Mildred Howard v. United States

This appeal presents a somewhat novel twist on an old Constitutional question. We are obliged to determine, on a somewhat unusual set of facts, whether or not a retrial of the appellant after a mistrial where the jury failed to agree, is viola-tive of the double jeopardy or due process clauses of the Fifth Amendment.

The appellant was engaged in the business of assisting taxpayers in the preparation of federal income tax returns. On March 31,1965, the grand jury for the Southern District of California, Central Division, returned a twenty count indictment, No. 34766 (hereinafter referred to as the first indictment). The various counts of the said indictment each dealt with the tax return of a different private individual. It was charged in each instance that the appellant willfully and knowingly aided and assisted the preparation and presentation of federal income tax returns wherein false and fraudulent claims for deductions and exemptions were contained, 1 all in violation of 26 U.S.C. § 7206 (2).

May 24, 1965, trial commenced on the first indictment. At the close of the government’s case in chief, eight counts were dismissed on motion of the government and on these counts a…

I concur in the result, but I think it unnecessary that we consider the constitutional question .raised by appellant.

The rule is well established, both in this circuit and in the Supreme Court, that where there is a conviction on several "counts and the sentences are concurrent, and where there is no question as to the validity of the conviction on certain of the counts, attacks on other counts need not be considered. One of the latest cases in- this circuit is Gabriel v. United States, 9 Cir., 1966, 366 F.2d 726, 727 . I think that this rule is applicable here.

1. I find nothing in the Constitution or the federal statutes which would have prevented the United States from obtaining a second indictment which would include only counts 9 through 15 of the indictment that is before us. See 4 Wharton, Criminal Law and Procedure 520, Thompson v. United States, 9 Cir., 1913, 202 F. 401, 404 ; United States v. Strewl, 2 Cir., 1938, 99 F.2d 474, 477 . There could then have been two trials. One would be a re-trial on the old indictment, and the other would be a separate trial on the new indictment.

2. Under the Federal Rules of Criminal Procedure the trial court has wide discretion to…

372 F.2d 294 67-1 USTC P 9214 Mildred HOWARD, Appellant, v. UNITED STATES of America, Appellee. No. 20558. United States Court of Appeals Ninth Circuit. Jan. 30, 1967. Joseph L. Armijo, Jr., Torrance, Cal., for appellant. Manuel L. Real, U.S. Atty., John K. Van de Kamp, Asst. U.S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U.S. Atty., Asst. Chief Crim. Div., Stephen D. Miller, Asst. U.S. Atty., Los Angeles, Cal., for appellee. 1 Before BARNES and DUNIWAY, Circuit Judges, and McNICHOLS, District judge. 2 McNICHOLS, District Judge. 3 This appeal presents a somewhat novel twist on an old Constitutional question. We are obliged to determine, on a somewhat unusual set of facts, whether or not a retrial of the appellant after a mistrial where the jury failed to agree, is violative of the double jeopardy or due process clauses of the Fifth Amendment. 4 The appellant was engaged in the business of assisting taxpayers in the preparation of federal income tax returns. On March 31, 1965, the grand jury for the Southern District of California, Central Division, returned a twenty count indictment, No. 34766 (hereinafter referred to as the first indictment). The various counts of the…