UNITED STATES OF AMERICA, APPELLEE,

v.

DANTE EDWARD GORI, DEFENDANT-APPELLANT

CLARK, Circuit Judge.

This appeal, based upon the defendant-appellant’s plea of former jeopardy to avoid a criminal conviction, came for hearing before a panel of this court consisting of Judge Waterman and the writer from this Circuit and Judge Lewis of the Tenth Circuit, sitting with us pursuant to statutory designation. In conference the court was in disagreement, Judges Waterman and Lewis voting to reverse and the writer voting to affirm. Draft opinions reflecting this disagreement, together with the briefs, record, transcript, and appendix, were then circulated among the active judges, a majority of whom, believing that the case presented a general problem important to the administration of justice in this circuit, thereupon voted for disposition of the appeal in banc, 28 U.S.C. § 46(c).1 Four active judges having then voted to affirm, the writer was assigned to prepare an opinion reflecting this prevailing view.

The defendant was charged with having knowingly received and possessed goods stolen in interstate commerce in violation of 18 U.S.C. § 659. The trial got under way before Judge Abruzzo on February 4, 1959, after the declaration of a mistrial on the previous day.2 From the opening by counsel it appeared that the defendant would not contest his receipt and possession of stolen goods on February 11, 1958, with the codefendant Corbett — who pleaded guilty — but would claim that he acted without knowledge of their character and only as Corbett’s hired employee. The Assistant United States Attorney attempted to prove this fairly simple case first by the testimony of the shipper’s traffic manager, second by the truckman from whose truck the goods w'ere stolen, and third by two FBI Special Agents investigating the theft. He ran into repeated difficulty, however, in part because of continuous formal objections by the defense, but even more by interference on the part of the trial judge, who repeatedly ordered the re-framing of questions and otherwise took the conduct of the case away from him. The trial continued its rocky course throughout the morning and early afternoon until upon the examination of the fourth witness, Special Agent Deery, there occurred the colloquy set forth in the margin resulting in the declaration of a mistrial by the judge.3 Later Judge Kayfiel in a reasoned opinion denied defendant’s motion to dismiss the information on plea of former jeopardy, and he was convicted and sentenced to imprison ment after a jury trial before Chief Judge Bruchhausen. He now appeals from both these actions of the district court, but relies only on the claim of former jeopardy and assigns no error as to his trial before Judge Bruchhausen.

The colloquy set forth in the margin demonstrates that the prosecutor did nothing to instigate the declaration of a mistrial and that he was only performing his assigned duty under trying conditions. This is borne out by the entire transcript, including also that covering the morning session. Nor does it make entirely clear the reasons which led the judge to act, though the parties appear agreed that he intended to prevent the prosecutor from bringing out evidence of other crimes by the accused. Even so, the judge should have awaited a definite question which would have permitted a clear-cut ruling. But if he was thus overassiduous, pursuing the command role which he had assumed for himself, it seems clear that he was acting according to his convictions in protecting the rights of the accused. The defense now urges that the judge was endeavoring to punish counsel’s disobedience, but such a characterization, even if apt, adds nothing significant to his over-all purpose; and as to this the defense elsewhere states, “It is undeniable that the trial court was concerned with protecting the rights of the appellant.” It is to be noted that the defendant made the original objections leading to the order of mistrial and that he made or attempted no protest to the order itself, but accepted the benefit of the new trial. We have the issue, therefore, whether active and express consent — something beyond acquiescence — is required to prevent this defendant, now convicted after a concededly fair trial, from receiving absolution for his crime by reason of the over-zealousness of the trial judge on his behalf. A majority of this court concludes that the federal law does not so command.

The mandate of the Fifth Amendment to the United States Constitution is “ * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * In considering whether the declaration of a mistrial precludes a subsequent prosecution for the same offense the Supreme Court has rejected any rigid formularization of the constitutional requirement in favor of a flexible application of the prohibition. Wade v. Hunter, 336 U.S. 684, 690, 69 S.Ct. 834, 93 L.Ed. 974. This approach originated in United States v. Perez, 9 Wheat. 579, 580, 22 U.S. 579, 580, 6 L.Ed. 165, where Justice Story stated: “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 a 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.” This controlling principle was succinctly reiterated in Brock v. State of North Carolina, 344 U.S. 424, 427, 73 S.Ct. 349, 350, 97 L.Ed. 456:

