United States v. Castellanos, 72 CR 37.

• Decision Date: 28 September 1972
• Docket Number: No. 72 CR 37.,72 CR 37.
• Citation: 349 F. Supp. 720
• Parties: UNITED STATES of America v. Luis CASTELLANOS, Defendant.
• Court: U.S. District Court — Eastern District of New York

349 F. Supp. 720

UNITED STATES of America v. Luis CASTELLANOS, Defendant.

No. 72 CR 37.

United States District Court, E. D. New York.

September 28, 1972.

James A. Pascarella, Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., of counsel) for the Government.

Frank T. Geoly, Brooklyn, N. Y., for defendant.

MEMORANDUM and ORDER

DOOLING, District Judge.

The indictment in this case was twice tried, the first trial starting on March 27, 1972, and the second on August 9, 1972. Both trials ended in the jury's disagreeing and being discharged. In each trial when the jury first reported an inability to agree, a very much modified form of the "Allen Charge" was read to the jury. In both trials the jury entered on its deliberation on one day was excused overnight and resumed deliberations on the following day.

In each trial the discharge of the jury occurred only after it had become plain that the jury would not agree on the verdict and that the Court's insistence on protraction of deliberation would have created a substantial risk that a verdict would be the result of judicial coercion rather than of the jury's own deliberations. Neither party objected to the discharge of the jury in either instance.

Defendant now moves for a judgment of acquittal under Rule 29(c), in renewal of the motions for judgment of acquittal made during the second trial when the Government rested and at the close of the whole case. The motions include the conventional prayer for other relief.

Review of the trial notes makes it evident that the renewed motion for judgment of acquittal must be denied. The evidence presented a clear issue of credibility which was unmistakably an issue for the jury to resolve.

There remains only the question whether in such a case as the present one a third trial may and should be embarked upon. To put it another way, is a defendant who has been twice in jeopardy —in one sense of the word—entitled as a matter of law to have the indictment dismissed rather than tried a third time. Is there a discretion to grant a motion to dismiss the indictment where there have been two disagreements and nothing of record indicates that the disagreements were the product of special circumstances unlikely of recurrence.

Oddly enough, only one reported federal case has been found in which after two disagreements a third trial was ordered. See United States v. Berniker, 9th Cir. 1971, 439 F.2d 686, cert. den., 1972, 404 U.S. 938, 92 S.Ct. 277, 30 L. Ed.2d 250. Two state cases have allowed more than two trials where there have been disagreements. Hyde v. State, 1943, 196 Ga. 475, 26 S.E.2d 744 and Hoskins v. Commonwealth, 1913, 152 Ky. 805, 154 S.W. 919.

The language of the constitutional clause involved—`". . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . ."'—has long been interpreted as including, in addition to the protection against being twice convicted and punished for the same offense, or from being tried and convicted after earlier having been tried and acquitted for the same offense, something quite outside the ideas of double punishment and res judicata. It also ". . . relates to a potential, i. e., the risk that an accused for a second time will be convicted of the `same offense' for which he was initially tried." Price v. Georgia, 1970, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300. "Harassment of an accused by successive prosecutions" is recognized as within the protection of the constitutional language. See Downum v. United States, 1963, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100. The late Mr. Justice Harlan speaking for four members of the Court put it that, "A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws." United States v. Jorn, 1971, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543. See also Green v. United States, 1957, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199; Howard v. United States, 9th Cir. 1967, 372 F.2d 294, 299.

It has, however, been...