589 F.2d 1025 (10th Cir. 1978), 76-1621, United States v. Rich

Docket Nº:76-1621.
Citation:589 F.2d 1025
Party Name:UNITED STATES of America, Appellant, v. J. Milton RICH, Appellee.
Case Date:December 20, 1978
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1025

589 F.2d 1025 (10th Cir. 1978)

UNITED STATES of America, Appellant,


J. Milton RICH, Appellee.

No. 76-1621.

United States Court of Appeals, Tenth Circuit

December 20, 1978

Argued and Submitted Oct. 24, 1978.

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Calvin B. Kurimai, Crim. Div., Dept. of Justice, Washington, D. C. (Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah, and Richard W. Beckler, Crim. Div., Dept. of Justice, Washington, D. C., on the brief), for appellant.

Donn E. Cassity, of Romney, Nelson & Cassity, Salt Lake City, Utah (Kenneth R. Brown, Salt Lake City, Utah, on the brief), for appellee.


Opinion on Rehearing

BARRETT, Circuit Judge.

The United States appeals from the May 25, 1976, order of the District Court dismissing the indictment brought against J. Milton Rich. The District Court ruled that trial could not proceed without (a) violating Rich's rights under the Double Jeopardy Clause of the Fifth Amendment, and (b) denying Rich his right to a speedy trial guaranteed by the Sixth Amendment and Fed.R.Crim.P. rule 48(b), 18 U.S.C.A. Our jurisdiction vests pursuant to 18 U.S.C.A. § 3731.

This appeal was first argued and submitted to this Court on September 26, 1977. However, in light of certain cases involving Double Jeopardy issues then pending review by the United States Supreme Court, we held this appeal in abeyance. The Supreme Court rendered decisions on the four Double Jeopardy cases on February 21, 1978, and June 14, 1978. Thereafter, the parties were requested to submit supplemental briefs and to re-argue this case. This was accomplished on October 24, 1978. A summary of the operative facts and circumstances should facilitate our disposition.

Rich was indicted for committing fraud on a bankruptcy trustee in violation of 18 U.S.C. § 152. His case was tried to a jury in July, 1975. Inasmuch as the jury was unable to reach a verdict, retrial was set for September 29, 1975. The Government thereafter sought and was granted a continuance. Rich did not object thereto. Trial was to be set at a future date. A few weeks later the Government sought a further continuance to December 1, 1975,

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based on two simultaneously filed motions. The record does not reflect that Rich opposed the motions or that he demanded a speedy trial. In any event, the Government's motions were mooted when the case came up for call on the Court's December 1, 1975, docket.

When the case was called for trial on December 8, 1975, Rich was not present in the courtroom. Through counsel, however, Rich expressly waived his right to be present during the jury impaneling process. A jury was impaneled and sworn. Trial proceeded no further.

At some time after December 8, 1975, the trial court was advised that the Government's key attorney assigned to the case would be unable to reach Salt Lake City for the trial as scheduled. The Court thereupon temporarily excused the jury on December 17, 1975. Rich did not object to the additional delay.

From December 17, 1975 to February 2, 1976, neither the Government nor Rich made an effort to proceed with the trial. The uncontroverted and unchallenged affidavit of Donn E. Cassity, Rich's attorney, relates that the following then occurred: On February 2, 1976, Cassity was at the federal courthouse on a matter unrelated to this case; that in a corridor Cassity chanced to meet Chief Judge Ritter, who had at all times presided over the subject proceeding against Rich; that the Court requested that Cassity come to his chambers; that in his chambers the judge asked, "Cassity, you don't want to try that Rich case, do you?" to which Cassity replied, "No, judge, I don't want to try it. I believe the client is innocent and that the wrong persons were charged as defendants in this case."; that the judge immediately instructed his clerk to prepare an order discharging the jury; that Cassity said, "Judge, if you discharge the jury, I will raise any defense I can, including double jeopardy, as a defense against his being tried again."; and that the judge made no reply.

The Assistant United States Attorney swears by affidavit that his office was not notified that the jury was going to be discharged. That office first learned of the court's action in late April or early May, 1976, during a visit with the trial judge's law clerk. In the interim, neither the Government nor Rich did anything to cause the trial to be resumed.

At a hearing on May 25, 1976, convened on the Court's initiative, Rich moved for dismissal of the indictment on the following grounds: (1) that upon impaneling and swearing in a new jury to hear the case, Rich would be twice placed in jeopardy contrary to the Fifth Amendment, (2) that Rich had been denied his right to a speedy and public trial contrary to the Sixth Amendment, and (3) that Rich had been denied his right to a speedy and public trial contrary to Rule 48(b), Supra. The trial court did not conduct an evidentiary hearing. The court dismissed the indictment by an order which recites the grounds which Rich relied upon when he filed his motion. The order does not specially state whether the court relied on all grounds advanced, or only one or two. We elect, accordingly, to treat the order as though the court relied on all three grounds advanced by Rich.

On appeal, the Government contends that the District Court's order dismissing the Rich indictment should be reversed in that: (1) the Double Jeopardy Clause does not bar the Government from trying Rich following the discharge of the impaneled jury, and (2) Rich was not denied his right to a speedy trial.


The Government contends that the Double Jeopardy Clause of the Fifth Amendment does not bar it from trying Rich because (a) statements made by Rich's counsel to the trial judge in chambers brought about the discharge of the jury to which counsel for Rich then impliedly consented, and (b) Rich's counsel waived Rich's constitutional right not to be twice put in jeopardy by reason of his statements made to the trial judge in chambers which brought about the termination of the prosecution without a determination of factual guilt or innocence.

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The general rule is that a criminal defendant is considered in jeopardy upon the impaneling and swearing of a jury. This rule is anchored to the recognition of a defendant's valued right to have his trial completed by a chosen tribunal. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Fay, 553 F.2d 1247 (10th Cir. 1977); Foster v. United States, 339 F.2d 188 (10th Cir. 1964); McCarthy v. Zerbst, 85 F.2d 640 (10th Cir. 1936), Cert. denied, 299 U.S. 610, 57 S.Ct. 313, 81 L.Ed. 450 (1936). While the general rule is unambiguous and certain on its face, in application the rule has encountered various interpretive exceptions. This has come about by reason of refusal of courts to automatically apply the general rule in favor of a considered judgment whether a criminal defendant could be subjected to another trial before a new jury without impairing two primary interests which the Double Jeopardy Clause protects, the infringement upon which is not the result of any action or lack thereof attributable to the defendant.

The Supreme Court has identified these two important interests as (1) protecting a defendant from the unjust trauma, personal strain, financial hardship, embarrassment, and continuing anxiety of successive prosecutions, first articulated in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), and (2) protecting a defendant from the overreaching arm of a trial judge who exercises his authority to aid the prosecution at a trial in which the Government's case is going badly by aborting the trial, thus affording the prosecution a more favorable opportunity to convict the accused. See: Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961).

Thus, while the general rule and the important interests it seeks to protect are the focal point, the Supreme Court has pertinently observed that " . . . The conclusions that jeopardy has attached begins, rather than, ends the inquiry whether the Double Jeopardy Clause bars retrial." Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973). (Emphasis supplied.) The general rule " . . . is by no means a mere technicality, nor is it a 'rigid, mechanical' rule. It is, of course, like most rules, an attempt to impart content to an abstraction." Serfass v. United States, supra...

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