United States v. John K. Smith

390 F.2d 420, 1968 U.S. App. LEXIS 8173

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 5, 1968
• Docket: 11610
• Status: Published

Opinions

CRAVEN, Circuit Judge:

We are to decide whether John K. Smith was (a) fairly and (b) constitu-' tionally 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 thaLhe 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 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 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 confronting Judge Lewis at the first trial as mentioned hereinabove and set out more fully in Chase, supra, 372 F.2d at 465, were sufficiently “extraordinary and striking” to accord him some reasonable discretion in how to proceed fairly to all concerned and that he did not abuse that discretion to harass or oppress Smith when he declared a mistrial.⁷

Indeed, even from our detached and placid viewpoint, far removed from the need for quick decision that prevails in the courtroom, we think Judge Lewis chose the best way out of an unfortunate situation. To have then completed the trials of Smith and Roy might have doubled the investment of court time— not a factor entirely unworthy of consideration in a district burdened with one of the heaviest caseloads per judge in the federal system.⁸ To have then proceeded to find the facts with respect to conspiracy would have been, we think, unseemly, for it is unlikely that the participation of the jury defendants could have been omitted. By so proceeding, there would have been forfeited the sometimes helpful influence of the jury verdict on the trial judge’s findings on close, difficult questions of credibility, and the likelihood of contradictory verdicts would have been enhanced. Starting over — with respect to all defendants some two months later — seems to us both the fairer and wiser decision. Absent unfair purpose, and there is not the slightest intimation of it, we think the trial judge, on these facts, was not forbidden by the Fifth Amendment from declaring a mistrial and ordering retrial of Smith.

A judgment will be entered reversing the conviction and remanding to the district court for trial de novo if the United States Attorney elects to prosecute again.

Reversed.

1 . For a more complete statement of the facts (4th Cir. 1967). see United States v. Chase, 372 F.2d 453 (4th Cir. 1967).

2 . We read Chase as meaning that the judge’s instructions to the jury made it clear that the trial judge erred as to the relevancy of the post April 5th evidence. Since he permitted the jury to consider it, the court thought it probable that he himself considered it. So interpreted, Chase does not erode the normal presumption in non-jury cases “that the trial judge relied only on the evidence which was properly admitted.” 2B Barron & Holtzoff § 972 (1961).

3 . Roy manifested no objection to the declaration of mistrial, but even so the Chase court held, aside from the question of waiver, that on the merits there was no violation of the Fifth Amendment. Smith did not object but let it appear on the record that he did not join in the motion for a declaration of a mistrial. Otherwise the cases are identical with respect to the application of the Fifth Amendment. Certainly there was no waiver by Smith. Cf. Gori v. United States, 367 U.S. 364, 365, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961) (done without petitioner’s “active and express consent.”)

4 . As recently as 1961, Mr. Justice Frankfurter, in Gori v. United States, 367 U.S. at 368, 81 S.Ct. at 1526 said: “It is also clear that * * * we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion.”

5 . If retrial after mistrial is deemed outlawed by the Fifth Amendment, the result may be to compel trial judges to the empty task of completing a trial which is known will be reversed on appeal.

6 . Quoted favorably by Mr. Justice Douglas in Downum, 372 at 736, 83 S.Ct. at 1034 and quoted favorably by Mr. Justice Goldberg in Tateo, 377 U.S. at 470, 84 S.Ct. 1587 from United States v. Coolidge, 25 Fed.Cas. No. 14,858, p. 622. Compare the following quote from Gori v. United States: “Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.” 367 U.S. at 368, 81 S.Ct. at 1526.

7 . The Supreme Court has recently denied a petition for certiorari where the mistrial was declared because of the trial judge’s irritation with defense attorney’s conduct. Lemongello v. New Jersey, 389 U.S. 858, 88 S.Ct. 99, 19 L.Ed.2d 123 (1967). See also the denials of certiorari in Ferrell v. Fulton, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 363 (1967) (alternate juror replaced regular juror after charge and without defendant’s consent); Collins v. Tennessee, 389 U.S. 824, 88 S.Ct. 61, 19 L.Ed.2d 78 (1967) (sworn juror was replaced before evidence was taken because of bias).

8 . Administrative Office of the United States Courts, Annual Report of the Director, at 11-36 (1967).