decided amended march 2 1973.: February 13, 1973.
(D.C. Crim. No. 69-376). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Biggs, Adams and Hunter, Circuit Judges.
This appeal presents a serious question concerning the application of the Fifth Amendment to the Constitution which provides that no person shall "be twice put in jeopardy of life or limb" for the same offense. The appellant Tinney and five co-defendants were indicted for conspiracy and bank robbery pursuant to 18 U.S.C. § 2113(a),(b), and (d). Tinney and three co-defendants were tried together. At the close of the government's case-in-chief, motions for judgment of acquittal were granted as to two of the co-defendants, leaving the prosecutions against Tinney and co-defendant Sellers for submission to the jury.
On the last day of this trial when all evidence had been presented, and prior to the closing arguments to the jury, it was brought to the court's attention that Tinney was not present.*fn1 Tinney's counsel, after having been granted permission to call Tinney's home to see if "there is anything amiss," reported, "His grandmother was out in the corridor there and she said he left at twenty minutes of 9 this morning, and she can't understand it. . . ."*fn2 The court then stated that if Tinney was not present in "ten minutes, I am going to have the marshals pick him up. I am going to revoke his bail and commit him."*fn3 After 10 minutes had elapsed, the trial judge, Judge Wood, declared that "we will proceed with the case of Mr. Sellers."*fn4 The following colloquy then took place;*fn5
MR. LEIDNER [counsel for Tinney]: Do I understand you are declaring a mistrial in Tinney's case?
THE COURT: Oh, no, no. I am just simply stating what I said. Whatever bail he is on is forfeited, a bench warrant will issue, and he will be brought into court whenever the marshals pick him up. We will proceed from there. I am not going to declare a mistrial. If there is a mistrial, he has caused it.
And I will fix bail then, perhaps, and he will sit in jail until I am ready to hear it.
MR. GOGGIN [counsel for Sellers]: Is Your Honor going to permit Mr. Leidner to finish his case as if the defendant were here?
THE COURT: Oh, no, not in the absence of the defendant. I can't do that.
Now it is down to you and Mr. Wright.
MR. GOGGIN: If Your Honor please, I believe the fact that Mr. Tinney hasn't shown up, while it is, of course, no fault of mine or my client, certainly reflects unduly upon our case, and I think it is somewhat prejudicial to my client at this juncture, in view of the circumstances, which, of course, is no fault of the court, the government, or anyone ...