United States of America, Plaintiff-appellee, v. James Brown Blackadder, Iii, Defendant-appellant, 952 F.2d 407 (9th Cir. 1992)

MEMORANDUM^** 

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.

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.

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.

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).

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.

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