The opinion of the court was delivered by: VANARTSDALEN
VANARTSDALEN, District Judge.
Defendant, Anthony Michael Medina, was indicted in connection with the robbery of the Girard Trust Bank, Roosevelt Boulevard Office, 2809 Comly Road, Philadelphia, Pennsylvania, on July 25, 1969. In the indictment Medina was charged with conspiracy with one Raymond Brahm and Dorothy Mae Roberts to commit the crime, and with having actually committed the robbery with Mr. Brahm. Brahm pleaded guilty and Dorothy Roberts pleaded nolo contendere.
Medina pleaded innocent and his case came to trial on April 14, 1970, before the Honorable Ralph C. Body and a jury. After three days of trial, the jury found Medina guilty of Count 1 (Conspiracy) but stated it was unable to agree as to the remaining counts. Judge Body declared a mistrial as to the remaining counts, over defendant's objection.
On June 22, 1970, Medina was tried on those counts of the indictment on which the previous jury had reached no verdict. Defendant moved to dismiss those counts on which he was about to be tried claiming that such trial would constitute double jeopardy. The motion was denied and the jury returned a verdict of guilty on all the remaining counts.
Mr. Toomey: "After having spoken with Mr. Medina I am withdrawing any objection to the first trial, which is the conspiracy, the case in which Mr. Medina was convicted of conspiracy."
Court: "What do you say about this, Mr. Medina?"
Medina: "Your Honor, with respect to the conspiracy conviction, with the advice of my counsel, I request to withdraw that Motion for a New Trial."
Court: "I want to make sure that I understand this. That means, therefore, that in effect you are letting stand the conviction on the conspiracy. You are not contesting that conviction."
Medina: "Yes, Your Honor."
Thus, the issue before the Court is whether the charges on which the second trial was held should have been dismissed because it placed the defendant in double jeopardy.
I have some doubt as to the procedure whereby this issue is raised. By withdrawing his objection to the first trial and not contesting the conspiracy conviction and raising the issue of double jeopardy as to the second trial, defendant's motion for a new trial is anomalous. He is certainly not asking this Court to grant him a new trial on the counts that the first jury could not reach a decision because to do that would "put him in jeopardy" again. It appears that defendant's motion should more properly be considered as a motion in arrest of judgment. Although it is recognized that the defense of double jeopardy cannot be raised for the first time by motion in arrest of judgment, United States v. Reeves, 293 F. Supp. 213 (D.C.D.C. 1968, p. 214), I find that defendant has properly reserved that argument. (N.T., 2nd Trial, p. 11).
Defendant alleges two separate grounds to support his argument that the second trial placed him in double jeopardy in violation of the fifth amendment of the constitution. These grounds will be considered separately.
1. The defendant alleges that the trial judge erroneously discharged the first jury prematurely over the defendant's objection. He supports this allegation by saying that the jury in the first case had certain questions directed to the Court, which questions indicated that they might be able to reach a decision favorable to him. Thus, defendant says he was deprived of a favorable verdict by the premature discharge of the jury. In turning to the Notes of Testimony of the first trial, we find that the case was given ...