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December 15, 1978

Carl L. LYNCH et al.

The opinion of the court was delivered by: OBERDORFER


This case is before the Court now on defendants' motions to dismiss the indictment as barred by the double jeopardy clause of the Fifth Amendment, because of the mistrial declared by the Court on November 27, 1978 over defendants' objection. Based upon the following findings of fact and conclusions of law, the Court concludes that the mistrial was manifestly necessary and that retrial is not barred by the double jeopardy clause. Therefore, the motions to dismiss have been denied.


 1. A superceding indictment, charging 22 defendants with 32 counts, was returned by the Grand Jury on August 18, 1978.

 2. Trial began on October 31, 1978 before Judge Thomas Flannery and continued through November 13.

 3. On November 14, trial resumed before Judge Gerhard Gesell. Judge Gesell reported that Judge Flannery was ill and that the case would have to be continued. He then continued trial until November 20 at 2:30 p.m. See Transcript of Proceedings, November 14, 1978, Appendix 1.

 4. On November 20, trial again resumed before Judge Gesell, who continued trial until 9:30 a.m. on November 27, noting that Judge Flannery was undergoing tests at the hospital and expected to be able to resume the trial on that date. Assistant U. S. Attorney Peter Mueller stated to the Court that the jury expected to sit through the end of November. See Transcript of Proceedings of November 20, 1978, Appendix 2.

 5. As evidenced by Appendix 3, a memorandum from Chief Deputy Clerk Herbert Haller to Judge Gesell, dated November 24, Judge Gesell requested Mr. Haller to inquire whether any other active judge would be able to take over the trial. Mr. Haller polled the Court on or before November 24 and reported that none would be able to do so.

 6. On November 27, three days after the Haller memorandum, and after two continuances, Judge Gesell again resumed trial and declared a mistrial. He noted Mr. Haller's efforts and noted, in addition, that no senior judges were available and that the jury had been held for five weeks. *fn1" See Transcript of Proceedings, November 27, 1978, Appendix 4.

 7. Defendants objected to the declaration of a mistrial; See Appendix 4.

 8. On November 28, 1978, Judge Gesell entered a written order declaring a mistrial based upon manifest necessity; See Order of November 28, 1978, Appendix 5.

 9. At the time the mistrial was declared, Judge Flannery was unable to proceed with the trial due to ill health for an indefinite period extending at least into January, 1979; See Appendix 5.

 10. The mistrial was declared four weeks after the jury had been impanelled. During the two weeks immediately preceding the mistrial, no substantive proceedings had occurred, and the members of the jury had been in the courtroom and under direct court supervision and instruction on only two brief occasions.

 11. The jury was not sequestered.

 12. The Court takes judicial notice of the outside pressures and influences to which juries in Washington, D.C. may be exposed and which prompt judges frequently to sequester juries in prominent cases.

 13. The Court takes judicial notice that the requirements that the jury not speak with one another or with nonjurors is enforced during an ongoing trial by frequent reinstruction by the trial judge. The possibility of disobeying these strictures, intentionally or unintentionally, is necessarily greater when continuances leave the jury at large for a long period of time.

 14. Judge Flannery had conducted the voir dire of the jury in this case and had unique experience both with the jury and with the facts and issues, as evidenced by the daily transcripts and his rulings on several motions in the case, which would not have been transmitted to a judge newly assigned five weeks after the trial commenced.

 15. On November 14, and again on November 20, Judge Gesell obviated a mistrial by granting two continuances in the hope of Judge Flannery's quick recovery. In view of Judge Flannery's continued illness and the unavailability of any judge to resume the trial promptly, on November 27 the remaining alternatives to a mistrial were: (1) holding the jury until Judge Flannery could resume trial no earlier than January, 1979, five weeks later, or (2) holding the jury until the case could be reassigned to another judge and that judge could resume the trial in a manner consistent with his other judicial responsibilities. Judge Gesell canvassed and considered both these alternatives, and exercised sound discretion in rejecting both.

 16. At the hearing on November 27, the defendants proposed no alternatives beyond waiting for another judge to become available, See Appendix 4.


