United States v. Victor Harvey Smith

621 F.2d 350 UNITED STATES of America, Plaintiff-Appellee, v. Victor Harvey SMITH, Defendant-Appellant. No. 79-1706. United States Court of Appeals, Ninth Circuit. June 16, 1980. Rehearing Denied Aug. 22, 1980. Mark E. Griffin, Asst. Federal Defender, Portland, Or., for defendant-appellant. Sidney I. Lezak, U. S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before THORNBERRY, * CHOY and PREGERSON, Circuit Judges. CHOY, Circuit Judge: 1 After a mistrial, the district court denied Smith's motion to dismiss the indictment. Smith argues that the double jeopardy clause required that the motion be granted. We affirm. 2 On the second day of Smith's criminal trial, the court learned that the 87-year-old mother of a juror had suffered a stroke, that the juror had been with her at the hospital since 3:00 a.m., and that the juror could not come to court. No other facts were known. Since the court had neglected to select an alternate juror, it asked the parties if they would consent to proceed with a jury of 11. The defense refused, and the court, sua sponte, immediately declared a mistrial. 3 When a court, in the…

After a mistrial, the district court denied Smith’s motion to dismiss the indictment. Smith argues that the double jeopardy clause required that the motion be granted. We affirm.

On the second day of Smith’s criminal trial, the court learned that the 87-year-old mother of a juror had suffered a stroke, that the juror had been with her at the hospital since 3:00 a.m., and that the juror could not come to court. No other facts were known. Since the court had neglected to select an alternate juror, it asked the parties if they would consent to proceed with a jury of 11. The defense refused, and the court, sua sponte, immediately declared a mistrial.

When a court, in the absence of manifest necessity, declares a mistrial without the defendant’s consent, the double jeopardy clause forbids retrial. See generally United States v. Sanders, 591 F.2d 1293, 1296-99 (9th Cir. 1979).

The record gives no indication that the court here even considered the possibility of a continuance before ordering a mistrial. Since the court did not consider, or have before it the facts necessary for thorough consideration of, an obvious alternative to a mistrial, we cannot say that there was a “manifest…

As I read the record, it is fair to say that the trial judge, in effect, offered the parties the option of proceeding with eleven jurors *353 or mistrying the case and rescheduling it for trial. Defense counsel, after stating his unwillingness to proceed with eleven jurors, expressed concern about his scheduling problems and the possibility that the remaining jurors might feel that the defendant’s conduct precipitated the need for a mistrial. The court, after assuring defense counsel that his concerns would be alleviated, asked counsel, “[D]o you mind if we bring the jury in — the 11 members are here and excuse them?” Counsel replied: “That is fine.”

I am satisfied that defense counsel by his words and conduct led the trial judge to believe that a mistrial, under the circumstances presented, was the desirable course to follow. Accordingly, I vote to affirm.