Richard E. Leigh v. United States

329 F.2d 883

Opinions

PER CURIAM:

Appellant was charged with four counts of forgery and four counts of uttering, in an eight-count indictment. He was found guilty and sentenced to a term of from three to nine years imprisonment, the sentences on each count to run concurrently. We reversed. Leigh v. United States, 113 U.S.App.D. C. 390, 308 F.2d 345 (1962).

Appellant was again brought to trial ' and, at the second trial, the Government sought to dismiss two counts of the indictment because one of its witnesses was not available. It appeared, however, that the Assistant United States Attorney, in his opening statement, had referred to “eight counts.” Appellant’s counsel, after consultation with his client, moved that a mistrial be granted because of the possible prejudice resulting from the fact that the jury knew there had been eight counts in the indictment. The motion was granted. Thereafter, appellant was brought to trial on the remaining six counts of the indictment and was convicted.

On this appeal, appellant urges this court to order his release from custody on the ground that he had been placed twice in jeopardy, in violation of the Fifth Amendment. Clearly there was here no “harassment” as in situations considered in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). There the jury was discharged over the defendant’s objection.

It has long been held that a defendant cannot plead former jeopardy where the jury before whom he was first on trial was discharged on his own motion or with his consent. Barrett v. Bigger, 57 App.D.C. 81, 17 F.2d 669 (1927). Accordingly, this assignment of error must be denied.

We have examined the other errors assigned by appellant and find them without merit.

Affirmed.