again.

After hearing nine days of testimony, the jury retired at 3:44 pm on

Wednesday, September 14, 1983 to deliberate on the thirty-six counts of the
indictment. The jury was sent home at 5:27 that evening, then resumed its
deliberations at 9:30 am the following morning, Thursday, September 15. The
jury deliberated all day Thursday and was sent home at 10:05 pm. The jury
resumed its deliberations at 9:00 am on Friday, September 16. The evening of
Friday, September 16, 1983 was the commencement of the Jewish High Holy
Day of Yom Kippur.

10

On the morning of Friday, September 16, at 11:00 am, the jury sent the
following note to the district court judge:

Your Honor,
11
12

After approximately 17 hours of deliberation we have reached a verdict against

only one of the defendants on two counts.

13

After careful and intensive debate, there is no doubt in any of our minds that we
can not reach a unaminous [sic] verdict on any of the other charges.

14

Therefore further deliberations would be fruitless.

15
David
RacherCt. Ex. # 8. The judge read this message to counsel and indicated that
he would give the jury a supplemental charge.
16

At this point, counsel for Kirby, concerned that the jury might consider four
o'clock that afternoon as a deadline for its verdict, requested that the jury be
informed in the court's supplemental charge that they need not reach a verdict
by four o'clock to be excused for the Jewish holiday. The judge assented to this
request, stating, "All right I'll say something to that [effect]." However, in
instructing the jury the judge failed to address the specific subject of a four
o'clock departure time. The judge did tell the jury that "There are no time
deadlines within which you must reach your verdict." Appendix at 239a. Thus,
the instruction given to the jury did not directly respond to the juror's request
which had been made four days earlier, but it did unequivocally state that no
time limitations restricted the jury's deliberations.

17

The charge did include language which was aimed at obtaining a jury verdict
by breaking the jury's deadlock:

18

If much the greater number of you are for a conviction, each descenting [sic]
juror ought to consider whether a doubt in his or her mind is a reasonable one,
since it makes no effective impression upon the minds of so many equally
honest, equally conscientious fellow jurors who bear the same responsibility,
serve under the same oath, and have heard the same evidence with, we may
assume, the same attention, and an equal desire to arrive at the truth.

19

On the other hand, if a majority or even a lesser number of you are for
acquittal, other jurors ought to seriously ask themselves again, and most
thoughtfully, whether they do not have reason to doubt the correctness of a
judgment which is not incurred [sic] in by so many of their fellow jurors, and
whether they should not distrust the weight and sufficiency of evidence which
fails to convince the minds of several of their fellow jurors beyond a reasonable
doubt.

20

Immediately after the supplemental charge had been read to the jury and the
jury had retired, counsel for Kirby again asked that the jury be informed that
there was no four o'clock deadline. The district court judge replied, "Well, I
don't know how I could make it any clearer." Appendix at 240a.

21

Counsel for Graham at this stage requested a further charge with respect to first

amendment protection for some of Graham's activities. Counsel for Greenspun

objected to a portion of the supplemental charge which discussed the length and
expense of the trial. At no time before the announcement of the verdicts by the
jury did any defendant object to the portion of the charge that directed a
minority number of the jurors to reconsider their positions in light of the
positions taken by the majority number of the jurors.
22

At 3:20 pm that Friday (September 16, 1983), the jury announced that it had
reached verdicts on a total of eight of the thirty-six counts. The district court
judge accepted this verdict. No timely request to poll the jury was made.2 The
judge dismissed without prejudice the counts on which the jury was unable to
reach a verdict and then discharged the jury.

II.
23

Under Federal Rule of Criminal Procedure 30,

24 party may assign as error any portion of the charge or omission therefrom unless
No
he objects thereto before the jury retires to consider its verdict, stating distinctly the
matter to which he objects and the grounds of his objection.
25

This Court in a recent in banc opinion reconfirmed that it will not consider on
appeal, objections that were not timely raised before the trial court. United
States v. Gibbs, 739 F.2d 838 (3d Cir.1984) (in banc ), cert. denied, --- U.S. ----,
105 S.Ct. 779, 83 L.Ed.2d 774 (1985). The bar against review of objections that
have not been timely made is especially important where, as here, a timely
objection would have allowed the trial judge to correct his error and obviate the
need for a new trial.

