State v. Ginter

300 P.3d 1278

732 Utah Adv. Rep. 18

STATE of Utah, Plaintiff and Appellee,

v.Thomas B. GINTER, Defendant and Appellant.

No. 20110332–CA.

Court of Appeals of Utah.

April 18, 2013.

Lori J. Seppi, for Appellant.

John E. Swallow, Salt Lake City and Ryan D. Tenney, for Appellee.

Opinion

DAVIS, Judge:

¶ 1 Thomas B. Ginter appeals from his convictions for communications fraud and organizing a pyramid scheme. We reverse Ginter's convictions and remand for further proceedings in accordance with this opinion.

BACKGROUND

¶ 2 Ginter started an organization called Patriot Money Gifting Program (PMGP) with the intent to create an alternative monetary system using only liberty coins.¹ Ginter established PMGP out of “concern[ for] people's souls,” based on his beliefs that the Federal Reserve and Internal Revenue Service are criminal organizations that intend to establish a “cash-less society,” that Federal Reserve notes are unconstitutional because they cannot be redeemed for gold or silver, and that the Book of Revelation predicts that microchips will be implanted into everyone caught in the “cash-less society.” The microchips, he explained, are “the mark of the beast,” and “those who will take the mark of the beast ... will definitely lose their soul[s].”

¶ 3 Ginter promoted his beliefs and PMGP on a radio show he hosted, using the pseudonym “Sherlock A. Collins.” Samuel Vonn Harris was listening to that show one night in 2003 and “heard Sherlock ... say[ ] that you could get silver for $2 an ounce.” Harris called the radio station to learn more and then drove to the station that same night to meet with Ginter. Ginter explained to Harris that to get in on the deal he had to put down $2 (in standard U.S. currency) and that as Harris invested more money and recruited more people into the program, he could “graduate” up to higher “boards” and earn greater returns on his investments. In the seven or eight years that Harris participated in PMGP, he invested upwards of $105,975, recruited about 400 people into the program, and allowed Ginter to live with him for five of those years. Rounding up, Harris received only $3,000 in return—far from the “$250,000 home” that Ginter said Harris could get for his initial $2 investment.

¶ 4 Ginter was eventually charged with communications fraud and organizing a pyramid scheme. During jury deliberations, the jury verbally informed the bailiff that they had “been at a stalemate for the past two hours that they'[d] been deliberating” and asked the bailiff how much longer they would have to “sit and ... do nothing.” The bailiff “told them that usually they are advised that they would have to go back in and continue the deliberation ... but [that he] would talk to the judge and let them know what will happen.” In response, the court directed the bailiff to bring the jury dinner order forms with the goal of implicitly communicating that the court did “not intend[ ] to let them go.” About two hours later, around 7 p.m., the jury sent a note to the court, stating, “We are at a 7–1 split and have been divided in this way since entering the jury room. Over 3 hours we have made no headway and in fact are farther apart [than] when we started. We do not feel we are getting any closer to a verdict.” Over defense counsel's objections, the trial court called the jury back to the courtroom, read the jury a modified Allen instruction ² (Instruction 46), and sent them back to continue their deliberations. About eighteen minutes later, the jury submitted a note asking, “[W]ould the liberty coins qualify as the sale of goods?” The court responded with a note that said, “You must determine the facts based upon the evidence presented.” Seven minutes after receiving the court's response to their question, the jury returned with a guilty verdict on both counts. Ginter appeals.

ISSUE AND STANDARD OF REVIEW

¶ 5 Ginter argues that he was deprived of due process and his right to a fair trial because Instruction 46 impermissibly pressured the lone holdout juror to acquiesce to the majority's position.³ We review this constitutional question for correctness. State v. Candedo, 2010 UT 32, ¶ 7, 232 P.3d 1008.

