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US Court of Appeals
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
                                                     No. 97-10053
v.
                                                     D.C. No.
                                                     CR-94-00239-LDG
NORMAN REED,
Defendant-Appellant.


UNITED STATES OF AMERICA,
Plaintiff-Appellant/
                                                     No. 97-10072
Cross-Appellee,
                                                     D.C. No.
v.
                                                     CR-94-00239-LDG
NORMAN REED,
                                                     OPINION
Defendant-Appellee/
Cross-Appellant.


Appeals from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding


Argued and Submitted
April 15, 1998--San Francisco, California,


Filed July 7, 1998

Before: Betty B. Fletcher, Dorothy W. Nelson and
Robert R. Beezer, Circuit Judges.


Opinion by Judge Beezer

_________________________________________________________________

                               7099


SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1998 by West Group.
_________________________________________________________________


Criminal Law and Procedure/Jury Instructions

The court of appeals affirmed a judgment of conviction.
The court held that is not an abuse of discretion to use a spe-
cial verdict form that requiring a jury to determine the occur-
rence of any of a series of acts each of which is sufficient to
constitute the indicated crime.


Appellant Norman Reed was involved in an insurance fraud
scheme. When he was called before a grand jury, Reed testi-
fied that he was unaware that the insurance claims were fraud-
ulent, and that he never assisted claimants to give a false
statement to an insurance company. Reed was indicted on
charges of conspiracy, mail fraud and perjury.


The trial was conducted in two phases. The first phase
adjudicated the conspiracy and mail fraud counts, and the sec-
ond phase adjudicated the count of perjury before the grand
jury. The jury returned verdicts of guilty in both phases.


In the second phase, over Reed's objection, the district
court supplied the jury with a verdict form which contained
both general and special verdicts. The jury was instructed to
complete the special verdict form only if it found Reed guilty
in the general verdict. The special verdict form listed eleven
sworn statements that Reed had made before the grand jury.
The statements were denials of the offenses of which Reed
was convicted in phase one of the trial. The jury was asked
whether Reed made any of the listed statements. The jury
answered each question in the affirmative.


Reed appealed, arguing that the district court erred in sub-
mitting a special verdict form to the jury.


[1] As a rule, special verdicts in criminal trials are not
favored. This rule is fashioned to protect the rights of criminal


                               7100


defendants by preventing the court from pressuring the jury to
convict. The concerns with special verdict forms are that: they
may infringe on a jury's power to deliberate; require the jury
to issue a report of its deliberations; hinder the jury's power
to follow or not to follow the instructions of the court; or
restrict the jury's historic function of tempering rules of law
by common sense.


[2] However, use of a special verdict form is a matter of the
district court's discretion to be determined on the facts of each
case. [3] The special verdict form given to Reed's jury listed
the cause of action once and queried whether specific inci-
dents of conduct occurred. Each incident was sufficient in
itself to support a conviction under the indictment. The form
did not reformulate the elements of the crime and therefore
lacked a coercive quality.


[4] Where a special verdict form requires the jury to deter-
mine the occurrence of any of a series of acts, each of which
is sufficient to constitute the indicted crime, the traditional
concerns regarding special verdicts are not implicated.


_________________________________________________________________

COUNSEL

Lorraine J. Mansfield, Las Vegas, Nevada, and Norman J.
Reed, pro se, for the defendant-appellant.


Daniel R. Schiess, Assistant United States Attorney, Las
Vegas, Nevada, for the plaintiff-appellee.


_________________________________________________________________

OPINION

BEEZER, Circuit Judge:

Norman Reed appeals his conviction and sentence for con-
spiracy, mail fraud and perjury. See 18 U.S.C. SS 371, 1341


                               7101


and 1623. Reed was convicted after a 24 day trial and sen-
tenced to 57 months imprisonment. The government cross-
appeals the district court's application of the sentencing
guidelines. This court has jurisdiction to hear the direct appeal
pursuant to 28 U.S.C. S 1291 and the cross-appeal pursuant to
18 U.S.C. SS 3742(a) & (b).


We resolve all but one of the claims in this appeal and
cross-appeal in a memorandum disposition filed contempora-
neously with this opinion. In that memorandum, we affirm
Reed's conviction and remand for resentencing with instruc-
tions to the district court to consider "intended loss" pursuant
to U.S.S.G. S 2F1.1. Resolution of Reed's argument that the
district court erred in using a special verdict for his perjury
conviction, however, merits publication. We hold that the dis-
trict court did not err in submitting a special verdict form to
the jury.