26

In Gibbs, we declined to review a defendant's sixth amendment confrontation

clause claim that was not timely asserted before the district court. In Gibbs, the
defendant challenged the admission of testimony of an alleged co-conspirator
who had not been proved to be unavailable. No constitutional objection to this
testimony was made until after both parties rested. We noted in Gibbs that had
the defendant made a timely sixth amendment objection, the sixth amendment
defect could have been cured by calling the declarant or by proof of the
unavailability of the declarant of the challenged testimony. 739 F.2d at 849.

27

Similarly, had any defendant here timely objected to the charge which required
the jurors in the minority to reconsider their position, the district court judge
could have given a corrective instruction. Indeed, had any defendant called the
court's attention to this Court's opinion in United States v. Fioravanti, 412 F.2d

407 (3d Cir.), cert. denied sub nom. Panaccione v. United States, 396 U.S. 837,
90 S.Ct. 97, 24 L.Ed.2d 88 (1969), there can be no question but that the district
court judge would have revamped his supplementary charge and given the
proper Fioravanti instruction. Since no such objection was made, however, the
issue has not been preserved for review.
28

We recognize that an "Allen" charge (see Allen v. United States, 164 U.S. 492,
17 S.Ct. 154, 41 L.Ed. 528 (1896)), such as the one given in this case, has been
discredited in this Circuit. According to United States v. Fioravanti, supra:

29

Hereafter, in this circuit, trial judges are not to give instructions either in the
main body of the charge or in the form of a supplement that direct a juror to
distrust his own judgment if he finds a large majority of the jurors taking a view
different from his. Such an instruction will be deemed error, normally
reversible error. Conceivably, in very extraordinary circumstances the error
may be found so inconsequential as to avoid the necessity of reversal on appeal.
But hereafter this court will not let a verdict stand which may have been
influenced in any way by an Allen Charge.

30

412 F.2d at 420.

31

In principle, if not in terms, the charge given in this case cannot be

distinguished from the Allen charge which we have rejected. It thus offends our
Fioravanti decision and should not have been given. However, as we have
previously noted, no objection was ever made prior to the jury's verdict.

32

We recognize that in Government of Virgin Islands v. Hernandez, 476 F.2d 791

(3d Cir.1973) an Allen charge was held to be "plain error." In that case,
however, the court did not analyze or discuss the plain error standard nor did it
find that manifest injustice would result without review. See United States v.
Young, --- U.S. ----, 105 S.Ct. 1038, 84 L.Ed.2d --- (1985). The Supreme
Court's latest pronouncement on plain error review reaffirms that the
determination of whether "plain error" has occurred and has resulted in a
miscarriage of justice, is to be made by the reviewing court on a case-by-case
basis, upon review of the entire record. United States v. Young, --- U.S. at ----,
105 S.Ct. at 1046. Our independent review of the entire record reveals that no
manifest injustice resulted from the court's instruction. See Namet v. United
States, 373 U.S. 179, 190-91, 83 S.Ct. 1151, 1156-57, 10 L.Ed.2d 278 (1962);
Trent v. Atlantic City Electric Co., 334 F.2d 847, 859 (3d Cir.1964). Thus,
review under the plain error doctrine is unavailable and no new trial will be
ordered on this ground.

III.
33

Nor did reversible error result from the judge's failure to respond to the
September 12, 1983 juror's request to be excused by four o'clock the evening of
the Jewish holiday of Yom Kippur. We find it significant that at no time after
the initial request made on the Monday of September 12, did any juror ever
again bring this matter to the attention of the district court judge. Although the
jury had been instructed that it could communicate with the court by written
message and in fact it had done so to inform the court of its deadlock, no
subsequent message or request was ever received by the court from the jury.

