United States District Court, Northern District of Illinois, E.D
January 30, 1962
UNITED STATES OF AMERICA, PLAINTIFF,
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
(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
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
"MR. FITZ GERALD: We agree.
"MR. SILETS: That is agreeable with the
"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 out
"MR. FITZ GERALD: I am not joining in that,
"THE COURT: You are not joining in what?
"MR. FITZ GERALD: At the request that the Court
give that Allen instruction.
"MR. SILETS: May I inquire as to the procedure?
Mr. White indicated that if they don't return a
verdict they will be discharged?
"THE COURT: At ten o'clock.
"MR. SILETS: What time are they to take?
"THE COURT: Until ten o'clock.
"MR. SILETS: Until ten o'clock.
"THE COURT: Yes, at ten o'clock tonight.
"MR. SILETS: Oh, I thought it would be tomorrow
"THE COURT: No, I wouldn't keep a jury locked
up like that. If they don't reach a verdict by
ten o'clock, there is no verdict.
"MR. SILETS: Then we would have to try it
"THE COURT: Yes, sir.
"MR. SILETS: Okay."
The Court is of the opinion there is no legal basis for the
instant motion in any of its alternative phases and it is
therefore denied. The principle of law applicable was clearly
expounded by the United States Supreme Court in 1824 and has
remained unchanged. That Court in United States v. Perez, 22
U.S. (9 Wheat.) 579, 6 L.Ed. 165, said:
"The prisoner, Joseph Perez, was put upon trial
for a capital offence, and the jury, being unable
to agree, were discharged by the court from
giving any verdict upon the indictment, without
the consent of the prisoner, or of the attorney
for the United States. * * * The question,
therefore, arises, whether the discharge of the
jury, by the court, from giving any verdict upon
the indictment, with which they were charged,
without the consent of the prisoner, is a bar to
any future trial for the same offence. If it be,
then he is entitled to be discharged from
custody; if not, then he ought to be held in
imprisonment until such trial can be had.
"We are of opinion, that the facts constitute
no legal bar to a future trial. The prisoner has
not been convicted or acquitted, and may again be
put upon his defence. 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 the 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 the greatest
caution, under urgent circumstances, and for very
plain and obvious causes; and in capital cases
especially, courts should be extremely careful
how they interfere with any of the chances of
life, in favor of the prisoner. But, after all,
they have the right to order the discharge; and
the security which the public have for the
faithful, sound and conscientious exercise of
this discretion, rests, in
this, as in other cases, upon the responsibility
of the judges, under their oaths of office. We
are aware, that there is some diversity of
opinion and practice on this subject, in the
American courts; but, after weighing the question
with due deliberation, we are of opinion, that
such a discharge constitutes no bar to further
proceedings, and gives no right of exemption to
the prisoner from being again put upon trial."
Most recently the Supreme Court has reiterated the above
doctrine in Gori v. United States, 367 U.S. 364
, at page 367,
81 S.Ct. 1523, at page 1526, 6 L.Ed.2d 901 (1961), saying:
"Since 1824 it has been settled law in this
Court that `The double-jeopardy provision of the
Fifth Amendment * * * does not mean that every
time a defendant is put to trial before a
competent tribunal he is entitled to go free if
the trial fails to end in a final judgment.'"
As dictum it was said in Green v. United States,
355 U.S. 184
, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957):
"Moreover it is not even essential that a
verdict of guilt or innocence be returned for a
defendant to have once been placed in jeopardy so
as to bar a second trial on the same charge. This
Court, as well as most others, has taken the
position that a defendant is placed in jeopardy
once he is put to trial before a jury so that if
the jury is discharged without his consent he
cannot be tried again. * * * This prevents a
prosecutor or judge from subjecting a defendant
to a second prosecution by discontinuing the
trial when it appears that the jury might not
convict. At the same time jeopardy is not regarded
as having come to an end so as to bar a second
trial in those cases where `unforeseeable
circumstances * * * arise during [the first] trial
making its completion impossible, such as the
failure of a jury to agree on a verdict.'"
In Dreyer v. Illinois, 187 U.S. 71
, 23 S.Ct. 28, 47 L.Ed. 79
(1902), it was decided that if the jury in a criminal cause be
discharged by the court because of their being unable to agree
upon a verdict, the accused, if tried a second time, cannot be
said to have been put twice in jeopardy of life or limb,
whether regard be had to the Fifth or the Fourteenth
Amendment. In that case, the cause was submitted to the jury
at four o'clock in the afternoon and the jury was kept
together until nine o'clock, and thirty minutes in the morning
of the succeeding day, when they were finally discharged from
any further consideration of the case. The contention was made
that notwithstanding the recital in the record that the jury
was discharged by the court because they were unable to agree
upon a verdict, such discharge was without moral or physical
necessity and operated as an acquittal of the defendant. The
Court held the Perez case, supra, applicable, leading to a
conclusion "adverse to the contention of the accused that he
was put twice in jeopardy."
Very recently the Second Circuit Court of Appeals held in
United States v. Cording, 290 F.2d 392, 393 (1961) that
"Since the jury had declared its inability to
agree on a verdict, the action of the court in
discharging the jury was a proper exercise of its
discretion. In these circumstances it is well
established that a second trial may be had
without running afoul of the prohibition against
Defendant assails the trial court's action, asserting that
the jury was permitted to deliberate a total of only about
five hours; that it was an unwarranted delegation of authority
by the trial judge to his minute clerk to discharge the jury;
that the jury was discharged without defendant's consent and
out of the presence of the defendant, counsel and the Court.
The colloquy quoted above, however, discloses that the trial
judge made a deliberate decision as to when the jury should be
discharged for failure to agree,
that it was the trial judge's decision and not his minute
clerk's, that it was announced in the presence of counsel. It
is clear that it was not done at a moment when it was believed
the jury was about to acquit the defendant and therefore
knowingly deprived him of an acquittal.
The Court therefore concludes that Judge Igoe exercised the
discretion lodged in him in accordance with the best dictates
of his judgment. The discharge of the jury pursuant to his
order was valid and defendant is not being subjected to a
second trial in violation of his constitutional right not to
be subjected to double jeopardy for the same offense.
The motion in all its alternatives is denied.
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