Castle, Swygert and Cummings, Circuit Judges. Cummings, Circuit Judge (dissenting).
Harry Robert White appeals from a judgment of conviction entered upon a jury verdict of guilty on eight counts of an indictment charging him with the use of the mails in furtherance of a scheme to defraud, in violation of 18 U.S.C. § 1341. The defendant's trial followed a reversal by this court of a previous conviction on the same charges. United States v. White, 355 F.2d 909 (7th Cir. 1966). Except for certain testimony which we ordered to be excluded on retrial,*fn1 the same evidence was offered as in the original trial, and, by reason of essentially the same facts stated in our opinion in the prior appeal, we have again concluded that the evidence was sufficient to convict. Two questions are presented: (1) whether the language of an "Allen Charge"*fn2 given to the jury was prejudicially erroneous; and (2) whether the imposition of a greater sentence of imprisonment at the conclusion of the second trial than had been imposed after the first trial was a denial of due process or amounted to double jeopardy within the meaning of the fifth amendment.
The jury retired to deliberate at 11:45 a.m. on September 21, 1966. The deliberations continued for approximately four and one-half hours, with time out for lunch. At 4:20 p.m., the district judge informed counsel that he was going to recall the jury and give the "Allen Charge" contained in the manual on jury instructions prepared for use in criminal cases in the Seventh Circuit by Judge Walter J. La Buy, and that counsel would be given an opportunity to object after the instruction had been given. The jury was returned and the following instruction was read to it:
In a large proportion of cases, absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusions of others, yet you should examine the questions submitted with proper regard and deference for the opinions of each other. You should listen to each other's opinions with a disposition to be convinced. It is your duty to decide the case if you can conscientiously do so. If a much larger number of jurors favor conviction, a dissenting juror should consider the reasonableness of his doubt when it makes no impression upon the minds of other jurors equally intelligent and impartial and who have heard the same evidence.
If upon the other hand the majority favors acquittal, the minority should ask themselves whether they might not reasonably doubt the correctness of their judgment. Likewise, the jurors in the majority favoring a finding for either party should ask themselves whether they might not reasonably doubt the correctness of their judgment when it makes no impression upon the minds of the minority jurors equally intelligent and impartial as they are and who have heard the same evidence.
If you should fail to agree on a verdict, the case must be retried. Any future jury must be selected in the same manner and from the same sources as you have been chosen, [and] there is no reason to believe that the case would ever be submitted to twelve men and women more competent to decide it, or that the case can be tried any better or more exhaustively than it has been here, or that more or clearer evidence could be produced on behalf of either side.
The jury then retired again and deliberated for approximately one hour before returning with a verdict of guilty.
The defendant did not object to the giving of the charge per se, or to the timing of the instruction given by the district judge.*fn3 His only objection was directed to the statement that in the event the jury should fail to agree, "the case must be retried."*fn4 In this appeal, the defendant contends that the statement quoted is factually incorrect because the determination whether to retry a defendant following a jury's failure to reach a verdict rests within the discretion of the United States Attorney, and the latter's decision to try the case again is by no means a certainty. The defendant argues that the statement when considered with the fact that during the trial the jury was informed (and instructed to disregard) that the defendant had been involved in a "previous" trial, imposed undue pressure on the jury to exercise its function of determining the facts.
Although it is technically incorrect in the manner suggested by the defendant, the statement that in the absence of a verdict the case "must" be retried was presumptively true and substantially accurate as of the time it was given. Similar language in supplemental instructions has been approved by other courts. Mills v. Tinsley, 314 F.2d 311, 312 (10th Cir.), cert. denied, 374 U.S. 847, 83 S. Ct. 1907, 10 L. Ed. 2d 1067 (1963) ("you should consider that this case must at some time be decided"); United States v. Barnhill, 305 F.2d 164, 165 (6th Cir.), cert. denied, 371 U.S. 865, 83 S. Ct. 126, 9 L. Ed. 2d 102 (1962) (statement to the effect that some jury would have to decide the issue and that it might as well be this jury). In United States v. Furlong, 194 F.2d 1, 2-3 (7th Cir.), cert. denied, 343 U.S. 950, 72 S. Ct. 1042, 96 L. Ed. 1352 (1952), we indicated that a supplemental charge to the jury which included the declaration that "you should consider that the case must at some time be decided" was proper. Taken in context, the statement to which objection has been raised contains no stronger inference of the desirability of the jury's reaching an agreement as to guilt or innocence than is contained in the remainder of the charge itself. In short, its inclusion in the charge given did not constitute prejudicial error.
Following his first conviction, which we reversed on appeal, the defendant received concurrent sentences of six months' imprisonment plus thirty months' probation on each of the eight counts on which he was found guilty. At the conclusion of the second trial, conducted by a different district judge than the one who presided at the first trial, the defendant received concurrent one-year sentences of imprisonment on seven counts, to be followed by a one-year period of probation on the eighth count. The defendant contends that the imposition of a longer term of imprisonment following a successful appeal places an unconstitutional burden upon the exercise of his right to appeal the first conviction, amounting to a denial of due process; additionally, he argues that increasing the time he is required to serve in prison following the second conviction places him twice in jeopardy as to that portion of the sentence in excess of the term imposed after the first trial, in violation of the fifth amendment.
The defendant raised the first argument before the district judge who imposed the second sentence. He argued that imposing a greater sentence upon retrial was punishing him for having appealed the first conviction. He urged that the first sentence serve as the "upper limit" for the second sentencing judge. At that point, the district judge made the following observations:
I would agree that as a general matter no Court would ever impose a heavier sentence because of an appeal; certainly this Court would agree with that. By the same token * * * a period of three years [has elapsed], and the probation department has supplied additional material. This Court must evaluate it on that basis, not with any intention to penalize anyone for exercising the right to appeal, which is available to any and all defendants, and which is again available to this defendant. So the fact that this Court imposes a more severe sentence in one respect and a less severe sentence in another respect is merely an evaluation of the original probation report plus some five pages of material which have been derived since that time.
From these comments it is apparent that the defendant's successful appeal of his first conviction bore no relationship to the imposition of the increased prison sentence upon retrial. It is also apparent that the factors which impelled the district judge to conclude that a greater sentence was warranted were contained in the expanded ...