United States v. Gordy, 75-1522.

• Citation: 526 F.2d 631
• Decision Date: 29 January 1976
• Docket Number: No. 75-1522.,75-1522.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Nicholas GORDY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

526 F.2d 631

UNITED STATES of America, Plaintiff-Appellee, v. James Nicholas GORDY, Defendant-Appellant.

No. 75-1522.

United States Court of Appeals, Fifth Circuit.

January 29, 1976.

Raymond C. Caballero, El Paso, Tex., for defendant-appellant.

John E. Clark, U.S. Atty., San Antonio, Tex., William B. Hardie, Jr., Ronald F. Ederer, Asst. U.S. Attys., El Paso, Tex., for plaintiff-appellee.

Before COLEMAN, CLARK and INGRAHAM, Circuit Judges.

CLARK, Circuit Judge:

The issue of double jeopardy raised by this appeal turns on the propriety of a pre-verdict discharge of the jury which first tried defendant. At his second trial, defendant was convicted by a jury of possession with intent to distribute approximately 2,296 pounds of marijuana. 21 U.S.C. § 841(a)(1). Far from depicting indifference to the defendant's right to the first jury's verdict, the record shows a "harried" trial judge attempting to carry the weight of a crowded docket which had been aggravated by the demands of a speedy trial plan and the sudden death of his fellow judge. However, because the determination of manifest necessity for a mistrial depends upon the state of the jury rather than the state of the judge or the court's docket, we reverse the conviction.

Defendant Gordy was initially tried on a two-count indictment charging conspiracy to possess and possession with intent to distribute marijuana. 21 U.S.C. §§ 841(a)(1), 846. On December 6, 1974, he was acquitted of the conspiracy to possess charge and, over defendant's objection, the trial court declared a mistrial on the possession count, ostensibly because the jury was unable to agree on a verdict. Gordy was retried and convicted of possession on February 11-12, 1975. He appeals from that conviction, claiming, inter alia, that his retrial was barred by the Fifth Amendment.

At both trials, the government sought to prove its case of constructive possession against Gordy by means of circumstantial evidence. The facts essential to a resolution of this appeal are undisputed. On July 24, 1974, Mrs. Graham, the owner-operator of Alpha Storage Lockers in El Paso, noticed that a lock had been placed on unrented locker # 180. Mrs. Graham picked the lock, removed 44 boxes stored inside, placed her own lock on the door and notified the police. The police determined that each box contained approximately 50 pounds of marijuana. Hoping to discover the owner of the contraband, the police replaced the boxes in locker # 180, returned the original lock to its position and kept watch. Nothing developed. On the morning of July 29, they removed the marijuana and placed a new lock on the door. That afternoon, the defendant, who had rented two lockers from Alpha since October 1973, initiated a conversation with Mrs. Graham and, during its course, asked her if she was good at remembering names and faces. The next evening Gordy went to Mrs. Graham's home and told her that friends of his had been wrongfully using locker # 180 to store seeds. He offered to pay back rental to cover this deception from July 25 to date. Mrs. Graham accepted this lease payment from Gordy then alerted the police who resumed surveillance of the now empty locker. Defendant was arrested on July 30 when the police observed him coming out of locker # 180. It was later determined that he had gained entry by cutting the police department's lock with a set of bolt cutters.

Upon being advised of his constitutional rights, Gordy explained to the police that he had received anonymous calls offering him as much as 2500 dollars to go to locker # 180 and make sure it was "cool." He denied knowledge of the locker's contents and suggested that the police go to his home and wait for the anonymous caller to make contact. The police declined to cooperate.

More directly bearing on Gordy's double jeopardy contention are the circumstances surrounding the jury's deliberations and discharge at his first trial. In an attempt to compensate for the recent death of Judge Guinn and the crowded El Paso docket, Judge Wood conducted a succession of extra length court sessions during the week of defendant's trial. The pace was hectic and on more than one occasion the judge expressed concern that he might miss his scheduled flight to San Antonio on December 6 and thus be unable to prepare for an upcoming court term. Within the first three days of this El Paso session, three criminal cases were tried. Testimony in two of them was heard well into the evening hours.

