                                  No. 96-1369


United States of America,   *
                                      *
                    Appellee,         *
                                      *    Appeal from the United States
         v.                           *    District Court for the
                                      *    District of Minnesota.
Derek Edward Benedict,                *
                                      *
                   Appellant.         *



                         Submitted:    July 11, 1996

                         Filed:    September 11, 1996


Before FAGG, LAY, and HEANEY, Circuit Judges.



HEANEY, Circuit Judge.


     Derek Edward Benedict, convicted of one count of a multi-count
indictment, argues that the court erred by instructing the jury to announce
verdicts on three counts before it had ended its deliberations on one
closely-related       count.               We   reverse      and     remand.



                                      I.


     Benedict was charged in a four-count indictment with conspiracy to
burglarize a post office in violation of 18 U.S.C. § 371 (Count I),
conspiracy to steal post office property in violation of 18 U.S.C. § 371
(Count II), aiding and abetting post office burglary in violation of 18
U.S.C. § 2115 (Count III), and aiding and abetting theft of post office
property in violation of 18 U.S.C. § 1707 (Count IV).
       After a two-day trial, the jury began its deliberations late in the
afternoon; forty-five minutes later the jury retired for the day.                  The jury
resumed deliberations at 8:30 the following morning.                  At 11:25 a.m., the
jury sent a note to the court explaining that they were "having difficulty
differentiating between" the charges in Count II (conspiracy to steal post
office property) and Count IV (theft of post office property).                    The court
consulted    with   counsel   and    responded      to   the   note   at   1:35    p.m.   by
instructing the jury that "the difference between Counts 2 and 4 is that
Count 2 charges a conspiracy to commit larceny, while Count 4 charges the
offense of larceny itself."         (R. at 57.)


       About two hours later the jury sent out a second note stating:

       We have come to verdicts on 3 of the indictments. We
       have been undecided on 1 indictment for about 1 1/2
       hours. What do you suggest we do? (We are split 11 to
       1.)


       [/s/ Jury Foreperson]

       3:44 p.m.

       11/9/95

       Also, on this indictment we were at 10 to 2 about 1/2
       hour ago.


       [/s/ Jury Foreperson]

(R. at 58.)      In response to the note, the court conferred with counsel
about the possibility of taking a partial verdict.             The government took no
position except to express concern over the possibility of creating an
issue for appeal.      Defense counsel, noting that the jury had only been
deliberating for a day, requested that the court instruct the jury to
continue deliberating.    (R. at 475.)       Over Benedict's objection, the court
decided to take final verdicts on the three counts and to send the jury
back   to   continue   deliberations    on    the    remaining    count.      The    court
instructed the jury to report to the courtroom to announce its verdict; the
jury, however, indicated that they were making




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progress and asked to continue deliberating.         (Trial Tr. at 478.)     Twenty
minutes later, the jury informed the court that it was in the same position
as it was before.     (Trial Tr. at 479.)      The court then decided that the
jury should announce its verdicts on the three counts.


      The jury found Benedict not guilty of the charges in Counts I and III
relating to the post office burglary and guilty of theft of post office
property as charged in Count IV.     The jury had not reached an agreement on
Count II, conspiracy to steal post office property.          The court ordered the
verdicts as to Counts I, III, and IV entered as final judgments.           Benedict
moved for a mistrial on Count II.           The government opposed the motion,
arguing that the jury was not deadlocked.         The court denied the defense
motion, excused the jury for a three-day, holiday weekend, and instructed
them to report back on Monday morning to continue deliberations on Count
II.


      The following Monday, the defense renewed its objection to the jury's
continued deliberations.      In the alternative of a mistrial on Count II,
Benedict argued that the jury should be permitted to deliberate on all of
the counts in the indictment, particularly because the conspiracy charge
in Count II was inextricably linked to the offense for which the jury had
already   announced   a   guilty   verdict.    The   court    rejected   Benedict's
arguments and instructed the jury to resume its deliberations on only Count
II.   After approximately forty minutes of deliberations, the jury sent out
a note stating:

      We are deadlocked at 11 to 1 on indictment #2.         No one is
      budging.


      10:05 a.m.

      11-13-95

      /s/ Jury Foreperson




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(R. at 59.)     At that point, the government agreed to dismiss Count II.
(Trial Tr. at 497.)    Benedict appeals.


                                     II.


