United States v. James Brown Blackadder, III ( 1992 )

952 F.2d 407

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
James Brown BLACKADDER, III, Defendant-Appellant.

No. 90-50328.

United States Court of Appeals, Ninth Circuit

Submitted Dec. 5, 1991.*
Decided Jan. 10, 1992.

Before PREGERSON, CANBY and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Blackadder appeals his conviction for failure to file a tax return in violation of 26 U.S.C. § 7203. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

3

Blackadder argues that the recent Supreme Court decision Cheek v. United States, --- U.S. ----, 111 S.Ct. 604 (1991) requires that his conviction be set aside. The government agrees. We therefore vacate his conviction.

4

To foreclose further prosecution of his § 7203 offense, Blackadder also contends that his trial (and any future retrial which may follow the reversal of his conviction) on the § 7203 charge violated his Fifth Amendment rights to a grand jury indictment and against double jeopardy. We disagree.

5

First, we have held that the "willful failure to file an income tax return proscribed by 26 U.S.C. § 7203 is an offense for which the Government may proceed by information in lieu of grand jury indictment." U.S. v. Driscoli, 612 F.2d 1155 (1980).

6

Second, his trial on the § 7203 charge was preceded by two mistrials on the offense of tax evasion. Both mistrials were declared due to "deadlocked" juries. We accord great deference to a trial court's decision to declare a mistrial due to jury deadlock. U.S. v. Salvador, 740 F.2d 752, 754-755 (9th Cir.1984), cert. denied, 469 U.S. 1196 (1985). Retrial due to jury deadlock does not violate the Fifth Amendment's Double Jeopardy Clause. Id.

7

The district court's judgment is REVERSED. This case is REMANDED for further proceedings not inconsistent with this memorandum.

*

The panel unanimously found this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3