United States v. Phillips
| Decision Date | 27 August 1970 |
| Docket Number | No. 18879.,18879. |
| Citation | 431 F.2d 949 |
| Parties | UNITED STATES of America v. Joseph PHILLIPS, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Nolan N. Atkinson, Zack & Myers, Philadelphia, Pa., for appellant.
Louis C. Bechtle, U. S. Atty., Thomas J. McBride, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Before McLAUGHLIN, ALDISERT and ADAMS, Circuit Judges.
This case arises from an order of the District Court for the Eastern District of Pennsylvania denying appellant's motion to dismiss an indictment on the ground that prosecution would violate appellant's right under the Fifth Amendment to the Constitution not to be placed twice in jeopardy for the same offense.
Appellant, Joseph Phillips, was indicted on two counts for the sale of stolen motor vehicles transported in interstate commerce, 18 U.S.C. § 2313. At the close of the evidence, Phillips' motion for judgment of acquittal was granted as to count I, and count II was submitted to the jury. After the jury had deliberated four hours and forty-five minutes, Chief Judge John W. Lord, Jr. submitted the following question to the jury: "How soon will you be able to agree on a verdict?" The response reported by Judge Lord's law clerk was: "They had no idea when they would be able to reach a verdict".
Chief Judge Lord then proposed to dismiss the jury as unable to agree. Had he discharged the jury over the objection of appellant's attorney, we would be presented with a serious issue of double jeopardy. Cf. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824); Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed. 2d 100 (1963). But while counsel for both the appellant and the United States thought deliberation might conveniently continue until later in the day, neither objected to the court's proposal.
This Court has often described the standard to be applied when asked to review a matter where there has been no objection. In United States v. Lawson, 337 F.2d 800 (3rd Cir. 1964), Judge Forman said in a case questioning the closing argument of the prosecution:
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...Contrast this important factor with the situation in United States v. Brahm, 459 F.2d 546, 550 (3d Cir. 1972); United States v. Phillips, 431 F.2d 949, 950 (3d Cir. 1970); United States v. Goldstein, 479 F.2d 1061 (2d Cir. 1973); Forsberg v. United States, 351 F.2d 242 (7th Cir. 1965). See ......
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