Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, and FRIENDLY, Circuit Judges.
This appeal, based upon the defendant-appellant's plea of former jeopardy to avoid a criminal conviction, came for hearing before a panel of this court consisting of Judge Waterman and the writer from this Circuit and Judge Lewis of the Tenth Circuit, sitting with us pursuant to statutory designation. In conference the court was in disagreement, Judges Waterman and Lewis voting to reverse and the writer voting to affirm. Draft opinions reflecting this disagreement, together with the briefs, record, transcript, and appendix, were then circulated among the active judges, a majority of whom, believing that the case presented a general problem important to the administration of justice in this circuit, thereupon voted for disposition of the appeal in banc, 28 U.S.C. § 46(c).*fn1 Four active judges having then voted to affirm, the writer was assigned to prepare an opinion reflecting this prevailing view.
The defendant was charged with having knowingly received and possessed goods stolen in interstate commerce in violation of 18 U.S.C. § 659. The trial got under way before Judge Abruzzo on February 4, 1959, after the declaration of a mistrial on the previous day.*fn2 From the opening by counsel it appeared that the defendant would not contest his receipt and possession of stolen goods on February 11, 1958, with the codefendant Corbett - who pleaded guilty - but would claim that he acted without knowledge of their character and only as Corbett's hired employee. The Assistant United States Attorney attempted to prove this fairly simple case first by the testimony of the shipper's traffic manager, second by the truckman from whose truck the goods were stolen, and third by two FBI Special Agents investigating the theft. He ran into repeated difficulty, however, in part because of continuous formal objections by the defense, but even more by interference on the part of the trial judge, who repeatedly ordered the reframing of questions and otherwise took the conduct of the case away from him. The trial continued its rocky course throughout the morning and early afternoon until upon the examination of the fourth witness, Special Agent Deery, there occurred the colloquy set forth in the margin resulting in the declaration of a mistrial by the judge.*fn3 Later Judge Rayfiel in a reasoned opinion denied defendant's motion to dismiss the information on plea of former jeopardy, and he was convicted and sentenced to imprisonment after a jury trial before Chief Judge Bruchhausen. He now appeals from both these actions of the district court, but relies only on the claim of former jeopardy and assigns no error as to his trial before Judge Bruchhausen.
The colloquy set forth in the margin demonstrates that the prosecutor did nothing to instigate the declaration of a mistrial and that he was only performing his assigned duty under trying conditions. This is borne out by the entire transcript, including also that covering the morning session. Nor does it make entirely clear the reasons which led the judge to act, though the parties appear agreed that he intended to prevent the prosecutor from bringing out evidence of other crimes by the accused. Even so, the judge should have awaited a definite question which would have permitted a clear-cut ruling. But if he was thus overassiduous, pursuing the command role which he had assumed for himself, it seems clear that he was acting according to his convictions in protecting the rights of the accused. The defense now urges that the judge was endeavoring to punish counsel's disobedience, but such a characterization, even if apt, adds nothing significant to his over-all purpose; and as to this the defense eleswhere states, "It is undeniable that the trial court was concerned with protecting the rights of the appellant." It is to be noted that the defendant made the original objections leading to the order of mistrial and that he made or attempted no protest to the order itself, but accepted the benefit of the new trial. We have the issue, therefore, whether active and express consent - something beyond acquiescence - is required to prevent this defendant, now convicted after a concededly fair trial, from receiving absolution for his crime by reason of the overzealousness of the trial judge on his behalf. A majority of this court concludes that the federal law does not so command.
The mandate of the Fifth Amendment to the United States Constitution is "* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *." In considering whether the declaration of a mistrial precludes a subsequent prosecution for the same offense the Supreme Court has rejected any rigid formularization of the constitutional requirement in favor of a flexible application of the prohibition. Wade v. Hunter, 336 U.S. 684, 690, 69 S. Ct. 834, 93 L. Ed. 974. This approach originated in United States v. Perez, 9 Wheat. 579, 580, 22 U.S. 579, 580, 6 L. Ed. 165, where Justice Story stated: "We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere." This controlling principle was succinctly reiterated in Brock v. State of North Carolina, 344 U.S. 424, 427, 73 S. Ct. 349, 350, 97 L. Ed. 456:
"This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served. Wade v. Hunter, 336 U.S. 684 [69 S. Ct. 834, 93 L. Ed. 974]; Thompson v. United States, 155 U.S. 271, 273-274 [15 S. Ct. 73, 74, 39 L. Ed. 146]. As was said in Wade v. Hunter, supra, [336 U.S.] p. 690 [69 S. Ct. at page 638, 93 L. Ed. 974], 'a trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice.'"
