Petition for a Writ of Certiorari — Goldstein v. United States

In The

Supreme Court of the Hnit

October Term, 1972. - ae

No. 73-83 aS

ALBERT GOLDSTEIN, ALFRED CAESAR,

SAM JACOBSON, MURRAY GELLER, AND

ROBERT WISCH,

Petitioners,

USe

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

JOSEPH E, BRILL JULES RITHOLZ

Attorney for Petitioner Alfred KOSTELANETZ & RITHOLZ

Cae sar Attorneys for Petitioner Albert

233 Broadway Goldstein

New York, New York 10007 52 Wall Street

(212) 233-6150 New York, New York 10005

JAMES M, LA ROSSA (212) 422-4030

Attorney for Petitioner Sam THOMAS J. O'BRIEN

Jacobson Attorney for Petitioner Murray

522 Fifth Avenue Geller

New York, New York 10036 2 Pennsylvania Plaza

(212) 687-4100 New York, New York 10001

(212) 947 -6147

(6126) LUTZ APPELLATE PRINTERS, INC.

Law and Financia! Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

(201) 257-6850 (212) 565-6377 (215) 563-5587 (202) 783-7288

INDEX TO BRIEF

Opinion Below ....-.+-+-e-ee-s

Jurisdiction . . + . . . 7 e . . +

Questions Presented ......-

Statutory Provisions .....-.

Statement of the Case .....-

Reasons for Granting the Writ

Point I. The Court of Appeals

Point Il. Retrial of the defendants after

the sua sponte discharge of the Jury

without inquiry or consultation with

counsel constitutes double jeopardy.

Conclusion . . o . e . . . . . s . - . +. 7.

Table of Citations

CASES CITED:

Carroll v. United States, 354 U.S. 394(1957) .

Downum vy. United States, 372 U.S. 734

(1963) e — J * o a * o . o a o o o . o * _

erred

and was in conflict with another cir-

cuit on an important federal question

in holding the dismissal of the indict-

ment was appealable. ....-.--+--s

Page

. 1

» =

« =

. 2

. «=

. 9

oe

- 13

- 23

«

19, 21

te

Inder

Page

Gori v. United States, 367 U.S. 364 (1961) .. 19

Illinois v. Sommerville, 12 CR L. 3169

Supreme Court, February 27, 1973 No.

71-692 * 8 €@€ 6 @ © @& © WLS ° @.28 2° *& © © © 19

United States v. BordenCompany, 308 U.S.

188 _ . — . . . . . . . . . . . . . . . . . Bs

United States v. Dickinson, 213 U.S.92 ... 11

United States v. Hill, F.2d, Cr.L.

Bone: OO Cle. 20/077 kk see cca 32

United States v. Jorn, 400, 484, 486 U.S.

i. ES oe ee re een | ae, | |

United States v. Keitel, 211 U.S. 370 ... 11

United States v. Lansdown, 460 F.2d 164

2 Se ee ree a a,

United States v. Oppenheimer, 242 U.S.

85 (1916) _ . *- . . . . . e . . . . + e . . . 12

United States v. Perez, 222 U.S.579 (1824)

oS * 2. & =. @ . . . . + . . . . 7 . . . . 18, 19

Wade v. Hunter, 336 U.S. €89 .......e¢e.-e 19

Will v. United States, 389 U.S.90....... 11

Indez

STATUTES CITED:

Page

Title 18 U.S.C.$3731....... 12,9,10, 11,13

Title 18 U.S.C. $3731 .. 1, 9, 10, 11,13

Tite 10 USE. BTR 2c cece escvese 43

Titties 26 USE. FIO 6 eee es

Title 26 U.S.C. 87206 ... 2c cece

UNITED STATES CONSTITUTION CITED:

Fifth Amendment ....-+-+-ee-ee-e

OTHER AUTHORITIES CITED:

1970 U.S. Code Congressional and Admin-

istrative News, 5848 ....-e-e-ee-e

The American Bar Association Project

on Minimum Standards for Criminal

Justice, Approved Draft 1968, Section

Re 646 ope we we eee ee Se Oe *

Appendix

Opinion and Judgment of the Court of

Appeals . -_ 7 7 . . . 7 . . . e ° . . e .

F 1

n 1

9, 13

e 10

. 20

la

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

The petitioners pray that a writ of certiorari

issue to review the judgment and opinion entered

on May 23, 197% by the United States Court of

Appeals for the Second Circuit in the proceedings

entitled United States of America, Appellant v.

Albert Goldstein, et al, Appellees.

The opinion of the Court of Appeals, not yet

reported, appears in the Appendix at page la.

Jurisdiction

The judgment of the Court of Appeals for the

Second Circuit was entered on May 25, 1973 and

this petition for certiorari was filed within 30

days of that date. This Court’s jurisdiction is

invoked under 28 U.S.C. §1254 (1).

Questions Presented

1. Whether the holding of the Court of Appeals,

in conflict with the holding of the Court of Appeals

for the Ninth Circuit, that a Government appeal

lies from a District Court’s dismissal of an

indictment on the grounds of double jeopardy was

correct.

2. Whether reprosecution after the District

Court sua sponte dismissed the jury for disagree-

ment without inquiry of the jury or consultation

with counsel, constitutes double jeopardy.

to

Statutory Provisions

Title 18, United States Code, 83731 states in

pertinent part:

“In a criminal case an appeal by the United

States shall lie to a court of appeals from

--- an order of a district court dismissing

an indictment --- except that no appeal

shall lie where the double jeopardy clause

of the United States Constitution prohibits

further prosecution.”

Statement of the Case

The petitioners were tried before the United

States District Court, E.D.N.Y. (Judd, J) and a

jury on twenty counts of an indictment and a

superseding information charging a conspiracy

and substantive offenses against the internal reven-

ue laws in violation of 18 U.S.C. 88371 and 2 and

26 U.S.C. 887201 and 7206.

The gravamen of the alleged offenses was that

various corporations evaded payment of their in-

come taxes by deducting certain salaries as ex-

penses on the corporation’s income tax returns

which were paid to the defendants whom the Govern-

ment alleged performed little or no services for

the corporations named.

At the end of the Government’s case the defendant

Kessler was granted a judgment of acquittal,

counts 16 and 19 were dismissed against the de-

fendant Goldstein, and counts 17 and 18 were dis-

missed as to the defendant Jacobson. At the end

3

Statement of the Case

of the entire case count 2 was dismissed as to the

defendant Caesar (A 6 & 7).!

On October 5, 1972 after a five week trial, the

jury retired at approximately 12 noon, to deliberate

on 49 separate verdicts involving five defendants

and seventeen counts of the indictment and one

count of an information. At 3:25 P.M., after a

lunch recess, the testimony of two prosecution

witnesses was read, at the jury’s request. When

the reading of that testimony was concluded, the

Court recessed at 4:58 P.M. and excused the jury

from further deliberations on that day.

The following day, October 6, 1972, the jury

deliberated from 9:30 A.M. (A31) until 11:30 A.M.

when they requested the Court’s entire charge

to be reread (A34-35). Juror No. 2, Mrs. Rappa-

port, also requested the Court’s charge to be

given to the jury in writing (A395).