The trilogy of cases which we decide today began on the morning of December 4, 1974. Except for their nexus on the trial docket, the causes are unrelated. At 10:00 a.m., the case of United States v. Sandoval commenced. With breaks for dinner, lunch and coffee, the jury heard testimony until 10:00 p.m. that night. At 8:30 a.m. on December 5, the Sandoval jury returned to take additional testimony, hear arguments and receive instructions. Deliberations began around noon and a guilty verdict was returned approximately five and one-half hours later. At about 1:00 p.m. the same day, the first Gordy trial began before another jury. By 7:00 p.m. the trial had ended and that jury was ordered to return at 8:30 a.m. the next morning to begin deliberations. Shortly after the completion of the Gordy case, the court began to take testimony in the case of United States v. Diharce-Estrada, 526 F.2d 637 (5th Cir. 1976). The Diharce trial did not recess until 10:25 p.m. The same attorney represented both Mr. Gordy and Mr. Diharce-Estrada.

On the morning of December 6, 1974, the Gordy jury began its deliberations. In addition, the Diharce jury received instructions and began its deliberations. Before noon, the Diharce jury had announced its verdict of guilty. The verdict of the Gordy jury became the last objective of this El Paso session.

The total deliberations in Gordy lasted approximately five and one-half hours. Just before the break for lunch at 1:00 p.m., the jury submitted this question in writing to the court: "Would you give us the definition of possession (second count)"? Before responding, Judge Wood notified defense counsel that he intended to answer by giving the jury an instruction sheet which contained the standard definition of actual and constructive possession previously given in the oral charge to the jury. Defense counsel then expressed concern that the jury might be confused as to whether the defendant could have been in possession at a time when the marijuana was no longer in the locker, and requested that the court instruct the jury that they must find that Gordy had possession of locker # 180 at some time when it actually contained the contraband. The court denied the request and gave only the standard instruction.

The panel then recessed an hour for lunch and resumed deliberations at approximately 2:00 p.m. The record reflects that shortly before 3:00 p.m. the jury was brought in and the following exchange took place.

THE COURT: Members of the Jury, you may be seated. Mr. Foreman, if I interpret what you say right, you all have a hung Jury, is that right? You cannot agree?

THE FOREMAN: On the second count, Sir.

THE COURT: Have you reached a verdict on one count?

THE FOREMAN: Yes sir.

THE COURT: You did reach a verdict on one count?

THE FOREMAN: On one.

THE COURT: All right. All right, hand the verdict to Mr. — is that a unanimous verdict on that one count? All twelve of you did agree on it?

THE FOREMAN: Yes, sir.

THE COURT: Okay. All right. Gentlemen, just approach the bench.

(At the bench)

THE COURT: Now, here's the verdict. Now, I think we ought to call the Foreman over and ask him how they stand on that count.

MR. CABALLERO: Maybe we should, Your Honor.

THE COURT: Mr. Yanez, would you approach the bench, please sir.

(The Foreman then approached the bench.)

THE COURT: Mr. Yanez, this is in confidence, but I want the lawyers to know it and the parties, how do you stand on the vote on that count?

THE FOREMAN: Six-six.

THE COURT: A flat split. Okay. All right. All right, you may take your seat.

All right, I will accept the verdict on count one. The verdict on count one is "Not guilty." The Jury of course hung as counsel for both sides know on count two.

All right. Now members of the Jury, I want to thank you very much for the time you spent in this case and the indulgence you have afforded me and the time you have taken to make it possible for me to complete a monumental docket this week. We will have a visiting Judge here. We will have Chief Judge Smith, Orma Smith, Chief Judge of the Northern District of Mississippi here on January the 6th. So when you come back here I hope we are not going to be as harried. We will have two Judges and we won't have to work the long hours. But we have had a vacancy here since June the 9th when our beloved Judge Guinn passed away. So we have had to work long hours. I hate to keep you like this. In fact, I hate to stay here until 10:00 or 11:00 at night. But it is essential when these things happen and we have to do it.

MR. CABALLERO: Your Honor, may I interrupt the Court and approach the bench with counsel.

(At the bench)

MR. CABALLERO: For the purpose of the record, Your Honor, as I stated before to the Court when I believe the second question came back on possession—

THE COURT: Oh, let's don't go into that right now. I'm going to discharge this jury. I can make my plane if you will just get off my back long enough for me to do it. I can make my plane if you'll let me. Can't you make a motion?

MR. CABALLERO: Well, Your Honor—

(In the hearing of the Jury:)

THE COURT: Members of the Jury, you are excused. Thank you very much. Bear in mind your deliberations are secret. Do not discuss the case with anybody. You are excused.

(At the bench)

THE COURT: All right, now, what is it?

MR. CABALLERO: Your Honor, I simply wanted to make it a matter of record that this Jury deliberated approximately five or five-and a-half hours.

THE COURT: All right. All I want

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