U.S. v. Palzer, 83-5091
| Decision Date | 24 April 1984 |
| Docket Number | No. 83-5091,83-5091 |
| Citation | 731 F.2d 1484 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lewis PALZER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Joseph Beeler, Miami, Fla., for defendant-appellant.
Stanley Marcus, U.S. Atty., Chris K. Gober, Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before HATCHETT, ANDERSON and CLARK, Circuit Judges.
This matter is before an administrative panel of the court upon the United States' motion to dismiss this appeal, in which the government concedes that the district court committed reversible error and urges this court to vacate the verdict and remand the case for a new trial. Because the government's motion raises possible double jeopardy principles which would prohibit retrial of the defendant, we have decided that the government's motion should be carried with the main appeal in this case and decided by a panel of the court after full oral argument.
Appellant was convicted under a two-count indictment for failure to comply with Customs declaration laws. The circumstances surrounding the jury's verdict, however, were unusual. The jury rendered a verdict of "guilty" on both counts, but when polled, one juror indicated that her verdict was "not guilty." Upon discovering that the verdict was not unanimous, the district judge told the jurors to return to deliberations and that it must render a unanimous verdict. The jury then returned, and rendered its guilty verdict. Appellant filed his notice of appeal, alleging several bases for reversal of his conviction, one of which was that the district court erred in sending the jury back to the jury room and instructing them to return a unanimous verdict. The government now concedes that the district court erred in this respect, but has requested this court to dismiss the appeal and remand the case to the district court for retrial on both counts. Appellant urges that the appeal should proceed, because three of the grounds for reversal (one on Count I and two as to Count II) would, if accepted by this court, require the entry of a judgment of acquittal and, therefore, double jeopardy principles would prohibit retrial. The contentions which appellant maintains would require the entry of a judgment of acquittal are:
Count I: The evidence was insufficient to warrant a finding of guilty beyond a reasonable doubt of making a false statement in violation of 18 U.S.C. Sec. 1001;
Count II: (1) The government's misleading advice as to the requirements of the Customs laws deprived defendant of his due process rights and (2) Defendant could not be prosecuted for failing to file Customs Form 4790 because that form was never properly promulgated by the U.S. Customs Service.
Cases decided in other circuit courts indicate that this court should accept Palzer's appeal and consider at least his claim that the evidence was insufficient to support a verdict of guilt. United States v. United States Gypsum Co., 600 F.2d 414, 416 (3d Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979); United States v. Jelsma, 630 F.2d 778 (10th Cir.1980); United States v. Marolda, 648 F.2d 623, 624 (9th Cir.1981); Delk v. Atkinson, 665 F.2d 90, 92-93 & n. 1 (6th Cir.1981); and United States v. Sneed, 705 F.2d 745, 748-49 (5th Cir.1983). See also United States v. Bizzard, 674 F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). All of those cases involved a plea of double jeopardy on the part of a defendant after a reversal of his conviction by an appellate court on grounds other than the sufficiency of the evidence. The instant appeal has not yet reached that stage. This case is fully briefed and ready for assignment to the oral...
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U.S. v. Palzer
...the jury polling problem which required a new trial, might entitle Palzer to acquittal on the charges against him. United States v. Palzer, 731 F.2d 1484 (11th Cir.1984). At the court's request, both parties filed supplemental briefs. In the government's brief, it now concedes that Palzer's......
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Harris v. State
...by the double jeopardy clause as interpreted in Burks. We find no cases in disagreement with this conclusion, and see United States v. Palzer, 731 F.2d 1484 (11th Cir.1984). The one distinction from the above cases raised in appellants' argument is that the sufficiency review brings up cons......