RESPONDENT: United States
LOCATION: School District 187
DOCKET NO.: 489
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Fifth Circuit
CITATION: 372 US 734 (1963)
ARGUED: Mar 20, 1963
DECIDED: Apr 22, 1963
Facts of the case
Media for Downum v. United States
Audio Transcription for Oral Argument - March 20, 1963 in Downum v. United States
Raymond Downum, Petitioner, versus United States.
May it please the Court.
This is a case involving the question of a former jeopardy and the sole issue presented here is the question of jeopardy.
The petitioner was convicted by the Federal District Court for the Western District of Texas on six counts of an indictment which charged conspiracy, to steal, forge, and pass United States Government checks, forging and passing two of those three checks and passing the third one.
He was convicted and an appeal was made to the Court of Appeals for the Fifth Circuit on the sole ground of former jeopardy and the opinion was affirmed -- conviction was affirmed and here, we are appealing on that sole ground.
As the Court of Appeals stated in their opinion, the facts are undisputed and very simple in relation to the jeopardy question.
The petitioner was arraigned before the Court without jury.
Then sometime later, both sides were called and announced ready for trial.
A jury was selected in the morning and the jury was instructed to return in the afternoon at two o’clock.
Then sometime before two o'clock, apparently an out of court conference in the judge's chambers was had between the prosecutor and the Court.
And at two o'clock, the Court announced in open court without the jury being in the room that the Government had informed him that a witness as to count six and seven which involved one check was absent and that the Court was going to discharge the jury.
The defendant's counsel objected, asked that the Court proceed on the other four counts for which the prosecution admittedly had enough witnesses to convict; the Court overruled this motion.
The defense counsel then moved to dismiss the counts six and seven for which there was -- the evidence was not available, the Court overruled this motion, and discharged the jury.
Two days later, apparently, the missing witness was found.
And another panel was called, another jury was selected, and this jury convicted the petitioner on all six counts.
A plea of former jeopardy was interposed before the second trial which was overruled by the trial court.
So we are here today on the question, because it was developed in the trial that the only reason that the first jury was discharged was because the prosecutor didn't have a witness and this witness had not even been served with subpoena.
But the prosecutor had failed to check with the U.S. marshal's office directly across the hall from his own before he selected the jury, and before he announced ready.
Was the subpoena issued?
Yes sir, the subpoena was issued but had not been served.
How long before the trial had it been issued?
There is no showing in the record but in the transcript, it developed that this particular witness had been out of his home for six weeks and that the marshal had talked with the wife the day before, and -- but the prosecutor -- and the prosecutor had checked the day before and found the subpoena had not been served.
But he just didn't make any check and the subpoena was not served; he announced ready and then found that during the noon hour and then the Court discharged the jury.
Does the jury -- the jury sworn to try the cause?
The jury was sworn in the morning, Your Honor, and that's all that took place.
The jury was sworn and then they went on their business or whatever they had to do and came back at two o'clock.
It was not the type of case they were required to be kept together.
Arthur J. Goldberg:
There is no question of bad faith [Inaudible]