34

It is true that counsel for Kirby reminded the court twice of the jury's four
o'clock concern--a concern with which the district court judge apparently
believed he had dealt.3 Despite the fact that all defendants would obviously
have been affected if the jury's verdict had been coerced, only one of the four
defendants relies in his brief on the judge's failure to resolve the four o'clock
issue, as grounds for a new trial independent of the Allen charge.4 That
response, as contained in Kirby's brief followed a discussion of the AllenFioravanti charge and the entire argument addressing the "four o'clock issue"
consists of this paragraph:

35

Finally, the appellant asserts that the jury was not made sufficiently aware that
they would not be required to meet through the evening, thereby interfering
with the start of the Yom Kippur holiday. It is apparent from the haste in which
they reached their verdict that they believed that a time limitation had been
placed upon them to conclude deliberation prior to the end of the afternoon.
Contrary to the request of defense counsel, N.T. 13.11-12, the Court declined to
clarify this ambiguity thereby leaving misapprehension under which the jury
operated.

36

Thus, even in the defendants' briefs, the argument of jury coercion, to the extent
that it relied on the district court's failure to respond directly to a request made
four days earlier by the jury, assumes little significance. Nevertheless, because
the issue has been raised in connection with the district court's supplementary
charge, a brief examination of the standard relevant to jury deliberation is
appropriate.

37

The four o'clock issue we are discussing here is not, as the dissent claims,
whether Yom Kippur is a holiday of great religious significance. It obviously
is. The relevant standard and issue is whether the trial judge abused his
discretion by the manner in which he responded to a juror's request made some

four days earlier. This standard and issue are neither addressed, recognized nor
applied in the dissent, which is largely devoted to the religious aspects of both
the Jewish and Christian holy days. In our review of the record, the district
court did not abuse his discretion.
38

"The length of time a jury may be kept together for the purpose of deliberation
is a matter within the discretion of the trial judge, and his action in requiring
further deliberation after the jury has reported a disagreement does not, without
more, constitute coercion." United States v. Grosso, 358 F.2d 154, 159 (3d
Cir.1966), rev'd on other grounds, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906
(1968): accord, Government of Virgin Islands v. Gereau, 502 F.2d 914, 935 (3d
Cir.1974). Thus, the district court's actions in dealing with counsel's suggestion
and in sending the jury back for further deliberations in this case do not
constitute an improper exercise of discretion, nor can they be held to constitute
coersion. The impending holiday of and by itself is an insufficient additional
factor to render the district court's order for further deliberations coercive.

39

Grosso is instructive on this point. In Grosso, one of the jurors became

sufficiently ill to require the assistance of a physician, who diagnosed a nervous
disorder. Nevertheless, the trial judge refused to order a mistrial, and
deliberations continued as soon as the ill juror was well enough. Despite a note
from the jury that indicated it was deadlocked, the district court judge ordered
the jury to continue deliberations. According to the Grosso court, the illness of
a juror might be considered as an unduly coercive circumstance, but only if
evidence indicated that the jury's verdict was in fact influenced by that
circumstance. The Grosso court found no such evidence.

40

Similarly, here, there is no evidence that the jurors were coerced to agree upon
a verdict by the impending onset of the Yom Kippur holiday. Indeed, it is
significant that of the thirty-six counts on which the jury was deliberating,
twenty-eight of the counts remained unresolved.

41

While some courts have found the length of time the jury was made to
deliberate, to be coercive, see United States v. Chaney, 559 F.2d 1094 (7th
Cir.1977); United States v. Flannery, 451 F.2d 880 (1st Cir.1971), these cases
have involved affirmative coercive conduct of the district court, such as
reminding the jury that the weekend was approaching (Flannery ), or creating
the impression that the jury would be locked up all night (Chaney ). No such
affirmative coercive conduct occurred in this case and, absent evidence that the
jury was influenced by a prescribed deadline or the approaching holiday, the
court's mere failure to respond to a juror's request cannot be deemed coercive.

