U.S. ex rel. Clauser v. McCevers

Decision Date06 April 1984
Docket NumberNo. 83-1392,83-1392
Citation731 F.2d 423
PartiesUNITED STATES of America ex rel. John CLAUSER, Petitioner-Appellant, v. Stephen McCEVERS, Warden, and Tyrone Fahner, Respondents-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Julius Lucius Echeles, Chicago, Ill., for petitioner-appellant.

Michael V. Accettura, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before PELL, COFFEY and FLAUM, Circuit Judges.

COFFEY, Circuit Judge.

The appellant, John Clauser, appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. In essence Clauser alleges that his Fifth Amendment right to be free from double jeopardy was violated when his first trial was terminated as a result of a defective indictment (the defect being neither caused by the prosecutor nor within the scope of his knowledge) and he was subsequently reindicted and convicted of the offenses charged in the original indictment. 1 We affirm.


The petitioner and a co-defendant were indicted for unlawful delivery of more than 30 grams of a controlled substance containing cocaine. It became apparent, during the first trial through the testimony of the state's witnesses, that certain state law enforcement officers had misrepresented evidence to the grand jury that had indicted the petitioner. Clauser and his co-defendant, Arthur Jones, thereupon moved for judgment of acquittal. The trial court declined to grant their motion for acquittal, finding that the record contained sufficient other evidence to sustain a conviction. With regard to the conduct of the officers in question, the judge stated that he did not believe that they had intentionally lied to the grand jury, rather, he characterized their acts as being "grossly negligent," or "grossly careless." The court concluded, however, that the trial should be terminated as the indictment, based partly on misleading or false testimony, was invalid. In the trial court's view, a conviction founded on this invalid indictment could not be upheld on appeal.

Following his reindictment, the petitioner moved for dismissal of this second indictment on double jeopardy grounds. The trial court denied Clauser's motion for dismissal and upon retrial, he was convicted of the offense originally charged, unlawful delivery of a controlled substance (cocaine), and sentenced to a term of imprisonment of six to eighteen years. The petitioner appealed his conviction to the Illinois Appellate Court on the ground that his reindictment, retrial and conviction violated double jeopardy. The state appellate court upheld his conviction finding the Supreme Court's decision in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), to be controlling. People v. Clauser, 73 Ill.App.3d 145, 29 Ill.Dec. 368, 391 N.E.2d 793 (1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980).

Clauser then filed the instant petition for a writ of habeas corpus in the United States District Court for the Central District of Illinois, alleging that the state appellate court misapplied the Scott decision, and that his conviction violated both double jeopardy and due process. The district court, while finding the Scott decision inapplicable to the facts of this case, denied Clauser's petition for a writ of habeas corpus. The court held that Clauser's Fifth Amendment Double Jeopardy rights had not been violated as the state trial court's decision to terminate his original trial was occasioned by "manifest necessity." Clauser v. Shadid, 563 F.Supp. 392, 395 (C.D.Ill.1983). 2

It is from the district court's denial of a writ of habeas corpus that Clauser appeals.


The Fifth Amendment Double Jeopardy Clause protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976).

"Underlying this constitutional safeguard is the belief that 'the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' "

Id. (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957)). The Double Jeopardy Clause also protects a criminal defendant's "valued right to have his trial completed by a particular tribunal ...." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). The protection afforded by the Double Jeopardy Clause, however, is not one which in all cases requires that the state vindicate its public interest in the enforcement of criminal laws in a single proceeding. United States v. Jorn, 400 U.S. 470, 483-84, 91 S.Ct. 547, 556-57, 27 L.Ed.2d 543 (1971) (plurality opinion). Assuming the defendant was not acquitted, if the government can establish that the termination of the defendant's first trial was occasioned by "manifest necessity," the Constitution's double jeopardy prohibition does not provide the defendant with protection against retrial. See United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824); Illinois v. Somerville, 410 U.S. 458, 461 -63, 93 S.Ct. 1066, 1069-70, 35 L.Ed.2d 425 (1973); and United States v. DiFrancesco, 449 U.S. 117, 130, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980). When the trial court's decision to terminate the initial proceeding is occasioned by "manifest necessity," the double jeopardy bar of retrial is removed in favor of the protection of "the public's interest in fair trials designed to end in just judgments." Wade, 336 U.S. at 689, 69 S.Ct. at 837.

The facts of this case are analogous to the granting of a mistrial, or the dismissal of an action without the defendant's consent. In the present case the defendant did not move for mistrial, rather he moved for judgment of acquittal. As has already been indicated, the trial court denied the defendant's motion for judgment of acquittal on the grounds that the prosecution had presented sufficient independent and untainted evidence to support a conviction on the offense charged. While the record does not reveal an objection on Clauser's part to the court's decision to dismiss the indictment (presumably without prejudice), it is apparent the trial was terminated as a result of the problem underlying that indictment and the decision to discontinue the trial was without Clauser's affirmative consent. As the preceding analysis demonstrates, in cases where the trial is terminated without the defendant's consent, the government must establish that the termination was occasioned by "manifest necessity" in order to avoid the Fifth Amendment double jeopardy bar to reindictment and retrial. United States v. DiFrancesco, 449 U.S. at 130, 101 S.Ct. at 433. Thus, the "manifest necessity" analysis applies in this case and must be fulfilled to sustain Clauser's conviction.

To gain an understanding of the standard by which "manifest necessity" is to be judged, reference must be made to United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), the seminal decision construing the Double Jeopardy Clause in the context of a mistrial ordered over the defendant's objection. In Perez the Court stated:

"We are of the opinion, that the facts constitute no legal bar to 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 the 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. 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."

Id. 9 Wheat. at 580. Thus, the question is whether the trial court exercised sound discretion in terminating the first proceeding. Courts that have subsequently considered the question of when and how "manifest necessity" arises continue to hold that trial judges possess broad discretion in determining the propriety of a declaration of mistrial. With reference to this point, the Supreme Court stated in Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973):

"[I]n Gori v. United States, 367 U.S. 364 [81 S.Ct. 1523, 6 L.Ed.2d 901] (1961), the Court again underscored the breadth of a trial judge's discretion, and the reasons therefor, to declare a mistrial.

'Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment.' Id., at 368 .

"In reviewing the propriety of the trial judge's exercise of his discretion, this Court, following the counsel of Mr. Justice Story, has scrutinized the action to determine whether, in the context of that particular trial, the declaration of a mistrial was dictated by 'manifest necessity' or the 'ends...

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