Oelke v. United States

• Decision Date: 22 April 1968
• Docket Number: No. 21086,20864.,21086
• Parties: John E. OELKE, Appellant, v. UNITED STATES of America, Appellee. Leon T. GRAVES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

389 F.2d 668 (1967)

John E. OELKE, Appellant, v. UNITED STATES of America, Appellee.

Leon T. GRAVES, Appellant, v. UNITED STATES of America, Appellee.

Nos. 21086, 20864.

United States Court of Appeals Ninth Circuit.

December 29, 1967.

Certiorari Denied April 22, 1968.

Arthur Katayama (argued), Los Angeles, Cal., Donald S. Emmer, Los Angeles, Cal., for appellant.

Wm. M. Byrne, Jr., U. S. Atty., Manuel L. Real, U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Criminal Division, Michael Heuer, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS and BARNES, Circuit Judges, and SMITH^*, District Judge.

Certiorari Denied April 22, 1968. See 88 S.Ct. 1420, 1421.

ORDER WITHDRAWING OPINION AND OPINION

It appearing to this court that its majority opinion in the above entitled matters, dated September 20, 1967, should be withdrawn and revised;

Now, therefore, the said majority opinion dated September 20, 1967, in the above entitled matter, is hereby withdrawn; and a new majority opinion is ordered to be filed, together with the original dissent, as follows:

BARNES, Circuit Judge:

Leon Thais Graves and John Edward Oelke were two of five defendants joined in an eight count indictment involving the concealment, transportation and sale of marijuana, after illegal importation. The first six counts of the indictment relate to alleged possession or sale by one or more of the three other defendants of three quantities of marijuana (one on June 7, 1965 and two on June 10, 1965), 21 U.S.C. § 176a.

Counts 7 and 8 related to these appealing defendants alone, and to a different date (June 16, 1965), and to marijuana different from that referred to in Counts 1 to 6.

On August 2, 1965, the case was transferred for trial to Judge Roger D. Foley, of Nevada, sitting by assignment in the Southern District of California, Central Division (now the Central District of California). The defendant De Jong's motion for separate trial was renewed and denied without prejudice. (C.T. 35). A jury was then empaneled.

Previous to the start of the trial De Jong, and no other defendant, had moved for a separate trial. This had been denied on July 26, 1965.

On August 2, 1965, two defendants, Alan Hann Oelke and Gary Lee Tronmpeter, withdrew their pleas of not guilty, and entered pleas of guilty to Counts 2, 7 and 8, and to Count 1, respectively, after trial had commenced.

After such change of pleas, the jury trial was continued for one day, "for trial of De Jong, Graves and John Oelke only."¹

On August 3, 1965, Judge Foley, on his own motion,² granted a separate trial to Oelke and Graves on Counts 7 and 8,³ setting it for hearing on August 4, 1965 at 1:30 P.M. before a different jury. He continued with the trial of De Jong on Counts 1 and 2 on August 3, and the forenoon of August 4, 1965, before the same jury — then continued the De Jong trial to August 5, 1965 before the same original jury.

On August 4, 1965, at 1:30 P.M., Judge Foley empaneled the new jury to try Oelke and Graves, and continued their case for further trial to August 5, 1965 at 1:30 P.M.

On August 5, 1965, appellants Oelke and Graves signed waivers of jury trial (C.T. 26, 27), and the trial proceeded as to them without a jury on August 5th, 6th, 9th, 10th and 11th, 1965. Defendant Oelke's motion for acquittal as to Count 7 was granted at the end of the government's case. Both defendants were convicted by the trial judge — Graves as to Count 7 and Oelke as to Count 8.

Jurisdiction below rested on 21 U.S.C. § 176a, and rests here on 28 U.S.C. § 1251.

On this appeal, each appellant raises the question of double jeopardy, and Oelke raises the additional question of the admissibility of evidence obtained by search after arrest made after an entry into his home, made without permission, search warrant or warrant for arrest.

I. Double Jeopardy

We recapitulate that there were originally five defendants answering ready for a jury trial on August 2, 1965; four were left when Tronmpeter pleaded guilty. The jury was then empaneled. Alan Oelke then entered his plea of guilty, leaving three defendants. De Jong had previously been denied a severance, because his acts were related to those of Alan Oelke, but not to the other defendants. With Alan Oelke out of the case, when defendant De Jong renewed his motion, after the jury had been picked and sworn (but before any testimony had been received, other than the stipulation mentioned in n. 3, supra), the court properly granted his motion for severance,⁴ and tried De Jong alone before the jury originally empaneled to try De Jong, Graves and the two Oelkes.

