U.S. v. Wilson, 75-1944

• Decision Date: 22 April 1976
• Docket Number: No. 75-1944,75-1944
• Citation: 534 F.2d 76
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Fred Luther WILSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 76

534 F.2d 76

UNITED STATES of America, Plaintiff-Appellant, v. Fred Luther WILSON, Defendant-Appellee.

No. 75-1944.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 5, 1976.

Decided April 22, 1976.

Eugene E. Siler, Jr., U. S. Atty., R. Burl McCoy, Richard E. Duerr, Jr., Lexington, Ky., for plaintiff-appellant.

Kelley Asbury, Catlettsburg, Ky. (Court-appointed CJA), for defendant-appellee.

Before WEICK, CELEBREZZE and LIVELY, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal by the Government from the dismissal of an indictment against Appellee charging him with violating 18 U.S.C. Appendix section 1202(a) (1) (1970), possession of a firearm by a convicted felon. The first trial had resulted in a mistrial and the Court concluded that any future attempts to retry Appellee would run afoul of the Double Jeopardy Clause of the Fifth Amendment. ¹ The Government contends that reprosecution of Appellee on the firearms charge would not be barred by double jeopardy because 1.) the mistrial was declared on Appellee's motion, 2.) there was no indication on the record that the mistrial was caused by prosecutorial misconduct, and 3.) the declaration of mistrial was warranted by "manifest necessity." Appellee argues that the prosecutor precipitated the mistrial in order to delay the proceeding and allow the Government to locate a key witness who had failed to appear at trial.

On May 19, 1975, Appellee, Fred Luther Wilson, was brought to trial in the United States District Court for the Eastern District of Kentucky. A jury was impaneled and sworn. At the completion of the Government's opening statement, ² Appellee moved to set aside the swearing of the jury because of the government attorney's reference to an arrest warrant charging Appellee with another crime. The District Judge denied the motion and the parties proceeded to trial. Prior to calling the first witness, the government attorney inquired of the Marshal whether a subpoena had been issued to Mr. Otis Wilson, Appellee's brother. The Marshal replied that he knew of no such subpoena. The Government then called Lonnie Dowdy, a Kentucky State Patrolman, as its first witness. After a series of preliminary questions, the Assistant United States Attorney asked the officer Q. What were the circumstances that led up to your meeting and seeing the defendant on that day?

A. Freddie Wilson's brother, Otis Wilson, brought a warrant on post for Freddie for malicious shooting and wounding.

The defense attorney immediately objected and moved that the swearing of the jury be set aside on the ground that informing the jury of an arrest warrant on a collateral offense was highly prejudicial to the defense. The prosecutor argued that the evidence was admissible and that a mistrial should not be declared. The Judge considered counsels' arguments and declared a mistrial. He concluded that evidence of an arrest warrant on a collateral state offense was irrelevant to the federal charge, highly prejudicial to the defense and that the prejudice could not be cured by admonition to the jury. Defense counsel then moved that the indictment against Appellee be dismissed because retrial would be barred by double jeopardy. The Judge took the motion under advisement and requested that the parties file briefs. At the hearing on the motion, the Judge refused to consider the defense argument that the government attorney had deliberately set out to cause a mistrial and delay the trial because a key witness was not available. The Judge restricted his inquiry to the record made at trial and concluded that the prosecutor had inadvertently caused the mistrial. Nevertheless, the Judge concluded that double jeopardy barred the reprosecution of Appellee on the firearms charge and that the circumstances surrounding the declaration of mistrial did not amount to "manifest necessity". In light of the Supreme Court's recent decision in United States v. Dinitz, --- U.S. ----, 96 S.Ct. 1075, 47 L.Ed.2d 267, 44 U.S.L.W. 4309 (1976), we reverse. ³

Initially we note that Appellee's motion to dismiss the indictment on double jeopardy grounds was premature. Although Appellee was placed in jeopardy when the jury was sworn, see Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), technically he has not yet been exposed to double jeopardy. The proper time to make such a motion would be after the Government had moved to reset the case for trial or the court, on its own motion, had set a retrial. However, to remand would be a fruitless gesture since the Government has indicated its intention to retry Appellee if possible and the same issue would undoubtedly be raised again on appeal.

As previously noted, jeopardy had attached when the first jury was selected and sworn. However, "in cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial." Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425, 433 (1973). The Fifth Amendment's prohibition against twice being placed in jeopardy is not absolute. Numerous exceptions have been recognized. See id. at 463, 93 S.Ct. at 1070, 35 L.Ed.2d at 430. Reprosecution is not barred after a conviction is reversed on appeal, United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), or where it is set aside on collateral attack. United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). Mistrial declarations do not bar retrial when the jury is dismissed because they cannot reach a verdict, Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892), United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), due to the disqualification of a juror, Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894), Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891), or because of tactical necessity in wartime. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949).

The Double Jeopardy Clause serves two important policy functions: the protection of the accused from government harassment by multiple prosecutions on the same offense, see e. g., Green v. United States,355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957), and the protection of the accused's "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, supra, 336 U.S. at 689, 69 S.Ct. at 837, 93 L.Ed. at 978. See also United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 557 (1971); Downum v. United States, supra 372 U.S. at 736, 83 S.Ct. at 1034, 10 L.Ed.2d at 102. Balanced against the rights of an accused embodied in the Double Jeopardy Clause is society's interest "in fair trials designed to end in just judgments." Wade v. Hunter, supra 336 U.S. at 689, 69 S.Ct. at 837, 93 L.Ed. at 978. ⁴ See also Illinois v. Somerville, supra 410 U.S. at 459, 93 S.Ct. at 1068, 35 L.Ed.2d at 428. This balance is reflected in the doctrine that where mistrial is declared over a defendant's objection the determination whether double jeopardy bars retrial depends on whether the mistrial declaration was warranted by "manifest necessity." ⁵ See Illinois v. Somerville, supra at 459, 93 S.Ct. at 1068, 35 L.Ed.2d at 428. "Different considerations obtain, however, when the mistrial has been declared at the defendant's request." United States v. Dinitz, supra, --- U.S. at ----, 96 S.Ct. at 1080, 47 L.Ed.2d at 273, 44 U.S.L.W. at 4311. In United States v. Dinitz, supra at 4311, at ----, 96 S.Ct. at 1078-1079, 47 L.Ed.2d at 271-273, 44 U.S.L.W. at 4311, a majority of the Supreme Court adopted the reasoning of the plurality opinion in United States v. Jorn, supra 400 U.S. at 485, 91 S.Ct. at 557, 27 L.Ed.2d at 556:

If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution even if the defendant's motion is necessitated by prosecutorial or judicial error. In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v. Perez, 9 Wheat., at 580 (6 L.Ed. 165). 400 U.S., at 485, 91 S.Ct., at 557, 27 L.Ed.2d, at 556. (footnote omitted).

(Emphasis added.)

The Dinitz majority reasoned that where a mistrial is declared on the defendant's motion in the face of judicial or prosecutorial error the objectives of the Double Jeopardy Clause are accomplished without sacrificing the public's interest in prosecuting individuals accused of violating the law:

. . . (I)t is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant's mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions.

--- U.S. at ----, 96 S.Ct. at 1080, 47 L.Ed.2d at 274, 44 U.S.L.W. at 4312.

Although a defendant's motion for mistrial...