731 F.2d 41 (D.C. Cir. 1984), 83-2088, United States v. Glover

Docket Nº:83-2088.
Citation:731 F.2d 41
Party Name:UNITED STATES of America v. Fred M. GLOVER, aka Blackbuster, Appellant.
Case Date:April 06, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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731 F.2d 41 (D.C. Cir. 1984)

UNITED STATES of America

v.

Fred M. GLOVER, aka Blackbuster, Appellant.

No. 83-2088.

United States Court of Appeals, District of Columbia Circuit

April 6, 1984

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On Motion for Summary Affirmance Appeal from the United States District Court for the District of Columbia.

Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the motion was filed), Michael W. Farrell and Theodore Shmanda, Asst. U.S. Attys., Washington, D.C., were on the motion for summary affirmance, for appellee.

Kenneth M. Robinson, Washington, D.C., was on the opposition to the motion for summary affirmance, for appellant.

Before WILKEY and MIKVA, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court PER CURIAM.

Separate Dissenting Opinion filed by Circuit Judge MIKVA.

PER CURIAM:

This appeal came before the motions panel of the court on the Government's motion for summary affirmance. Defendant-appellant Fred M. Glover was tried by a jury on two drug-related counts and one count of possession of a prohibited weapon. When the members of the jury were unable to agree on a verdict, the trial court, over Glover's objection, declared a mistrial. Glover claimed that the fifth amendment's double jeopardy clause barred his subsequent retrial and he filed a motion to prohibit retrial and to dismiss the indictment. The trial court denied Glover's motion and scheduled the case for retrial; Glover appealed. 1 We concluded that the merits of the appeal were "so clear as to justify expedited action" and to "make summary affirmance proper." Walker v. Washington, 627 F.2d 541, 545 (D.C.Cir.) (per curiam), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 292 (1980). In order to permit Glover's retrial to proceed without further delay, we issued an order affirming the district court's denial of Glover's motion to prohibit retrial. United States v. Glover, No. 83-2088 (Dec. 16, 1983). We write now to explain that decision.

I.

Fred M. Glover was arrested on March 12, 1983, and was charged by indictment on March 23, 1983, with one count each of possession with intent to distribute cocaine, 2 possession of cocaine, 3 and possession of a prohibited weapon (a blackjack). 4 Glover entered pleas of not guilty on all counts. At his trial, which began on September 19, 1983, Glover's defense consisted of a denial of the charges and the assertion of an affirmative defense that the police officers involved in his arrest were trying to frame him with fabricated evidence.

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The trial was completed on September 21, 1983, and the jury met for one hour that evening. After it reconvened on the morning of September 22, the jury sent three separate notes to the court, asking various evidentiary questions concerning lighting conditions, the preliminary drug field test, fingerprint examinations, and whether the jury could review portions of the transcript pertaining to the police officers' seizure of the cocaine. The judge instructed the jury that the transcript was not available, that their recollections of the evidence controlled their deliberations, and that they could consider only evidence properly admitted during the trial. The jury resumed deliberations and, at 3:40 p.m. that afternoon, sent a fourth note to the court, signed by the foreman, stating: "We cannot reach a unanimous decision, so please advise." In response, the judge read the United States v. Thomas 5 charge pertaining to deadlocks to the jury and asked it to continue deliberating for another hour before recessing.

After the jury had reconvened on the morning of Friday, September 23, the jury requested the court to reread its instructions on "the definition of evidence, reasonable doubt, common sense, facts and the duties and responsibilities of a juror." The court reread several instructions to the jury and gave the jury a second Thomas charge. The court denied, however, a request by Glover's counsel that the jury be read the bracketed material in D.C. Criminal Jury Instructions No. 2.11, Credibility of Witness, 6 pertaining to inconsistencies or discrepancies in witnesses' testimony. The jury resumed deliberations and more than three hours later, at 3:02 p.m., it sent the court a note signed by the foreman, stating: "We, the jury, have come to the conclusion that we are irretrievably and irreconcilably deadlocked." Although Glover's counsel suggested that the jury

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would resolve its deadlock if the court read the jury Instruction No. 2.11, including the bracketed language, the judge stated his intent to declare a mistrial. The court indicated in its memorandum opinion:

The Court expressed its concern to counsel that the jury had been deliberating a long time considering the drug and weapon charges at issue, that they had noted their inability to reach a unanimous verdict after being read the Thomas charge and, based on its finding that there was no satisfactory alternative, declared its intention to declare a mistrial. When the defendant objected to the declaration of a mistrial and asked the Court to once again instruct the jury to continue deliberating, the Court stated that it was not inclined to do so since an instruction to keep deliberating might pressure them and result in their subsequently finding the defendant guilty.