I

Reed, a Las Vegas attorney, was involved in an insurance
fraud scheme. The conspiracy was launched from a medical
clinic in Las Vegas, Nevada. Associates at the clinic and their
recruits participated in staged automobile "accidents."
"Victims" of the accidents reported soft tissue injury and
property damage. The "injuries" were "treated" by doctors at
the clinic. Nathaniel Reed, the defendant's father, was
recruited to file insurance claims on behalf of the participants
in the accidents. When he was recruited, Nathaniel Reed was
not informed of the fraudulent nature of the claims. Approxi-
mately six months after the inception of the conspiracy,
Nathaniel Reed became suspicious and confronted the orga-
nizers of the conspiracy. Despite learning of the conspiracy,
Nathaniel Reed continued to file fraudulent claims. Nathaniel
Reed introduced his son to the leaders of the conspiracy
shortly after Reed passed the bar examination. Reed then
joined the conspiracy.


                               7102


Reed was called to testify before a grand jury regarding the
conspiracy. He testified that he was unaware that the claims
were fraudulent and that he never assisted claimants to give
a false statement to an insurance company. Reed was indicted
and brought to trial. The trial was conducted in two phases
before the same jury: the first phase adjudicated the conspir-
acy and mail fraud counts, and the second phase adjudicated
the count of perjury before the grand jury. The jury returned
verdicts of guilty in both phases.


In the second phase the district court, over the defendant's
objection, supplied the jury with a verdict form which con-
tained both general and special verdicts. The jury was
instructed to complete the special verdict form only if it found
defendant guilty in the general verdict. The special verdict
form listed eleven sworn statements that Reed had made
before the grand jury. The statements were denials of the
offenses of which Reed was convicted in phase one of the
trial. The jury was asked whether Reed made any of the listed
statements. The jury answered each question in the affirma-
tive. Reed appeals the use of the special verdict form.


II

We have not previously provided a standard of review for
use of a special verdict form over a defendant's objection. In
United States v. O'Looney, 544 F.2d 385, 392 (9th Cir. 1976),
we reviewed for plain error the use of a special verdict where
there was no defense objection. See also United States v. Gar-
cia, 37 F.3d 1359, 1369-70 (9th Cir. 1994) (same). In
O'Looney, we stated that the propriety of using a special ver-
dict should be determined according to "the particular circum-
stances of [each] case." O'Looney, at 392. Verdict forms are,
in essence, instructions to the jury. We review the formulation
of jury instructions for abuse of discretion. United States v.
Johnson, 956 F.2d 197, 199 (9th Cir. 1992) (citing United
States v. Linn, 880 F.2d 209, 217 (9th Cir. 1989)). "So long
as the instructions fairly and adequately cover the issues pres-


                               7103


ented, the judge's formulation of those instructions. . . is a
matter of discretion." United States v. Echeverry, 759 F.2d
1451, 1455 (9th Cir. 1985). Likewise, we review the district
judge's decision to use a special verdict form for abuse of dis-
cretion.


III

[1] Although there is no per se prohibition, "[a]s a rule,
special verdicts in criminal trials are not favored. " O'Looney,
544 F.2d at 392. This rule is fashioned to protect the rights of
criminal defendants by preventing the court from pressuring
the jury to convict. Id. In O'Looney, we summarized the con-
cerns with special verdicts:


      To ask the jury special questions might be said to
      infringe on its power to deliberate free from legal
      fetters; on its power to arrive at a general verdict
      without having to support it by reasons or by a report
      of its deliberations; and on its power to follow or not
      to follow the instructions of the court. Moreover, any
      abridgment or modification of this institution would
      partly restrict its historic function, that of tempering
      rules of law by common sense brought to bear upon
      the facts of a specific case.


Id. (quoting United States v. Ogull, 149 F. Supp. 272, 276
(S.D.N.Y. 1957)). We concluded that none of the special ver-
dict concerns were implicated in that case because the jury
was presumed to have followed the jury instructions and
defendant could not show prejudice. Id.


[2] Exceptions to the general rule disfavoring special ver-
dicts in criminal cases have been expanded and approved in
an increasing number of circumstances. In O'Looney, supra,
we affirmed the use of a special verdict form to respond to the
jury's questions. The Federal Rules of Criminal Procedure
require special verdicts in criminal forfeiture cases. Fed. R.


                               7104


Crim. P. 31(e). Juries are regularly called upon to make fac-
tual determinations relevant to sentencing. See, e.g., United
States v. Nattier, 127 F.3d 655, 661 (8th Cir. 1997) (special
verdict form used to determine drug involved in a conspir-
acy), cert. denied, 118 S. Ct. 1398 (1998); United States v.
Williams-Davis, 90 F.3d 490, 511 (D.C. Cir.) (special verdict
form used to determine predicate acts for continuing criminal
enterprise enhancement under the sentencing guidelines), cert.
denied, 117 S. Ct. 986 (1996); United States v. Garcia, 37
F.3d 1359, 1370 (9th Cir. 1994) (special verdict required to
determine the object of the conspiracy where defendant is
indicted for a multi-object conspiracy); United States v.
Owens, 904 F.2d 411, 415 (8th Cir. 1990) (special verdict
form preferable where two drugs are mentioned in the indict-
ment and the sentencing guidelines provide for disparate treat-
ment of the drugs); United States v. McNeese, 901 F.2d 585,
605 (7th Cir. 1990) (special verdict form used to determine

