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UNITED STATES v. FITZ GERALD

January 30, 1962

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOHN O'C. FITZ GERALD, DEFENDANT.



The opinion of the court was delivered by: Robson, District Judge.

Defendant, charged upon information with violation of the income tax laws (26 U.S.C. § 7203) for failure to file income tax returns for 1954 and 1955, seeks by a motion in the alternative for

    (a) a judgment of acquittal on the offenses
        charged in the information filed, or
    (b) an order discharging him from further
        prosecution for the alleged offense, or
    (c) an order dismissing the information with
        prejudice.

The situation out of which this motion arose was that on June 6, 1961, after some thirteen trial days, the jury began their deliberations at approximately 4:00 p.m. After the jury retired, it is stated that this colloquy occurred in chambers, with defendant and both counsel present:

    "THE COURT: Now what about this jury? Are you
  folks willing to agree that in the event they
  reach a verdict they may sign and seal and
  separate, and the verdict will be read here
  tomorrow morning?

"MR. FITZ GERALD: We agree.

    "MR. SILETS: That is agreeable with the
  Government.

"THE COURT: All right."

Thereafter there was a further colloquy.

    "MR. SILETS: Judge, we were just thinking if
  the jury gets hung that there is no way for the
  Court to give them Allen case instruction which
  talked about deliberations.
    "THE COURT: They are not going to be hung. They
  can bring the verdict in by ten o'clock or they
  don't have that verdict.

"MR. FITZ GERALD: I am sure they will.

    "THE COURT: I am not going to keep the jury ...

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