IV.
42

In addition to the general claims asserted by all four defendants, Graham

challenges the sufficiency of the evidence to sustain his conviction on Counts
22 and 23 of the indictment. These counts charged Graham with aiding and
abetting the filing of a false tax return. In our review of the sufficiency of the
evidence after a jury verdict in favor of the government, "[i]t is not for us to
weigh the evidence or to determine the credibility of witnesses. The verdict of
the jury must be sustained if there is substantial evidence, taking the view most
favorable to the government, to support it." Glasser v. United States, 315 U.S.
60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

43

Taking the view most favorable to the government, we find sufficient evidence
to support Graham's conviction for aiding and abetting the filing of a false
return. To establish aiding and abetting the filing of a false tax return "there
must exist some affirmative participation which at least encourages the
perpetrator." United States v. Buttorff, 572 F.2d 619, 623 (8th Cir.1978)
(quoting United States v. Thomas, 469 F.2d 145, 147 (8th Cir.1972), cert.
denied, 410 U.S. 957, 93 S.Ct. 1430, 35 L.Ed.2d 690 (1973)).

44

David Kosco testified that he gave Graham $5,000 to open up a Swiss bank
account in Kosco's name through Graham's investment firm. According to
Kosco, "[A]t the time I was investing the money, [Graham] said, you know,
being it was a foreign government, and the U.S. had no jurisdiction over it, you
know not to pay the taxes," Appendix at 110a. Kosco further testified that he
did not report the interest earned in this account on his tax returns for the years
1978 or 1979. On cross examination, Kosco testified that these returns were
prepared by an accountant, and that Kosco did not inform the accountant that he
had received this interest.

45

Viewing this testimony in the light most favorable to the government, there is
clearly sufficient evidence to allow a rational trier of fact to conclude that
Graham, by setting up the account and telling Kosco not to report the interest,
engaged in "some affirmative participation which at least encourage[d] the
perpetrator [Kosco]." The intervention of time from the dealings between
Kosco and Graham to the actual filing of the return does not negate this aid; nor
does the fact that an accountant, not a party to the Swiss bank transaction,
completed the return.5

V.
46

None of the defendants' other contentions (see Appendix A to this opinion)

46

None of the defendants' other contentions (see Appendix A to this opinion)

merit discussion. Upon review of the record we are satisfied that sufficient
evidence of conduct not protected by the first amendment was submitted to the
jury to sustain the conspiracy convictions. See United States v. Buttorff, supra.
We are also satisfied that there was sufficient evidence to convict the four
defendants and that the district judge did not err in excluding tape recordings of
the defendant's meetings. The defendants' challenges to the constitutionality
and applicability of the income tax and to the jurisdiction of the district court
do not deserve discussion.

47

For the foregoing reasons, the judgments of the district court will be affirmed.

APPENDIX A
48

Graham challenges his conviction on the grounds (1) that the district court
erred in denying his motion for acquittal for insufficiency of evidence to
support his conviction under 26 U.S.C. Sec. 7602(2), (2) that the government
failed to present sufficient evidence to sustain a conspiracy conviction under 18
U.S.C. Sec. 371, (3) that the district court erred in its supplemental charge to
the jury, (4) that the district court judge erred in instructing the jury that
Graham had improperly invoked his fifth amendment privilege against selfincrimination on his tax return, (5) that the court erred by failing to compel
admission by the government of the authenticity of a certain letter sent by the
IRS to Victor G. Petersen, and (6) that the district court erred in admitting coconspirators' out-of-court statements prior to prima facie proof of the existence
of a single theory conspiracy. The jury reached no verdict on the count covered
by the instruction on the privilege against self-incrimination.

49

Kirby contends (1) that evidence of conduct unprotected by the first

amendment presented was insufficient to sustain his conviction, (2) that the
court erred in refusing to admit on defendants' behalf government tape
recordings of the group's meetings, and (3) that the court's supplemental charge
to the jury was error. Kirby further adopts all the arguments advanced by his
co-defendants.