After adelay of approximately one hour, awaiting

a transcript of the charge to be prepared, during

which time the jury was excused to the jury room,

the Court re-read its instructions from 12:45 P.M.

until approximately 1:45 (A36-44). During the

reading of the charge Juror Rappaport requested

a re-reading of the indictment (A37).

At 3:10 P.M. on the same day the Court re-

ceived the following note from the jury:

“The jury apparently is not able to reach

1. The letter ‘‘A’’ refers to the Appellant’s Appendix on

file in the United States Court of Appeals for the Second

Circuit,

+

Statement of the Case

a unanimous verdict on any count except

number 20, Please advise (A47).”

After consulting with counsel the Court de-

livered a supplemental charge in which he ad-

vised the Jury to adhere to their conscientious

convictions but not to hesitate to re-examine their

Own views, consult with one another and deliberate

with a view to reaching agreement without doing

violence to any individual judgment (A51).

After the jury retired at 3:15 P.M. certain

defense counsel moved for a mistrial on the ground

that the note from the jury indicated there was a

deadlock which appeared to one counsel to be

apparently hopeless at that time (A52-53). The

Court denied that motion stating that “I think that

they should be permitted to continue” (A53).

Less than two hours later at approximately 5:00

P.M. a second note was received stating:

“I’m sorry to say that after reviewing

most of the testimony and using what argu-

ments and persuasion we could bring to

bear, Mrs. Rappaport has insisted that under

no circumstances can she vote guilty on

any of the counts” (A56). (Emphasis added)

Immediately after reading the Jury’s note to

counsel the Court said:

“I think that means a disagreement on

seventeen counts. We will bring the jury

in and see” (A56). (Emphasis added.)

5

Statement of the Case

The jury then entered and the following en-

sued:

Court: “Mr. Fisher, I have your note

which I gather indicates there is still

disagreement on all but one count. Will

you read me the count on which you

have reached a verdict.”

The Foreman: “Your Honor, we, the

jury find on count twenty defendant Al-

bert Goldstein not guilty.”

The Court: “Do you want the Jury

polled, Mr. Pollack?”

Mr. Pollack: “Please, your Honor”

(A56-57).

After the Jury was polled the Count continued.

The Court: “and it’s clear that you

are in disagreement on the rest of the

counts ?”

The Foreman: “I am afraid so” (A58)

As the Court of Appeals criticized without any

consultation with counsel or proper ‘nyuiry of

the Jurors, and without affording vpportunity

for counsel to be heard, the trial Court continued:

The Court: “I appreciate the time

you have put in, the effort that’s been

made. I might have given a more co-

6

Statement of the Case

ercive charge, but I thought it was im-

proper. I think we should respect the

conscience of anybody on the Jury.

I would like to keep you for five or ten

minutes just to give you a little picture

of things behind the scenes. You are

entitled to wonder about what happened

at all these side bars, and this has been

only an income tax case. But it has been

an important case for everybody.

You have heard some of the best de-

fense counsel in this City in the last

five weeks. The Government attorney

is not an ordinary assistant U.S. attor-

ney. He is from the section on Or-

ganized Crime of the Department of

Justice. We have kept that title out so

that it wouldn’t in any way prejudice the

defendants in this case.

Mr. Goldstein was going to put in char-

acter testimony, but in discussions about

what they might be asked on cross

examination, I said I would allow

questions with respect to whether he had

large gambling debts, and whether that

was known to the character witnesses,

and I think I was confirmed in feeling

that that was a matter bearing oncredibil-

ity because Mr. Jacobson’s counsel asked

you, when he submitted his income tax

returns to the Jury, to block out the

portions under income that showed some

of his other income came from gambling.

7

Statement of the Case

I dismissed the count as to Mr. Kessler

hecause he seemed to me tohave worked

so clearly that a reasonable juror must

have had a reasonable doubt or him.

But one of the facts that was not in the

record was that Mr. Kessler went off

the payroll of Jolly shortly after he was

arrested on a hijacking charge. He was

not convicted on that because he is now

in jail in New Orleans on a charge of

illegally dealing in firearms.

You may or may not have noticed that

there was a Marshall sitting beside him

in the Courtroom al! the time. Iam sure

he didn’t run away. We tried tohave him

as inconspicuous as possible so you

would not regard that as prejudice to

him or to anyone else.

You heard references to Brady exhibits

from time to time. The Government is

required under a case called Brady

against Maryland to give the defendants

in a criminal case any evidence that is

in Government files that would tend to

show the innocence of the defendant, or

to contradict Government testimony and

those were some of the things that were

brought forward.

In the Jolly bankruptcy, where I read the

Court file, it appeared that Mr. Gold-

stein said that the reason why the company

went into bankruptcy was because two of

8

Statement of the Case

the original principal stockholders had

left and taken away a lot of business, and

I don’t know whether that means state-

ments or not,

I kept out the testimony from Mr. Stach-

man that he had been threatened by Mr.

Kessler and Mr. Goldstein if he did not

keep doing business with Jolly.

The reason I reversed myself in that

Himmelstein statement about when Mr.

Seidemann was on the stand was that |

thought the statement would be ad-

missible if Mr. Himmelstein came and

might as well avoid it.

Mr. Pollack: May I respectfully re-

quest we may have gone far enough and

dismiss the Jury? They have been here

long enough” (A59, 60, 61).

Thereafter each defense counsel took exception

to the Court’s remarks and moved to dismiss the

indictment (62-67). The case was reassigned to

the Honorable Jack Weinstein for retrial. There-

after, that Court granted the defendant’s motion

to dismiss the indictment on the ground of double

jeopardy.

9

Reasons for Granting the Writ

Point |

THE COURT OF APPEALS ERRED AND WAS

IN CONFLICT WITH ANOTHER CIRCUIT ON AN

IMPORTANT FEDERAL QUESTION IN HOLDING

THAT THE DISMISSAL OF THE INDICTMENT

WAS APPEALABLE.

The District Courts (Weinstein, J) order which

the Court of Appeals held was appealable under

18 U.S.C. 83731 provided in pertinent part:

“Ordered that the indictment numbered 72

CR 18 against Albert Goldstein, Alfred

Caesar, Sam Jacobson, Murray Geller and

Robert Wisch is hereby dismissed on the

ground that re-prosecution of the defendants

herein is barred by the double jeopardy pro-

vision of the Fifth Amendment to the United

States Constitution” (A26).

Section 3731 of Title 18, as amended January 2,

1971, provides in pertinent part that:

“In a criminal case an appeal by the United

States shall lie to a court of appeals from...

an order of a district court dismissing an

indictment... except that no appeal shall lie

where the double jeopardy clause of the

United States Constitution prohibits further

prosecution.” (Emphasis added.)

We submit that the Court of Appeals, in holding

the order appealable, erroneously decided an

important question of federal law which should be

corrected or at least settled by this Court.

