667 F.2d 440 (4th Cir. 1981), 80-5217, United States v. Fleming

Docket Nº:80-5217, 81-5108.
Citation:667 F.2d 440
Party Name:UNITED STATES of America, Appellee, v. Earl Clifton FLEMING, Appellant. UNITED STATES of America, Appellee, v. Vernon J. RAGINS and Pearl L. Ragins, Appellants.
Case Date:December 17, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 440

667 F.2d 440 (4th Cir. 1981)

UNITED STATES of America, Appellee,

v.

Earl Clifton FLEMING, Appellant.

UNITED STATES of America, Appellee,

v.

Vernon J. RAGINS and Pearl L. Ragins, Appellants.

Nos. 80-5217, 81-5108.

United States Court of Appeals, Fourth Circuit

December 17, 1981

Argued Nov. 6, 1981.

Parks N. Small, Federal Public Defender, Columbia, S. C., for appellant in 80-5217.

John F. Hardaway, Asst. Federal Public Defender, Columbia, S. C. (Russell W. Templeton, Columbia, S. C., on brief), for appellants in 81-5108.

Douglas H. Westbrook and Eric W. Ruschky, Asst. U. S. Attys., Columbia, S. C., for appellee.

Before BUTZNER, Circuit Judge, FIELD, Senior Circuit Judge, and MURNAGHAN, Circuit Judge.

Page 441

FIELD, Senior Circuit Judge:

In each of these consolidated appeals, the appellants contend that jeopardy attaches when a jury has been selected although it has not been sworn to try the case.

In case number 80-5217, Earl Clifton Fleming was awaiting trial in the District of South Carolina on an indictment charging him with two counts of felonious receipt of food coupons. The case was set for trial on September 10, 1980 and a few days prior thereto the Government learned of an alleged threat by Fleming against one of the Government witnesses. A new indictment was returned on September 9, 1980 which contained the original first two counts, and included a third count charging a violation of 18 U.S.C. § 1503. When the case was called for trial on September 10, 1980, the district court concluded that under the circumstances the jury should be dismissed and the case reset for trial. Thereafter the defendant moved to dismiss counts one and two on the ground that the defendant had been placed in jeopardy when the jury was impaneled. The court denied this motion but allowed this interlocutory appeal.

In case number 81-5108, Vernon J. Ragins and his mother, Pearl L. Ragins, were charged in a four-count information with making false statements to the Social Security Administration concerning Vernon's eligibility to receive survivor's benefits. A jury was selected on January 19, 1981 but was not sworn and was advised to return for the trial on January 20, 1981. On the morning of January 20, counsel for the Government tendered an amended information which included a reference to newly discovered material. When the...

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