50

Balchaitis contends (1) that the government failed to present sufficient evidence
to sustain the conviction for filing a false withholding certificate, (2) that the
district court erred in refusing to admit on defendants' behalf government tape
recordings of the group's meetings, (3) that evidence was insufficient to sustain
the conviction for conspiracy to defraud since the activities were protected by
the first amendment, (4) that the court's supplemental charge to the jury was
error, (5) that the district court lacked subject matter jurisdiction to hear the
case, (6) that Balchaitis was denied his right to counsel of choice, (7) that

Balchaitis was, as a matter of law, not required to file a W-4 form, (8) that
Balchaitis was not required to file a tax return in 1980, and (9) that the
government failed to show that Balchaitis had acted wilfully. Balchaitis further
adopts all relevant arguments of his co-defendants. As part of the argument in
his pro se brief that the district court lacked subject matter jurisdiction,
Balchaitis contends that the income tax may not constitutionally be applied to
wages paid to individuals.
51

Greenspun contends (1) that insufficient evidence of conduct unprotected by

the first amendment was presented to sustain his conspiracy conviction, (2) that
insufficient evidence of any kind was presented to sustain his conspiracy
conviction, (3) that the district court erred in refusing to admit on defendants'
behalf government tape recordings of the group's meetings, and (4) that the
supplemental charge to the jury was error. Greenspun further adopts the
arguments of his co-defendants.

52

A. LEON HIGGINBOTHAM, Jr., Circuit Judge, dissenting.

53

I dissent from the majority's conclusion that the "court's mere failure to respond
to a juror's request [that the jury be timely excused to observe Yom Kippur]
cannot be deemed coercive." At 885. Yom Kippur--the Day of Atonement--is
the holiest day on the Jewish calendar. It is not a day of joyous celebration, but
rather a day of fasting and prayer.1 Recognizing that for Jews Yom Kippur is at
least as sacred as Christmas is to Christians, I believe that the failure of the trial
judge to advise jurors that they would be released by 4:00 p.m. on the evening
that Yom Kippur was to begin, when viewed in the context of the jury's
deliberations, was so coercive that it denied the defendants a fair trial. I would
hold similarly if, in response to a request to be excused for Christmas, a judge
failed to advise jurors that they would not have to deliberate on Christmas day.
Yom Kippur should receive no less respect in the federal courts than does
Christmas, and it is inconceivable to me that any judge would permit a jury to
doubt whether they would have to deliberate on Christmas Day.

54

In the most unequivocal request possible, five days before Yom Kippur, the
jury asked the trial judge through the message of one juror:

Your Honor,
55
56

I would like to request of the court on behalf of the Jewish juror's [sic] and
possible others, that we be dismissed on Friday at 4:00 P.M. This is the eve of
Yom Kippur which starts the beginning of a 24 hour fast. We must be home to

prepare and eat dinner before 6:00 P.M. in order to begin the holiday tradition
of synagogue and our fast.
57

Thank you very much for your consideration.

58

Despite this timely message, the jury was never informed that they would be
dismissed on Friday at 4:00 p.m. By Friday morning at 11:00 a.m. they had
been deliberating for more than two full days and for more than seventeen
hours, and they sent the following note to the district judge:

Your Honor,
59
60

After approximately 17 hours of deliberation we have reached a verdict against

only one of the defendants on two counts.

61

After careful and intensive debate, there is no doubt in any of our minds that we
can not reach a unaminous [sic] verdict on any of the other charges.

62

Therefore further deliberations would be fruitless.

63

The judge read this message to counsel and indicated that he would give the
jury a supplemental charge. At this point, counsel for defendant Kirby,
concerned that the jury might consider four o'clock that afternoon as a deadline
for its verdict, pointedly reminded the judge of the juror's prior note regarding
Yom Kippur:

64

MR. PATRIZIO: Your honor, I would have a request that this jury be told that
4 o'clock was one of the juror's request to be adjourned by today. They might
be operating under the assumption that they have to make a decision by 4
o'clock today, and I would request that they be told that that is not a deadline,
that they'll come back on another day to resume their deliberations.

