U.S. v. Evers

• Decision Date: 16 March 1978
• Docket Number: No. 76-2788,76-2788
• Citation: 569 F.2d 876
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Charles EVERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 876

569 F.2d 876

UNITED STATES of America, Plaintiff-Appellee, v. James Charles EVERS, Defendant-Appellant.

No. 76-2788.

United States Court of Appeals Fifth Circuit.

March 16, 1978.

Michael S. Fawer, Matthew H. Greenbaum, New Orleans, La., J. Kearney Dossett, Jackson, Miss., for defendant-appellant.

Robert E. Hauberg, U. S. Atty., Jackson, Miss., Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Chief, Appellate Sect., Robert E. Lindsay, Meyer Rothwacks, Attys., Tax. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This is a double jeopardy case involving the declaration of a mistrial because of certain prejudicial, irrelevant testimony given by a Government witness during the trial. The district court's declaration of a mistrial over defendant's objection not being dictated by "manifest necessity," we hold the defendant cannot be reprosecuted.

Prior to the start of a second trial, defendant moved for dismissal of the indictment for willful evasion of federal income taxes, 26 U.S.C.A. § 7201, on the ground that a trial would subject him to double jeopardy in violation of the fifth amendment. The district court denied the motion. Under our prior cases defendant could not have appealed from this order until after retrial and conviction. United States v. Bailey, 512 F.2d 833 (5th Cir.), cert. dismissed, 423 U.S. 1039, 96 S.Ct. 578, 46 L.Ed.2d 415 (1975). After this appeal was filed, however, the United States Supreme Court held that the pretrial denial of a motion to dismiss an indictment on double jeopardy grounds falls within the "collateral order" exception to the final judgment rule first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and is thus an appealable "final decision" within the meaning of 28 U.S.C.A. § 1291. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed. 651 (1977). We thus may consider the merits of defendant's double jeopardy claim on this appeal.

In 1975 defendant was first tried on the same charges as in this indictment. The Government sought to establish tax evasion by defendant through a "net worth plus nondeductible expenditures" method of proof, which would show an increase in net worth during the three years in question, likely taxable sources for this increase, and consequent underreporting of income. On the fourth day of trial the Government called its final witness, an expert in indirect methods of proving taxable income, to explain a detailed 23-page summary of the Government's evidence. During cross-examination, defense counsel attempted to negate the sources of unreported taxable income proposed by the Government. His questioning elicited a response suggesting one source of income might have been campaign contributions in 1968, the year defendant ran for Congress.

Fawer: Thank you. You did not hear Agent Millis, who conducted the investigation, give any additional facts about Eunice's Department Store, did you?

Sykes: No, sir, I didn't.

Fawer: There leaves it, then, we have one other source, don't we, according to the government's contention?

Sykes: In '68?

Fawer: '68.

Sykes: What's that?

Fawer: Well, you tell me. What other taxable source is there for a $53,000.00 . You want to tax this man on $53,000.00. What's the taxable source?

Sykes: What could be a taxable source?

Fawer: What . Yes, according to the government's documents?

Sykes: Well, I believe he ran for Congress that year.

Fawer: Is it not a fact that the government had . I object to this, Your Honor. The government has specifically disavowed that there is any money that came in from any campaign.

The Government had never advanced this theory in its bill of particulars or during the trial. Upon defense counsel's immediate objection, counsel adjourned to the judge's chambers.

Defense counsel initially moved for a mistrial. Admitting its equal surprise at the witness' answer, the Government opposed the motion and suggested, as an alternative, that the answer merely be stricken from the record and the jury instructed to disregard it. The court, however, after much discussion, stated: "I believe (the statement) is prejudicial to the extent that I should declare a mistrial." At that point counsel for defendant requested a private conference with his client "before you make a final ruling on that, Your Honor." The court replied, "Sure."

Upon returning to the judge's chambers, defense counsel advised the court that because defendant was anxious not to retry the case, and because he did not think the evidence sufficient for the case to go to the jury, he would withdraw his motion for a mistrial. Instead of a mistrial, he asked the court to instruct the jury that the witness' answer should be disregarded and that there was no evidence of any money coming from political contributions. Nevertheless, the court made final its earlier tentative decision to grant the mistrial, over defendant's objection. Upon returning to the courtroom, defense counsel made a motion to dismiss the indictment for insufficient evidence, which the court denied.

A clear distinction lies between mistrials granted at the request of the defendant, or with his consent, and those declared by the court sua sponte, with respect to whether the double jeopardy clause bars reprosecution. United States v. Dinitz, 424 U.S. 600, 606-608, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). In the absence of a motion or consent by the defendant, the Supreme Court has dictated that there can be no new trial unless there was a "manifest necessity" for the mistrial or "the ends of public justice would otherwise be defeated." United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971), quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). This doctrine of "manifest necessity" recognizes the significant interest of the defendant in deciding whether, "once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate." United States v. Jorn, 400 U.S. at 486, 91 S.Ct. at 558. Accordingly, in determining whether a mistrial was properly granted by the court sua sponte, the defendant's right to have his trial completed by a particular tribunal is to be balanced against the public's interest in fair trials designed to end in just judgments, taking into consideration all the facts and circumstances of the individual case. Wade v. Hunter, 336 U.S. 684, 689-690, 69 S.Ct. 834, 93 L.Ed. 974 (1949).

Although defense counsel initially moved for a mistrial, he unequivocally withdrew his motion prior to the time the court's ruling was made final. Thus the propriety of the court's decision must be tested by the " manifest necessity" standard. "The determination whether 'manifest necessity' exists for the declaration of a mistrial is, of course, an inquiry particularly suited to case-by-case analysis, and not hospitable to generalities." United States v. Spinella, 506 F.2d 426, 432 (5th Cir.), cert. denied, 423 U.S. 917, 96 S.Ct. 227, 46 L.Ed.2d 147 (1975).

Applying this test to the record in this case, we conclude that the trial judge erred in declaring a mistrial. The voicing of potentially prejudicial remarks by a witness is common, and any prejudice is generally cured efficiently by cautionary instructions from the bench. This Court has expressly suggested the curative instruction remedy as an alternative to a mistrial. United States v. Kin Ping Cheung, 485 F.2d 689 (5th Cir. 1973). Evidence withdrawn from the jury with a direction that it be disregarded may be the basis of reversible error only in cases in which the remark is so highly prejudicial as to be incurable by the trial court's...