507 F.2d 587 (8th Cir. 1974), 74-1636, Parker v. United States

Docket Nº:74-1636.
Citation:507 F.2d 587
Party Name:Fred Douglas PARKER, Appellant, v. UNITED STATES of America, Appellee.
Case Date:December 13, 1974
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 587

507 F.2d 587 (8th Cir. 1974)

Fred Douglas PARKER, Appellant,

v.

UNITED STATES of America, Appellee.

No. 74-1636.

United States Court of Appeals, Eighth Circuit

December 13, 1974

Submitted Nov. 15, 1974.

Certiorari Denied April 14, 1975, See

95 S.Ct. 1576.

Fred D. Parker, pro se.

Donald J. Stohr, U.S. Atty., and J. Kenneth Lowrie, Sp. Atty., Crim. Div., U.S. Dept. of Justice, St. Louis, Mo., filed printed brief for appellee.

Before LAY and HEANEY, Circuit Judges, and SMITY, Senior District Judges, and SMITH, Senior District

HEANEY, Circuit Judge.

Petitioner Fred Parker was convicted, along with two codefendants, of two counts of distributing heroin in violation of 21 U.S.C. 841(a)(1) and of one count of conspiracy to do the same. The subject of this appeal is the District Court's dismissal of his subsequent motion under 28 U.S.C. 2255 for vacation of sentence

Page 588

and judgment. His sole ground of attack against the conviction is that he was unconstitutionally subjected to double jeopardy because he was convicted after an earlier trial had ended in a mistrial. We affirm.

A brief recitation of the facts concerning the first trial is necessary. On the second day of that trial, after some evidence had already been taken, a juror indicated to the court that she had heard on a radio broadcast that the trial had previously been postponed because a prosecution witness had been threatened. All three defendants immediately moved for a mistrial. The court suggested that it would proceed with a jury of eleven if all of the defendants agreed, and asked the defense counsel to discuss this option with the defendants. After a brief recess, two of the defendants, including the petitioner, declared a willingness to proceed with eleven jurors. The third defendant insisted on a jury of twelve. The court then declared a mistrial as to all defendants. At his second trial, the petitioner made no objection on double jeopardy grounds.

The government contends that the petitioner is barred from asserting the double jeopardy defense, because he did not raise it at his retrial. It points to the following language of this Court:

Constitutional immunity from double jeopardy is a personal right which if not affirmatively pleaded by the defendant at the time of trial will be regarded as waived.

Ferina v. United States, 340 F.2d 837, 838 (8th Cir.), cert. denied, 381 U.S. 902, 85 S.Ct. 1446, 14 L.Ed.2d 284 (1965). We repeated this language in United States of America v. John Conley, 503 F.2d 520 at 521 (8th Cir. 1974). The petitioner, however, urges that Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), requires a 'knowing and intelligent waiver' of a constitutional right, and that such a waiver is impossible where the defendant is not personally aware...

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