65

With his customary sensitivity, the trial judge recognized the reasonableness of
counsel's request that the jury be instructed that they did not "have to make a
decision by 4 o'clock today ... that that is not a deadline," and that they could
"come back on another day to resume their deliberations." The trial judge
promised: "All right I'll say something to that." Instead of advising the jury that
they could depart on Friday at 4:00 p.m., and come back on another day to
resume deliberations, the trial judge gave a supplemental instruction which is
known among trial judges as the "dynamite"--or Allen --charge, United States
v. Flannery, 451 F.2d 880, 883 (1st Cir.1971), and which is violative of this

court's express admonition in United States v. Fioravanti, 412 F.2d 407 (3d
Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969).2
66

To compound the matter, when giving the forbidden Allen charge 3 as a

supplemental instruction, the trial judge told the jury:

67 may conduct your deliberations as you choose, but I suggest that you now
You
carefully reexamine and reconsider all the evidence in the case, bearing upon the
questions before you.
68

You may be as leisurely in your deliberations as the occasion may require, and
you may take all the time which you feel is necessary. There are no time
deadlines within which you must reach a verdict.

69

You may now retire and continue your deliberations in such manner as shall be
determined by your good and consciencious [sic] judgment as reasonable men
and women.

70

(Emphasis added.)

71

Unfortunately, after dealing with the other aspects of his supplemental charge,
the trial judge, through inadvertence, did not assure the jury that they would be
dismissed for Yom Kippur. However, the fairness of the request was so firmly
implanted in his mind that the trial judge had thought that he had actually given
it. The foregoing is the only explanation of the colloquy between the trial judge
and counsel after the supplemental instruction:

72

MR. PATRIZIO: Judge, I'm still not sure whether or not this jury understands
that they are going to be permitted to leave at 4 o'clock. I don't think they've
ever been told that.

73

THE COURT: Well, I don't know how I could make it any clearer.

74

The court's supplemental instruction that "[t]here are no time deadlines within
which you must reach a verdict" could not be construed as addressing the jury's
concern. Surely the jury understood from that remark that there were no time
deadlines imposed upon them by the court. In that sense, they were aware that
they were probably free to deliberate until 10:30 p.m., as they had done the
night before, and on the following day. Yet for the Jewish members of the jury
and for those jurors who, though they were not Jewish, recognized and desired
to accommodate the religious practices of others, such an instruction failed to

address their expressed concern.

75

While the majority finds it significant that after the initial request made on
Monday, September 12, no subsequent request was ever received, I find this
unimportant. Once expressed, the district court should have addressed the
concern. The jury could not reasonably infer from the lack of the court's
response that the Monday request would be granted. What I do find significant
is that the jury returned with their verdict at 3:20 p.m., just forty minutes before
the time the court had been advised some jurors would have to leave in order to
observe Yom Kippur, and that the jury was actually discharged at 3:45 p.m.

76

This case is without precedent as to its factual context, but the teachings of
several cases are quite relevant. In the clearest language possible, the Supreme
Court has recognized that "the principle that jurors may not be coerced into
surrendering views conscientiously held is so clear as to require no
elaboration." Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060,
13 L.Ed.2d 957 (1965). And the Court has noted that in determining whether
there has been coercion of the jury, we must look at "all the circumstances." Id.,
380 U.S. at 446, 85 S.Ct. at 1060. More than fifteen years ago in a seminal
opinion written by Judge Aldisert, we noted:

77

So long as the unanimous verdict is required in criminal cases, there will always
be three possible decisions of the jury: (1) not guilty of any charge; (2) guilty of
one or more counts of the indictment; and (3) no verdict because of a lack of
unanimity. The possibility of a hung jury is as much a part of our jury
unanimity schema as are verdicts of guilty or not guilty. And although dictates
of sound judicial administration tend to encourage the rendition of verdicts
rather than suffer the experience of hung juries, nevertheless, it is a cardinal
principle of the law that a trial judge may not coerce a jury to the extent of
demanding that they return a verdict.

78

Fioravanti, 412 F.2d at 416.

