U.S. v. Sisk

Decision Date07 October 1980
Docket NumberNo. 79-5369,79-5369
Citation629 F.2d 1174
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thomas Edward SISK, Charles Benson, Jr., Charles Frederick "Fred" Taylor, and William Aubrey Thompson, Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Cecil D. Branstetter, Robert H. Schwartz, Nashville, Tenn., John F. Dugger, Morristown, Tenn., Robert J. Shockey, Chattanooga, Tenn., for defendants-appellants.

Hal D. Hardin, U. S. Atty., Joe B. Brown, William Cohen, Asst. U. S. Attys., Nashville, Tenn., for plaintiff-appellee.

Before LIVELY and MARTIN, Circuit Judges, and PECK, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge.

This case comes before us as the last link in an improbable chain of events. Two questions are presented: first, whether there was "manifest necessity" for the district court's sua sponte declaration of a mistrial, so that retrial of appellants was not barred by the Double Jeopardy Clause of the Fifth Amendment; second, whether a government entity can be an "enterprise" within the scope of the "Racketeer Influenced and Corrupt Organizations" ("RICO") chapter of the Organized Crime Control Act. 1 We hold that the facts of this case demonstrate the "manifest necessity" of the district court's declaration of mistrial; there was therefore no error in the district court's denial of appellants' motion to dismiss the indictment on double jeopardy grounds. We do not reach the second question, for we lack jurisdiction to consider it.

I

Each of the appellants in this case was in some way connected with the government of the State of Tennessee. Appellant Sisk was legal counsel to the governor; appellant Benson was an extradition officer working under Sisk; appellant Taylor, a Tennessee highway patrolman, was part of the governor's security staff; appellant Thompson was a Democratic Party committeeman in Hamilton County, Tennessee. These four were charged with violating, and conspiring to violate, RICO by using their political influence to "sell" commutations of sentences and immunity from extradition.

After a suppression hearing and the usual flurry of motions, appellants' trial commenced on July 19, 1979 before Judge Charles G. Neese. On August 10, having suffered a heart attack, Judge Neese certified that due to his illness he was no longer able to preside at appellants' trial. Pursuant to Rule 25(a), Fed.R.Crim.P. 2 Circuit Judge Gilbert S. Merritt, Jr., was designated to continue the trial, presiding in Judge Neese's stead. On September 4, having questioned each juror to determine whether any juror bias had arisen in the course of the eventful and highly publicized prior proceedings, Judge Merritt explicitly found "manifest necessity" to declare a mistrial. He did so, citing three separate grounds. The first was the four-week break in the trial following Judge Neese's initial illness; Judge Merritt concluded after questioning the jurors that their recall of the evidence presented had diminished. Second was the publicity during the trial break concerning a purported jury-tampering attempt, in which appellant Sisk had allegedly been called by a person offering to secure for him a "friend" on the jury in exchange for $25,000. Third was Judge Merritt's conviction that Judge Neese had erroneously instructed the jury on the existence of a conspiracy among appellants-a preliminary finding which triggered application of the coconspirators' exception to the hearsay rule. These three sources of possible juror prejudice led Judge Merritt to conclude that the parties could not have received a fair trial before that jury; he therefore believed it was necessary to declare a mistrial, and that retrial of appellants consequently would not be barred by the Fifth Amendment.

II

All of the defendants below objected to the trial court's declaration of mistrial. 3 Thus this ruling, while it precluded all possibility of convictions which might have been upset on appeal, also prevented the appellants from exercising their "valued right to have (their) trial completed by a particular tribunal. . . . " Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). Accord, Illinois v. Somerville, 410 U.S. 458, 466, 93 S.Ct. 1066, 1071, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556-557, 27 L.Ed.2d 543 (1971) (plurality opinion of Harlan, J.). This "valued right . . . must in some cases be subordinated to the public's interest in fair trials designed to end in just judgments." Wade v. Hunter, supra, 336 U.S. at 689, 69 S.Ct. at 837.

