John E. Oelke v. United States of America, Leon T. Graves v. United States

389 F.2d 668 John E. OELKE, Appellant, v. UNITED STATES of America, Appellee. Leon T. GRAVES, Appellant, v. UNITED STATES of America, Appellee. Nos. 21086, 20864. United States Court of Appeals Ninth Circuit. Dec. 29, 1967, Certiorari Denied April 22, 1968, See 88 S.Ct. 1420, 1421. Arthur Katayama (argued), Los Angeles, Cal., Donald S. Emmer, Los Angeles, Cal., for appellant. Wm. M. Byrne, Jr., U.S. Atty., Manuel L. Real, U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Criminal Division, Michael Heuer, Asst. U.S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS and BARNES, Circuit Judges, and SMITH, * District judge. ORDER WITHDRAWING OPINION AND OPINION It appearing to this court that its majority opinion in the above entitled matters, dated September 20, 1967, should be withdrawn and revised; Now, therefore, the said majority opinion dated September 20, 1967, in the above entitled matter, is hereby withdrawn; and a new majority opinion is ordered to be filed, together with the original dissent, as follows: BARNES, Circuit Judge: 1 Leon Thais Graves and John Edward Oelke were two of five defendants joined in an eight count indictment involving the concealment,…

ORDER WITHDRAWING OPINION AND OPINION

It appearing to this court that its majority opinion in the above entitled matters, dated September 20, 1967, should be withdrawn and revised;

Now, therefore, the said majority opinion dated September 20, 1967, in the above entitled matter, is hereby withdrawn; and a new majority opinion is ordered to be filed, together with the original dissent, as follows:

Leon Thais Graves and John Edward Oelke were two of five defendants joined in an eight count indictment involving *670 the concealment, transportation and sale of marijuana, after illegal importation. The first six counts of the indictment relate to alleged possession or sale by one or more of the three other defendants of three quantities of marijuana (one on June 7, 1965 and two on June 10, 1965), 21 U.S.C. § 176a.

Counts 7 and 8 related to these appealing defendants alone, and to a different date (June 16, 1965), and to marijuana different from that referred to in Counts 1 to 6.

On August 2, 1965, the case was transferred for trial to Judge Roger D. Foley, of Nevada, sitting by assignment in the Southern District of California, Central Division (now the Central District of…

(dissenting).

Reluctantly I dissent. The defendants were fairly tried, and fairly convicted. I think they were not prejudiced by what was done. I think the rule should be that a defendant may not successfully claim double jeopardy in cases where a trial is interrupted unless it appears that the purpose of the interruption was to give some advantage to the prosecution or that the defendant has suffered some prejudice from it. I would not presume prejudice from the fact that the trial is not completed with the jury initially im-panelled. The inconveniences suffered by a defendant in attending a partial trial, and later a full trial, I would subordinate to the social need for determinations of guilt where guilt exists. These are the reasons for my reluctance.

Now the reason for my dissent: As I read the opinions of the Supreme Court from United States v. Perez, 9 Wheat. 579 , 22 U.S. 579 , 6 L.Ed. 165 (1824) down to United States v. Tateo, 377 U.S. 463 , 84 S.Ct. 1587 , 12 L.Ed.2d 448 (1964), I am compelled to the conclusion that jeopardy does attach unless the interruption of the trial is due to some urgent circumstance or unless the ends of justice or an overriding public…