United States v. Lance H. Mortensen

After two jury trials before the U.S. Magistrate for the Western District of Washington, Lance H. Mortensen was convicted and sentenced for willful failure to file a tax return. Mortensen appeals the district court order affirming his conviction and sentence. He presents two issues on appeal: (1) whether he should have been allowed to withdraw his consent to trial before the magistrate after his first trial ended in a mistrial, and (2) whether the magistrate erred in admitting into evidence on retrial the testimony Mortensen gave during the first trial. We hold that a defendant is entitled to withdraw in a timely manner his consent to trial before a magistrate. Because we find that Mortensen’s withdrawal motion was not timely and that his evidence claim is meritless, we affirm the district court order.

FACTS

In 1985, Mortensen was charged with four counts of willful failure to file a tax return under 26 U.S.C. § 7203 . He consented in writing to trial before a magistrate as provided by 18 U.S.C. § 3401 (b). His first jury trial ended in a mistrial on December 7, 1985, after the jury failed to reach a unanimous verdict. The magistrate scheduled a retrial. On the morning of the…