We must decide whether in the present case this "valued right" was properly so subordinated. There are no judicial per se rules for striking the balance of these personal and public interests; each case must turn on its facts. See United States v. Jorn, supra, 400 U.S. at 480, 91 S.Ct. at 554-555 (opinion of Harlan, J.); Downum v. United States, 372 U.S. 734, 737, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100 (1963); Wade v. Hunter, supra, 336 U.S. at 691, 69 S.Ct. at 838; United States v. Perez, 22 U.S. 256, 256 (9 Wheat. 579, 580) (1824). See also Holleman, Mistrials and the Double Jeopardy Clause, 14 Ga.L.Rev. 45, 78 (1979).

Justice Story described a balance tilted towards the public's interest as one of "manifest necessity" for declaring a mistrial:

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 the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.

Perez, supra, 22 U.S. at 256 (9 Wheat. at 580).

"Manifest necessity" has become a term of art. It is a descriptive phrase which has acquired its own connotations; it cannot be read literally, for rarely will it be "necessary," in any everyday sense, for a trial judge to declare a mistrial. See Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 830-831, 54 L.Ed.2d 717 (1978). The necessity spoken of reflects a trial judge's estimate of the fairness to both sides of continuing a trial. Normally, courts will accord great deference to this estimate:

(Trial judges) are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office.

Perez, supra, 22 U.S. at 256 (9 Wheat. at 580).

But here, as in all cases, discretion does not equal license; the Fifth Amendment's guarantee against double jeopardy would be a sham if trial judges' declarations of "necessary" mistrials were in fact to go unreviewed.

The Supreme Court has repeatedly tried to develop rules defining the reach of the Double Jeopardy Clause following a declaration of mistrial over a defendant's objection. Gori v. United States, 367 U.S. 364, 369, 81 S.Ct. 1523, 1527, 6 L.Ed.2d 901 (1961) implies that sua sponte declarations of mistrials will not bar subsequent retrials, "where it clearly appears that a mistrial has been granted in the sole interest of the defendant . . . ." But see id. at 370, 81 S.Ct. at 1527 (Douglas, J., dissenting).

"Sole interest of the defendant" is a concept that defies definition; in Arizona v. Washington, supra, the Court attempted to provide sharper guidelines for the review of mistrial declarations. There is, according to the Court, a "spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny . . . ." 4 Id. 434 U.S. at 510, 98 S.Ct. at 833. At one end of this spectrum are those cases in which the basis for the mistrial is the unavailability of critical prosecution evidence, or in which the state's superior resources are possibly being used to harass a defendant with successive trials. At this end of the spectrum, the "strictest scrutiny" is appropriate when a second prosecution is attempted. Id. at 508-09, 98 S.Ct. at 831-832.

The other extreme is the case of the "classic" mistrial-declared when the trial judge believes the jury is unable to agree on a verdict. It is a commonplace in our legal system that a trial judge may discharge a genuinely deadlocked jury and require defendants to stand trial again. Because it is the trial judge who has heard and observed the jurors in such cases, appellate courts should and do normally defer to a trial judge's determination that a jury cannot reach a fair verdict.

The present case lies in the latitudes between these poles. This case, like Washington, 5 resulted in a mistrial below because the trial judge wished to avoid submitting a case to biased jurors. Ordinarily a trial judge's estimate of juror prejudice is accorded "the highest degree of respect." Washington, supra, 434 U.S. at 511, 98 S.Ct. at 833. But a mistrial is not "manifestly necessary" simply because the trial judge thinks juror prejudice has arisen; on appeal, the source of that prejudice must also be considered in deciding whether retrial of defendants is permissible under the Fifth Amendment.

When it is a trial judge's uninvited error which gives rise to juror prejudice, the judge may not discharge the jury and subject defendants to a second trial. A contrary rule would enable judges to perfect trial records in an attempt to ensure "irreversible" convictions when they so desired. Such a rule would also...

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