United States v. Lansdown, No. 72-1066.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: WINTER, BUTZNER and FIELD, Circuit
• Citation: 460 F.2d 164
• Parties: UNITED STATES of America, Appellee, v. Louis Glenwood LANSDOWN, Appellant.
• Docket Number: No. 72-1066.
• Decision Date: 04 May 1972

460 F.2d 164 (1972)

UNITED STATES of America, Appellee,
v.
Louis Glenwood LANSDOWN, Appellant.

No. 72-1066.

United States Court of Appeals, Fourth Circuit.

Argued March 9, 1972.

Decided May 4, 1972.

460 F.2d 165

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Joseph L. Duvall and Douglas E. Bywater, Fairfax, Va., for appellant

Justin W. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.

Before WINTER, BUTZNER and FIELD, Circuit Judges.

WINTER, Circuit Judge:

In defendant's first trial for armed bank robbery and conspiracy to commit armed bank robbery, a mistrial was declared over defendant's objection. The district court took this action because it believed that the jury was hopelessly deadlocked. Defendant then moved to dismiss the indictment on the ground that jeopardy had attached at his first trial and a retrial would violate his constitutional guarantee against double jeopardy. When the district judge denied the motion and refused to stay the second trial pending an appeal of his order denying dismissal, we granted a stay of the second trial. The appeal having been briefed and argued, we conclude that a second trial would violate defendant's rights and that the order denying the motion was appealable. Accordingly, we reverse and remand the case for entry of an order dismissing the indictment.

I

The government's case against the defendant at his initial trial, which began December 7, 1971, was based on the testimony of a codefendant and another unindicted alleged coconspirator. The codefendant had pleaded guilty to the conspiracy charge and had been sentenced to a term of five years. Upon the government's motion, the count charging armed bank robbery against him was dismissed. The codefendant and the alleged coconspirator, both of whom were narcotic addicts with prior criminal records, testified that they went inside the bank to commit the robbery while the defendant waited in the alley behind the bank in the getaway car. Their testimony was that after the robbery all went to the home of the defendant's mother.

The defendant testified in his own defense, denied that he had participated in the commission of the crime, and further testified that he had never even met his codefendant. Defendant's credibility was not seriously impeached; he was shown to have pleaded guilty to only two minor bad check charges for which service of a term was not required. His mother testified that prior to the trial she had never seen the codefendant or the alleged coconspirator. Several witnesses testified as to defendant's reputation for truth and veracity. After closing arguments and the instructions of the district judge, the case was submitted to the jury at 3:55 P.M. on the day of trial.

When the jury had not completed its deliberations by 5:30 P.M., it was sent home for the day. Deliberations were resumed at 10:00 A.M. on December 8 and continued until 5:20 P.M., at which

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time the foreman informed the judge that the jury was unable to agree upon a verdict. The district judge then gave the so-called Allen charge to the jury, concluding with the statement that "again I tell you that you may be as leisurely in your deliberations as the occasion may require, and you shall take all the time which you may feel is necessary." The district judge also told the jury that they could deliberate the next day if the jury so desired

The jury then resumed its deliberations. At 6:12 P.M. the court reconvened and shortly thereafter the jury was returned. The foreman reported that a verdict had not been reached and requested that the jury be excused to return the next morning. In discussion between the district judge and counsel before the jury was returned, the defendant and his counsel had agreed to excusing the jury for the night and had declined to move for a mistrial. In the same discussion, the United States attorney who was prosecuting the case had requested that a mistrial be declared, and that the jury be discharged.

The jury resumed its deliberations at 10:00 A.M. on December 9, 1971. Shortly before 1:00 P.M., after the court had concluded another matter, the court addressed counsel as follows, with these subsequent events:

THE COURT: The jury hasn\'t reached a verdict in this other case, obviously.

Are you representing the government?

MR. MARCUS: Yes, I do, your Honor.

THE COURT: I am going to dismiss it—mistrial. I mean I have no choice. I am not going to let them stay.

