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UNITED STATES v. BURKE

November 6, 1963

UNITED STATES of America
v.
Francis BURKE



The opinion of the court was delivered by: YOUNGDAHL

Defendant Burke has moved to dismiss a 30-count indictment against him charging violations of 18 U.S.C. § 1341 (use of the mails in a scheme to defraud), on the grounds that trial of the defendant under this indictment would violate his constitutional right not to be placed twice in jeopardy and his constitutional right to a speedy trial. Each of these points will be considered separately.

1. Double Jeopardy.

 Defendant went on trial in this case with a number of co-defendants on January 14, 1963. The trial was protracted, lasting through January, all of February and March, and into April, 1963. On April 9, 1963, Judge Sirica of this court sua sponte declared a mistrial as to defendant Burke, because Burke had for some days prior thereto been confined in the psychiatric ward of New Rochelle Hospital, New Rochelle, New York. A psychiatrist appointed by the court at that time reported that Burke was 'suffering from an Acute Psychotic Depressive Reaction, and that presently he is incompetent because of his mental condition to continue with the trial now in progress, to consult with counsel, or to participate in his own defense.' Judge Sirica requested Burke's attorney to move for a mistrial, which Burke's attorney refused to do on the ground that Burke was incompetent and could not authorize him to take such action. In these circumstances, Judge Sirica very properly declared a mistrial as to Burke and permitted the trial of the other defendants to continue. Burke now asserts that for him to be tried under the same indictment would amount to double jeopardy.

 Gori v. United States, 367 U.S. 364, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961), is completely dispositive of defendant's argument. There the Supreme Court declared:

 'Since 1824 it has been settled law in this Court that 'The double-jeopardy provision of the Fifth Amendment * * * does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.' (Citing Wade v. Hunter, 336 U.S. 684, 688 (69 S. Ct. 834, 93 L. Ed. 974) (1949), and other cases.) Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment.' Gori v. United States, supra, 367 U.S. at 367-368, 81 S. Ct. at 1525-1526, 6 L. Ed. 2d 901.

 In the instant case, the declaration of a mistrial sua sponte was completely proper, since the ends of substantial justice could not have been attained without discontinuing the trial and since to continue the trial would have amounted to a complete miscarriage of justice as against this defendant.

 The motion to dismiss on the ground that trial now of the defendant on the same indictment would amount to double jeopardy will therefore be denied.

 2. Speedy Trial.

 Defendant Burke was indicted, with nine other defendants, in a prior indictment charging violations of 18 U.S.C. § 1341, use of the mails in a scheme to defraud. *fn1" The indictment was presented on July 22, 1959, in the United States District Court for the District of Puerto Rico. All of the alleged victims of the scheme to defraud were identified with Puerto Rican addresses; all of the defendants were residents of continental United States. Defendant Burke was arrested on July 29, 1959, in New Rochelle, New York, and thereafter was released on bond. He employed counsel in Puerto Rico to defend him in Puerto Rico, and paid counsel $ 1,000 for that purpose. The defendants, other than defendant Burke, twice moved for continuances of the trial date, which continuances were granted and trial was set for June 6, 1960. The defendants, other than defendant Burke, then moved to have the case transferred to the United States District Court for the District of Columbia. The motion to transfer was granted on May 24, 1959, and the case was transferred to the District of Columbia on June 14, 1960. *fn2" Defendant Burke participated in none of these motions. On August 5, 1960, Judge Walsh of this Court set October 10, 1960 as the date on which trial would commence. On September 7, 1960, defendant Burke's counsel moved in this Court for a severance from the other defendants, and for a speedy trial, asserting that he had participated in none of the motions to delay and that joinder with the other defendants was prejudicial. This motion came on for hearing on September 14, 1960, together with a motion by the Government to have the trial date postponed to January, 1961. Defendant Burke opposed the Government's motion. On September 14, 1960, Chief Judge Pine denied defendant Burke's motion for relief from prejudicial joinder, and set trial date for November 1, 1960.

 'I have discussed the matter with Mr. Gasch, the United States Attorney. He has requested me to ask the Court to continue this motion for the reason the Government intends to dismiss the present indictment. The Government intends to re-present the matter to a Grand Jury in the District of Columbia to ascertain whether or not further action will be taken in the matter. But we do not intend to dismiss this indictment. We do not desire that it be dismissed today for the main reason it would be a hardship for the defendants if, perchance, the Grand Jury in the District of Columbia, after the matter is presented to them, returns a new indictment, in all probabilities whatever bond these defendants are on now can be transferred to the new indictment without involving an additional premium. If the present case were dismissed, it would mean an additional hardship for the defendants. So the motion of the Government this morning is that these motions set before Your Honor today be continued. Now, I cannot suggest a date, Your Honor, because we anticipate it will take approximately six weeks to present this matter to a new Grand Jury, that is, to thoroughly investigate it and present it. Of course, that will (not) come within the trial date set by Judge Pine, November the 1st. I indicated to Judge Pine in chambers yesterday what the office intended doing. I would suggest a continuance of at least six weeks, Your Honor.'

 Over the objections of counsel for all defendants, including Burke, Judge Walsh postponed the hearing on the motions to December 8, 1960. On October 11, 1960, however, defendant Burke filed a motion to dismiss with prejudice. On October 13, 1960, on motion of the Government, Judge Pine dismissed the indictment against defendant Burke and one other defendant, but without prejudice to the bringing of a new indictment.

 A new indictment was filed on March 26, 1962, naming Burke and 13 others, and again charging violation of 18 U.S.C. § 1341. The only significant difference between this indictment and the prior indictment is the list of 'victims' of the alleged scheme to defraud, all of the victims in the instant case being residents of continental United States. Otherwise, the substance of the scheme to defraud -- involving the offers of future loans, the securing of immediate cash collateral for the future loan, and the failure ever to complete the loan or to return the collateral -- is the same. After various pretrial motions, including a motion by defendant Burke to dismiss for failure to grant him a speedy trial (which motion was denied by Judge Pine on May 21, 1962 and denied again by Judge Sirica at the time of trial), the case went to trial on January 14, 1963.

 During the trial, after the defendant Burke was discovered to be confined in the psychiatric ward of New Rochelle Hospital, New Rochelle, New York, Judge Sirica appointed a psychiatrist to examine Burke and ...


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