10

Reasons for Granting the Writ

We contend that the precise statutory language

and legislative intent precluded the Government

from appealing. The conference report, (91-

1768) 1970 U.S. Code Congressional and Ad-

ministrative News, 5848 supports our contention:

“The Senate amendment contained provisions

not in the House bill which amended the

Criminal Appeals Act, section 3731 of Title

18, United States Code, in the following

significant respects:

1. Technical distinctions in pleadings

as limitations on appeals by the United

States were eliminated and in their place

the Government was authorized to appeal

any decision or order terminating a

prosecution except an acquittal.

x * *

The conference substitute conforms

to the Senate amendment except that it

provides that an appeal by the United

States shall lie to a court of appeals

from a decision judgment or order of

a district court dismissing an indict-

ment or information as to any one or

more counts, but that no appeal _ shall

lie_in any case _in which the Double

Jeopardy Clause of the United States

Onstitution prohibits further prosecu-

tion.” (Emphasis added.)

11

Reasons for Granting the Writ

Accordingly, it seems clear, that although

the Senate’s amendment would have authorized

the Government to appeal “any decision terminating

a prosecution except an acquittal” that version was

specifically rejected in favor of the broader re-

striction precluding appeals in “any case in which

the Double Jeopardy Clause of the United States

Constitution prohibits further prosecution”. If

the conference substitute of the Senate Amendment,

which was of course adopted, is tohave any meaning,

it seems obvious that Congress intended to bar the

Government from appealing dismissals based upon

Double Jeopardy.

This Court has frequently stated that the

“exceptional right of appeal given to the Govern-

ment by the Criminal Appeals Act is strictly

limited to the instances specified” United States

v. Borden Co., 308 U.S. 188, 192. See also United

States v. Keitel, 211 U.S. 370, 399; United States

v. Dickinson, 213 U.S. 92, 103; Carroll v. United

States, 354 U.S. 394, 400, where the Court declared

that “appeals by the Government in criminal cases

are something unusual, exceptional, unfavored.”

Such appeals are disfavored, it was explained in

Will v. United States, 389 U.S. 90, 96 in part

because they always threaten to offend the policies

behind the double-jeopardy prohibition.” Although

the present section 3731 provides that “The pro-

visions of this section shall be liberally construed

to effectuate its purposes”, a finding that the

Government has the right to appeal the instant

case would necessitate an abandonment of the

expressed statutory purpose that “no appeal shall

lie where the double jeopardy clause of the United

States Constitution prohibits further prosecution”.

12

Reasons for Granting the Writ

Congress did not intend an appeal under the

facts herein, as evidenced by its specific rejection

of the Senate’s version of the bill. We submit that

Congress and Congress alone has the power to

legislate and that the decision of the Circuit Court

of Appeals usurped that legislative function.

Furthermore, the District Court’s ruling that

prosecution is barred foreclosed the issue. As

was stated in United States v. Oppenheimer, 242

U.S. 85, 87 (1916).

“Of course, the quashing of a bad indictment

is no bar to a prosecution upon a good one,

but a judgment for the defendant upon the

ground that the prosecution is barred goes

to his liability as a matter of substantive

law, and one judgment that he is free as

a matter of substantive law is as good as

another.”

Accordingly, in the instant case, the District

Court’s decision that further prosecution is barred

is, as a matter of substantive law, tantamount to

an acquittal.

Moreover, we contend that the Second Circuits

decision herein is apparently in conflict with the

Ninth Circuit’s decision in United States v. Hill,

__F.2d (9 Cir. 1972). There, the trial judge

dismissed an indictment charging obscenity on a

pre-trial motion after receiving the erotica in

evidence and holding it non obscene as a matter

of law. The Government sought a writ of mandamus.

The Court of Appeals held that, whether or not the

judge was wrong, since jeopardy attacked the

13

Reasons for Granting the Writ

newly amended Criminal Appeal Act 18 U.S.C.

§3731 bars both the Government appeal and a

mandamus designed to serve the same purposes.

In reaching that result the Court said:

“The Criminal Appeals Act, as amended,

18 U.S.C. Sec. 3731 permits the Govern-

ment to appeal in certain cases except

that no appeal shall lie where the double

jeopardy clause of the United States Con-

stitution prohibits further prosecution or

‘after the defendant has been put in jeopardy.’

Because we are of the opinion that the real

parties in interest have been put in jeopardy,

we hold that the Government has no right to

appeal.”

Point tI

RETRIAL OF THE DEFENDANTS AF TER THE

SUA SPONTE DISCHARGE OF THE JURY WITH-

OUT INQUIRY OR CONSULTATION WITH COUN-

SEL CONSTITUTES DOUBLE JEOPARDY.

We contend that the Circuit Court of Appeals

reversal of the District’s Courts dismissal of the

indictment was incorrect and contrary to the

weight of authority.

The District Judge assigned to retry the case

dismissed the indictment on the ground that re-

prosecution of the defendants was barred by the

double jeopardy provision of the Fifth Amendment

to the United States Constitution in that the case

was improperly taken from the Jury after the first

trial.

14

Reasons for Granting the Writ

In reaching that result, the District Court

reasoned as follows:

The Court: “I have gone over all of

the transcript and other material and]

am particularly impressed with the

transcript of October 6, 1972 at 5:00

o’clock P.M,

The Court said that there is ‘still dis-

agreement on all but one count.’ There

is no indication that that disagreement

was fixed or that there could not be some

agreement had there been further con-

sultation. There were 18 counts undis-

posed of at that time. Many of them in-

volved a number of defendants and all of

them involved at least two defendants.

The Jury was then polled on Count 20

and the defendant in that count was found

not guilty. There’s no inquiry made by

the Court as to whether the Jury wished

to consult further with eachother. There

is no indication that they disagreed with

respect to each defendant on each count.

In fact, it is not clear that they had con-

sidered in any detail each defendant as to

each count,

Immediately after the Jury was polled,

the Judge began to address the Jury and

there would be nothing from which their

counsel could determine the nature of the

remarks that would be made up until

line 15 of page 6 of the transcript. Then

15

Reasons for Granting the Writ

reference is made to the organizedcrime

section of the Department of Justice.

Thercafter very quickly there is refer-

ence to highly prejudicial material which

undoubtedly had taken counsel by sur-

prise and it would only be at that point

I would think that the normal practice

was not going to be followed, that in-

quiry was not going to be made to the

Jury with respect to whether they might

possibly reach an agreement given more

time or whether they might possibly reach

an agreement on any of the Counts as to

any of the defendants.

It may well be that the Court properly

determined at that point that if was un-

likely an agreement would be reached

with respect to every count and every

defendant, but it is quite possible that

they might have reached agreement with

respect to some of the defendants as to

some of the counts or they might have

preferred to have more time.

The case took five weeks to try, was

very complicated and they had been

deliberating only eight hours.

I must reluctantly conclude that the

Court acted without proper consultation

with the attorneys and without proper

consultation with the Jury and that the

case was improperly taken from the Jury

at this point without the consent of the

defendants and before it had been deter-

16

Reasons for Granting the Writ

mined that no agreement could be

reached,

Under the circumstances, therefore, |

reluctantly find that the defendants should

be placed in double jeopardy if they

were to be tried and dismiss the case

as to all defendants.” (A122-124)

We submit that the District Court’s decision

was proper under the facts herein and should have

been affirmed.

