U.S. v. Glover

• Decision Date: 04 October 1974
• Docket Number: D,No. 118,118
• Citation: 506 F.2d 291
• Parties: UNITED STATES of America, Appellee, v. Solomon GLOVER, Defendant-Appellant. ocket 74-1739.
• Court: U.S. Court of Appeals — Second Circuit

Page 291

506 F.2d 291

UNITED STATES of America, Appellee, v. Solomon GLOVER, Defendant-Appellant.

No. 118, Docket 74-1739.

United States Court of Appeals, Second Circuit.

Argued Sept. 11, 1974.

Decided Oct. 4, 1974.

Hudson H. Reid, New York City (William C. Chance, Jr., New York City, of counsel), for defendant-appellant.

Mel P. Barkan, Asst. U.S. Atty., New York City (Paul J. Curran, U.S. Atty., and S. Andrew Schaffer, Asst. U.S. Atty., S. D. of New York, of counsel), for appellee.

Before SMITH, TIMBERS and GURFEIN, ^* Circuit Judges.

GURFEIN, Circuit Judge:

This appeal presents the picture of an able trial judge, the Honorable Charles L. Brieant, faced with the unusual dilemma of conflicting constitutional mandates, the Confrontation Clause of the Sixth Amendment as expressed in the Bruton rule ¹ and the Double Jeopardy Clause of the Fifth Amendment.

Solomon Glover appeals from a conviction entered on May 8, 1974 in the Southern District of New York after a two-and-a-half-day trial before the Honorable Robert J. Ward and a jury. Glover was found guilty of conspiracy to violate the federal narcotics laws, 21 U.S.C. 846, under Count 1 of Indictment 73 Cr. 327. ² He was sentenced to a term of one year imprisonment with a special parole of three years to follow. His principal ground of appeal is that he was 'twice put in jeopardy' in violation of the Fifth Amendment.

The indictment in question charged thirteen persons including Glover with the conspiracy mentioned. Four of these defendants, including Glover, were brought to trial before Judge Brieant and a jury. On July 23, 1973 after four days of trial the court severed the case against Glover and directed a mistrial as to him, in the court's own words, 'without his consent.'

Glover then moved to dismiss the indictment on the ground that a subsequent trial would violate his right not to be put twice in jeopardy. Judge Brieant in a thoughtful opinion denied his motion, ³ and Glover was thereafter tried before Judge Ward and a jury and convicted of the very conspiracy recounted above on the same indictment.

We turn to the events that pose the issue on appeal.

The trial had begun on July 16 before Judge Brieant. Late in the afternoon of Friday, July 20, written reports of three oral statements made by Glover to government agents were shown to Judge Brieant for the first time by the Government though they had previously been shown to Glover's attorney. ⁴ Immediately upon viewing the reports of the oral statements of Glover the Court advised counsel for the Government and all defendants that the statements presented a Bruton problem and that he would give counsel 'an opportunity to organize your thoughts on it and give me briefly what you have in mind on it.'

Though the attorneys were to brief the matter over the weekend, the trial judge in an effort to avoid wasting the jurors' time, ordered the trial to proceed on Friday afternoon.

The Government, on its part, though concededly not a single bit of evidence had been produced against Glover himself thus far, now introduced a witness who testified directly about Glover. As the Court noted, 'this testimony was the first evidence received in the trial bearing upon the guilt of Glover.' ⁵

By Monday, July 23, the trial judge had reached a decision that 'it looks pretty clear to me that to admit any of this statement would violate the Bruton rule.' Glover's attorney at this juncture, consonant with his obligation to his client, refused to move for a severance though he had previously anticipated doing so.

The Court then told the Assistant U.S. Attorney that he had two alternatives open to him. 'You may either proceed without using the statement or you may move for a severance and mistrial.' The Government moved for a severance of the defendant Glover. The Court reluctantly granted the severance because it believed that the statements of Glover would be unduly prejudicial to his co-defendants even with redaction.

To the extent that it is relevant to the issue now before us, we believe that Judge Brieant was right in his analysis of the Bruton problem as he later expounded it on the subsequent motion to dismiss the indictment. His conscientious regard for the rights of the co-defendants properly led him to the exclusion of the oral statements by Glover. See e.g. United States v. Wilkins, 367 F.2d 990 (2 Cir. 1966); United States v. Bozza, 365 F.2d 206 (2 Cir. 1966) (anticipating Bruton).

