Killilea v. United States, 5610

• Decision Date: 23 February 1961
• Docket Number: 5614,No. 5610,5611,5615.,5610
• Citation: 287 F.2d 212
• Parties: William J. KILLILEA, Defendant, Appellant, v. UNITED STATES of America, Appellee. John H. CHAMBERS, Defendant, Appellant, v. UNITED STATES of America, Appellee. Anthony BARBANTI, Defendant, Appellant, v. UNITED STATES of America, Appellee. James J. McLEAN, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

287 F.2d 212 (1961)

William J. KILLILEA, Defendant, Appellant, v. UNITED STATES of America, Appellee.

John H. CHAMBERS, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Anthony BARBANTI, Defendant, Appellant, v. UNITED STATES of America, Appellee.

James J. McLEAN, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 5610, 5611, 5614, 5615.

United States Court of Appeals First Circuit.

February 23, 1961.

Daniel F. Featherston, Jr., Boston, Mass., with whom Choate, Hall & Stewart, Boston, Mass., was on the brief, for William J. Killilea and John H. Chambers, appellants.

Francis J. DiMento, Boston, Mass., with whom DiMento & Sullivan, Boston, Mass., was on the brief, for James J. McLean, appellant.

Jackson J. Holtz, Boston, Mass., with whom Holtz, Sullivan & Zonderman, Boston, Mass., was on the brief, for Anthony Barbanti, appellant.

William J. Koen, Asst. U. S. Atty., Boston, Mass., with whom Elliot L. Richardson, U. S. Atty. and Thomas P. O'Conner, Asst. U. S. Atty., Boston, Mass., were on the brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

ALDRICH, Circuit Judge.

This is an appeal by four defendants from convictions under an indictment for larceny of some 750 cartons of whiskey which were being moved in interstate commerce on consignment from Hiram Walker Company of Illinois to a wholesaler in Boston. 18 U.S.C. § 659. As a preliminary matter we must decide whether the court correctly denied a pre-trial motion to dismiss. This motion was based on a mistrial order which had been granted, over the objection of the defendants, during the trial of an earlier indictment for conspiracy to steal this same liquor. It is agreed that the facts and circumstances and the evidence, so far as material, were essentially the same in both cases. The defendants claim double jeopardy and related defenses.

The mistrial occurred as follows. Trial of the conspiracy case commenced on November 19, 1958, to a jury of twelve and two alternates, and proceeded on November 20, 21, 24, 25, 26, and December 1, 4, 8, 9, and 11. During the midmorning recess on December 11 the clerk discovered that a woman who had been frequently seen in the courtroom during the trial was the wife of one of the twelve jurors, and reported this fact to the court. The court immediately summoned counsel to the bench and a lengthy conference took place in the absence of the jury. It was agreed that until then no one at the conference had been aware of the identity of the wife. The principal subject of discussion was mistrial. No one formally moved for mistrial, and initially all counsel took the position that the problem created was a difficult one and that it was for the court to decide. It was common agreement that, throughout the trial, many significant matters which the jury should not have heard had taken place in open court with the jury excluded, but within the hearing of spectators. Discussion ensued as to whether the wife would have communicated the substance of such proceedings to the juror, and whether the juror would have communicated such information to other jurors during subsequent recesses. The court stated that on a number of occasions it had instructed the jury that they were not to talk about the case with anyone, not even their wives; that it could not believe that this juror had followed these instructions; that it believed the jury would know the wife had been there, and that it felt certain the juror would have talked. It stated that if the wife were to deny conversing with the juror about what had occurred in his absence it could not believe her, and that if the juror should deny communication with the other jurors it would have to feel that such denial was prompted by a desire to protect himself, since inquiry of the juror would indicate that "he had been disobeying my mandate" and "obviously he is going to rush to his own defense." The court pointed out that even to make inquiry of the juror would get back to the other jurors, and might have incalculable effects.

As the discussion proceeded the several counsel for the defendants took somewhat different positions. One seemingly wished the case to proceed as if nothing had happened. Another suggested that this particular juror be excused and an alternate substituted. Another felt that if the juror were interviewed and admitted communicating with the other jurors there should be a mistrial. One counsel stated that he would affirmatively object to a mistrial, adding that if a mistrial were granted, and if later, "on close examination of the law I find it produces a defense for any claim of double jeopardy, even as a highly technical matter, I think we can agree I shouldn't close the door on the possibility of ultimately presenting that." The court objected to this statement, saying that it wished to settle the matter finally one way or the other. The United States Attorney said little except to indicate that some of the matters overheard by the wife might have been prejudicial to the government rather than to the defendants.

