United States v. Smith, No. 11610.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: SOBELOFF, BRYAN and CRAVEN, Circuit
• Citation: 390 F.2d 420
• Parties: UNITED STATES of America, Appellee, v. John K. SMITH, Appellant.
• Docket Number: No. 11610.
• Decision Date: 05 February 1968

390 F.2d 420 (1968)

UNITED STATES of America, Appellee,
v.
John K. SMITH, Appellant.

No. 11610.

United States Court of Appeals Fourth Circuit.

Argued December 5, 1967.

Decided February 5, 1968.

390 F.2d 421

Joseph L. Peters, Jr., Court-appointed counsel, Alexandria, Va., for appellant.

Roger T. Williams, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.

Before SOBELOFF, BRYAN and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

We are to decide whether John K. Smith was (a) fairly and (b) constitutionally tried and convicted in the district court. We agree that prejudicial error with respect to the admission of evidence vitiates the trial. Judge Bryan and I would reverse and permit Smith to be tried again. Judge Sobeloff would also reverse the conviction, but believing that Smith was twice put in jeopardy in violation of the Fifth Amendment, he is of the opinion that the Constitution forbids further criminal proceedings against Smith based on the facts which we now briefly narrate:¹

I. Facts

Several defendants, including Smith, were tried together, charged with operating a numbers racket from the Navy Annex in Arlington, Virginia. The federal nature of the offense stems from crossing state lines in the D.C. area. The indictments charged the defendants with substantive violations of 18 U.S.C. §§ 1952, 1953 and with conspiring to violate §§ 1084, 1952, and 1953. At the first trial, after the state had rested, the substantive counts against Smith were dismissed by the court. At that point, all of the jury defendants moved for mistrial on the basis of a prejudicial newspaper article. Judge Lewis polled the jury, found that several had seen the article and granted the motion as to the jury defendants.

What then occurred is set out in Roy's companion case, considered by a different panel of this court under the title United States v. Chase, 372 F.2d 453, 464 (4th Cir. 1967):

"Then he Judge Lewis said, `Now, what does sic the defendants want to do that did not have a jury trial? Well, I am not even going to ask you. I am going to declare a mistrial on it * * *,\' assigning as a reason that he ought not in fairness to the other alleged conpirators pronounce his judgment in the case of any of the alleged non-jury co-conspirators prior to allowing the guilt or innocence of all defendants to be adjudicated at the same time. Later in the proceedings, the judge stated that he granted a mistrial because he thought his failure to do so would be `harmful or prejudicial, either way,\' but that he might have decided the non-jury cases by hearing the rest of the evidence and would have done so had the non-jury defendants

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been charged only in a substantive count."

With respect to the evidence question, on April 5, 1965, a police raid resulted in the arrest of all the conspirators except Chase and Smith. Carr, one of the leading figures, turned state's evidence and agreed to act as a government agent. In that capacity he communicated with Chase and continued the racket until July 18 when Chase was arrested. The only evidence of acts by Smith after April 5 shows that he acted as a messenger between Carr and Chase in an effort to secure $125.00 which Parrish, another conspirator, needed to post bond.

II. Admission of Irrelevant Evidence

In Chase supra, we held that the conspiracy had ended on April 5 when all of the conspirators were arrested except Chase and Smith. Thus acts done by Chase after April 5 were held to be admissible against defendants other than Chase only if they were relevant to show "the previous existence of the conspiracy or the attainment of its illegal ends." 372 F.2d at 460. Declarations made after the conspiracy had ended were held to be admissible only as against the declarant. The court then went on to hold that acts done by Chase and Carr after April 5 were not admissible as against Parrish, one of the jury defendants, because they shed "no light on whether the previous conspiracy in fact existed nor * * * prove attainment of any of its illegal objectives." Since the trial judge "failed to limit, carefully and clearly, the jury's consideration of evidence after April 5 to Chase," Parrish's conviction was reversed. The same result obtained as to Roy, the other non-jury defendant, because "nowhere later in the proceedings, nor in stating why he concluded Roy was guilty, did the district judge give any indication that he placed no reliance on the evidence of events after April 5."

Roy's case cannot be distinguished from Smith's. To hold that the acts of Chase were admissible as against Smith, we would have to say that the conspiracy continued between Chase and Smith after April 5. It is true that Smith performed some acts after April 5 while Roy did not, but the extent of those acts was to help Parrish post bond; we are unwilling to hold that posting a criminal appearance bond was a part of the conspiracy.

For the sake of symmetry and consistency of treatment of two non-jury defendants we consider ourselves bound by Chase.² Smith, like Roy, and for the same reason, is entitled to reversal of conviction.

III. Double Jeopardy

The court in Chase held that defendant Roy was not immunized from further prosecution by reason of the double jeopardy clause of the Fifth Amendment. We think Smith's situation cannot be sufficiently distinguished from Roy's to justify disparate treatment.³ Moreover, we in the majority conclude that the question of double jeopardy was rightly decided in Chase, and we adopt what was said by our Brother Winter, 372 F.2d at 463-466.

We think the Fifth Amendment as interpreted by the United States Supreme

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Court from United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), to United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964), was meant to prevent oppressive exercise of the government's power to prosecute. To suffer through a criminal trial even though acquitted is not a pleasant experience. To be again and yet again subjected to further prosecution — despite acquittal — is frightening as well as unconstitutional, and it has never been even questioned that retrial after acquittal is flatly forbidden by the Fifth Amendment. But short of that we do not understand that the Supreme Court has yet adopted a simplistic theory, i. e., not twice means not twice. Instead, the Court has moved from a stated refusal to do so to a close scrutiny⁴ of each case to see whether with reference to the particular facts there has been oppression and harassment. Thus it is quick to nullify a second trial conferred by a judge to help a prosecutor. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Whereas, conversely, a second prosecution is allowed where the first one was terminated by a trial judge overly solicitous for the rights of the defendant. Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961)

Similarly, in Tateo, supra, where the invalidity of the first trial was declared as a matter of fairness to the defendant — and not to benefit the government — it was held that the Fifth Amendment does not preclude a second trial.

Although the discretion of the trial judge in determining whether to terminate a trial is undoubtedly being narrowed, as a practical matter, by awareness of the closer scrutiny to which the exercise of his discretion is now subjected, we do not understand that any member of the Supreme Court has taken the position that there is no discretion.⁵ Apparently the formula is the same as it has always been: a discretion to be exercised "only in very extraordinary and striking circumstances."⁶ The trick is to know those circumstances when one sees them. See, e. g., Howard v. United States, 372 F.2d 294 (9th Cir. 1967); United States v. DiFronzo, 345 F.2d 383 (7th Cir. 1965). We think the circumstances...