Roberts v. United States, No. 72-1610.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 477 F.2d 544
• Parties: Carl Houston ROBERTS and Roy Malcolm Roberts, Petitioner-Appellants, v. UNITED STATES of America, Respondent-Appellee.
• Docket Number: No. 72-1610.
• Decision Date: 20 April 1973

477 F.2d 544 (1973)

Carl Houston ROBERTS and Roy Malcolm Roberts, Petitioner-Appellants,
v.
UNITED STATES of America, Respondent-Appellee.

No. 72-1610.

United States Court of Appeals, Eighth Circuit.

Submitted February 16, 1973.

Decided April 20, 1973.

Carl Houston Roberts and Malcolm Roberts filed briefs pro se.

Daniel Bartlett, U. S. Atty., and Wesley D. Wedemeyer, Asst. U. S. Atty., St. Louis, Mo., filed brief for appellee.

Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.^*

PER CURIAM.

Roy Malcolm Roberts and Carl Houston Roberts, father and son, pursuant to 28 U.S.C. § 2255, appeal from the order of the district court (Judge Regan), 348 F.Supp. 563, denying them relief from their convictions and sentences for assault upon federal officers.¹

The layman's brief filed on behalf of appellants raises two issues already considered and found wanting of

477 F.2d 545

merit on direct appeal, i. e., that the evidence presented at trial was insufficient to establish guilt, and that appellants were denied their Sixth Amendment right to effective assistance of counsel. Appellants now assert an additional claim that their second trial, which resulted in their convictions, subjected them to double jeopardy in violation of the Fifth Amendment, since appellants' first trial was improperly aborted while in its third day. We reject these contentions and affirm the determination of the district court

While the district court opinion clearly demonstrates that appellants' claims were without merit, we add an additional comment relating to the double jeopardy claim.

The district court aborted the first trial on February 12, 1969, when during cross-examination of defendant Carl Roberts, the prosecutor elicited background information about Carl's prior felony convictions. Carl's lawyer, who also represented Roy, moved for a mistrial because of certain comments made by the court. The lawyer representing two other defendants joined in the motion. The trial court then granted the mistrial.

A claim of double jeopardy in violation of the Fifth Amendment does not arise from the later trial of a defendant, following a mistrial declared by the court upon the defendant's own motion. See United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); United States v. Pappas, 445 F.2d 1194, 1200 (3d Cir. 1971), cert. denied sub nom., Mischlich v. United States, 404 U.S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971); Houp v. State of Nebraska, 427 F.2d 254, 255 (8th Cir. 1970), cert. denied, 401 U.S. 924, 91 S. Ct. 887, 27 L.Ed.2d 827 (1971); Gregory v. United States, 133 U.S.App.D.C. 317, 410 F.2d...