A new jury was necessarily empaneled the next day to try John E. Oelke and Graves, if the separation of De Jong's case was proper.

The sole question before us as to this issue is whether jeopardy attached under the Fifth Amendment when the first jury was sworn, with the result that appellants were placed twice in jeopardy when the second jury was sworn to try them.

We hold they were not placed twice in jeopardy.

In Wade v. Hunter, 336 U.S. 684 at 688-689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), the Supreme Court stated:

"The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. * * *

"When justice requires that a particular trial be discontinued is a question that should be decided by persons conversant with factors relevant to the determination. * * *"

This theory goes back to United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824). It was followed, and the exception to the rule appellants urge upon us was recognized as lately as 1961, in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901.

Here the existence of "compelling reasons," (the language used by Mr. Justice Frankfurter in Gori) as viewed by the trial judge "who is best situated intelligently to make such a decision," that "the ends of substantial justice cannot be attained without discontinuing the trial" is clearly evident. Thus "a mistrial may be declared without defendant's consent and even over his objection, and he may be tried consistently with the Fifth Amendment." 367 U.S. at 368, 81 S.Ct. at 1526.

There are several well recognized exceptions to the general rule, the principal ones being where the first jury is unable to agree, United States v. Perez, supra; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1891), where a juror swears falsely on voir dire, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891), and where a juror, the court, or an accused becomes ill, incapacitated, or unavailable, United States v. Potash, 118 F.2d 54 (2d Cir. 1941), cert. den. 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540.

As we have heretofore said, where the trial court with reason dismisses a jury after the jury has been empaneled, and before verdict, it does not, per se, constitute double jeopardy. "A defendant who pleads double jeopardy has the burden of proving abuse of the court's discretion." Himmelfarb v. United States, 175 F.2d 924 at 932 (9th Cir. 1949), particularly n. 2. Cf. also United States v. Miguel, 340 F.2d 812 (2d Cir. 1965); Killilea v. United States, 287 F.2d 212 (1st Cir. 1961); Crawford v. United States, 109 U.S.App.D.C. 219, 285 F.2d 661 (1960); Brewster v. Swope, 180 F.2d 984 (9th Cir. 1950). The statement of this rule by the Court of Appeals for the District of Columbia Circuit in Pratt v. United States, 70 App.D.C. 7, 102 F.2d 275, 280 (1939), is especially appropriate:

"There is no better settled rule than that courts of justice may discharge a jury and order subsequent trial with no right in the defendant to contend that his constitutional rights have been invaded. This action has been taken in the past for many reasons that have manifested themselves, and will be taken in the future for many other proper reasons which will manifest themselves, in the administration of justice."

Cf. also United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964).

Without discussing the large number of cases establishing that appellants' pleas of double jeopardy are not valid under the circumstances here existing, appellants cite in support of their position: Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1962), and Cornero v. United States, 48 F.2d 69, 74 A.L.R. 797 (9th Cir. 1931). In each, the dismissals of the original indictments were for the convenience of the prosecution, or its witnesses. In Tateo, the Supreme Court differentiated Downum specifically (377 U.S. at 467, 84 S.Ct. 1587). A possible reason existed in Downum and Cornero why jeopardy should attach: namely, the possibility of the unjustified harassment of citizens due to the whims of a prosecuting officer. The same reason would not apply to the considered judgment of a trial judge presented with "unforeseeable circumstances" in the trial of a criminal case involving multiple defendants.

Nor is this a case where there was false testimony or misconduct on the government's part. United States v. Miguel, supra, 340 F.2d at 816. We hold no double jeopardy existed.⁵

II. Inadmissibility of Evidence

Appellant John E. Oelke's second point relates to alleged inadmissibility of evidence (Exhibit 3: 2,734.065 grams of marijuana) obtained by search, after arrest of John Oelke, in the closet in the apartment which officers entered without permission, search warrant or warrant for arrest.

John Oelke was arrested on June 16, 1965, at apartment 4, 7102 La Cienega Boulevard, Los Angeles, California, where he lived with his family, including his brother Alan...