79

In United States v. Flannery, 451 F.2d 880 (1st Cir.1971) the First Circuit noted
that it was reversible error where "the court erred in reminding the jury that it
was Friday afternoon.... The implicit suggestion, although doubtless
unintended, was that it was more important to be quick than to be thoughtful."
451 F.2d at 883. In Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135,
136, 71 L.Ed. 345 (1926), more than a half century ago, Justice Stone noted
that the coercive effect of a judge's remarks "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 ...." He warned
against making remarks where "in general [the] tendency is coercive." He
stressed that some inquiries "can rarely be resorted to without bringing to bear
in some degree, serious, although not measurable, an improper influence upon
the jury, from whose deliberations every consideration other than that of the
evidence and the law as expounded in a proper charge, should be excluded."
Id., 272 U.S. at 450, 47 S.Ct. at 136.
80

In this case, there was injected a situation or improper influence which had an
inherent tendency to be coercive to some members of the jury. The failure to
advise the jury that they would be released from jury service in time for Yom
Kippur certainly tended to be coercive. Jurors should not have to consider, in
addition to the "evidence and the law as expounded in a proper charge,"
whether they will have to be in court rather than synagogue on their holiest day
of the year.

81

For these reasons, I respectfully dissent.

Honorable Barron P. McCune, United States District Judge for the Western
District of Pennsylvania, sitting by designation

The various grounds upon which the defendants have challenged their
convictions are set forth in Appendix A attached to this opinion

Counsel did request a poll of the jury after the verdict was recorded. Such a
request is untimely. See Fed.R.Crim.P. 31(d)

As recited in an earlier part of this opinion, when Kirby's counsel reminded the
court that a jury was concerned about the Jewish holiday and desired a four
o'clock departure on Friday, September 16, the Court told the jury "There are
no time deadlines within which you must reach your verdict." When asked
again by Kirby's counsel to address that subject and to inform the jury that there
was no four o'clock deadline, the court replied, "Well, I don't know how I could
make it any clearer." Appendix at 239a-240a

Although each defendant incorporated arguments made by his co-defendants in

briefs filed with this court, the only brief specifically to rely on the four o'clock
issue independently of the Allen charge was Kirby's. Kirby did not even list this
argument in his statement of issues presented

Graham also challenges the materiality of the omission on Kosco's return, as

the interest unreported for both years combined amounted to but $250. Graham
failed to preserve this issue for appeal, as his motion for acquittal relied only on
the claimed insufficiency of the nexus between Graham's conduct and the false
tax return. See United States v. Gibbs, 739 F.2d 838 (3d Cir.1984) (issue not
preserved unless raised at earliest possible time), cert. denied, --- U.S. ----, 105
S.Ct. 779, 83 L.Ed.2d 774 (1985); United States v. Bonacorsa, 528 F.2d 1218
(2d Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2647, 49 L.Ed.2d 386 (1976)
(objection to whole count of indictment doesn't preserve objection to particular
specifications). In any event, it is established that a misstatement on a return is
material if, as here, it results in an incorrect computation of the tax. United
States v. Warden, 545 F.2d 32 (7th Cir.1976)
1

On the Day of Atonement the Jew stands naked and defenseless before God.
All his wrongdoings testify against him, and his sole recourse is to throw
himself, with prayers and sincere repentance, on the mercy of God. On this day
alone Jews kneel and prostrate themselves in synagogue, and the liturgy recalls
the atonement ritual in the ancient temple .... Something of the awesome
character of this day has survived right up to the present
N. de Lange, Atlas of the Jewish World 97 (1984).

The issue as to whether there was a "manifest injustice" by the giving of the
discredited Allen charge is a close one and it may rise to plain error. However,
I need not reach that issue in view of the fact that I believe that all of the
defendants are entitled to a new trial for the reasons noted. See Government of
the Virgin Islands v. Hernandez, 476 F.2d 791 (3d Cir.1973)

For the history of the Allen charge, see Allen v. United States, 164 U.S. 492, 17
S.Ct. 154, 41 L.Ed. 528 (1896) and United States v. Fioravanti, 412 F.2d at
415-16