quantity of narcotics in possession case). But see United
States v. Conley, 92 F.3d 157, 168 (3rd Cir. 1996)) (special
verdict not required to determine the object of a conspiracy),
cert. denied 117 S.Ct. 1244 (1997); United States v. Fuentes,
877 F.2d 895, 899 (11th Cir. 1989) (special verdict form not
required to determine quantity of marijuana where quantity is
not an element of the substantive offense). Juries submit spe-
cial verdict forms regarding the types of weapons used in
crimes of violence or drug trafficking. See, e.g., United States
v. Perez, 129 F.3d 1340, 1342 (9th Cir. 1997); United States
v. Sims, 975 F.2d 1225, 1235-36 (6th Cir. 1992). Juries are
asked to fill out special verdict forms to determine predicate
acts in RICO convictions. See, e.g., United States v. Sims, _______
F.3d _______, 1998 WL 258167 (7th Cir. 1998). Juries are even
called upon to issue findings as to each element of an offense.
See e.g., United States v. Bilzerian, 127 F.3d 237, 239 (2d Cir.
1997), petition for cert. filed, _______ U.S.L.W. _______ (May 26,

1998) (No. 97-1892). In Bisno v. United States, 299 F.2d 711,
722 (9th Cir. 1961), however, we held that it was not a due
process violation to deny a defendant's request to "require the
jury to render a special verdict as to each of the ten items of


                               7105


property which [defendant] was charged with concealing."
These cases make it clear that use of a special verdict form is
a matter of the district court's discretion to be determined on
the facts of each case.1


[3] Defendant advances United States v. Spock, 416 F.2d
165 (1st Cir. 1969), in support of his challenge to the special
verdict form. In Spock, the First Circuit set aside a verdict in
a criminal case where the district court sua sponte "put to the
jury, in addition to the general issue of guilty or not guilty, ten
special questions to be answered `Yes' or `No.' " Id. at 180.
The questions, which were "vigorously protested by
defendants," inquired as to whether a defendant was guilty of
a single cause of action using different formulations of the
crime. Id. For example, in regard to an "aiding and abetting"
count, the first three questions submitted asked whether the
defendants had (1) aided, (2) counseled or (3) abetted. Id. The
First Circuit held that that special verdict form was unduly
coercive: "[t]here is no easier way to reach, and perhaps force,
a verdict of guilty than to approach it step by step." Id. at 182.
Spock is distinguishable from the case at hand. The special
verdict form here listed the cause of action once and queried

whether specific incidents of conduct occurred. Each incident
was sufficient in itself to support a conviction pursuant to the
indictment. The form did not reformulate the elements of the
_________________________________________________________________
1 The Sixth Circuit upheld convictions based on a special verdict similar
to the one used here. In United States v. Rivera, 77 F.3d 1348 (11th Cir.),
cert. denied, 517 U.S. 1249 (1996), "the district court utilized a special
verdict form dividing the indictment into two `charges,' " each charging
the defendant as a felon in possession of a firearm, but on two separate
occasions. Id. at 1350. The jury unanimously found that the defendant had
possessed a firearm on one occasion, but could not reach a verdict as to
the other occasion. Id. The defendant did not appeal the decision to use a
special verdict form; rather, he asserted that it violated his double jeopardy
rights to be reprosecuted for the second offense. Id. at 1351-52. Rivera
thus does not persuade us that the special verdict form used here was

proper, but it does assure us that the verdict form was not an innovation.
See Spock, 416 F.2d at 183 ("[N]ew procedures . . . should be adopted
with great hesitation . . . .").


                               7106


crime and therefore lacked the coercive quality of the form in
Spock.


[4] Where a special verdict form requires the jury to deter-
mine the occurrence of any of a series of acts, each of which
is sufficient to constitute the indicted crime, the traditional
concerns regarding special verdicts are not implicated. Use of
a special verdict in the present matter is no more coercive
than listing the predicate acts in a RICO charge or the objects
in a conspiracy case. It cannot be said that the special verdict
form "infringed on [the jury's] power to deliberate"; required
the jury to issue a "report of its deliberations"; hindered the
jury's "power to follow or not to follow the instructions of the
court"; or restricted the jury's historic function "of tempering
rules of law by common sense." See O'Looney, 544 F.2d at
392. We hold that the district court did not abuse its discretion
in submitting a special verdict on Reed's perjury charge.


The judgment of the district court is AFFIRMED.

                               7107




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