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UNITED STATES v. KLEIN

December 22, 1977

UNITED STATES OF AMERICA, against ALLEN KLEIN, Defendant.


The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

VINCENT L. BRODERICK, U.S.D.J.

 On April 6, 1977, the Government filed an indictment charging defendant Allen Klein with income tax evasion and making false statements on income tax returns, in violation of 26 U.S.C. §§ 7201 and 7206(1). Defendant entered a plea of not guilty. The case was tried before a jury and on November 10, 1977, after seventeen trial days and six days of jury deliberation, Judge Metzner declared a mistrial due to failure of the jury to reach a verdict.

 The case was reassigned to me and a retrial is scheduled for January 30, 1978.

 Defendant Klein has moved for dismissal of the indictment on the grounds that retrial would violate his rights under the Fifth Amendment to the United States Constitution not to be twice placed in jeopardy for the same offense.

 The question here is, as it was in the seminal case of United States v. Perez, 22 U.S. 579, 6 L. Ed. 165 (1824), "whether the discharge of the jury, by the court, from giving any verdict upon the indictment, with which they were charged, without the consent of the [defendant], is a bar to any future trial for the same offense."

 The trial court has authority to discharge a jury from giving any verdict, "whenever, in the opinion of the judge taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." Id.; See also United States v. Jorn, 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971); United States v. Grasso, 552 F.2d 46 (2d Cir. 1977). It is clear that a declaration of a mistrial because of a hung jury does not of itself preclude reprosecution. Downum v. United States, 372 U.S. 734, 736, 10 L. Ed. 2d 100, 83 S. Ct. 1033 (1963); Comment, Double Jeopardy and Reprosecution After Mistrial, 69 Nw.U.L.Rev. 887, 896-97 (1975).

 In resolving the question of "manifest necessity" for declaration of a mistrial, it is necessary to determine whether the trial judge considered all the procedural alternatives to a mistrial. United States v. Jorn, supra, 400 U.S. at 485; United States v. Grasso, supra, 552 F.2d at 52; Note, Mistrial and Double Jeopardy, 49 N.Y.U.L.Rev. 937, 945 (1974).

 In this case, after four full days of deliberation by the jury, Judge Metzner inquired of the jury:

 Have you reached a verdict on any count in the indictment? If not, is there a possibility that you will reach a verdict on any count in the indictment if you continue your deliberations?

 The jury's response indicated that although some jurors felt there was no possibility of a verdict, that view was not held by the entire jury:

 Some feel there is no possibility of reaching a verdict on any of the counts as we appear to be deadlocked at this point. This, however, is not unanimous.

 Tr. 2841. At this point, the judge excused the jury for the day.

 The following day, Judge Metzner delivered a modified Allen charge, advising the jurors of their duty to make a ...


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