*1 States, su- Smith mitted. See
pra. 19,050
No. stipulated that the automobile
It was had been
dеscribed Rock on June Little in North stolen was found automobile The same
1967. block parking lot one-half about appellants’ arrest. scene fingerprints inside both
Numerous coincided the automobile outside appellants after
prints obtained from
their arrest. array
Despite circum them, appel
stantial charge Dyer Act lants contend supported evidence. substantial argument upon premise
This rests is, point, that encompassed in their established the the evidence offense, Dyer Act elements consequence solely as the obtained ruling illegal appellants’ Our arrest. dispositive probable cause issue question. examination
of this Careful con us that record satisfies 19,050 was based in case No.
viction convincing strong evidence. upon judgments affirmed. GROGAN, Appellant, III, Robert
James America,
UNITED STATES Appellee.
No. 24083. Appeals Court of Fifth Circuit.
Nov. 1967.
Rehearing Dec. 1967. Denied April Rehearing 1968. Denied
Second *2 Fort, Columbus, Ga.,
James H. Richard Welling, Miller, Welling M. Charlotte, & C., Fort, Columbus, Ga., N. H. James McLendon, McLendon, Jr., L. P. L. P. Robson, Jr., Foster, Charles B. Allen C. Greensboro, C., appellant. N. for Manley Johnson, Jr., Walker F. P. Brown, Floyd Attys., M. Asst. U. S. Buford, Macon, Ga., ap- Atty., for U. S. pellee. TUTTLE, Before GEWIN AINS-
WORTH, Judges. Circuit Judge: AINSWORTH, Circuit principal In this criminal issue case for our determination is whether putting court erred in twice offenses, jeopardy for mistrial having been declared the district on the when agree was unable verdict as to appellant. manager of the Shel-
by Municipal City Airport Shelby, kept North He Carolina. types pa- maintained all aircraft engaged airport trons of also and was building reрairing in the business of helicopters. Bell 47 In connection with business, parts purchased he sources, including various Government surplus property In sales. made purchases several from one Georgia, Benning, ap- soldier at Fort who alleges represented himself to be surplus civilian dealer Government property. investigation An FBI above transactions disclosed selling illegally proper- Government ty. eventually He was arrested and con- illegal part 12(b), Fed.R.Crim.P.; fessed his in the transactions. Barker v. State Ohio, doing so, implicated appellant Cir., 1964, 328 F.2d In charged Stаtes, Cir., 1965, then arrested and Ferina conspiracy count against commit an offense F.2d 837. plea As to the merits of the and one count of receiv- U.S.C. 371 § *3 jeopardy itself, former we observe that ing property stolen in viola- Government established, jury is well when law
tion of 18 U.S.C. 641.
§
agree,
may
cannot
court
that the
in its.
discretion declare a
1966,
mistrial without
28,
On
two
March
and
parties
opposing
consent of the
and with
were
these
other
for
defendants
tried
creating
out
a bar to a future trial on.
jury.
the fourth
offenses before
day
On
afternoon,
same offense. The
trial,
Unitеd States v.
at 5:15
Perez,
579,
579,
9 Wheat.
22
6
jury
U.S.
L.Ed.
retired
consider their verdict.
to
(1824);
165
accord,
deliberation,
nearly
United
After
Gilmore v.
five
hours
Cir.,
States,
1959,
44,
5
jury
264
cert.
F.2d
the
jury
to the
court had the
returned
denied,
994,
1126,
359
any
79
U.S.
S.Ct.
3
box and instructed them that
agree- L.Ed.2d
they
Rothaus United
time
reached
unanimous
5
319
regard
any
528.
F.2d
ment
to
of the counts
with
defendants, they
concerning any of the
Story, delivering
opinion
Justice
they
could
return
verdict
of the
case,
Court in the Perez
said:
again
reached.1 The
jury
retired to
question,
arises,
therefore,
“The
re-
room and within five minutes
discharge
whether
jury by
guilty
turned
all of
a verdict of
on
any
giving
сourt from
upon
verdict
against
Bobby
the counts
co-defendant
indictment,
they
with which
were
late
Griffin Packard. Because
charged, without the consent of the
inability
jurors
hour
to
and the
of the
prisoner,
any
ais
bar
future
to
agree on a verdict for the other two
for
be,
the same
If it
оffense.
then he
immediately
defendants,
court
discharged
is entitled to be
from cus-
clared a mistrial as to those two defend-
tody;
not,
ought
then he
to be held
ants.
imprisonment
until such trial can
After
on
same
opinion
a second trial
be had. We are of the
that the
guilty
indictment, appellant was
legal
found
facts constitute no
bar to a future
claims,
and he
prisoner
first time
now
trial. The
has not been con-
appeal,
put
this
that
was twice
acquitted,
may again
victed or
and
jeopardy
offenses,
put upon
viola
for the
think,
his defense. We
that
tion of
Amendment
to
nature,
Fifth
in all cases of this
the law has
Constitution of the
This
justice
United States.
invested courts of
with author-
defense, properly speaking,
ity
discharge
should have
giving
affirmatively
any verdict,
been
raised at some
whenever,
opinion,
in their
proceedings
taking
in the
in the district
all the circumstаnces into con-
by appellant’s
sideration,
and was
fail
thus waived
there is a manifest neces-
sity
act,
ure to
Rule
assert it at
trial. See
for the
public
ends of
judge
jury:
regard
1. The trial
defendants,
said
with
to all of the
“Now,
it
since
is obvious
that
want
make it
clear
that at
respect
any
hаve not
a verdict with
agree-
reached
time
reach unanimous
regard
any
to all
in the
on a
counts
ment
verdict with
respect
defendants,
case, you may
all
it
but since
defendant
in enter
possible
you may
regard
reached
verdict with
to that defend-
regard
agreement
unanimous
ant
the indictment and return that
court,
though you may
both counts
in connection with some
verdict
into
even
defendant,
disagreement
regard
defend-
be in
more
still
ants, but have not
reached unanimous
defendants
in the case.”