As the Court below found the trial lasted five

weeks, involved very complicated issues and the

Jury had been deliberating for only eight hours

(A124), When the trial Court read the last jury

note which stated:

“I’m sorry to say that after reviewing

most of the testimony and using what ar-

guments and persuasion we could bring

to bear, Mrs. Rappaport has insisted that

under no circumstances can she vote guilty

on any of the counts.”

defense counsel realized that they had a favorable

jury and that at worst there would be a hung jury

(A86, 89). At that point counsel decided they did

not want a mistrial (A90, 103). Counsel, however,

was not consulted at this point nor were counsel

made aware that the Court intended sua sponte

to dismiss the Jury without inquiring as to whether,

given more time, the Jury could reach an agree-

ment on any of the counts or as to any of the de-

17

fendants on a particular count, After the trial

court read the note to counsel, the Court said:

“I think that means a disagreement on seven-

teen counts. We will bring the jury in and

see” (A56).

The Jury was returned to the courtroom and re-

ported its verdict of not guilty on count 20. Each

juror was then polled on that verdict. On com-

pletion of the polling the Court said:

“And it’s clear that you are in disagreement

on the rest of the counts.”

The foreman, without consultation with the other

members of the jury, replied:

“I am afraid so” (A58),

Immediately after this exchange the Court began

its “behind the scenes dissertation”, By that

dissertation, the Court effectively discharged the

Jury without consulting with or giving counsel an

opportunity to be heard, nor was any inquiry made

by the Court of the Jury as to the possibilities of

an agreement on any of the remaining 48 verdicts.

The Court did not attempt to ascertain whether the

Jury was hopelessly deadlocked nor whether further

time or instructions would be of assistance to it.

Moreover, the Court did not inquire whether the

Jury was or might be able to reach a verdict with

respect to a particular defendant or any of the

defendants with respect to a particular count if

given further time and/or instructions. The Court

did not give the Jury an opportunity to express any

18

Reasons for Granting the Writ

desires with respect to further deliberations. Cer-

tainly a trial of five weeks duration, covering over

4300 pages of transcript, warranted at least such

minimal inquiry.

The Jury’s note establishes that it only had

“reviewed most of the testimony” (underscoring

supplied) but it had not yet exhausted its review of

all of the evidence. Equally obvious is the fact

that if, after eight hours of deliberation any juror

entertains a strong, or even a seemingly un-

relenting conscientious judgment either in opposi-

tion to or in favor of acquittal, sufficient reason is

not shown thereby for the sua sponte declaration

of a mistrial in a case which lasted five weeks and

invoitved 49 possible verdicts. It is quite possible

that if instructed to resume deliberations, the

Jury might have, as the District Court found

(A124), been able to agree as to a verdict with

respect to one or more defendants within par-

ticular counts. It is significant that the Jury’s

note speaks only of “counts” and not particular

defendants, and likewise the Court’s inquiry of the

foreman does not extend to individual defendants,

but only as to “counts”. There were, after all,

49 possible verdicts. It is simply unbelievable

that the Jury had the opportunity to consider in-

dividually each of the 49 verdicts in less than eight

hours. An arithmetical calculation shows that this

would permit less than ten minutes for deliberations

per verdict.

Under United States v. Perez, 22 U.S. (9

Wheat.) 579 (1824) a trial court has discretion

to discharge a jury prior to verdict but, that

19

Reasons for Granting the Writ

discretion is far from unfettered for as the

Perez covrt states at 580, the trial court must

tahe “all the circurnstances into conside1 ation”

and determine whether “there is manifest necessity

for the act or the ends of public justice would be

defeated”. See also Illinois v. Sommerville, 12

CR L3169 Supreme Court, February 27, 1973

No. 71-692; United States v. Jorn, 400 U.S. 470,

480-481 (1971); Gori v. United States, 367 U.S.

364, 367-369 (1961): Downum v. United States,

372 U.S. 734, 735, 736 (1963).

Moreover, United States v. Jorn, supra, and

Downum v. United States, supra, also stress that

the trial court should keep in mind that the pur-

pose of the Double Jeopardy Clause is to protect

the defenaants from continued exposure to em-

barassment, anxiety, expenses, restrictions on

his liberty as well as to preserve his “valued

right to have his trial completed by a particular

tribunal”. United States v. Jorn, supra, at 484

quoting from Wade v. Hunter, 336 U.S. 684 (1949):

“In the final analysis the judge must always

temper the decision whether or not to abort

the trial by considering the importance to

the defendants of being able, once and for

all, to conclude his confrontation with society

through the verdict of a tribunal he might

believe to be favorably disposed to his fate”

United States v. Jorn, supra at 486.

Under the facts of the instant case, it is clear

that there was no “manifest necessity” or showing

that “the ends of justice would be defeated” unless

20

Reasons for Granting the Writ

a mistrial was granted. The Jury deliberated only

eight hours on a trial that lasted five weeks. There

was no inquiry as to whether further deliberations

would be helpful in reaching a verdict as to any

individual defendant on any count. The Court

failed to consult with counsel as to possible

alternatives. The Court failed to inquire as to

whether the Jury was hopelessly deadlocked. The

foregoing factors were considered relevant and

important by the Court in United States v. Lans-

down, 460 F.2d 164 (4 Cir. 1972) in deciding that

there was no manifest necessity for declaring

a mistrial in a case that lasted one day after the

Jury deliberated for eleven hours.

The American Bar Association Project on

Minimum Standards for Criminal Justice, Ap-

proved Draft 1968, provides at Section 5.4 (c):

“The Jury may be discharged without having

agreed upon a verdict if it appears that

there is no reasonable probability of agree-

ment”,

The commentary to this section includes the

following guidelines at pages 156 and 157: question-

ing the Jurors, considering the circumstances of

the case, the length of deliberation, the length

of the trial and its nature and complexity.

As to the circumstances of this case, it may

fairly be said that the case was not free from

doubt. In fact the trial court itself states that:

“I don’t know what I would do if I were a juror

in the case” (Tr.3627-3628).

21

Reasons for Granting the Writ

It is clear that this was a very complicated

case as the District Court found (A124). The

indictment covered six years, involving 17 tax

returns of four different corporation= for dif-

ferent fiscal years and five defendants, em-

ployed by one or more of the corporations at

different times during the six-year period. In

addition, it involved two personal tax returns

of one of the defendants.

We submit that in light of the above cited

authority it seems clear that the declaration

of the mistrial in the instant case was wholly

without manifest necessity and did not serve

the ends of justice. Moreover, we submit that

the trial court did noi consider that the purpuse

of double jeopardy clause is to protect the de-

fendant from continuec exposure toembarassment,

anxiety, as well as to preserve his valued right

to have his trial completed by a particular tri-

bunal, as is required by United States v. Jorn,

supra, and Downum v. United States, supra.

Each of the defendants experienced considerable

expense during the trial not only by the cost of

their defense but also by the loss of income before

and during the trial. From the date of indictment,

each was subjected to embarrassment and inter-

ference with their businesses or occupations. Each

was also compelled to live in a continuing state of

anxiety.

After learning of the contents of the Jury’s note

each of the defendants knew that at least one of

the Jurors was steadfastly convinced of his in-

22

Reasons for Granting the Writ

nocence. For this reason, each believed that his

case was before a jury “favorably disposed to his

fate” but the defendant's option to proceed to a

verdict was foreclosed withort his consent.

