Appeal from a judgment of the District Court for the Northern District of New York (James T. Foley, Judge), convicting appellant of income tax offenses; appellant challenges the procedures used in handling inquiries from the jury during deliberations. Reversed and remanded for new trial.
Before Friendly, Timbers, and Newman, Circuit Judges.
The primary issue on this appeal concerns the procedure for handling inquiries from a jury during deliberations. Charles S. Ronder appeals from a judgment of the District Court for the Northern District of New York (James T. Foley, Judge) convicting him after a jury trial of conspiracy to make and file false corporate income tax returns for the years 1971-1973, in violation of 18 U.S.C. § 371 (1976), and of the substantive offense of aiding and assisting in the filing of a false corporate income tax return for the year 1973, in violation of 26 U.S.C. § 7206(2) (1976). Appellant's claim is that the District Judge failed to afford defense counsel a timely opportunity to see and suggest responses to inquiries submitted by the jury during deliberations. Because we agree that the procedure followed was erroneous and because we are unable to conclude that the error may not have contributed to the jury's verdict, we reverse the conviction and remand for a new trial.
Assessment of appellant's claim requires some consideration of the factual issues facing the jury. Ronder is a certified public accountant and a lawyer. The Government's evidence tended to prove that he knowingly participated in a scheme to reduce the tax liability of one of his corporate clients, Ulster Electric Supply Co. (Ulster). The scheme was originated by Gerald Gruberg, Ulster's President.*fn1 It involved the addition of false amounts to Ulster's purchases in order to reduce profits and consequent tax liabilities.
Three witnesses testified to Ronder's knowing complicity in the scheme. Gruberg testified that he told Ronder that the purchase figures were to be falsely inflated. Gruberg also said that in each of the three years of the scheme Ronder calculated the amount of false purchases necessary to reduce Ulster's tax liability to the level specified by Gruberg. Ulster's bookkeeper testified that Ronder discussed aspects of the scheme with her, instructing her how to enter the false items. A third witness was an attorney in a law firm to which Gruberg turned for advice after the Internal Revenue Service began its inquiry. The attorney testified that Ronder admitted having knowledge of the scheme during its existence. Ronder signed the 1973 return as the preparer.
The defense disputed Ronder's complicity in three ways. Ronder denied any participation in the scheme or in the incriminating conversations alleged by prosecution witnesses. A witness who was present at some of the meetings in which Gruberg and Ronder were alleged to have discussed execution of the scheme denied that the conversations implicating Ronder had occurred. Finally, the defense suggested that each of the three prosecution witnesses had motives to implicate Ronder in order to curry favor with the prosecution. Gruberg had been permitted to plead guilty to a single count; the bookkeeper had been granted immunity; and the new lawyer for Ulster, according to Ronder, was motivated to accuse Ronder in order to deflect Government attention from his firm's role in the preparation of Ulster's 1974 return, which Ronder alleges was a false return.
With the evidence thus sharply disputed, the jury experienced considerable difficulty in reaching a verdict. The jury received the case for deliberation at 11 a. m. At 1:30 p. m. the jury requested a rereading of the charge concerning the credibility of the Government's witnesses. At 4:15 p. m. the jury sent a note indicating a possible deadlock:
Judge Foley, We have debated and there are several of us that refuse to believe the most important evidence is truthful. Further discussions seem fruitless. What is your advice?
After reading the note to counsel and engaging in a brief colloquy with them, Judge Foley told the jury to recess for the evening and return the next day. He also gave some mild instructions concerning the desirability of reaching a verdict.
On the third and final day of deliberations there occurred the episodes giving rise to this appeal. At 1:45 p. m. the jury sent a note firmly reporting a deadlock: "We cannot reach a verdict on either charge." The trial judge did not disclose the note to counsel before responding nor elicit their views as to an appropriate response. He recalled the jury to the courtroom and gave them a modified Allen*fn2 charge. Though endeavoring to give a balanced charge and avoid coercion, the judge chose language that may not have successfully achieved his objectives. First, he dealt with each side's interest in avoiding a deadlock:
It is important to the government to have a verdict because the government is anxious to see the law enforced.
It is important to this defendant, Mr. Ronder on trial. He has gone through a long trial, and it is an ordeal in some respects, as you know. He is entitled to have the verdict. So you have that situation.
These words, as defense counsel observed after hearing them, might have given the jury the impression that the Government's interest in a verdict was more meritorious that the purely personal concerns of the defendant. The Government's interest in having the law enforced would more appropriately have been balanced by mention of the defendant's interest in being exonerated if he is innocent. Second, the trial judge eschewed the familiar and approved cautions, variously expressed,*fn3 that no juror should abandon a conscientiously held view of the evidence simply to enable a verdict to be returned. Instead, the judge made the somewhat less forceful statement, "You have a right, as I told you, to stand on your own independent conviction."
Later the same afternoon, while the jury was continuing to deliberate, the trial judge met with counsel in chambers to hear defense counsel's motion for a mistrial because of the previously reported jury deadlock. Prior to this conference the judge had received a second note from the jury. Disclosing the existence of this note, the judge told counsel that "it says that they have made some progress" and that "there is one juror who refuses to discuss the issues." However, ...