 1. When a criminal defendant objects to the declaration of a mistrial, retrial is barred unless the mistrial was the result of "manifest necessity." The Supreme Court has frequently cited Justice Story's formulation of the test of manifest necessity:

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 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. To be sure, the power ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious causes . . . . But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this as in other cases, upon the responsibility of the Judges, under their oaths of office.

 United States v. Perez, 22 U.S. 579, 9 Wheat. 579, 580, 6 L. Ed. 165 (1824), quoted in Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, n. 18 at 830, 54 L. Ed. 2d 717 (1978).

 2. No mechanical rule exists for the determination of manifest necessity; nonetheless, it is clear that the standard does not require that a mistrial be "necessary" "in a strict literal sense." Arizona v. Washington, supra at 830-31. While generalization in this complex area is hazardous, manifest necessity has most often been found in cases where, for circumstances beyond the control of the parties or the court, it is no longer possible to conduct a fair trial before the judge or jury and no longer possible to reach a fair result based upon the evidence. See Illinois v. Somerville, 410 U.S. 458, 460-71, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973). Necessary to the decision are the careful weighing of defendant's right to have his trial completed by a particular tribunal and the public's interest in fair trial and just judgment; Wade v. Hunter, 336 U.S. 684, 688-89, 69 S. Ct. 834, 93 L. Ed. 974 (1949). *fn2"

  3. Illness of the judge has long been recognized as an exigency requiring a mistrial and justifying retrial thereafter, E. g. Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975) (per Roberts, J.), Cert. denied, 423 U.S. 934, 96 S. Ct. 290, 46 L. Ed. 2d 265 (1975); People ex rel. Brinkman v. Barr, 248 N.Y. 126, 161 N.E. 444 (per Andrews, J., Cardozo, C. J., concurring); Compare Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973), in which the declaration of mistrial by a visiting judge, who found the trial would extend beyond the time he had been scheduled to preside, was held not manifest necessity. Although the number of reported cases involving judges becoming ill are few, many more cases have recognized such illness as a classic example of manifest necessity, E.g., United States v. Gori, 367 U.S. 364, 372, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961) (Douglas, J., dissenting), United States v. Whitlow, 110 F. Supp. 871, 876 (D.D.C.1953); See 22 C.J.S. Criminal Law § 259 at 676.

 4. The manifest necessity of mistrial because of judicial illness is also supported by analogy to another common type of manifest necessity resulting from the deadlocked jury. The decision whether mistrial is manifestly necessary is a "practical matter", Abney v. United States, 431 U.S. 651, 658, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). The Court has long recognized such practical considerations as the pressures which build on a jury which is unable to reach a verdict after a long period of deliberation, and the possibility that the jury may rush to judgment in order to free itself from its deliberative confinement, E.g., Keerl v. Montana, 213 U.S. 135, 137-38, 29 S. Ct. 469, 53 L. Ed. 734 (1909); Dreyer v. Illinois, 187 U.S. 71, 85-86, 23 S. Ct. 28, 47 L. Ed. 79 (1902); Logan v. United States, 144 U.S. 263, 298, 12 S. Ct. 617, 36 L. Ed. 429 (1892); United States v. Perez, supra; see Arizona v. Washington, supra 98 S. Ct. at 832.

 The lengthy delay necessitated by Judge Flannery's illness posed problems for the integrity of the decision-making process, similar to that posed by the hung jury in creating "a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors", Id. Juries in the District of Columbia normally are called for a two-week period. The jury had been given reason to believe it was to be discharged at the end of November. Here, the jury would have been delayed far beyond its initial expectations and might, upon resumption of the trial, as with a hung jury, have reached a precipitous result because of its desire to terminate its duty. Threat to the decisionmaking process is even greater here, however, because of the heightened risk that one or more jurors, free from the daily rigors of trial and daily supervision by the judge, might inadvertently discuss the case with fellow jurors and with nonjurors, See finding of fact 13, Supra.