Knock on the door. Let the jury come in. Stand them along here.

THE MARSHAL: Gentlemen, cease your deliberations and step out here, please.

(At 12:59 p. m., the jury returned to the courtroom)

THE COURT: Mr. Foreman, not having heard from you since late last night, I am assuming that you have not reached a unanimous verdict; is that correct?

THE FOREMAN: That is correct, your Honor.

THE COURT: That is all I want to know.

The jury is going to be discharged. It is obvious that you are hopelessly deadlocked.

THE FOREMAN: Your Honor, we are on the verge of a verdict.

THE COURT: Well, when you say "on the verge" I don\'t want to rush this jury and I don\'t want to browbeat anybody into anything. You have had a reasonable length of time. I am going to discharge the jury.

MR. DUVALL counsel for defendant: Your Honor,—

THE COURT: I don\'t know whether it is favorable or unfavorable. I don\'t want to know.

MR. DUVALL: —could the court leave the jury in for the rest of the day?

THE COURT: I could, but I am not going to. Two and a half days is an unreasonable hardship on the jurors, and it is just unreasonable, and I won\'t do it.

A JUROR: Could we have 10 minutes, your Honor?

THE COURT: No, because the jury is going to be discharged.

MR. DUVALL: Could they have 10 minutes, your Honor?

THE COURT: I don\'t know whether—I don\'t want to know. I don\'t want to argue it. I don\'t know whether they have a verdict one way or the other, and I am admonishing any of you, don\'t you tell counsel or talk to anybody about your deliberations, say anything about it. I don\'t know.

It is obvious, very frankly, it is very obvious that you gentlemen don\'t agree, because the question was—I am

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discharging you and that is why I am saying it—it is a rather simple question. Honest men can disagree and I am not holding you are anything else. But you have had all of one day, half of another one and almost a third of the other, two days to decide one question, and there is only one question, and it is very simple, I mean, and so forth: This man was either a perpetrator of that bank robbery as the other two young men said or he wasn\'t. It is a question of fact.

I don\'t want you to tell me and I don\'t want you to talk to these counsel because this case must be tried over again. I am going to set it right after this one and another jury will hear, as far as I know, identically the same evidence. I am sorry you couldn\'t reach a verdict.

I am proud of our jurors, and I don\'t want anybody to change his opinion. But if honest men can\'t reach a conclusion in 20 hours on whether A was there or not I don\'t think 25 hours are going to help you.¹

You are discharged, and I am sorry you couldn\'t do it, and I know you did your best.

Defendant contends that on the facts set forth above there was absent a "manifest necessity" to abort his trial and that as a consequence a second trial would violate his fifth amendment guarantee against double jeopardy. He argues that the relief to which he was entitled was dismissal of the indictment. Besides arguing that the mistrial was permissible and that retrial would not, therefore, constitute double jeopardy, the government counters with an attack upon our jurisdiction to hear and decide the appeal on the ground that the order appealed from was interlocutory and not a final order within the meaning of 28 U.S.C.A. § 1291. We will consider first the claim of double jeopardy.

II

A defendant has a "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). Because of this right, a court may not declare a mistrial without the consent of the defendant unless there is a "manifest necessity for the act, or the ends of public justice would otherwise be defeated." United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165 (1824).

Last term the Supreme Court reiterated its support for the Perez doctrine and noted that it stood 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." United States v. Jorn, 400 U.S. 470, at 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543. Jorn represents the latest in a line of cases which has the practical effect of narrowing the discretion of the trial judge to declare a mistrial. See, Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); see also, United States v. Smith, 390 F.2d 420 (4 Cir. 1968); United States v. Chase, 372 F.2d 453 (4 Cir. 1967).

The general rule is that a defendant may be retried if in his first trial the jury is unable to reach an unanimous verdict. See, generally, Annotation: Double Jeopardy—Mistrial, 6 L. Ed.2d 1510, 1517-1518. This is so because a genuine inability to agree constitutes a "manifest necessity" to declare a mistrial and a defendant's right not to be subjected to...