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United States v. Wecht

April 29, 2008

UNITED STATES OF AMERICA
v.
CYRIL H. WECHT



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

Electronically Filed

ORDER OF COURT DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AND TO PRECLUDE THE GOVERNMENT FROM FURTHER PROSECUTION IN VIOLATION OF THE PROHIBITION AGAINST DOUBLE JEOPARDY (DOC. NO. 868)

Before the Court is Defendant's Motion to Dismiss the Indictment and to Preclude the Government from Further Prosecution in Violation of the Prohibition Against Double Jeopardy (doc. no. 868). After giving due consideration to defendant's motion, his brief in support (doc. no. 869), and the government's brief in response thereto (doc. no. 915), Defendant's Motion to Dismiss the Indictment and to Preclude the Government from Further Prosecution in Violation of the Prohibition Against Double Jeopardy has no factual basis or any legal authority that arguably supports his position, and, therefore, the motion is denied.

Where, as here, a defendant moves a trial court to declare a mistrial, the Double Jeopardy Clause is simply not implicated. Defendant twice moved the Court to declare a mistrial and discharge the jury in this case, arguing that the jury already had unambiguously announced that it was hopelessly deadlocked on all counts, which the Court confirmed by individual polling of each juror.

Further, it is black letter Double Jeopardy law that the government may retry a defendant following a mistrial where the record shows, as it does beyond any shadow of a doubt in this case, that there is manifest necessity for declaration of the mistrial. Nowhere is manifest necessity more obvious than in this case -- one that the United States Supreme Court describes as the "classic" manifest necessity situation. After two additional days of deliberation following this Court's standard "deadlocked jury" instructions to return to the jury room and continue to deliberate after it initially indicated it had reached an impasse, the jury unequivocally declared: "Pursuant to court instructions the jury contends we have exhausted all further deliberation efforts. We agree unanimously that we are unable to reach a unanimous verdict on all 41 counts and are essentially deadlocked in the case of United States of America v. Cyril H. Wecht." See Court Exhibit C-13; Minute Entry for April 8, 2008 (doc. no. 858), and Transcript for April 8, 2008 (doc. no. 874).

Thus, under basic, well-established and entirely non-controversial Double Jeopardy principles, Defendant's Motion to Dismiss the Indictment and to Preclude the Government from Further Prosecution in Violation of the Prohibition Against Double Jeopardy (doc. no. 868) must be denied.

Background

1. March 27, 2008

On the fifth full day of jury deliberations, on March 27, 2008, the Court received, through the bailiff, a written message from the jury, marked as Court Exhibit 5, stating that "out of the 41 counts if any one or more count the jury can not come to unanimous agreement on - does that constitute a hung jury"? Although its message suggested that the jury had been able to reach verdict on some but not all counts, the message was ambiguous. After hearing from counsel as to their respective positions, the Court declined the government's request to give a "partial verdict" instruction at that time,*fn1 and instead gave the supplemental instruction that was suggested by defense counsel, and agreed to by the government, that the jury should continue its deliberations, using the language approved by the United States Court of Appeals for the Third Circuit in United States v. Fioravanti, 412 F.2d 407, 419-20 (3d Cir. 1969).

2. April 3, 2008

About one week later, on April 3, 2008, the jury sent another written note through the bailiff to the Court, marked as Court Exhibit C-12, stating that it unanimously agreed it had reached an "impasse" and agreed that "additional deliberations would not be helpful." The Court conferred with counsel again, indicating it intended to poll the jurors individually and then deliver an additional charge to the jury and return it to the jury room for further deliberations. The Court gave the parties and counsel additional time to consider this suggestion.

The government's position was that the Court render the partial jury instruction set forth in the Model Jury Instructions at Section 9.08. Defendant agreed with the Court that the individual jurors should be polled, but requested the Court to declare a mistrial and discharge the jury immediately if polling confirmed that the jury was hopelessly deadlocked. Transcript, March 27, 2008 (doc. no. 910), at 14-15. See also "Defendant's Objections to Government's Proposed Jury Instructions Regarding Partial Verdict (Document No. 850) and Cross Motion to Discharge the Jury" (doc. no. 852) at 5.