agreement
regard
to all counts
290
days in
the records
which to еxamine
justice
defeated.
al
otherwise be
would
was,
contends that
They
sound discretion
exercise a
are to
therefore,
give
impossible to
subject;
it is
forced
on the
himself,
Amend-
of the Fifth
all
the circumstances
define
The
proper
ment.
stated
to interfere.”
it
would render
start of the
trial that because
second
has
of the law
clear
This
nature
voluminous
consistently
the federal
followed
introduced
fact
were
years. Keerl
than
courts
more
stages
the latter
Montana,
U.S.
v. State
Attorney should be
(1909);
Gori
L.Ed. 734
S.Ct.
opportunity
records.
an
examine thе
U.S.
S.Ct.
(1961);
Howard
6 L.Ed.2d
voluntarily in
were
*4
States, Cir.,
F.2d
372
v.
United
by appellant in
troduced into evidence
Cir.,
States, 9
Tolan v. United
again
first
the second
the
trial and
in
warrant deviation Cir., F.2d 363. United judge in The trial standard. established appellant, It who is a contradiction charge supplemental to the said voluntarily sup in records introduced return a verdict that should trials, port to of his own defense in both against all of all of the counts than lеss give required evi contend that he to was defendants, he decide would then prose himself because mistrial.2 not to declare a whether or permitted ex was cution to examine only possibility mind, after With this Ballard hibits he introduced. In deliberation, five minutes of additional States, Cir., 1943, United 138 F.2d aсquittal a verdict of returned deciding the Ninth a similar Circuit no as to for one defendant and verdict case said: of In view the other defendants. two circumstances, we find that these voluntarily pro- “The letters were by court did not its discretion abuse put by appel- duced in evidence dеclaring a a mistrial and that mistrial compulsion, lants. There no no was to does not a future create bar seizure, search or no of violation indictment. Constitution.” trial, appel- In the the first course of After a reasonable time had been doc- certain lant introduced intо evidence Attorney, allowed United States After support his defense. of uments court ordered the to returned at mistrial declared respective parties. exhibits, At the second requested the return of his again trial it was Attorney voluntar sever- allowedthe States ily granting request, introduced the Before into evidence.3 pertinent judge’s remarks, concerning fendant or defendants whom 2. The you agreement, part, have not or are as reached follows: “ * * * you simply whether return I would declare a mis- should regard regard de- with to defendant or a verdict with defendаnts, you concerning those with- defendants whom some two fendant agreement complete agree- being have not reached unanimous out ment.” regard de- other defendant concerning remaining, whom fendants agree- 3. On unanimous cross-examination second trial have not rеached ment, re- decide I after then will testified: done, Well, you object “Q. should what didn’t turn verdict require you Attorney looking them; delib- District should whether regard nothing there’s wanted erate further sought by relevant to the contention that in his find no merit We jurors and, therefore, qualification give thus forced by we Fifth find no abuse discretion against himself, district court. Amendment. objected to the Appellant also asserts several testimony of the wit grounds relating (some admission of error telephone
ness,
concerning
jury)
Mrs.
court’s instructions
allegedly
fully
conversations
she
considered
insub-
concerning
numerous details
The
stantial and without merit.
court’s
controlling
conspiracy.
decisions
charge
fair
was a
and correct statement
hold that such
applicable
law and was conducive
voice,
“Identification
just
by
admissible.
to a
determination of the issues
however,
prerequisite
the ad
jury.
is not a
missibility
telephone conversation.
of a
Affirmed.
* * * Identity
person
alleged to have
whom the conversation
ON MOTION FOR RECONSIDERA-
may
circum-
been had
be established
TION OF OUR ORDER DENYING
evidence.”
Cwach
stantial
ORIGINAL
RE-
PETITION FOR
520, 525;
Cir.,
212 F.2d
HEARING
Johnston,
accord,
United States v.
*5
present
1963,
In the
ease
F.2d 288.
PER CURIAM:
evi-
there
sufficient
circumstantial
was
view,
In our
the
exer-
court
identifying appellant
person
the
as
declaring
cised sound discretion in
a mis-
therefore,
with, and,
spoke
the witness
appellant
trial as to
and another defend-
admitting
in
district court did not err
the
ant
at
first
trial of
case. The
this
telephоne
testimony concerning their
her
judge,
present
trial
who was
and able
conversations.
situation,
quite
to evaluate the
saw
clear-
ly
agree
jury
of
that
was unable to
on a
dire examination
On voir
verdict,
jury
and we
not
the court
will
interfere
for the second
judgment
jurors
prospеctive
part
exercise of
on
that
informed the
proper
which
previous
we
in a mistrial and
believe was
under
trial
ended
had
Nothing
any
inquired
circumstances.
of
if
had
knowl
submitted
in
them
edge
proceedings
exhaustive briefs of
that
trial.
new
of
counsel
effect,
appellant,
court,
present
in connection
in
claims that
(including
motion
that
members
citation of
told the second
Dow-
appellant
num
to be
v. United
of the first
believed
U.S.
guilty.
(1963),
S.Ct.
The court
discretion