     Benedict's primary contention on appeal is that the court erred in
taking a partial verdict.    Benedict challenges the court's authority as a
matter of law to take a partial verdict in a case involving multiple
charges against a single defendant.       In the alternative, Benedict argues
that the court abused its discretion in doing so in this case.


     We reject Benedict's broad contention that a district court lacks the
legal authority to take a partial verdict in any criminal case involving
multiple counts against a single defendant.     Although this circuit has not
yet confronted the issue, all other circuits to consider the question have
approved the practice.    See, e.g., United States v. Ross, 626 F.2d 77, 81
(9th Cir. 1980); United States v. DeLaughter, 453 F.2d 908, 910 (5th Cir.),
cert. denied, 406 U.S. 932 (1972); United States v. Barash, 412 F.2d 26,
31-32 (2nd Cir.), cert. denied, 396 U.S. 832 (1969) (citing United States
v. Cotter, 60 F.2d 689, 690-91 (2nd Cir.), cert. denied, 287 U.S. 666
(1932)).   Similarly, we hold that the practice of taking a partial verdict
in a single-defendant case is not per se invalid.


     Recognizing that partial verdicts may be appropriate in certain
circumstances, we turn to the specific facts of this case,      reviewing the
district court's decision for an abuse of discretion.      See United States
v. Wheeler, 802 F.2d 778, 781 (5th Cir. 1986), cert. denied, 480 U.S. 908
(1987).    The danger inherent in taking a partial verdict is the premature
conversion of a tentative jury vote into an irrevocable one.        See id.;
United States v. DiLapi, 651 F.2d 140, 147 (2nd Cir. 1981), cert. denied,
455 U.S. 938 (1982).     It is improper for a trial court to intrude on the
jury's    deliberative process in such a way as to cut short its opportunity




                                      4
to fully consider the evidence.             Such an intrusion would deprive the
defendant of "the very real benefit of reconsideration and change of mind
or heart."    United States v. Taylor, 507 F.2d 166, 168 (5th Cir. 1975); see
also United States v. Nelson, 692 F.2d 83, 95 (9th Cir. 1982) (noting that
continued     jury    deliberations   can   alter   the   jury's   views   on   charges
previously considered).


     Under the circumstances of this case, we find error in the manner in
which the district court conducted the jury deliberations.              When the jury
first indicated that it was split on one remaining count, deliberations had
been in progress for approximately seven hours; only two hours had passed
since the jury received its requested clarification between two of the
counts.     The jury had reached tentative agreement on three of the four
counts in the indictment and all implications were that the jury was making
progress towards unanimity on the undecided charge.                The vote had moved
from 10-to-2 to 11-to-1 just half an hour before the jury asked the court
for guidance.        Nothing in the record suggests that the jury had reported
a deadlock.     To the contrary, after taking verdicts on the three counts,
the court instructed the jury to continue deliberating on the remaining
charge.   Moreover, the government subsequently opposed Benedict's motion
for a mistrial on Count II on the theory that the jury was not yet
deadlocked.    Neither party requested a partial verdict.            Moreover, unlike
the case in which the court leaves it to the jury's discretion whether to
announce a partial verdict after fully explaining the consequences of such
course to the jury, see, e.g., United States v. Ross, 626 F.2d 77, 80-81
(9th Cir. 1980), the court here simply instructed the jury to announce its
partial decision without first informing the jury that doing so would
render those decisions final.


     Finally, it is particularly troubling that the outstanding charge of
conspiracy to commit post office theft was so closely related to the
substantive theft offense for which the jury




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announced a guilty verdict and to which the jury was not permitted to
return during the remaining deliberations.    It is difficult to imagine that
the jury could continue to deliberate on the conspiracy charge without
reweighing the evidence with respect to the substantive offense where, as
here, the government's evidence on both counts was virtually the same.   The
jury expressed as much when it asked for clarification between the two
charges.   Under the circumstances of this case, we hold that the district
court abused its discretion by instructing the jury to announce verdicts
on three counts before it had ended its deliberations on one closely-
related count.


                                 CONCLUSION


     We reverse Benedict's conviction and remand the case to the district
court.     We do not consider whether jeopardy has attached such that
additional criminal proceedings for the same conduct would be barred by the
Fifth Amendment.     In our view, that question is best resolved by the
district court in the first instance if and when it is presented.


     A true copy.


           Attest:


                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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