This Court denied both alternatives requested by counsel, i.e., the government's requested partial verdict instruction and defendant's oral motion for a mistrial. As is the customary practice in the United States District Court for the Western District of Pennsylvania to instruct the jury to return to further deliberate at least once after being advised that it has been unable to reach a verdict, the Court brought the jury to the Courtroom and instructed it, following the Supplemental Instruction at Section 9.05 of the Model Jury Instructions for Criminal Trials recommended by the Committee for the United States Court of Appeals for the Third Circuit on Model Criminal Jury Instructions, that it should continue its deliberations, and returned the jury to deliberate for as long as the jury deemed appropriate. Defendant requested the Court to set a deadline or time table on additional jury deliberations, which the Court declined to do.

The jury informed the Court, through the bailiff, that it agreed to return on Monday, April 7, 2008, to continue its deliberations at 8:00 am. The Court excused the jury for the day, shortly after 2:00 pm, at the jury's previously requested departure time. Later that same day, the government filed a written request that the Court give the supplemental "Partial Verdict Instruction" before deliberations resumed, advising the jury that it could return verdicts on some, but not all, of the counts of the indictment, if it was able to reach unanimous verdict on some counts but not others, based on the jury's previous message of March 27, 2008. The Court "text-only" ordered a response to the government's proposed supplemental "Partial Verdict Instruction" by the following day.

3. April 4, 2008

On April 4, 2008, defendant filed "Defendant's Objections to Government's Proposed Jury Instructions Regarding Partial Verdict (Document No. 850) and Cross Motion to Discharge the Jury." (doc. no. 852). In strenuously opposing the government's request for a partial verdict instruction and zealously advocating for an immediate declaration of mistrial and discharge of the jury before it returned to deliberate on April 7, 2008, defendant argued, in most pertinent part, as follows:

There is no basis to now instruct the jury on a partial verdict or to give Model Instruction 9.08 as requested for the third time by the prosecution. In fact, for reasons stated yesterday and as set forth herein, the defense moves this Court for the discharge of the jury in light of the fact that all jurors confirmed the existence of a hopeless deadlock and that further deliberation would not lead to a unanimous verdict.

Instead, the defense submits that the procedure followed yesterday by the polling of the jury, after the prior instruction given on March 27, 2008, were the equivalent under the circumstances of the deadlocked jury procedures of Model Instruction 9.06. Those instructions specifically counsel the Court to ask each juror: Do you agree that there is a hopeless deadlock which cannot be resolved by further deliberation. That is exactly what the Court asked each juror by the two questions posed to each juror. Model Instruction 9.06 further advises as to the procedure to be used if the jury confirms a hopeless deadlock and those procedures specify that the Court should obtain the defense position on whether to declare a mistrial, which the defense did provide the Court yesterday.

* * * . . . the jury squarely indicated that it considered all counts in a variety of ways, had followed the prior supplemental instruction to consider all individual opinions and thereafter each juror agreed they were hopelessly deadlocked and that further deliberations would not lead to unanimous verdicts.

To now give a partial verdict instruction in a supplemental charge under these circumstances clearly is the usual ominous context by which it could operate as a dynamite charge to blast a hung jury into a verdict. United States v. Fioravanti, 412 F.2d 407, 419 (3d Cir. 1969). Indeed, to provide such an instruction on Monday could hardly be seen as anything other than the Court providing the jury a way out of the hopeless deadlock each juror has attested to on the record. . . .