United States v. Glover, Crim. No. 83-55, slip op. at 2 (D.D.C. Oct. 13, 1983). When the jury was brought back into the courtroom, the court asked the foreman whether the jury was still "irretrievably and irreconcilably deadlocked," and whether further deliberations would resolve the deadlock. After the foreman stated that further deliberations would not resolve the deadlock, the court declared a mistrial.

On September 27, 1983, Glover filed a motion to prohibit retrial and to dismiss the indictment on double jeopardy grounds. The district court denied the motion and scheduled the case for a second trial to commence on December 19, 1983. Glover appealed the district court's denial of his motion to prohibit retrial, and the United States filed a motion for summary affirmance.

II.

A party who seeks summary disposition asks this court to dispose of an appeal on the merits, often before the court has had the benefit of full briefing and oral argument. Because of the serious consequences that flow from granting summary disposition, the court imposes on a party who requests summary affirmance or summary reversal a "heavy burden," United States v. Allen, 408 F.2d 1287, 1288 (D.C.Cir.1969) (per curiam): the movant "must demonstrate that the merits of his claim are so clear as to justify expedited action," Walker v. Washington, 627 F.2d 541, 545 (D.C.Cir.) (per curiam), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 292 (1980). Before it grants summary disposition of an appeal, the court must conclude that further briefing and argument are not necessary. See Ambach v. Bell, 686 F.2d 974, 979 (D.C.Cir.1982) (per curiam).

The circumstances of this appeal make it especially suited for expedited disposition. Although the district court's order denying Glover's motion to prohibit retrial is a "final decision" for purposes of 28 U.S.C. Sec. 1291, 7 see Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977), it "is obviously not 'final' in the sense that it terminates the criminal proceedings in the district court," id. at 657, 97 S.Ct. at 2039. As long as Glover's appeal remained pending before this court, his retrial would be delayed, thereby increasing the risks--both to Glover and to the Government--that witnesses' memories would fade or that witnesses would become otherwise unavailable. This potential for delay was recognized by the Abney Court, which suggested that the "problems of delay can be obviated by rules or policies giving such appeals expedited treatment. It is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims of former jeopardy." Id. at 662 n. 8, 97 S.Ct. at 2042 n. 8. Similarly, the Court of Appeals for the Ninth Circuit's recognition of the potential for "Abney appeals" to delay trials prompted that court to hold that the Government establishes irreparable injury

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for the purpose of invoking the court's emergency procedures "upon a showing that the trial of criminal cases will be significantly delayed in the absence of such procedures." United States v. Miranda-Parra, 637 F.2d 610, 613 (9th Cir.1980) (per curiam); cf. United States v. Yellow Freight Systems, Inc., 637 F.2d 1248, 1252 (9th Cir.1980), cert. denied, 454 U.S. 815, 102 S.Ct. 91, 70 L.Ed.2d 84 (1981) ("Because the filing of an appeal allowable under Abney deprives the trial court of jurisdiction to proceed with trial, ... defendants delay their trial when they pursue Abney appeals. So that defendants need not completely forego speedy trial to seek vindication of the rights protected by Abney, we must adopt procedures to dispose of these appeals as quickly as fair consideration permits.").

Although the need for speedy resolution of this appeal so that Glover's retrial--if not barred on former jeopardy grounds--may proceed is an important factor in a decision to grant summary affirmance, other factors also make this case an appropriate one for summary disposition. This appeal, which comes before the court on undisputed facts, 8 presents a single, 9 uncomplicated legal issue to be decided in an area where the case law is well developed. That issue was well briefed in the parties' motion papers, and we determined that further briefing and argument "would not significantly aid the Court." Walker v. Washington, 627 F.2d at 542. Our review of the controlling case law makes it clear that the double jeopardy clause does not bar...

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