571 F.2d 934 (5th Cir. 1978), 77-2706, United States v. Starling

Docket Nº:77-2706.
Citation:571 F.2d 934
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward STARLING, Defendant-Appellant.
Case Date:April 21, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 934

571 F.2d 934 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,


Edward STARLING, Defendant-Appellant.

No. 77-2706.

United States Court of Appeals, Fifth Circuit

April 21, 1978

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Andrew H. Marshall, Athens, Ga., for defendant-appellant.

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William L. Harper, U. S. Atty., William M. Tetrick, Jerome J. Froelich, Jr., Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, COLEMAN [*] and CLARK, Circuit Judges.

TUTTLE, Circuit Judge:

The appellant, Edward Starling, was charged in a single indictment with embezzlement of a letter from the United States mails and unlawful conversion of postal monies, in violation of 18 U.S.C. §§ 1709, 1711. His jury trial ended when the district court, sua sponte, declared a mistrial. Prior to an anticipated second trial, appellant moved to dismiss the indictment, contending that reprosecution was barred by the Double Jeopardy Clause of the Fifth Amendment. The district court denied the motion, precipitating this appeal. We reverse.


Appellant's trial commenced on March 21, 1977. The presentation of evidence consumed two days, and the case was submitted to the jury on March 23, 1977. Approximately three hours after it retired, the jury reported that it was "hopelessly deadlocked." The foreman informed the court that the jurors had made no progress toward reaching a verdict. In response the court issued some additional instructions and ordered further deliberations. Several hours later the jury sent the court a note, which read:

One of the jurors briefly spoke with the defendant and (his) wife on March 22nd around 12:30 p. m. This information just came to light this afternoon at 3:45 p. m., and that the defendant also attempted to speak to other jurors while said jurors were on the telephone involved in a conversation.

Receipt of this note prompted the court to interrupt the jurors' deliberations for another discussion in open court.

After learning that no further progress toward a verdict had been made, the court inquired about the incidents brought to light in the note. The following colloquy between the court and a juror ensued:

Court: Yes, ma'am. Did the defendant talk with you yesterday?

Juror: He didn't talk. He bowed head and

Court: Oh, is that all?

Juror: as I walked around here, I said, "Is that your wife?"

Court: All right. . . .

Apparently satisfied that no misconduct had taken place, the court moved on to a second juror, the foreman. He explained that appellant had made no attempt to discuss the case and that whatever had transpired did not have any effect. Significantly, the foreman stated: "(The note) was only turned in to you for the simple reason we took a vote and felt that you should know about it."

After receiving this brief explanation of the foreman's contact with appellant, the court inquired as to whether the jury would be able to reach a verdict. The foreman stated that the jurors had been "in the middle of some discussions" when the marshall summoned them to court and requested "at least fifteen minutes" for further deliberations. Before the jury could retire, the following exchange occurred:

Court: All right. If does the conversation, of course, now, all the jurors were aware of the conversation we've just had about any talk or anything?

Foreman: Yes, sir. We took a vote.

Court: And no one has will that fact in any way affect any juror or has there been any indication that that fact has

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affected any juror's judgment or opinion? Has that been expressed?

Foreman: Yes, sir.

Court: It has?

Foreman: Yes, sir.

Court: And there are some jurors who feel that it did have an effect on

Foreman: That it should be brought to light. And I think we should pursue

Court: I think if there is any question in that regard, I'm inclined to not let you deliberate on the case any more, if any juror thinks it might have affected his or her judgment in any way, regardless of how innocent it might be. If any juror feels he or she was influenced by the fact there was conversation or any other thing has influenced you by the fact that there was some conversation with another person, in either event, I would not want to allow the jury to continue the deliberations, if that is the feeling of any of the jurors.

Under those circumstances and with what you have reported to be before, Mr. Foreman, I'm not sure I would allow any further deliberation in the case, and I think I won't in fact, I'll direct that an order of mistrial be entered, and I'll sign it later and withdraw the case from the jury's consideration. (emphasis added)

The jury was dismissed without the benefit of any argument from counsel as to the need or propriety of a mistrial. No alternatives to a mistrial were considered.


The Fifth Amendment to the United States Constitution commands that no "person (shall) be subject for the same offence to be twice put in jeopardy of life or limb." 1 The underlying idea of this deeply-rooted tenet of our jurisprudence is that

the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). The protections offered by the double jeopardy ban include a stringent limitation on the government's right to reprosecute after a mistrial is declared without the consent of the accused. See United States v. Wilson, 420 U.S. 332, 342-44, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).

The authoritative starting point of our law in this field is the opinion in United States v. Perez, 22 U.S. (9 Wheat) 579, 6 L.Ed. 165 (1824). 2 In Perez, Mr. Justice Story articulated the principles which have since guided the federal judiciary in its application of the concept of double jeopardy to situations giving rise to mistrials:

We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all of the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.

22 U.S. at 579. There are, of course, degrees of necessity, and a "high degree" is required before a mistrial is appropriate. Arizona v. Washington, --- U.S. ----, ----, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

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Since Perez, the Supreme Court has faithfully adhered to the manifest necessity standard in a variety of factual contexts. It is now beyond dispute, for example, that reprosecution is not barred after a conviction is reversed on appeal, United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), or on collateral attack, United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). Likewise, a second prosecution is not prohibited when the jury is dismissed because they cannot reach a verdict, Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); United States v. Perez, 22 U.S. at 579; because of the disqualification of a juror, Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146...

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