U.S. v. Beckerman

Decision Date13 May 1975
Docket NumberD,No. 648,648
Citation516 F.2d 905
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Peter BECKERMAN, Defendant-Appellant. ocket 74-2478.
CourtU.S. Court of Appeals — Second Circuit

Michael Q. Carey, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., Lawrence S. Feld, Asst. U. S. Atty., on the brief), for appellee.

Robert Polstein, New York City (Orans, Elsen & Polstein, New York City), for appellant Beckerman.

Before HAYS and FEINBERG, Circuit Judges, and HOLDEN, * District Judge.

HOLDEN, District Judge:

The appellant, Peter Beckerman, was charged in a single count indictment with distributing and possessing with intent to distribute approximately 28 grams of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) (1970). On May 10, 1974, after three days of trial before the United States District Court for the Southern District of New York, Constance B. Motley, J., the jury was dismissed without reaching a verdict after the forelady reported a deadlock. On September 9, 1974, the appellant filed a motion to dismiss the indictment which advanced the contention that retrial would subject the accused to double jeopardy. 1 This appeal is from the order denying the motion to dismiss.

At the outset the Government challenges the court's jurisdiction to review Judge Motley's order on the contention that the ruling is not a final decision, hence not appealable within 28 U.S.C. § 1291 (1970). In general, an order denying a motion to dismiss an indictment is interlocutory and not appealable. See United States v. Garber, 413 F.2d 284, 285 (2d Cir. 1969).

The Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), recognized that there is a "small class" of decisions from which an appeal is properly taken under § 1291, even though final judgments have not been entered. The Court identified the characteristics of that narrow area of cases where an appeal will lie: (1) the order finally determines rights "separable from and collateral to" the main action, (2) the collateral rights so determined are "too important to be denied review," and (3) those rights "will have been lost, probably irreparably" after final judgment is entered. Id. at 546, 69 S.Ct. at 1225. These features mark the denial of a plea of double jeopardy. Although the indictment persists, and a retrial may follow, the order appealed from bears the characteristics defined in Cohen; yet the Government maintains the appeal is premature. Its argument relies heavily on United States v. Kaufman, 311 F.2d 695 (2d Cir. 1963), and United States v. Ford, 237 U.S. 57 (2d Cir. 1956), vacated as moot, 355 U.S. 38, 78 S.Ct. 114, 2 L.Ed.2d 71 (1957).

In Kaufman the question was presented in the context of the sufficiency of the evidence, rather than double jeopardy. The defendants were convicted on two substantive narcotic counts; the jury was unable to reach a verdict on the third count which charged conspiracy. Affirming the convictions on the substantive counts, the Court dismissed, as premature, the appellants' contention that the trial court should have dismissed the conspiracy count for insufficient evidence. The issue of double jeopardy was only obliquely considered in Ford, supra, in an opinion which affirmed convictions on three other counts. More importantly, its precedential authority has been undermined since the opinion was later vacated as moot.

The issue of double jeopardy is collateral to the determination of whether the accused is innocent or guilty of the offense for which he has been indicted. The constitutional protection against being twice put in jeopardy for the same offense is a "valued right," Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949), that is too important to be denied review. The protection against double jeopardy guards "not against being twice punished, but against being twice put in jeopardy," United States v. Ball,163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896). 2 The right will be invaded if an accused, who has properly invoked the Fifth Amendment protection against being twice put in jeopardy, is called upon to suffer the pain of two trials. Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

If an accused is to be afforded "the full protection of the double jeopardy clause, a final determination of whether jeopardy has attached to the previous trial must, where possible, be determined prior to any retrial." United States v. Lansdown, 460 F.2d 164, 171 (4th Cir. 1972). Contra, Gilmore v. United States 264 F.2d 44 (5th Cir. 1959), cert. denied, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982 (1959). The reasoning of the opinion in Lansdown is persuasive here. We conclude that we have jurisdiction to review the denial of the defendant's motion to dismiss the indictment on the predicate of the double jeopardy clause. This is a logical extension of the concept of appealability expressed in Cohen. United States v. Lansdown, supra, 460 F.2d at 170. It is in keeping with Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir. 1974). 3

We turn now to the problem of double jeopardy, generated by the declaration of a mistrial after the jury has reported a deadlock. Since it is impossible to define all the varying circumstances which would render appellate interference proper, it is essential, on review, to consider the pattern of events which preceded the discharge of the jury. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); United States v. Glover, 506 F.2d 291, 295 (2d Cir. 1974).

