United States v. Brahm, 71-1361.

• Decision Date: 26 April 1972
• Docket Number: No. 71-1361.,71-1361.
• Citation: 459 F.2d 546
• Parties: UNITED STATES of America v. Raymond BRAHM et al. Appeal of Anthony Michael MEDINA.
• Court: U.S. Court of Appeals — Third Circuit

459 F.2d 546 (1972)

UNITED STATES of America v. Raymond BRAHM et al. Appeal of Anthony Michael MEDINA.

No. 71-1361.

United States Court of Appeals, Third Circuit.

Submitted November 8, 1971.

Decided April 26, 1972.

David C. Toomey, Duane, Morris & Heckscher, Philadelphia, Pa., for appellant.

Charles B. Burr, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before VAN DUSEN and JAMES ROSEN, Circuit Judges and LAYTON, District Judge.

Submitted November 8, 1971 under 3rd Cir. Rule 12(6).

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Defendant was indicted with two co-defendants in October 1969 in (a) Count I for conspiracy (18 U.S.C. § 371) to rob a bank "by force and violence, and by intimidation, to take and attempt to take from employees of the . . . Bank . . ." $50,980.00, offenses recited to be in violation of 18 U.S.C. § 2113(a), (b) and (d); (b) Count II for the substantive offense of bank robbery by force and violence and intimidation in violation of 18 U.S.C. § 2113(a); (c) Count IV for the substantive offense of entering the bank with intent to commit larceny in violation of 18 U.S.C. § 2113(a); (d) Count VI of taking the money from the bank with intent to steal in violation of 18 U.S.C. § 2113(b); and (e) Count VIII of putting in jeopardy the lives of bank employees while committing bank robbery in violation of 18 U.S.C. § 2113(d). His first trial on these counts was held in April 1970, at which time he was represented by counsel appointed by the court under the Criminal Justice Act. Although such counsel was present at all times, assisting Medina during this trial, Medina insisted on making the opening and closing arguments to the jury and examining the witnesses. Evidence which was not properly admissible and which was prejudicial to the Government was placed before the jury because of conduct of defendant during the trial, much of which was contrary to the directions of the trial judge.¹ For example, during the opening statement, the defendant told the jury that he would show that co-defendant Brahm stated in his confession to the police that the other man who robbed the bank was not Medina, but such evidence was not placed before the jury except through improper suggestion. Also, the defendant indicated through leading questions put to his co-defendant, who refused to answer every question asked him when called by Medina, that the co-defendant had told the police "that another man" robbed the bank.² Both during his opening and his closing arguments, even though Medina did not testify, he stated that he did not go into the bank and was at the racetrack on the day of the robbery.³

On the third day of the trial, the trial judge charged the jury, which retired for its deliberations at 11:20 A.M. The jury was sent out to lunch and then returned to continue deliberations. At about 4:45 P.M., and again at 5:10 P.M. and 5:27 P.M., the jury sent questions to the court, indicating that they might be disagreeing on some counts but not on all counts. At 6:09 P.M., the jury notified the court that it had agreed on one count but "We cannot reach a verdict on the remaining counts." When the court, having brought the jury into the court room, read back the just quoted language, the foreman replied, "That's right, Sir."

The court then directed the Clerk to take the verdict. The jurors returned a verdict of guilty on Count I and repeated that they could not agree on the remaining counts. This language then appears in the transcript (N.T. 318, 319):

"THE COURT: As to the remaining counts, I am continuing the case, withdrawing a juror—

"MR. MEDINA: Your Honor, I object at this point.

"THE COURT: . . . As to the remaining counts, I am withdrawing a juror and continuing the case, as to the other counts, because you are hopelessly deadlocked as to the other counts; is that right?

"THE FOREMAN: Right, sir.

"THE COURT: And so say you all?

"THE JURY: Yes, sir.

"THE COURT: Now, you want to say something, Mr. Medina?"

Although the trial judge gave the defendant this opportunity to state reasons in support of his objections, Medina did not request that the jury continue its deliberations on Counts II, IV, VI and VIII at that time or the next day, but contended that the judge had advised the jury that it could not find him guilty of conspiracy as charged on Count I (see footnote 5 below). The jury was polled as to (1) its verdict on Count I and (2) its disagreement on the remaining counts. The jury was then discharged for the night, after making clear that it was not inconvenient for it to return to the Court House for service in any cases the next day.

Thereafter the defendant was retried, and found guilty on the substantive counts (II, IV, VI, and VIII) of bank robbery. This appeal is from the March 15, 1971, judgment and commitment entered after the return of these guilty verdicts.

The sole question before us is whether the defendant was placed in double jeopardy as to the above substantive counts when the trial judge, at about 6:25 P. M., declared a mistrial without making a formal determination in the presence of counsel and the defendant that the "ends of justice would best be served" in declaring a hung jury or, stated otherwise, making a formal record in support of the fact that the declaration of a mistrial under all the circumstances constituted "a scrupulous exercise of judicial discretion," United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L. Ed.2d 543 (1971).⁴

In the Jorn case, the Court quoted with approval this language from United States v. Perez, 9 Wheat. 579, 580, 6 L. Ed. 165 (1824):

"`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 favour 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.\' Id., at 580."

After the above quotation, the Jorn opinion stated the rule applicable to a situation such as this, where the defendant has objected to the declaration of a mistrial, as follows at pp. 485-486 of 400 U.S., p. 557 of 91 S.Ct.:

". . . 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. . . .

". . . That discretion must still be exercised; unquestionably an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process. Yet we cannot evolve rules based on the source of the particular problem giving rise to a question whether a mistrial should or should not be declared, because, even in circumstances where the problem reflects error on the part of one counsel or the other, the trial judge must still take care to assure himself that the situation warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal.

". . . In the final analysis, 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 favorably disposed to his fate."

After careful consideration of the record, we have concluded that the judge did not abuse his discretion in view of the following:

A. The judge was entitled to consider that the jury had heard a great deal of inadmissible evidence as the result of the above-described conduct of the defendant, who refused to permit his appointed attorney to conduct his defense in the court room and who disregarded the trial judge\'s instructions. This court has frequently held that "the defense will not be heard to complain of matters which result from its own conduct." United States v. Greenberg, 419 F.2d 808, 809 (3d Cir. 1949); see, also, United States v. Murray, Dixon, Appellant, 445 F.2d 1171, 1176 (3d Cir. 1971); United States v. Kafes, 214 F.2d 887,

...