ANALYSIS

¶ 6 “[T]he non-coercive use of Allen charges” is permitted in Utah because “such charges [are] a reasonable and proper exercise of the court's power to guide the jury to a fair and impartial verdict.” ⁴State v. Lactod, 761 P.2d 23, 30 (Utah Ct.App.1988). An Allen instruction will be deemed coercive if (1) “the language of the supplemental charge can properly be said to be coercive [per se],” ⁵ or (2) “it is coercive under the specific circumstances of the case.” State v. Harry, 2008 UT App 224, ¶ 7, 189 P.3d 98 (alteration in original) (citations and internal quotation marks omitted). Under the second part of the test, we may consider factors such as “any colloquy between the judge and the jury fore [person], circumstances surrounding the giving of the instruction, and consideration of the American Bar Association Standards on Criminal Justice Relating to Trial by Jury.” Lactod, 761 P.2d at 31 (citation and internal quotation marks omitted). Ultimately, “ ‘the correctness of the charge must be determined by the consideration of the facts of each case and the exact words used by the trial court.’ ” United States v. McElhiney, 275 F.3d 928, 940 (10th Cir.2001) (quoting Powell v. United States, 297 F.2d 318, 322 (5th Cir.1961)).

¶ 7 Our decision in State v. Harry, 2008 UT App 224, 189 P.3d 98, is instructive here. In Harry, after deliberating for over three hours, the jury submitted a note to the trial court stating that they were at a seven-to-one stalemate, prompting the trial court to call the jury back to give them a modified Allen instruction. Id. ¶¶ 3–4. The jury returned to its deliberations and reached a unanimous guilty verdict twenty-six minutes after being given the modified Allen instruction. Id. ¶ 4.

¶ 8 This court determined that although the modified Allen instruction provided was not coercive per se, it was coercive under the circumstances. Id. ¶ 35. We interpreted the Allen instruction provided in Harry as singling out the minority juror and requiring her to reconsider her stance. Id. ¶ 30. The fact that the jury knew the trial court had been informed “that a single juror was not in agreement with the majority” made “the focus of the modified Allen charge on that single juror ... particularly acute, creating the possibility that the holdout juror might have the mistaken impression that she was being directly and individually instructed by the trial judge to defer to the conclusions of the majority.” Id. ¶ 32. In other words, once the jury made the trial judge aware that they were split seven to one, “the use of an instruction asking only that dissenting juror to reconsider her view became unacceptably coercive.” Id. Although the trial court intended to counterbalance the “statements urging acquiescence” by including language in the instruction such as, “ ‘no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of the evidence,’ ” this cautionary language was insufficient to outweigh the coercive effect of “the knowledge [that] one juror stood alone against the others.” Id. ¶ 31.

¶ 9 Additionally, we noted that the amount of time it took the jury in Harry to reach a verdict after receiving the Allen instruction and returning to deliberations—twenty-six minutes—further “suggest[ed] that the sole dissenting juror was, in fact, coerced and instantly acquiesce[d] to the majority.” Id. ¶ 33 (second alteration in original) (footnote, citation, and internal quotation marks omitted). We also determined that “the instructionwas not reasonably within the ABA-recommended standards for verdict-urging instructions” because “the ABA instruction makes no mention of the cost or inconvenience of retrial” and because “[t]he ABA standard does not single out the minority jurors but instead sends an even-handed message” encouraging all jurors to keep an open mind. Id. ¶ 34 (additional citation and internal quotation marks omitted) (citing ABA Standards for Criminal Justice Discovery & Trial by Jury § 15–5.4(a)(4) (3d ed. 1996), available at http:// www. americanbar. org/ publications/criminal_justice_section_ archive/crimjust_standards_jurytrial_blk.html (last visited April 15, 2013)).

¶ 10 Here, Ginter argues that Instruction 46 and the facts of this case are too similar to the instruction and circumstances in Harry to avoid the application of Harry as binding precedent. We agree.

¶ 11 As in Harry, Instruction 46 directed only the single holdout juror to reconsider her position. Paragraph 4 of Instruction 46 states,

If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.

(Emphasis added.) This paragraph of Instruction 46 is very similar—almost word-for-word—to paragraphs five and six of the modified Allen instruction given in Harry. Cf.id. ¶¶ 17–18 (“If a substantial majority of your number are for a conviction, each dissenting juror ought to consider whether a doubt in his or her own mind is a reasonable one, since it appears to make no effective impression upon the minds of so many equally conscientious fellow jurors.... On the other hand, if a majority or even a lesser number of you are for acquittal, the other jurors ought to seriously ask themselves again, and most thoughtfully, ... whether they should distrust the weight and sufficiency of evidence which fails to convince several...