Howard v. United States

• Decision Date: 30 January 1967
• Docket Number: No. 20558.,20558.
• Parties: Mildred HOWARD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

372 F.2d 294 (1967)

Mildred HOWARD, Appellant, v. UNITED STATES of America, Appellee.

No. 20558.

United States Court of Appeals Ninth Circuit.

January 30, 1967.

COPYRIGHT MATERIAL OMITTED

Joseph L. Armijo, Jr., Torrance, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief Crim. Div., Stephen D. Miller, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and DUNIWAY, Circuit Judges, and McNICHOLS, District Judge.

McNICHOLS, District Judge.

This appeal presents a somewhat novel twist on an old Constitutional question. We are obliged to determine, on a somewhat unusual set of facts, whether or not a retrial of the appellant after a mistrial where the jury failed to agree, is violative of the double jeopardy or due process clauses of the Fifth Amendment.

The appellant was engaged in the business of assisting taxpayers in the preparation of federal income tax returns. On March 31, 1965, the grand jury for the Southern District of California, Central Division, returned a twenty count indictment, No. 34766 (hereinafter referred to as the first indictment). The various counts of the said indictment each dealt with the tax return of a different private individual. It was charged in each instance that the appellant willfully and knowingly aided and assisted the preparation and presentation of federal income tax returns wherein false and fraudulent claims for deductions and exemptions were contained,¹ all in violation of 26 U.S.C. § 7206(2).²

May 24, 1965, trial commenced on the first indictment. At the close of the government's case in chief, eight counts were dismissed on motion of the government and on these counts a judgment of acquittal was entered.³ The jury was unable to agree on the remaining twelve counts submitted and a mistrial was declared on May 26, 1965.⁴ A retrial was promptly scheduled for June 28, 1965.

On June 9, 1965, the government procured a new indictment, No. 35008 (hereinafter referred to as the second indictment). The second indictment contained fifteen counts of violation of 26 U.S.C. § 7206(2). Counts 1 through 8 of the second indictment charged the same offenses⁵ as were contained in counts 2, 3, 4, 5, 6, 8, 9 and 10 of the first indictment and were eight of the twelve counts on which the jury was unable to agree. Counts 9 through 15 of the second indictment were new charges relating to the tax returns of individuals different from those set out in the first indictment.

In other words, the second indictment contained eight of the twelve counts which had been the subject of the mistrial and for which a retrial had been set, together with seven new and different counts. All fifteen counts of the second indictment charged the claiming of false dependency exemptions.

Trial of the second indictment was then set for trial on June 28, 1966, the date previously set for the retrial of the first indictment.

Appellant made prompt and timely Motion to Dismiss the second indictment. Two grounds for dismissal were set forth:

"1. That the defendant has been once in jeopardy of conviction of the offenses charged therein, in the case of UNITED STATES vs. MILDRED HOWARD in this court, which was terminated on May 28, 1965.

"2. That the filing of this superseding indictment violates the fundamental fairness guaranteed a defendant in criminal trials by the Due Process Clause of the Fifth Amendment."

Briefs were filed on both sides and the Motion argued on June 21, 1965. The Motion was denied by the Court and the cause went to trial on the second indictment on June 28, 1965 with the first indictment being held in abeyance.

On July 2, 1965, the jury returned guilty verdicts on counts 1 through 6 and counts 10, 11, 12, 13 and 15 of the second indictment.⁶ Not guilty verdicts were reached on Counts 7, 8, and 9. The government dismissed on count 14.

Sentence was imposed on August 9, 1965 and on Motion of the government the first indictment was dismissed. Concurrent sentences of three years on each count were imposed. The Court further provided that the defendant be confined in a jail type institution for a period of six months and that the execution of the remainder of the sentence be suspended and the defendant be placed on probation for a period of three years on the usual conditions.

Appellant, in this appeal, has limited herself to the Constitutional questions raised in the attempt to dismiss the second indictment. No other legal or procedural errors in the conduct or result of the second trial are specified and the record of proceedings of that trial is not before us. Thusly is the issue clearly and narrowly presented: Do either the double jeopardy⁷ or due process⁸ clauses of the Fifth Amendment militate against the procedure illuminated by the facts?

The ancient doctrine prohibiting double jeopardy comes to us from the common law of England and has been incorporated in the United States Constitution by way of the Bill of Rights⁹ and into the Constitutions of all but five states. Concisely stated the prohibition bars a second prosecution of the same individual for the same offense.

"The common law not only prohibited of a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, * * *." Ex parte Lange, 18 Wall. 163, 169, 21 L.Ed. 872 (1873).

Ordinarily double jeopardy at the common law attached when the jury was sworn to try the defendant initially. Himmelfarb v. United States, C.A. 9 (1949), 175 F.2d 924, Cert. denied, 70 S. Ct. 103, 338 U.S. 860, 94 L.Ed. 527.

However, since an early date in this country (1824) exceptions to the strict ban against a second trial have been established. Justice Story in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165, taught:

"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 defence. 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 of 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. We are aware, that there is some diversity of opinion and practice on this subject, in the American courts; but, after weighing the question with due deliberation we are of the opinion, that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial. * * *"

An exception to the double jeopardy prohibition exists where an unforeseeable circumstance forces a termination of the trial without verdict. The inability of the jury to agree, after proper deliberation, is such a circumstance. United States v. Perez, supra; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Keerl v. State of Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734; Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974; Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901; United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448. The Federal Rules of Criminal Procedure, Rule 29, authorize the ordering of a new trial where the jury has failed to reach a verdict.

A second exception is found in the line of cases where the conviction of the accused is reversed on Motion for a New Trial or on appeal. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L. Ed. 300 (1896).

"At common law a convicted person could not obtain a new trial by appeal except in certain narrow instances. As this harsh rule was discarded courts and legislatures provided that if a defendant obtained the reversal of a conviction by his own appeal he could be tried again for the same offense. Most courts regarded the new trial as a second jeopardy but justified this on the ground that the appellant had `waived\' his plea of former jeopardy by asking that the conviction be set aside." Green v. United States, 355 U.S. 184, 189, 78 S.Ct. 221, 224, 2 L.Ed.2d 199.

Appellant relies heavily on the authority of Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, wherein a plea of double jeopardy was sustained. Downum was indicted on six counts for federal offenses. Trial was commenced, and after each side announced ready, a jury was impaneled. The government then advised the Court that two important witnesses had not been located and on this basis obtained a discharge of the jury. Prior to impaneling the jury, the United States Attorney knew, or should have known, that the key witnesses had not been located. The Supreme Court upheld the plea of double jeopardy raised at an attempted second trial. Downum does not provide the appellant the solace sought for. Indeed, the Court in Downum recognized occasions where a second trial may be properly had "although the jury impaneled for the first trial was discharged without reaching a verdict and without the defendant's consent", the classical example cited by the Court being a mistrial brought about by the inability of the jury to...