. . . [T]he Court properly declined to give the requested supplemental instruction twice before and should do so again. Moreover, and as set forth herein, the defense respectfully moves for the discharge of the jury and declaration of a mistrial in light of the jury's unqualified individual declarations that they are hopelessly deadlocked and that further deliberations would not lead to unanimous verdicts. Indeed, requiring a jury to continue deliberations despite genuine and irreconcilable disagreement more often than not defeats the ends of public justice; not only will such compulsion needlessly waste valuable judicial resources, it may coerce erroneous verdicts. United States v. See, 505 F.2d 845 (9th Cir. 1975). "Defendant's Objections to Government's Proposed Jury Instructions Regarding Partial Verdict (Document No. 850) and Cross Motion to Discharge the Jury." (doc. no. 852), at 4-6.

4. April 7, 2008

On April 7, 2008, this Court entered its "Order of Court Denying Defendant's Motion for Reconsideration of Denial of Motion for Mistrial Embedded in Document No. 845" (doc. no. 855). This Order sets forth the procedural and factual background necessary to place in context defendant's pending motion to dismiss on double jeopardy grounds -- a motion that diametrically contradicts his stated position that the jury's collective and "unqualified individual declarations that they are hopelessly deadlocked and that further deliberations would not lead to unanimous verdicts" required declaration of a mistrial and discharge of the jury. The Court's Order of April 7, 2008, is repeated below:

Before the Court is "Defendant's Objections to Government's Proposed Jury Instructions Regarding Partial Verdict (Document No. 850) and Cross Motion to Discharge the Jury." (doc. no. 852). Although called a "Cross Motion," there are no pending motions to which this one can be reasonably be considered to be "crossed," and the relief sought is obviously in the nature of a motion to reconsider the Court's ruling of April [3]*fn2 , 2008, denying defendant's oral motion to declare a mistrial and discharge the jury. The background for defendant's motion to reconsider is as follows:

A previous message from the jury, on March 27, 2008, Court Exhibit 5, stated that "out of the 41 counts if any one or more count the jury can not come to unanimous agreement on - does that constitute a hung jury"? Although that message suggested that the jury had been able to reach verdict on some but not all counts, the message was ambiguous, and, therefore, the Court declined to give a partial verdict instruction at that time, after hearing from counsel, and instead gave the supplemental instruction suggested by defense counsel, and agreed to by the government, that the jury should continue deliberations. The Court used the language approved by the United States Court of Appeals for the Third Circuit in United States v. Fioravanti, 412 F.2d 407, 419-20 (3d Cir. 1969). [FN 1 omitted]

The Court did not hear from the jury again about the status of its deliberations until April 3, 2008, when it sent a written message through the bailiffs that it unanimously agreed it had reached an "impasse" and agreed that "additional deliberations would not be helpful." Court Exhibit C-12. The government suggested the Court render the partial jury instruction set forth in the Model Jury Instructions at Section 9.08, and defendant requested the Court to declare a mistrial and discharge the jury immediately, based on his belief that the jury was hopelessly deadlocked. See "Defendant's Objections to Government's Proposed Jury Instructions Regarding Partial Verdict (Document No. 850) and Cross Motion to Discharge the Jury" (doc. no. 852) at 5.

This Court denied both the government's requested partial verdict instruction and defendant's oral motion for a mistrial. As is the customary practice in the United States District Court for the Western District of Pennsylvania to instruct the jury to return to further deliberate at least once after being advised that it has been unable to reach a verdict, the Court brought the jury to the Courtroom and instructed the jury, pursuant to Supplemental Instruction at section 9.05 of the Model Jury Instructions for Criminal Trials recommended by the Committee for the United States Court of Appeals for the Third Circuit on Model Criminal Jury Instructions, that it should continue its deliberations, and returned the jury to deliberate for as long as the jury deemed appropriate, over defendant's objections that the Court should impose some arbitrary time table on the jury.

The jury informed the Court, through the bailiff, that it agreed to return on Monday, April 7, 2008, to continue its deliberations at 8:00 am. The Court excused the jury for the day . . . shortly after 2:00 pm, at the jury's previous requested time. At 3:45 pm that same day, the government filed a written request that the Court give a supplemental "Partial Verdict Instruction" advising the jury that it could return verdicts on some, but not all, of the counts of the indictment, if it was able to reach unanimous verdict on some counts but not others, ...


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