After the noon recess the court interrogated the wife in the absence of counsel, but in the presence of the court reporter. This had the endorsement of all counsel with the exception of one, who objected to his exclusion.¹ In this examination the wife stated that she had been in court during most of the trial, had heard many of the matters which transpired during the jury's absence, and, in general, had discussed these matters with her husband. She also stated that she had told her husband what she thought of the testimony and of the witnesses. Thereafter the court had the reporter read its questions and the wife's answers to counsel, and then stated that it would declare a mistrial. Counsel for two of the defendants respectively announced that their clients objected and did not consent. Counsel for the other two defendants stated, "I think that the next step should be to call in the juror and examine him, and that failing, that there was no necessity for a mistrial, perhaps." This suggestion was then adopted by the other two counsel in addition to their formal objections. The court thereupon called the jury and declared a mistrial, stating, "All the rights of the defendants are saved."

The present indictment was returned in March 1959. The defendants argue that, although this charges a different and separate offense, the circumstances are so closely related that if they could not lawfully be retried on the conspiracy indictment, they could not be tried on this one either. They rely on the separate concurring opinions of Mr. Justice Brennan in Abbate v. United States, 1959, 359 U.S. 187, 196, 79 S.Ct. 666, 3 L.Ed.2d 729, and Petite v. United States, 1960, 361 U. S. 529, 533, 80 S.Ct. 450, 4 L.Ed.2d 490. For present purposes we shall assume, without in any way implying our agreement, that this is a correct statement. We shall also assume not only that none of the defendants consented to the mistrial, but that all of them affirmatively objected.

We start by conceding that defendants' constitutional freedom from being twice put into jeopardy for the same offense may be invoked though the "first" trial has been terminated short of final determination. See Wade v. Hunter, 1949, 336 U.S. 684, 688, 69 S.Ct. 834, 93 L.Ed. 974 (dictum); Kepner v. United States, 1904, 195 U.S. 100, 128, 24 S.Ct. 797, 49 L.Ed. 114 (dictum); Mayers & Yarbrough, Bix Vexari: New Trials and Successive Prosecutions, 1960, 74 Harv. L.Rev. 1, 3 n.10, 8. However, it has long been settled that in particularly demanding situations a mistrial may be declared and a new trial prosecuted without being tainted by the Fifth Amendment prohibition against double jeopardy. Wade v. Hunter, supra; United States v. Perez, 1824, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165. These cases seem to recognize that the defendant has in fact been subjected, at least in part, to the very type of continuing harassment which the amendment is designed to prevent, but that the exigencies of public justice outweigh the defendant's disadvantage in the particular case. See e. g., Green v. United States, 1957, 355 U.S. 184, 216-219, 78 S. Ct. 221, 2 L.Ed. 199 (Frankfurter, J., dissenting); Wade v. Hunter, supra, 336 U. S. at pages 688-689, 69 S.Ct. at pages 836-837. Consistently with this, the trial judge's power to stop a trial short of verdict, though discretionary, must be exercised with scrupulous restraint. See, e. g., Wade v. Hunter, supra, 336 U.S. at page 690, 69 S.Ct. at page 837.

The court's belief that the matters discussed in the jurors' absence would be communicated to them seems a very reasonable one, and, in our opinion, the court perceptively analyzed the entire situation. There is a high degree of probability that, in the frequent recesses which occur during a three-week-long trial when the jurors are confined in the jury room, and doubtless wondering what is taking place in their absence, a juror who has a pipeline to the courtroom in disobedience of the court's order is not going to be silent. Not only would the jury have had their attention brought to matters which they should not have considered, but they would have condoned the manner of its bringing. A court might well conclude that such a jury ought not to sit. The suggestion made by some of the defendants below, and now adopted by all here, that the court should have excused this one juror, and promoted an alternate, seems unrealistic.

We must consider the hardship to defendants. The defendants' essential claim is as to the "lengthy trial and impoverished defendants, factors of ordeal, harassment, anxiety and insecurity." We do not find these insubstantial matters. They are a large measure of the substance of what the double jeopardy provision is intended to prevent. See Note, 1956, 65 Yale L.J. 339. But, comparatively speaking, eleven wasted trial days are dwarfed by the...