Grogan v. United States

• Decision Date: 02 April 1968
• Docket Number: No. 24083.,24083.
• Citation: 394 F.2d 287
• Parties: James Robert GROGAN, III, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

394 F.2d 287 (1967)

James Robert GROGAN, III, Appellant, v. UNITED STATES of America, Appellee.

No. 24083.

United States Court of Appeals Fifth Circuit.

November 28, 1967.

Rehearing Denied December 28, 1967.

Second Rehearing Denied April 2, 1968.

James H. Fort, Columbus, Ga., Richard M. Welling, Welling & Miller, Charlotte, N. C., James H. Fort, Columbus, Ga., L. P. McLendon, L. P. McLendon, Jr., Charles B. Robson, Jr., C. Allen Foster, Greensboro, N. C., for appellant.

Walker P. Johnson, Jr., Manley F. Brown, Asst. U. S. Attys., Floyd M. Buford, U. S. Atty., Macon, Ga., for appellee.

Before TUTTLE, GEWIN and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

In this criminal case the principal issue for our determination is whether the trial court erred in twice putting appellant in jeopardy for the same offenses, a mistrial having been declared by the district judge on the first trial when the jury was unable to agree on a verdict as to appellant.

Appellant was the manager of the Shelby Municipal Airport for the City of Shelby, North Carolina. He kept and maintained all types of aircraft for patrons of the airport and was also engaged in the business of building and repairing Bell 47 helicopters. In connection with his business, he purchased parts from various sources, including Government surplus property sales. In 1964, he made several purchases from one Offutt, a soldier at Fort Benning, Georgia, who appellant alleges represented himself to be a civilian dealer in Government surplus property. An FBI investigation of the above transactions disclosed that Offutt was illegally selling Government property. He was eventually arrested and confessed his part in the illegal transactions. In doing so, he implicated appellant who was then arrested and charged with one count of conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371 and one count of receiving stolen Government property in violation of 18 U.S.C. § 641.

On March 28, 1966, appellant and two other defendants were tried for these offenses before a jury. On the fourth day of the trial, at 5:15 in the afternoon, the jury retired to consider their verdict. After nearly five hours of deliberation, the court had the jury returned to the jury box and instructed them that at any time they reached a unanimous agreement with regard to any of the counts concerning any of the defendants, they could return the verdict they had reached.¹ The jury again retired to the jury room and within five minutes returned a verdict of not guilty on all of the counts against co-defendant Bobby Griffin Packard. Because of the late hour and the inability of the jurors to agree on a verdict for the other two defendants, the court immediately declared a mistrial as to those two defendants.

After a second trial on the same indictment, appellant was found guilty and he now claims, for the first time on this appeal, that he was twice put in jeopardy for the same offenses, in violation of the Fifth Amendment to the Constitution of the United States. This defense, properly speaking, should have been affirmatively raised at some point in the proceedings in the district court and was thus waived by appellant's failure to assert it at the trial. See Rule 12(b), Fed.R.Crim.P.; Barker v. State of Ohio, 6 Cir., 1964, 328 F.2d 582; Ferina v. United States, 8 Cir., 1965, 340 F.2d 837.

As to the merits of the plea of former jeopardy itself, we observe that the law is well established, when a jury cannot agree, that the court may in its discretion declare a mistrial without the consent of the opposing parties and without creating a bar to a future trial on the same offense. The United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824); accord, Gilmore v. United States, 5 Cir., 1959, 264 F.2d 44, cert. denied, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982; Rothaus v. United States, 5 Cir., 1963, 319 F.2d 528.

Justice Story, delivering the opinion of the Court in the Perez case, said:

"The question, therefore, arises, whether the discharge of the jury by the court from giving any verdict upon the indictment, with which they were charged, without the consent of the prisoner, is a bar to any future trial for the same offense. If it be, then he is entitled to be discharged from custody; if not, then he ought to be held in imprisonment until such trial can be had. We are of the opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think, that in all cases of this nature, the law has invested courts of justice with 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. They 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."

This clear statement of the law has been consistently followed by the federal courts for more than 140 years. Keerl v. State of Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); Howard v. United States, 9 Cir., 1967, 372 F.2d 294; Tolan v. United States, 9 Cir., 1967, 370 F.2d 799.

The facts in this case do not warrant a deviation from such a well-established standard. The trial judge in his supplemental charge to the jury said that should they return a verdict for less than all of the counts against all of the defendants, he would then decide whether or not to declare a mistrial.² With this possibility in mind, after only five minutes of additional deliberation, the jury returned a verdict of acquittal for one defendant and no verdict as to the other two defendants. In view of these circumstances, we find that the court did not abuse its discretion by declaring a mistrial and that a mistrial does not create a bar to a future trial on the same indictment.

In the course of the first trial, appellant introduced into evidence certain documents in support of his defense. After a mistrial was declared at the first trial, he requested the return of his exhibits. allowed the United States Attorney sever-Before granting his request, the court al days in which to examine the records and appellant contends that he was, therefore, forced to give evidence against himself, in violation of the Fifth Amendment. The district judge stated at the start of the second trial that because of the voluminous nature of the records and the fact that they were introduced in the latter stages of the first trial, the United States Attorney should be given an opportunity to examine the records.

The records were voluntarily introduced into evidence by appellant in the first trial and again in the second trial. The law is well settled that once so disclosed, such articles become a matter of public record. Cf. Schauble v. United States, 8 Cir., 1930, 40 F.2d 363. It is a contradiction for appellant, who voluntarily introduced the records in support of his own defense in both trials, to contend that he was required to give evidence against himself because the prosecution was permitted to examine the exhibits he introduced. In Ballard v. United States, 9 Cir., 1943, 138 F.2d 540, the Ninth Circuit in deciding a similar case said:

"The letters were voluntarily produced and put in evidence by appellants. There was no compulsion, no search or seizure, no violation of the Constitution."

After a reasonable time had been allowed the United States Attorney, the court ordered the records returned to the respective parties. At the second trial it was appellant who again voluntarily introduced the records into evidence.³ We find no merit in his contention that he was thus forced to give evidence against himself, in violation of the Fifth Amendment.

Appellant also objected to the admission of the testimony of the witness, Mrs. Offutt, concerning telephone conversations she allegedly had with appellant concerning numerous details of the conspiracy. The controlling decisions on this point hold that such testimony is admissible. "Identification of the voice, however, is not a prerequisite to the admissibility of a telephone conversation. * * * Identity of the person with whom the conversation is alleged to have been had may be established by circumstantial evidence." Cwach v. United States, 8 Cir., 1954, 212 F.2d 520, 525; accord, United States v. Johnston, 6 Cir., 1963, 318 F.2d 288. In the present case there was sufficient circumstantial evidence identifying appellant as the person the witness spoke with, and, therefore, the district court did not err in admitting her testimony concerning their telephone conversations.

On voir dire examination of the jury for the second trial, the court informed the prospective jurors that a previous trial had ended in a mistrial and inquired of them if they had any knowledge of the proceedings at that trial. Appellant claims that the court, in effect,...