Having come to that pass, the court had the option of permitting the trial to continue against Glover as well without allowing the admissions to be available to the Government against Glover, or to sever and allow the prosecution to tender Glover's admissions against himself at a second trial against Glover alone. The trial judge chose the second option on the obviously considered view that this would not constitute double jeopardy under the Fifth Amendment. We are constrained to disagree.

The Double Jeopardy Clause of the Fifth Amendment reads as follows: 'nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.'

The District Court understood that double jeopardy normally attaches upon the empaneling of a jury competent to try the defendant, for it is then that a defendant is 'put in jeopardy.' Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Green v. United States,355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 93 L.Ed. 974 (1949); Kepner v. United States,195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904). ⁶ Having been 'put in jeopardy,' the defendant is thought to have the right to seek a favorable verdict from the jury which he has accepted as satisfactory. See United States v. Jorn, supra, 400 U.S. at 486, 91 S.Ct. 547; Downum v. United States,372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Wade v. Hunter,supra, 336 U.S. at 689, 69 S.Ct. 834. The negative reason for this solicitude is that to permit the trial to be aborted might lead to mistrials covertly for the benefit of a prosecution that needs strengthening. See e.g. United States v. Kin Ping Cheung, 485 F.2d 689, 691-692 (5 Cir. 1973). A mistrial can operate 'as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case.' Illinois v. Somerville, supra, 410 U.S. at 469, 93 S.Ct. at 1073 (per Rehnquist, J.), citing Downum v. United States, supra. ⁷

While the rule is firm that jeopardy attaches when the jury is sworn there are exceptions. These exceptions do not lend themselves to 'meaningful categorization.' See Mr. Justice Rehnquist, speaking for the majority in Illinois v. Somerville, supra, 410 U.S. at 464, 98 S.Ct. 1066. ⁸ In the words of Justice Story, spoken one hundred and fifty years ago, 'it is impossible to define all the circumstances, which would render it proper to interfere.' United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824).

Despite the difficulty, and perhaps the undesirability of precise classification, it is possible nonetheless to find some common ground in the decisions which have held particular exceptions not to be in violation of the Double Jeopardy Clause of the Fifth Amendment.

It was early decided, for example, that a judge could discharge a jury without jeopardy when it could not agree upon a verdict. United States v. Perez, supra. And the reversal of a conviction upon appeal allows the successful appellant to be tried again. United States v. Ball, 163 U.S. 662, 671-672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Bryan v. United States, 338 U.S. 552, 560, 70 S.Ct. 317, 94 L.Ed. 335 (1950). Such rules are general and easy to apply.

The more difficult situations arise when the trial is stopped, short of its being given to the jury for a verdict, under circumstances where the consent of the defendant has not been obtained.

It is a hard enough case when there is a single defendant, as we shall see. In the matter before us the difficulty is compounded by the circumstance that we are dealing with a conspiracy trial involving multiple defendants which was aborted before its conclusion as to one alleged conspirator-- appellant alone-- without his consent. The declaration of a mistrial on such a state of facts has never been considered by the Supreme Court. ⁹

Turning first to the case of a single defendant whose trial has been aborted without his consent we have been told that the cases turn on particular facts. We must review these patterns of fact, however, to see whether we can 'distill from them a general approach.' See Illinois v. Somerville, supra, 410 U.S. at 464, 93 S.Ct. at 1070.

It is sometimes loosely said that the test is whether there is 'manifest necessity' for the mistrial, building upon Justice Story's dictum in Perez, supra. If 'manifest necessity' is not treated as a phrase of art, it may be a useful handle.

Under the rubric of manifest necessity a retrial has been permitted when it had been learned that a juror was acquainted with the defendant, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); when a juror became ill, United States v. Potash, 118 F.2d 54 (2 Cir. 1941); when one of the jurors was found to have served on the Grand Jury, Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894); or when the defendant had not pleaded to the indictment after demurring, Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (1916). ¹⁰

This doctrine of manifest necessity went so far as to permit retrial of a court-martial which had been aborted because the advance of our Army in World War II made the desired witnesses no longer readily available under battlefield conditions, Wade v. Hunter, supra. Even in that unique battlefield situation, three justices dissented in favor of applying the double jeopardy...