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United States v. Rundle

decided: July 22, 1969.

UNITED STATES OF AMERICA EX REL. HERBERT BROTHERS, H-6564, APPELLANT,
v.
ALFRED T. RUNDLE, SUPERINTENDENT



Kalodner, Van Dusen and Stahl, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

Relator appeals from a September 10, 1968, order of the District Court denying a petition for a writ of habeas corpus. Following his conviction by a jury of (1) corrupting the morals of a nine-year old minor, (2) assault and battery, (3) assault with intent to commit sodomy, and (4) sodomy (N.T. 613-14), after a five-day trial relator's post-trial motions were denied by an order supported by a December 11, 1967 opinion of the state trial court and his appeal to the Pennsylvania Superior Court resulted in affirmance of his conviction per curiam. Commonwealth v. Brothers, 211 Pa.Super. 758, 237 A.2d 848 (1968), petition for allowance of appeal denied on 6/3/68 by the Pennsylvania Supreme Court (No. 127A, Misc.Docket #16).

After careful consideration of relator's contentions and the record, we have concluded that such contentions must be rejected for the reasons ably stated by Judge Luongo in United States ex rel. Brothers v. Rundle, 302 F. Supp. 402 (E.D. Pa. 1968).

In view of the recent opinion concerning the so-called Allen charge in United States v. Fioravanti et al., 412 F.2d 407 (3rd Cir., 1969), it is noted that (1) the "prohibition" in that opinion applies to charges given after June 16, 1969, in federal court trials in this Circuit and (2) that opinion specifically states (p. 419): "We do not re-examine the constitutional question * * *." In Tomoya Kawakita v. United States, 343 U.S. 717, 72 S. Ct. 950, 96 L. Ed. 1249 (1952), the Supreme Court of the United States has rejected objections on constitutional grounds to language in a charge similar to that used in this case,*fn1 where, as here, more than an hour elapsed between the supplemental charge and the verdict. See, also, Fulwood v. United States, 125 U.S.App.D.C. 183, 369 F.2d 960, 962 (1966), cert. den. 387 U.S. 934, 87 S. Ct. 2058, 18 L. Ed. 2d 996 (1967); United States v. Davidson, 367 F.2d 60, 62 (6th Cir. 1966). In the context in which this supplemental charge was given and the verdict rendered, we find no constitutionally unwarranted infringement on the function of the jury.*fn2 See Note, "Deadlocked Juries and Dynamite: a Critical Look at the 'Allen Charge'", 31 Univ. of Chi.L.Rev. 386 (1964); 100 A.L.R.2d 177, 182-191 (1965).

On June 16, 1969, the United States Supreme Court denied a petition for a writ of certiorari in Plumley v. Maryland (4 Md.App. 671, 245 A.2d 111) 395 U.S. 960, 89 S. Ct. 2102, 23 L. Ed. 2d 746 where language at least as strong (see p. 117 of 245 A.2d) as that contained in this supplemental charge was used (395 U.S. 960, 23 L. Ed. 2d 746, 89 S. Ct. 2102); Cf. Rao v. United States, 394 F.2d 354 (2nd Cir.), cert. den. 393 U.S 845, 89 S. Ct. 129, 21 L. Ed. 2d 116, rehearing den. 393 U.S. 972, 89 S. Ct. 390, 21 L. Ed. 2d 386 (1968).

The September 10, 1968, order of the District Court ...


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