The trial commenced on May 8, 1974, and was submitted to the jury at 2:30 in the afternoon of May 10, 1974. The defense asserted entrapment on the part of a paid Government informant, Mary Adler, and Special Agents Meale and Lightcap of the Drug Enforcement Administration. Some forty-five minutes after the jury commenced deliberations, the forelady sent a note to the court stating they would like to hear again the Judge's charge in regard to Mary Adler. 4 Two hours later deliberations were again interrupted by a second note to Judge Motley requesting to hear certain testimony reread. 5 After recess for dinner, the jury resumed deliberations at eight o'clock. At 9:15 P.M. the court received, in open court, a third communication which read: "We the jury are deadlocked."

The message was read to counsel by Judge Motley. Counsel for the Government immediately requested the court give the jury a modified Allen charge. Defense counsel made no comment. 6 The court directed that the jury be brought to the courtroom. On the jury's return this colloquy followed:

The Court: Ladies and gentlemen I have your note which reads "We the jury are deadlocked."

Does that mean that you are not able to reach a verdict, and the question I want to put to you whether you feel with a little more time you might be able to reach a verdict?

The Forelady: It is very hard to say. We are all very tired at this time and our biggest problem is we don't think we have enough evidence and this is our biggest hassle and maybe another time, another day we may be clearer.

The Court: The question I asked you was whether you thought with more time you would be able to reach a verdict, so the answer is no, is that it?

The Forelady: The way it seems now, it doesn't seem as though we will be able to.

Mr. Polstein: May I make a suggestion?

The Court: No, you may not.

Thank you very much. The court is going to declare a mistrial, the jury is excused.

We have arranged for a bus to take you home. Are they going to be here at 10:00 o'clock?

The jury is excused.

Mr. Polstein: Before the jury is excused, in view of the forelady's statement to the Court, I would respectfully request the Court to read the jury again your charge on burden of proof. I think that the foreman or forelady of the jury has expressed to the Court a view of the jury that can be cleared up. This jury has been out since 2:35. You just heard that they felt they don't have enough proof. I wonder if you would charge them again the quantum of proof.

The Court: The jury is dismissed.

(Jury leaves courtroom.)

On this record, we are called upon to test the validity of a ruling that was independently made without partisan urging or objection. The Government did not request the jury's discharge, but rather sought to press the jury out of deadlock by way of a "modified Allen charge." 7 The defendant remained neutrally silent, at least until the jury voiced its concern about the quantum of proof. Apparently that remark by the forewoman inspired the request, on afterthought, that the court instruct again on the burden of proof.

The court was entitled to take the jury's word, that they were deadlocked, at face value. That the court's declaration of a mistrial was made without the appellant's active or express consent, does not impair the validity of the ruling. "Where for reasons deemed compelling by the trial judge, * * * 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." Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961).

To be sure, where a double jeopardy question may develop, "the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be fairly disposed to his fate." United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 558, 27 L.Ed.2d 543 (1971), (plurality op. Harlan, J.).

The interest of the defendant in having the trial proceed to a verdict by this particular jury is not always paramount to "the...

To continue reading

Request your trial
47 cases
  • Com. v. Bolden
    • United States
    • Pennsylvania Supreme Court
    • April 28, 1977
    ...United States v. DiSilvio, 520 F.2d 247 (3d Cir.) Cert. dneied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975); United States v. Beckerman, 516 F.2d 905 (2d Cir. 1975); United States v. Landsdown, 460 F.2d 164 (4th Cir. 1972). The two Circuits which have addressed the issue but have rea......
  • State v. Paul
    • United States
    • Court of Appeals of New Mexico
    • May 28, 2020
    ...a conscientious change of heart on the part of individual jurors or otherwise—and return a guilty verdict. See United States v. Beckerman , 516 F.2d 905, 909 (2d Cir. 1975) ("The report of a jury in deadlock could be welcome news to an accused who is fearful of his fate."); cf. State v. Rom......
  • U.S. v. Rumpf
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 8, 1978
    ...review. See United States v. Barket, 530 F.2d 181 (8th Cir.); United States v. DiSilvio, 520 F.2d 247 (3d Cir.); United States v. Beckerman, 516 F.2d 905 (2d Cir.); Thomas v. Beasley, 491 F.2d 507 (6th Cir.); United States v. Lansdown, 460 F.2d 164 (4th This is indeed the basic reason for t......
  • Abney v. United States
    • United States
    • U.S. Supreme Court
    • June 9, 1977
    ...United States v. Barket, 530 F.2d 181 (CA8 1975), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976); United States v. Beckerman, 516 F.2d 905 (CA2 1975); United States v. Lansdown, 460 F.2d 164 (CA4 1972). Contra, United States v. Young, 544 F.2d 415 (CA9 1976); United States ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT