U.S. v. See, Nos. 73-3627

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before KOELSCH and WRIGHT; EUGENE A. WRIGHT
• Citation: 505 F.2d 845
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard James SEE et al., Defendants-Appellants.
• Docket Number: Nos. 73-3627,74-1036 and 74-1056
• Decision Date: 04 October 1974

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505 F.2d 845 UNITED STATES of America, Plaintiff-Appellee,
v.
Bernard James SEE et al., Defendants-Appellants. Nos. 73-3627, 74-1036 and 74-1056. United States Court of Appeals, Ninth Circuit. Oct. 4, 1974, As Modified on Denial of Rehearing Dec. 9, 1974
CertiorariDenied March 24, 1975
See 95 S.Ct. 1428.

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Robert Michael Zweig, San Francisco, Cal. (argued in 73-3627), William L. Osterhoudt, San Francisco, Cal. (argued in 74-1036), Oscar B. Goodman (appeared in 74-1056), of Goodman, Snyder & Gang, Las Vegas, Nev., for appellants.

James Branningan, Atty. (argued), Dept. of Justice, San Diego, Cal., for appellees.

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Before KOELSCH and WRIGHT, Circuit Judges, and PALMIERI, ^* District judge.

EUGENE A. WRIGHT, Circuit Judge:

The appellants were convicted of a single count charge of conspiracy to import, distribute and possess marijuana (21 U.S.C. 846 and 963). On this appeal, they argue that they were twice placed in jeopardy for the same offense, that there was illegal electronic surveillance not explained by the government, and that evidence seized illegally should have been suppressed. Appellant Lillak also asserts that there was insufficient evidence to support the verdict as to him. All appellants ask that we review the sentences imposed.

This smuggling effort involved the use of a small privately owned airplane, flown from Mexico to a desolate area in southern Nevada and there burned intentionally. Lillak had landed the plane at Chula Vista, California early in September 1971 and left orders for it to be serviced so that he might depart the next morning. He left his motel on the following morning and the airplane departed. It crash landed five days later on a dry lake in Nevada, while carrying a full load of marijuana, and was destroyed by fire intentionally set.

The wreckage was discovered by a rancher at 8:30 that morning, and reported to county officials. The sheriff and his deputies proceeded to the scene, identified the aircraft from its numbers and observed marks left by truck tires and fuel drums on the hard surface of the dry lake. At noon, they saw in the distance the dust from two vehicles coming toward the crash site. The officers stopped two pickup trucks three and one-half miles from the wreckage, one driven by appellant See and containing three fuel drums and a gasoline transfer pump. The appellant Gordon was the driver of the other truck, its bed enclosed by a camper shell. Both drivers were armed with hand guns.

An inquiry produced the answer from See that the party was going to a ranch but the officers noted that it was 50 miles in the opposite direction. See replied that they were just seeing where the dirt road might lead them, then asked if the pilot was hurt. The officers had not mentioned an airplane and the wreckage was not visible from the point where the defendants were stopped. See and Gordon were allowed to proceed after a routine check had been made. The trucks were not searched.

Federal agents arrived an hour later. Agent Meglen, having information that linked See, Gordon and the burned airplane with a drug smuggling group, called the sheriff in an adjoining county to stop and search the trucks. In mid-afternoon, deputies apprehended See and Gordon at a gasoline service station in the next county, 180 miles from the dry lake. The vehicles were searched, the two defendants were lodged in the local jail and their wallets and personal effects were put into property envelopes. After an interview by federal agents, See was released without charge; Gordon was charged with an offense not relevant here and released on bond.

The vehicle search revealed a map on which was marked the location of the crashed airplane. See's wallet contained two incriminating notes, one with the room and telephone numbers of Lillak at the motel. Telephone company records showed that calls were placed to Lillak's motel on September 5th and 6th from Gordon's Nevada residence. Lillak returned to the Chula Vista airport on September 15th to deny that he had taken the airplane a week earlier.

See and Gordon were indicted in the district of Nevada, Lillak being named as an unindicted co-conspirator. A mistrial was declared in that action and a later indictment was filed in the southern district of California, this time joining Lillak with See and Gordon. The later case was based on the same facts as the Nevada prosecution. Prior to

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trial defendants See and Gordon moved to dismiss because of double jeopardy and to suppress all items taken from their persons and vehicles at the time of their arrests. Both motions were denied. Additionally, each defendant moved for disclosure of governmental electronic surveillance. Two months before trial, counsel for See by affidavit alleged that his office had been subjected to illegal surveillance, and this was denied by government affidavits directed both to See and to his counsel.

I. Double Jeopardy

Appellants See and Gordon ¹ argue that the declaration of a mistrial in the Nevada district court was improper and that the second trial for the same offense in California violated their Fifth Amendment protection against double jeopardy.

The Nevada trial began on April 2, 1973. After three and a half days of trial, the case was given to the jury for deliberation at 12:22 p.m. on April 5. At 3:20 p.m. the following day the jury requested and was given instructions by the judge in open court on a point of law. They returned at 5:13 p.m. with a note to the judge indicating that they were unable to reach a unanimous verdict. They had then deliberated ten hours and three minutes. After the judge received the note disclosing the jury's irreconcilability, the following proceedings occurred in open court:

THE COURT: Ladies and Gentlemen, I have your note you are unable to reach a unanimous agreement, signed by your foreman. You feel, do you, that it is hopeless to pursue your deliberations any further?

THE JURY FOREMAN: Yes, we have tried.

THE COURT: You have tried?

SEVERAL JURORS: Yes.

THE COURT: And you don't think that any further deliberation will be apt to produce a unanimous verdict? Is that true? Or do you think it would help?

JUROR NO. 2: Not enough, Your Honor.

THE COURT: Well, you have been at this since noon yesterday. And is this the consensus of the group? That is, do most of you feel this way?

JUROR NO. 4: True.

THE COURT: Very well. If that is the consensus of the group. In view of the length of time you have been out, the Court will declare--

MR. ZWEIG: Counsel,-- Your Honor,-- just a minute. (Counsel and the Court discussing matter at side bar whispers)

THE COURT: You want to make a record on that, Gentlemen?

MR. GOODMAN: I wanted to think about it.

THE COURT: Go ahead and think about it for awhile.

(Court and Counsel adjourn to chambers, leaving the jury in the box)

During the colloquy in chambers, counsel for Appellants ² objected to the declaration of a mistrial and requested that the jury be given an 'Allen charge.' ³ The judge denied these motions and declared a mistrial.

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In Illinois v. Somerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973), the Supreme Court reiterated the principles governing the applicability of the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant's objection: 'In United States v. Perez (22 U.S. (9 Wheat. 579, 6 L.Ed. 165 (1824)) and Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892), this Court held that 'manifest necessity' justified the discharge of juries unable to reach verdicts, and, therefore, the Double Jeopardy Clause did not bar retrial.'

In Perez the Court held that the lower court had properly granted a mistrial when the jury was unable to reach a verdict:

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.

22 U.S. (9 Wheat.) at 580.

The weight of such decisions has remained on the informed discretion of the trial judge. In Somerville, supra, the Court noted that:

The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court.

410 U.S. at 462, 93 S.Ct. at 1069.

In Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961), the Court stated that:

Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision,

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the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared . . . ..

The trial judge must balance the defendant's 'valued right to have his trial completed by a particular tribunal,' ⁴ with society's interest in just judgments and the conservation of judicial resources. In its most recent decision on the Double Jeopardy Clause, the Supreme Court emphasized that a 'defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's...