The Court of Appeals position that the mistrial

was proper because the defense had earlier moved

for a mistrial and because Juror Rappaport had

told Judge Judd, in the absence of counsel the day

before, that she felt “incapable”, is unsupported

by the record.

As far as the motion for the mistrial, it

is obvious from the record that counsel changed

their positions and decided not to move for a

mistrial after the note was received stating

that Juror Rappaport would, “under no circum-

stances” vote guilty on any count (A86, 89 & 103).

The District Court questioned each counsel on this

point and apparently was convinced that counsel

had changed their positions (A86 - 103). Further-

more, as the District Court concluded, counsel was

taken by surprise at the trial Court’s remarks

after the note was received (A123) and that the

trial court acted without proper consultation with

the attorneys (A124).

Accordingly, we respectfully submit that — the

District Court’s dismissal of the indictment was

erroneously reversed by the Circuit Court of

Appeals.

23

Conclusion

For these reasons a Writ of Certiorari should

be issued to review the Judgment and Opinion of

the Court of Appeals for the Second Circuit.

Respectfully submitted,

Jules Ritholz

Kostelanetz & Ritholz

Attorneys for Petitioner, Albert

Goldstein

52 Wall Street

New York, New York 10005

Thomas J. O’Brien

Attorney for Petitioner, Murray

Geller

2 Pennsylvania Plaza

New York, New York 10001

Joseph E. Brill

Attomey for Petitoner, Alfred

Ceasar

233 Broadway

New York, New York 10007

James M. La Rossa

Attorney for Petitioner,

Sam Jacobson

522 Fifth Avenue

New York, New York 10036

la

Appendix

Opinion and Judgment of the Court of Appeals

UNITED STATES COURT OF APPEALS

For THE SEeconp Circuit

= =

Sor

No. 796—September Term, 1972.

(Argued April 19, 1973 Decided May 25, 1973.)

Docket No. 73-1165

_—

—

Unitep States or AMERICA,

Appellant,

—against—

ALBERT GoLpsretn, ALFRED Carsar, Sam JACOBSON,

Murray GELLER and Rosert Wisc,

Appellees.

Before:

Cuark, Associate Justice,*

Waterman and Feinsere, Circuit Judges.

= =

eorr

Appeal by the United States under 18 U.S.C. § 3731 from

an order of the United States District Court for the East-

ern District of New York, Jack B. Weinstein, J., dismissing

an indictment.

Reversed.

Micuaz. B. Potuack, Attorney, Department of

Justice (Dennis E. Dillon, Attorney, Depart-

ment of Justice; Robert A. Morse, United

States Attorney for the Eastern District of

New York; L. Kevin Sheridan, Assistant

Retired Associate Justice of the Supreme Court of the United States,

sitting by designation.

2a

Opinion and Judgment

United States Attorney, on the brief) for

Appellant.

Trowas J. O'Brren, New York, N. Y (Kosto.

lanetz & Ritholz, James M. La Rossa, Joseph

E. Brill, on the brief) for Appellees Cold.

stein, Caesar, Jacobson and Geller.

JEROME Lewis, New York, N.Y. (H. Elliot Wales,

on the brief) for Appellee Wisch.

=

i a

Feinserc, Circuit Judge:

The United States seeks to appeal from a pre-trial order

of the United States District Court for the Eastern District

of New York, Jack B. Weinstein, ./., dismissing an indict-

ment against appelles on the ground that a mistrial declared

in a prior trial on the same indictment was unwarranted,

and that reprosecution would violate the double jeopardy

clause of the fifth amendment. Under the recently amended

Criminal Appeals Act, 18 U.S.C.A. § 3731 (1972-73 Supp.),

the Government may appeal from an

order of a district court dismissing an indictment or

information as to any one or more counts, except that

no appeal shall lie where the double jeopardy clause

of the United States Constitution prohibits further

prosecution.

We thus must answer two questions. First, does the lan-

guage of section 3731 prevent an appeal by the Govern.

ment? And second, was Judge Weinstein correct in held-

ing that the double jeopardy clause barred a second trial?

For reasons which follow, we conclude that an appeal does

lie to this court from the order below, and, further, that

the indictment was erroneously dismissed. Accordingly,

we reverse and remand for further appropriate proceedings.

3a

Opinion and Judgment

I

On January 7, 1972, appellees were indicted in the Eastern

District of New York, on 20 counts charging various vio-

lations of federal internal revenue laws, 26 U.S.C. §§ 7201,

7206, and conspiracy to violate those provisions.’ Trial

commenced on September 5, 1972, before Judge Orrin G.

Judd. Jury deliberation began on the morning of October

5: The jury was excused for the evening after failing to

reach a verdict with respect to any defendant on any count.

That evening, Judge Judd had a brief exchange with Juror

No. 2 (Mrs. Rappaport), which he related to counsel after

jury deliberation had recommenced the following morning.

As he explained it, she had asked to see him “on a personal

matter.” The judge had observed her “sniffling” and “quite

I illat ease during the day” and he “started commiserating

with her on her illness.” She replied that she was “all

right” but just felt “incapable.”

At 11:30 A.M. on this second—and last—day of de-

liberation, the jury requested and received a re-reading

of the charge. At 3:10, the jury sent a note to the judge

stating it was

apparently not able to reach a unanimous verdict on

any count except number 20. Please advise.

In discussion with counsel, the judge indicated that he

intended to tell the jury to deliberate “another couple of

hours,” but doubted that he would ask them to come back

on Tuesday.* Defense counsel first objected to

1 Count 5 of the indictment was later dismissed and was replaced by

a superseding information.

2 At the outset, the jury’s deliberation involved 18 counts, defendants

having successfully moved for acquittal on counts 16 and 19.

3 The second day of deliberation was a Friday. Monday, October 9,

1972 was Columbus Day.

4a

Opinion and Judgment :

your Honor saying that they should be returned for

deliberation for a couple of more hours because it

may well be that what that amounts to is an inear.

ceration against their will

and then pointed out with respect to requiring the jury’s

return on Tuesday :

There would be Friday night, all day Saturday, all

day Sunday, all day Monday. So there would be three

full days and four nights of separation during which

it would be impossible to avoid pollution of the

a

Judge Judd then called the jury back into the courtroom

and told them that he would ask them “to go back and

to consider further and tell me whether further delibera-

tion would be useful,” although he pointed out that he

did not intend to have them stay “late tonight” or return

on the following Tuesday. He then gave what the Govern-

ment accurately describes as a modified “Allen charge.”

Thereafter, defense counsel moved for a mistrial on the

ground that the jury was in “deadlock, which apparently

is a hopeless one.” The motion was denied.

At approximately 5 o'clock, the jury foreman sent a

second note, which said:

|. \]fter reviewing most of the testimony and raising

what arguments and persuasion we could bring to

bear, Mrs. Rappaport has insisted that under no cir-

cumstances can she vote guilty on any of the Counts.

Judge Judd thereupon stated his view that this meant

“a disagreement on seventeen counts” and resolved to

“bring the Jury in and see.” The jury was brought in;

they announced a verdict of not guilty on count 20, in-

volving only appellee Goldstein, and were polled at the

5a

Opinion and Judgment

Government’s request. The judge then asked: “And it’s

dear that you are in disagreement on the rest of the

counts?”, to which the foreman replied “T am afraid so.”

