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United States District Court, Northern District of Illinois, E.D

January 30, 1962


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

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

"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
  all night.

    "MR. FITZ GERALD: I am not joining in that,
  Your Honor.

"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.'"
  (Emphasis ours.)

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
  double jeopardy."

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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