 5. Here, efforts to locate another judge were diligently undertaken, See finding of fact 5, Supra.

 6. These efforts, as well as the time period involved, exhaustion of the first alternative of granting continuances in the hope of Judge Flannery's rapid recovery, and the reasons articulated both orally and in a written order, support the Court's conclusion that Judge Gesell's decision that a mistrial was manifestly necessary under the circumstances was neither precipitous nor unconsidered, Compare United States v. Jorn, 400 U.S. 470, 484, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). See also Glover v. United States, 301 A.2d 219 (D.C.C.A.1973).

 7. The mistrial was not caused by prosecutorial error, Compare Illinois v. Somerville, supra 410 U.S. at 475, 93 S. Ct. 1066 (White, J., dissenting), nor by any element within the control of the prosecutor or judge, Id. at 483, n. 2, 93 S. Ct. 1066, (Marshall, J., dissenting) nor by the unavailability of witnesses, nor a technical defect in the pleadings, Id. at 480, 93 S. Ct. 1066.

 9. This is an unusually complex conspiracy case. There are ten defendants, each represented by separate counsel. The indictment contains over 30 counts. The conspiracy count alleges over 60 overt acts by over a score of coconspirators. Judge Flannery had conducted the jury voir dire, had given the jury numerous interim instructions, had become familiar with the law and facts during extended pretrial proceedings and during three concentrated weeks of trial. It is extremely doubtful that a new judge, taking over from Judge Flannery in mid-trial, could have afforded defendants their claimed right to completion of the trial by the same "tribunal", if that term may be applied to court and jury. *fn3"

 10. Any alternative to mistrial would have posed a serious threat to the public's interest in a fair trial ending in a just judgment, based solely upon the evidence in the case; Wade v. Hunter, supra 336 U.S. at 688-89, 69 S. Ct. 834. The Court, therefore, concludes that Judge Flannery's illness and the subsequent delays in continuances in the trial, as well as the unsuccessful efforts to find another judge to take the case over, made a mistrial manifestly necessary, such that retrial is not barred by the double jeopardy clause.


 The above-entitled matter came on for trial before The Honorable THOMAS A. FLANNERY, U. S. District Judge, and a Jury, commencing at approximately 10:30 o'clock, a.m.



 THE COURT: (The Honorable Gerhard A. Gesell, United States District Judge) Gentlemen, I wanted to report to you and then to the Jury, that Judge Flannery is not feeling well and the case is going to have to adjourn until two thirty on Monday.

 Bring in the Jury.

 (Whereupon, the Members of the Jury resumed their seats in the Jury Box)

 THE COURT: Ladies and gentlemen of the Jury, I am Judge Gesell from the courtroom next door.

 Judge Flannery is not feeling well, and so I am pinch hitting for him here, briefly, to give you this announcement: The case is going to be continued now until Monday at 2:30, so I am excusing you at this time.

 You are to report back next Monday, January 20th to this courtroom at two thirty. Now, needless to say, you must not discuss the facts of the case with anyone, or among yourselves. Don't let anyone talk to you about the case whether they are connected with the case or not. You will not be sent out on any other assignment in the meantime and report here promptly at two thirty on Monday, November 20th. You are now excused until that time.

 (Whereupon the Members of the Jury were excused)

 MR. DRURY: I have one matter, Your Honor. Judge Flannery informed counsel and the defendants at an earlier point in time that next week would be half-days. Is that still abiding or is it up in the air at this point?

 THE COURT: Well that is the reason why I have set two thirty for Monday. I would say to you that I have suggested to Judge Flannery and his people that possibly someone else could pinch hit on his Court of Appeals assignment so that he would be able to sit full days, but I have not been advised about what his decision is on that, and Judge Flannery evidently expects to be back and it may be that he will arrange for some other Judge to sit in his place, but at present as I am presently advised it is 2:30 Monday, and that is all I know.

 MR. DRURY: Thank you, Your Honor.

 (Whereupon the hearing was adjourned to be resumed at 2:30 Monday November 20th.)


 (S) Joan C. Blair



 The above-entitled matter came on for hearing in open court, before The Honorable GERHARD A. GESELL, U. S. District Judge, commencing at approximately 2:30 p.m.


 (The defendants are not all ...

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