The judge then continued :

I appreciate the time you have put in, the effort that’s

been made. I might have given a more coercive charge,

but I thought it was improper. I think we should

respect the conscience of anybody on the Jury.

I would like to keep you for five or ten minutes just

to give you a little picture of things behind the scenes.

You are entitled to wonder about what happened at

all these side bars, and this has been only an income

tax case. But it has been an important case for every-

body.

You have heard some of the best defense counsel in

this City for the last five weeks. The Government at-

torney is not an ordinary assistant U.S. Attorney. ...

The judge then went on to disclose, among other things,

that the government attorney was from the Organized

Crime section of the Justice Department, that defendant

Goldstein’s tax returns disclosed income from gambling,

and that certain defendants had threatened a witness prior

to the trial. Counsel took vigorous exception to these

coniments—a concern which we share—and moved to dis-

miss the indictment. The motion was denied,

The case was set for retrial before Judge Weinstein,

but prior to trial, defendants moved to dismiss the in-

dictment principally on the ground of double jeopardy.

The judge granted the motion; while his order of January

8, 1973 dismissing the indictment contained no express

findings, the bases for the order were carefully stated

during the course of the hearing held on the motion. We

set these out extensively:

6a

Opinion and Judgment

. Lam particularly impressed with the transcript

of October 6, 1972 [the second day of jury delibera.

tion deseribed above] at 5:00 o’eloeck P.M.

The Court said there is “still disagreement on all but

one count.” There is no indication that disagreement

was fixed or that there could not be some agreement

had there been further consultation. There were 18

counts undisposed of at that time. Many of them in-

volved a number of defendants and all of them in-

volved at least two defendants.

The Jury was then polled on Count 20 and the de-

fendant in that count was found not guilty. There’s

no inquiry made by the Court as to whether the Jury

wished to consult further with each other. There is no

indication that they disagreed with respect to each

defendant on each count. In fact, it is not clear that

they had considered in any detail each defendant as to

each count.

Immediately after the Jury was polled, the Judge be-

gan to address the Jury and there would be nothing

from which their counsel could determine the nature

of the remarks that would be made up until line 15

of page 6 of the transcript. Then reference is made to

the organized crime section of the Department of Jus-

tice. Thereafter very quickly there is reference to

highly prejudicial material which undoubtedly had

taken counsel by surprise and it would be only at

that point I would think that the normal practice was

not going to be followed, that inquiry was not going

to be made to the Jury with respect to whether they

might possibly reach an agreement given more time or

whether they might possibly reach an agreement on any

of the counts as to any of the defendants.

7a

Opinion and Judgment

I must reluctantly conclude that the Court acted with-

out proper consultation with the attorneys and with-

out proper consultation with the Jury and that the

case was improperly taken from the Jury at this point

without the consent of the defendants and before it had

been determined that no agreement could be reached.

Under the circumstances, therefore I reluctantly find

that defendants should be placed in double jeopardy if

they were to be tried....

From the subsequent order dismissing the indictment, the

Government appeals.‘

IT

At the outset, appellees claim that the Government can-

not appeal from Judge Weinstein’s order dismissing the

indictment on double jeopardy grounds. The 1970 amend-

ments to the Criminal Appeals Act, enacted as Title ITI,

414 of the Omnibus Control Act of 1970, P.L. 91-644, 84

Stat. 1880, 1890, 91st Cong., 2d sess., were designed to

eliminate much of the tortuous statutory construction, e.g.,

United States v. Sisson, 399 U.S. 267 (1970), and United

States v. Apex Distributing Co., 270 F.2d 747 (9th Cir.

1959) (en bane), to which federal courts had been put in

interpreting the coverage of the predecessor act. See S.

Rep. No. 91-1296, 91st Cong., 2d sess., at 2 (1970). But a

principal purpose of the amendments was to broaden con-

siderably those situations in which the Government could

4 The statute, 18 U.S.C.A. §3731, provides that:

The appeal . .. shall be taken within thirty days after the...

order has been rendered and shall be diligently prosecuted.

The Government’s notice of appeal was filed on February 1, 1973, within

30 days of Judge Weinstein’s order dated January 8. The Govern-

ment’s brief, however, was not filed until March 12, nearly six weeks

after the notice of appeal. In view of the statutory command of dili-

gent prosecution, we believe that the Government’s brief in appeals of

this sort should ordinarily be filed within 30 days after the notice of

appeal. Cf. Local Appellate Rule § 34(f).

8a

Opinion and Judgment

appeal. Id. * While the predecessor act was to be strictly

construed against the Government’s right to appeal, e.g,

United States v. Sisson, supra, 399 U.S. at 291, the present

statute expressly directs that its provisions “shall be lib.

erally construed to effectuate its purposes.”

Appellees do not—and cannot—dispute this reading of

statutory purpose. They contend, nonetheless, that the

plain language of the 1970 amendments forecloses our ap.-

pellate jurisdiction. Any need to undertake a detailed

refutation of this assertion has been obviated by this

court’s recent opinion in United States v. Castellanos, slip

op. 3285, 3287-88 (2d Cir. May 4, 1973). Like this case,

Castellanos involved an appeal from an order dismissing

an indictment on grounds of double jeopardy prior to the

impaneling of a new jury. In holding that order appealable,

Judge Smith observed that such an order was plainly ap.

pealable under the predecessor statute in light of United

States v. Jorn, 400 U.S. 470 (1971), and that “[n]othing

in either the legislative history or the language of the new

statute ... indicates the slightest intention to cut back the

scope of former § 3731. Indeed, quite the opposite seems

true ... .” (Emphasis added.)* The same conclusions

govern here.

Appellees further contend, however, that Judge Wein-

stein’s dismissal was, “as a matter of substantive law,

tantamount to an acquittal.” There is no merit to the argu-

ment. United States v. Hill, 473 F.2d 759 (9th Cir. 1972),

on which appellees rely, is not in point. Hill involved in-

dictments charging the sending of obscene advertisements

through the mail. Defendants’ motion to dismiss the indict-

ments was granted on the ground that the advertisements

5 The amendments also eliminated direct appeals to the Supreme Court,

lightening the caseload of the Court. S. Rep., supra, at 13-18.

6 In addition to Judge Smith’s persuasive analysis, see S. Rep., supra,

at 7-9, 12, which details the reasons for the change in language.

9a

Opinion and Judgment

vere not obscene as a matter of law. In finding reprosecu-

tion prohibited by the double jeopardy guarantee, the court

noted that the judge had received evidence limited to a

necessary element of the offense ; the dismissal thus decided

the general issue of guilt and was the equivalent of a di-

rected acquittal. See United States v, Sisson, supra, 399

US. at 290 n.19; United States v. Ponto, 454 F.2d 657,

663-64 (7th Cir. 1971) (en bane). Judge Weinstein’s dis-

missal, by contrast, in no sense turned on the general

sue of guilt or required the taking of evidence remotely

related to any element of the crime.’