To the same effect are Lovato v. State of New Mexico, 242 U.S. 199, 37 S. Ct. 107, 61 L. Ed. 244; Simmons v. United States, 142 U.S. 148, 12 S. Ct. 171, 35 L. Ed. 968; United States v. Cimino, 2 Cir., 224 F.2d 274; United States v. Potash, 2 Cir., 118 F.2d 54, certiorari denied Potash v. United States, 313 U.S. 584, 61 S. Ct. 1103, 85 L. Ed. 1540; Scott v. United States, 91 U.S.App.D.C. 232, 202 F.2d 354, certiorari denied 344 U.S. 879, 73 S. Ct. 176, 97 L. Ed. 681; United States v. Giles, D.C. @W.D.Okl., 19 F.Supp. 1009. It is to be noted that in none of these cases is the element of consent by the accused held necessary to obviate the constitutional bar; in fact, they are authority for the contrary view. Actually in several the mistrial had been declared either on the motion of the prosecution or by the court of its own motion, but over the vigorous opposition of the defense; this was the situation in the Simmons, Scott, and Giles cases, as well as in the Brock case, which concerned a state conviction reviewed under the Fourteenth Amendment.*fn4 In yet others, as in Lovato, Cimino, and Potash, it had been declared on the government's or the court's motion, with no showing of express consent by the accused. In all these the ultimate conviction was upheld against the plea of double jeopardy.
The defendant relies on Himmelfarb v. United States, 9 Cir., 175 F.2d 924, 932, certiorari denied 338 U.S. 860, 70 S. Ct. 103, 94 L. Ed. 527, as showing the need of consent; but such was not the court's approach there. Accepting the now well settled view that waiver or consent by the defendant barred his later resort to the plea,*fn5 the court first considered and held ineffective a waiver by counsel without his client's specific assent. Having thus cleared the way, it passed to the "real issue presented," which was "whether or not there was a legal necessity supporting the discharge of the first jury." And this it considered at considerable length with a wealth of learning and citation of authority, concluding: "We think the court did not abuse its discretion." So the denial of the plea was upheld and the conviction was affirmed. To similar effect are cases such as Ex parte Glenn, C.C.N.D.W.Va., 111 F. 257, reversed on other grounds Moss v. Glenn, 189 U.S. 506, 23 S. Ct. 851, 47 L. Ed. 921, and United States v. Watson, D.C.S.D.N.Y., 28 Fed.Cas. page 499, No. 16,651. Thus while consent may bar resort to the plea, its absence does not relieve the judge of responsibility and discretion to discontinue a particular trial when justice so requires. Wade v. Hunter, supra, 336 U.S. 684, 689, 69 S. Ct. 834.
The law as thus stated comports more with our fundamental concepts of the federal administration of criminal justice than does the rigid and inflexible rule contended for by the accused. It has been a source of pride federal-wise that a United States district judge is more than a mere automation or referee and bears an affirmative responsibility for the conduct of a criminal trial. This responsibility is particularly acute in the avoidance of prejudice arising from nuances in the heated atmosphere of trial, which cannot be fully depicted in the cold record on appeal. If the accused retains essentially a power of veto on pain of ban of all prosecution, even though fully justified, it is clear that the judge does not retain control of his courtroom and cannot act as he thinks necessary either to protect the interests of the litigants or to preserve proper respect for federal law administration. Even though there may be a rare case where in retrospect the judge may seem to have been overzealous in his protection of the rights of an accused, we think the law is better served by the preservation of the responsibility which the federal precedents impose upon him.
On this basis we do not believe decision should be difficult, for the responsibility and discretion exercised by the judges below seem to us sound. Here the defendant was in no way harmed by the brief trial which, indeed, revealed to him the prosecution's entire case. He was thus in a position to start anew with a clean slate, with all possibility of prejudice eliminated and with foreknowledge of the case against him. The situation was quite unlike the more troublesome problems found in various of the cases, as where the prosecution desires to strengthen his case on a new start or otherwise provokes the declaration of mistrial, or the court has acted to the prejudice of the accused, or the accused has actually been subject to two trials for essentially the same offense.*fn6 On the other hand, for the defendant to receive absolution for his crime, later proven quite completely, because the judge acted too hastily in his interest, would be an injustice to the public in the particluar case and a disastrous precedent for the future.
I am authorized to say that Chief Judge LUMBARD and Judges MOORE and FRIENDLY concur in this opinion.
WATERMAN, Circuit Judge ...