United States v. Walden

• Citation: 448 F.2d 925
• Decision Date: 22 September 1971
• Docket Number: No. 14974-14983.,14974-14983.
• Parties: UNITED STATES of America, Appellee, v. Billy Delano WALDEN et al., Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

448 F.2d 925 (1971)

UNITED STATES of America, Appellee, v. Billy Delano WALDEN et al., Appellants.

Nos. 14974-14983.

United States Court of Appeals, Fourth Circuit.

Argued June 10, 1971.

Decided September 22, 1971.

Frank K. Sloan, Charles Porter, Charles E. Baker, Robert E. Kneece, Kermit S. King, James L. Mann, II, Robert W. Dibble, Jr., Columbia, S. C. (B. H. Barton, Augusta, Ga., James C. Anders, Taylor B. Rion, Jr., and Glenn, Porter & Sullivan, Columbia, S. C., on the brief), for appellants in Nos. 14,974 thru 14,983.

Frank J. Kiernan, Jack L. Marshall, Wistar D. Stuckey, Michael A. Pulliam, Marvin L. Smith, Asst. U. S. Attys. (John K. Grisso, U. S. Atty., and Lionel S. Lofton, on the brief), for appellee.

Before BOREMAN, BRYAN and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

This is an appeal by ten of eleven^1a defendants charged with substantive offenses and conspiracy to burglarize numerous banks in various Southeastern states. There have been two trials. The first was aborted by a mistrial declaration. The second resulted in jury verdicts of guilty. The appeals are based on various grounds including the claim that the first trial was unnecessarily aborted and the second trial constituted double jeopardy in violation of the Fifth Amendment. We agree, and reverse under United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

I.

After returning from a lunch recess on the third day of the first trial, the trial judge said:

Gentlemen, the United States Marshal has called to my attention that during the lunch hour, we sent the jury out, and then as they were taking the jury to lunch two of the jurors inadvertently remained in the Jury Room or in the rest room or rest rooms. I don\'t know all the details, but that is not necessary. When the Marshal discovered it and went back upstairs to get them, they were at the door; there were also at the door in the hallway in their presence the various defendants who at the time were in custody, and I assume some if not all of them were in handcuffs.

The judge referred to our decision in Holmes v. United States, 284 F.2d 716 (4th Cir. 1960),¹ as controlling under the circumstances and suggested that the defendants and their counsel consider a mistrial motion.

Counsel for the defendants made various requests to have the events surrounding the supposed prejudicial event clarified and also requested consideration of alternative curative measures. The court declined further investigation into the event and rejected other possible curative procedures.²

Despite the intimation that the rest of the jury had no actual knowledge of what had transpired, the suggestion by defense counsel Dibble that the two viewing jurors be removed replacing them with two alternates sitting with the jury was not accepted, and after a fifteen minute recess, counsel for four defendants — Ard, Walden, Damour and Hogan — formally moved for a mistrial. A mistrial as to all defendants was declared. Those who expressed their desire to proceed with the trial moved to sever. Basing his decision, it seems, on the contention by the government that separate trials would be "impractical," the court denied the motion.

Even after the judge announced this intention to abort, at least one of the counsel for the defendants continued to press the court to consider dismissing the two viewing jurors and continuing with the remaining twelve.³ Moreover, counsel candidly advised the court that defendants' position at least as to the six who desired to proceed, was that a mistrial declaration would bar a subsequent trial under the double jeopardy clause.⁴

II.

Over 140 years ago, Mr. Justice Story in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), formulated what has continued to be the standard in cases such as this one: that the double jeopardy clause of the Fifth Amendment prohibits a second trial after a first trial has been aborted without the defendant's consent, unless there was "manifest necessity" for doing so.

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 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 greatest caution, under urgent circumstances, and for very plain and obvious causes. * * *

22 U.S. (9 Wheat.) at 580, 6 L.Ed. 165.

Refusing to read the double jeopardy clause as an absolute bar to second trials, the "defendant's valued right to have his trial completed by a particular tribunal" is instead balanced against "the public's interest in fair trials designed to end in just judgments." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949).⁵ The mandate to trial judges under the Fifth Amendment is easy to state, but difficult to apply: he must not "foreclose the defendant's option to have his trial completed by a particular tribunal 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, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971).

Jorn is apparently the penultimate if not the end product of a "trend toward reducing the occasions on which criminal defendants may be made to `run the gantlet twice.'" Note, Double Jeopardy: The Reprosecution Problem, 77 Harv.L. Rev. 1272, 1272 (1964). Although the rubric remains the same, and the Court again declines, as it always has, to formulate rules based on categories of circumstances which will permit or preclude retrial, nevertheless, Jorn is, we think, a significant departure from prior controlling case law. We think it controls here and dictates a result we might not otherwise reach. Whether described in terms of "manifest necessity," Perez, supra, 22 U.S. (9 Wheat.) at 580, 6 L.Ed. 165, "imperious necessity," Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); for "reasons deemed compelling by the trial judge," Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961); or "breakdown in judicial machinery," id. at 372, 81 S.Ct. 1523 (Douglas, J., dissenting), unquestionably the trial judge's "sound discretion" to abort a trial has been considerably narrowed.

This trial was commenced on March 23, 1970, and was aborted on March 26, 1970, and the second trial was conducted during May of 1970. Thus the district judge in aborting the first trial and denying the plea of double jeopardy entered at the second trial acted in light of Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); and United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); and without benefit of Jorn which was not decided until January 25, 1971. But for Jorn, as we have said, we would be inclined to affirm for it is clear to us that the district judge acted out of zealous solicitude for the protection of the rights of the defendants and without the slightest intention to harrass or oppress them. As recently as 1968 we noted that the discretion of the trial judge to abort 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." United States v. Smith, 390 F.2d 420, 423 (4th Cir. 1968). But even then we interpreted Gori and Tateo to insulate second prosecutions from attack where the first one had been aborted by the trial judge as a matter of fairness to the defendant — even an overly solicitous fairness. Doubtless the district judge here was led by Gori, Tateo and our interpretation of them in Smith to reasonably believe that so long as he acted out of concern for the best interest of the defendants, and there is no doubt he was genuinely concerned, his abortion of the trial would not constitute an abuse of discretion.

We think that Jorn all but eliminates trial judge motivation as an element to be considered in determining whether an aborted trial bars reprosecution. "Reprosecution after a mistrial has unnecessarily been declared by the trial court obviously subjects the defendant to the same personal strain and insecurity regardless of the motivation underlying the trial judge's action." 400 U.S. at 483, 91 S.Ct. at 556. In again expressly declining to formulate "bright line rules," the Court said that such rules "based on either the source of the problem or the intended beneficiary of the ruling would only disserve the vital competing interests of the Government and the defendant." 400 U.S. at 486, 91 S.Ct. at 557.

In light of Jorn, we hold with respect to the six defendants who did not move for a mistrial that the double jeopardy clause of the Fifth Amendment barred the second trial, and they are entitled to judgment of acquittal.

The decision to abort was based upon a reading of our decision in Holmes v. United States, 284 F.2d 716 (4th Cir. 1960). There we reversed the conviction of two defendants because the jury had been inadvertently informed by a court official of one defendant's past criminal record, information which could not be introduced at trial.⁶ Disqualification of a juror has always been viewed as an occurrence in which there is manifest necessity in declaring a mistrial. See, e. g., Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894); Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891).

The district judge reasoned that the sight of one or more defendants in hand-cuffs at a recess would inevitably suggest to the viewing...