Thus, the Government’s appeal is properly before us,

and appellees’ motion to dismiss the appeal is denied.

iil

We turn now to the merits of Judge Weinstein’s dismis-

sal order. Plainly, technical jeopardy had attached in the

trial before Judge Judd because the jury had been impan-

dlled, but equally plainly, as a century and a half of cases

illustrate, that did not end the matter. See United States

v. Perez, 22 U.S. (9 Wheat.) 579 (1824); Illinois v. Somer-

rille. 41 U.S.L.W. 4319, 4320 (U.S. Feb. 27, 1973). What

would have ended the matter, however, was defendants’

consent to Judge Judd’s order declaring a mistrial. See

United States v. Gori, 282 F.2d 48, 47 & 0.5 (2d Cir. 1960),

ait’d. 367 U.S. 364 (1961); ef. United States v. Jorn, supra,

400 U.S. at 485. We conclude that defendants did so con-

sent.

On the afternoon of the second day of deliberation, the

jury notified Judge Judd that it was “apparently not able

to reach a unanimous verdict on any count except number

20"; the judge then gave a modified “Allen charge.” De-

7 Appellees also rely on United States v. Oppenheimer, 242 U.S. 85,

87-88 (1916), but the case is patently inapposite on its facts and

rationale.

10a

Opinion and Judgment

fense counsel immediately moved for a mistrial because

the jury was hopelessly deadlocked. Had the judge granted

this request, of course, no meritorious double jeopardy

claim could later have been made. See United States y.

Tateo, 377 U.S. 463, 467 (1964). We are at a loss to under.

stand what transpired thereafter to breathe life into such

a claim. Defendants argue that the situation was com.

pletely changed less than two hours later by the jury's

second note. At that point, according to defendants, coun.

sel realized that they had a favorable jury, that “at worst

there would be a hung jury,” and that they “decided they

did not want a mistrial.” * The initial problem with this

position is that defense counsel did not communicate this

change in attitude to Judge Judd. Defendants now argue,

as they successfully did before Judge Weinstein, that they

never had an effective chance to make their new position

known to Judge Judd. We do not understand why that is

so, as a recounting of the events of that afternoon indicates,

After the judge read the second note to defense counsel,

he stated that this “means a disagreement on seventeen

counts. We will bring the Jury in and see.” The jury then

came back to the courtroom and reported its verdict of

not guilty on count 20; each juror was then polled on

that verdict. On completion of the polling, the foreman

confirmed to the judge that the jury was “in disagreement

on the rest of the counts.” As anyone familiar with trial

court procedure knows, all of this took considerable time.

It was certainly sufficient for defense counsel, whose per-

formance up to that time had not been marked by exces-

sive timidity, to make their changed views known to the

court. Nor was that all. Judge Judd did not immediately

launch into his behind-the-seenes discussion which, de-

fendants correctly maintain, made it impossible for the

. Brief for Appellees Goldstein, et al., at 14.

lla

Opinion and J udgment

ame jury to continue. Instead, the judge took another

soment or two in introductory remarks—at which point

js intention to order a mistrial became plain—before

haracterizing the government attorney as “not an or-

inary assistant,” but from “the section on Organized

Crime.” This interlude gave defense counsel yet another

hance to say that they did not want a mistrial. It is

us apparent to us that defense counsel had adequate

portunity to disabuse the judge of the idea that they

till wanted the jury discharged because it was deadlocked ;

Judge Weinstein’s contrary view is not supportable.°

Judge Judd obviously assumed that defendants con-

‘ned to favor mistrial. Certainly, he would not have

proceeded as he did had he thought the trial was to con-

nue before the same jury. There was ample warrant

‘or the judge’s assumption. Less than two hours before,

jefense counsel had characterized a proposed instruction

o the jury to deliberate “for a couple of more hours” as

“nearceration against their will,’ and had opposed re-

wiring the jury to continue after the weekend recess

ieeause “it would be impossible to avoid pollution of the

ary.” In addition, the judge’s assumption as to defen-

9 Toward the end of the morning session of the hearing, Judge Wein-

stein stated:

{A] mistrial was granted here at a time when the defendants . . .

would have opposed it had they been given an adequate opportunity

to be heard.

In the course of his remarks set forth earlier in this opinion, he again

commented that Judge Judd had acted “without proper consultation

with the attorneys . ...” Even if this be a finding of fact, we believe

that it must be set aside, regardless of whether the “clearly erroneous”

standard applies. We doubt that it does, however. While the “clearly

erroneous” standard is applicable to analogous findings in criminal cases,

see 8A Moore’s Federal Practice § 41.09, at 97, Judge Weinstein’s view

as to the “opportunity to be heard” turned on his reading of the trial

transeripts, and these are as available to us as they were to him. Cf.

In the Matter of Beck Industries, Inc., slip op. 3179, 3181 n.3 (2d Cir.

April 30, 1973) and authorities there cited.

12a

Opinion and Judgment

dants’ position was buttressed by common sense, Whey

defendants had earlier moved for a mistrial, they had yy

way of knowing the jury’s vote: It might have been any.

thing from 11-1 for acquittal to 11-1 for conviction, pee

one of these possibilities except the last would indicate

a jury sentiment more—rather than less—favorable than

the 11-1 vote for conviction on all remaining counts ye.

vealed by the jury’s second note. To all appearance, ¢e.

fendants’ position had worsened in the time between the

first and second notes. Defendants argued before Judge

Weinstein, however, that they were then in a better posi-

tion because they knew that they could not be hurt, and

that

They could only get a hung jury and it is possible,

as it happens in the movies at any rate, that one per.

son can change the minds of eleven other people.

Anything is possible, of course, but the self-serving na.

ture of this hindsight assertion is patent. Moreover, the

silence of defense counsel on this issue was even more

deafening after Judge Judd had discharged the jury. At

that point, defense counsel argued at length that the

judge’s disclosure of material not in evidence had hope.

lessly prejudiced defendants, and required dismissal of

the indictment. But this claim itself assumed that another

trial would be held, a position inconsistent with their

present contention that the double jeopardy clause woull

bar such a trial, because the discharge of the jury had

been premature.

We disagree, therefore, with Judge Weinstein’s belief

that a mistrial was declared without defendants’ consent."

10 Indeed, the record before us is somewhat contradictory as to whether

such a finding was in fact made. Judge Weinstein made such a cor-

ment at the hearing. On the other hand, in his subsequent order after

stating that “the case was impropcrly taken from the jury,” the judge

13a

Opinion and Judgment

consent need not be express, but may be implied from the

tality of circumstances attendant on a declaration of mis-

ial, United States v. Gori, supra, 282 F.2d at 46; see Scott

- United States, 202 F.2d 354 (D.C. Cir.), cert. denied, 344

(8, 879 (1952); ef. Raslich v. Bannan, 273 F.2d 420 (6th

tir. 1959) (per curiam). Defendants had moved for a

gistrial a scant two hours before one was declared, at the

ist suggestion of jury deadlock; little, if anything, had

curred thereafter to warrant a belief that their position

iad changed; and even if it had, they failed to make this

change in position known to the trial judge notwithstand-

ing adequate opportunity to do so. See United States v.

Pappas, 445 F.2d 1194, 1199-1200 (3d Cir.), cert. denied,

44 U.S. 984 (1971).”

Under these circumstances, their consent to mistrial can

ie properly implied, Judge Judd did not really act sua

sponte, and defendants cannot successfully argue double

jeopardy.

IV

In what may be an excess of caution, we turn finally

‘0 the argument made by the Government that, even if

jefendants did not consent to the mistrial, reprosecution

was consistent with the policies served by the double jeop-

ardy clause.

In deciding to abort a criminal trial short of a verdict

and without a defendant’s consent, after jeopardy has at-

deleted additional language proposed by defendants, i.e., that this was

“without the consent of the defendants and before it had been deter-

mined that no agreement could be reached ....”

11 We need not go so far as to hold that in the absence of an express

objection to discharging the jury, consent is, in effect, to be presumed,

see United States v. Phillips, 431 F.2d 949 (3d Cir. 1970); we believe

instead that the failure to objeet is one of the several probative factors

here from which consent may be implied.

l4a

Opinion ard Judgment

tached, the trial judge is typically afforded “broad disere.

tion,” Jllinois v. Somerville, supra, 41 U.S.L.W. at 4391,

since he is “best situated intelligently to make such a degi.

sion,” Gori v. United States, 367 U.S. 364, 368 (1961). Oy

the other hand, it is recognized that the double jeopardy

clause of the fifth amendment safeguards the defendant's

“valued right to have his trial completed by a particular

tribunal,” Wade v. Hunter, 336 U.S. 684, 689 (1949), which

“he might believe to be favorably disposed to his fate”

United States v. Jorn, supra, 400 U.S. at 486. With due

regard for this right, as well as for other defendant inter.

ests served by the double jeopardy clause, see Note, Double

Jeopardy: The Reprosecution Problem, 77 Harv. L. Rey.

1272, 1274 (1964), the Supreme Court has limited that

diseretion and has occasionally held a second prosecution

barred where a trial judge sua sponte and mistakenly had

declared a mistrial. See United States v. Jorn, supra:

Downum vy. United States, 372 U.S. 734 (1963). In defining

standards for the exercise of discretion in this sort of case,

the Court has continually - ‘hered to the formulation of

Justice Story in United States v. Perez, 22 U.S. (9 Wheat.)

579, 580 (1824):

[T]he law has invested Courts of justice with the

authority to discharge a jury from giving a verdict,

whenever, in their opinion, taking all the circumstanees

into consideration, there is manifest necessity for the

act, or the ends of public justice would otherwise be

defeated.

Beyond these general guidelines, the Court has emphasized.

each case must turn on its own facts. E.g., Illinois v. Somer-

ville, supra, 41 U.S.L.W. at 4321.

Turning to the facts in this case, Perez itself and Logan

v. United States, 144 U.S. 263, 297-98 (1892), among others.

establish that a jury’s genuine inability to agree on 2

15a

Opinion and Judgment

diet constitutes “manifest necessity” warranting the dec-

vation of a mistrial. See United States v. Lansdown, 460

24 164, 168 (4th Cir. 1972). Requiring a jury to continue

uiberations despite genuine and irreconcilable disagree-

mat more often than not defeats the ends of public jus-

se: not only will such compulsion needlessly waste valu-

ile judicial resources, it may coerce erroneous verdicts.

jn this view of the case, the only question presented to us,

jerefore, is whether Judge Judd abused his discretion in

onduding when he did that the jury was in fact genu-

inely hung.

The question is a close one. Judge Weinstein believed

4st Judge Judd had erred because the trial had been

ingthy; the evidence and factual issues were complex, as

monstrated by the jury’s request to have the charge re-

nad; the jury had only deliberated eight hours even though

here were almost 50 possible verdicts to render and no

adication that agreement was impossible as to all. Finally,

jndge Weinstein felt that no sufficiently in-depth attempts

iad been made, in accord with “the normal practice,” to

seertain the scope of disagreement among jurors, or to

ktermine whether further deliberation might produce

«me agreement. These are appropriate factors to con-

jder, See ABA, Project on Minimum Standards for Crim-

inal Justice, Trial by Jury ¢ 5.4(c) ; (approved draft 1968) ;

id. at 156-57.

Nonetheless, “taking all the circumstances into consider-

ation,” as Perez requires, we are left with the firm convic-

1, [tion that Judge Judd committed no error. The complexity

fof a case and the amount of time requested by 12 reason-

able jurors to reach unanimity on some or all of many

» }possible verdicts are determinations best left to a trial

s, Piudge and are difficult to gauge by another district judge

a for by appellate judges on a cold record. The jury twice

reported itself unable to agree—in the second instance, less

16a

Opinion and Judgment

than two hours after the first and after a modified Al},

charge in which the judge had instructed the jury to te

him “whether further deliberation would be useful.” Th.

second note itself appears to answer the question in th

negative and suggests growing frustration on the part of

the jurors. Indeed, the second note and final oral respons:

of the jury foreman were unequivocal in tone: Mrs, Rap.

paport could vote guilty “under no circumstances” and jt

was “clear” that they were in disagreement on all counts,

With the dissenting juror so identified, Judge Judd was

entitled to recall his conversation with her on the previous

evening, and to conclude that her previously vague refer.

ence to feeling “ineapable’ meant that she was in fact

unable or unwilling to vote guilty.

Appellees call our attention to but one case in which the

trial court’s erroneous decision to order mistrial due to

an apparently hung jury has been held to bar reprosecution.

United States v. Lansdown, supra. Our research has dis-

closed no other federal case. But ef. Commonwealth +.

Baker, 196 A.2d 382 (Pa. 1964) (premature discharge of

jury bars retrial on state constitution double jeopardy

ground). This itself suggests how rarely the informed

judgment of a trial court is disturbed in these or similar

circumstances. Moreover, factual differences between this

ease and Lansdown are striking. In Lansdown, the trial

judge ordered a mistrial solely because he felt that the

many hours of jury deliberation after a one-day trial had

been long enough.’* The court of appeals noted that no

rule of thumb in terms of hours deliberated could be extra-

polated from precedent. 460 F.2d at 169 & n.2. Of far

more significance, however, the jury foreman had told the

Lansdown trial judge, immediately before mistrial wa

12 The trial judge referred to “20 hours” of deliberation. The court 0

appeals pointed out, “In fact, the jury had deliberated slightly in exces

of 11 hours.” 460 F.2d at 168 n.1.

17a

Opinion and Judgment

dared, that they were “on the verge” of a verdict; an-

ser juror took it upon himself to request an additional

.. minutes of deliberations. In light of this, the trial

ige’s action was arbitrary and manifestly an abuse of

seretion. In this ease, on the other hand, no member of

ie jury ever suggested that any verdict was remotely

asible. We believe that Judge Judd could have reason-

Jy concluded that the jury was hopelessly deadlocked.**

i ‘0, it follows that there was manifest necessity for

wdaring a mistrial and that doing so was not an abuse

{ discretion.

Reversed and remanded for further proceedings con-

‘stent with this opinion.

“913 Cf. the standard proposed by §5.4(¢) of the ABA Minimum Stan-

is dards, supra, defining the scope of a trial judge’s discretion to declare

a mistrial sua sponte:

The jury may be discharged without having agreed upon a verdict

if it appears that there is no reasonable probability of agreement.

(Emphasis added.)