“This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served. Wade v. Hunter, 336 U.S. 684 [69 S.Ct. 834, 93 L.Ed. 974]; Thompson v. United States, 155 U.S. 271, 273-274 [15 S.Ct. 73, 74, 39 L.Ed. 146]. As was said in Wade v. Hunter, supra, [336 U.S.] p. 690 [69 S.Ct. at page 638, 93 L.Ed. 974], ‘a trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice.’ ”
To the same effect are Lovato v. State of New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244; Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 ; United States v. Cimino, 2 Cir., 224 F. 2d 274; United States v. Potash, 2 Cir., 118 F. 2d 54, certiorari denied Potash v. Unit ed States, 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540; Scott v. United States, 91 U.S.App.D.C. 232, 202 F. 2d 354, certiorari denied 344 U.S. 879, 73 S.Ct. 176, 97 L.Ed. 681; United States v. Giles, D.C. W.D.Okl., 19 F.Supp. 1009. It is to be noted that in none of these cases is the element of consent by the accused held necessary to obviate the constitutional bar; in fact, they are authority for the contrary view. Actually in several the mistrial had been declared either on the motion of the prosecution or by the court of its own motion, but over the vigorous opposition of the defense; this was the situation in the Simmons, Scott, and Giles cases, as well as in the Brock case, which concerned a state conviction reviewed under the Fourteenth Amendment.4 In yet others, as in Lovato, Cimino, and Potash, it had been declared on the government’s or the court’s motion, with no showing of express consent by the accused. In all these the ultimate conviction was upheld against the plea of double jeopardy.

The defendant relies on Himmelfarb v. United States, 9 Cir., 175 F. 2d 924, 932, certiorari denied 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527, as showing the need of consent; but such was not the court’s approach there. Accepting the now well settled view that waiver or consent by the defendant barred his later resort to the plea,5 the court first considered and held ineffective a waiver by counsel without his client’s specific assent. Having thus cleared the way, it passed to the “real issue presented,” which was “whether or not there was a legal necessity supporting the discharge of the first jury.” And this it considered at considerable length with a wealth of learning and citation of authority, concluding: “We think the court did not abuse its discretion.” So the denial of the plea was upheld and the conviction was affirmed. To similar effect are cases such as Ex parte Glenn, C.C.N.D.W.Va., 111 F. 257, reversed on other grounds Moss v. Glenn, 189 U.S. 506, 23 S.Ct. 851, 47 L.Ed. 921, and United States v. Watson, D.C.S.D.N.Y., 28 Fed.Cas. page 499, No. 16,651. Thus while consent may bar resort to the plea, its absence does not relieve the judge of responsibility and discretion to discontinue a particular trial when justice so requires. Wade v. Hunter, supra, 336 U.S. 684, 689, 69 S.Ct. 834.

The law as thus stated comports more with our fundamental concepts of the federal administration of criminal justice than does the rigid and inflexible rule contended for by the accused. It has been a source of pride federal-wise that a United States district judge is more than a mere automaton or referee and bears an affirmative responsibility for the conduct of a criminal trial. This responsibility is particularly acute in the avoidance of prejudice arising from nuances in the heated atmosphere of trial, which cannot be fully depicted in the cold record on appeal. If the accused retains essentially a power of veto on pain of ban of all prosecution, even though fully justified, it is clear that the judge does not retain control of his courtroom and cannot act as he thinks necessary either to protect the interests of the litigants or to preserve proper respect for federal law administration. Even though there may be a rare case where in retrospect the judge may seem to have been overzealous in his protection of the rights of an accused, we think the law is better served by the preservation of the responsibility which the federal precedents impose upon him.

On this basis we do not believe decision should be difficult, for the responsibility and discretion exercised by the judges below seem to us sound. Here the defendant was in no way harmed by the brief trial which, indeed, revealed to him the prosecution’s entire case. He was thus in a position to start anew with a clean slate, with all possibility of prejudice eliminated and with foreknowledge of the case against him. The situation was quite unlike the more troublesome problems found in various of the cases, as where the prosecution desires to strengthen his case on a new start or otherwise provokes the declaration of mistrial, or the court has acted to the prejudice of the accused, or the accused has actually been subject to two trials for essentially the same offense.6 On the other hand, for the defendant to receive absolution for his crime, later proven quite completely, because the judge acted too hastily in his interest, would be an injustice to the public in the particluar case and a disastrous precedent for the future.

I am authorized to say that Chief Judge LUMBARD and Judges MOORE and FRIENDLY concur in this opinion.

Conviction affirmed.

. Although disagreeing with the conclusion. of the panel majority, the writer did not vote for the in banc procedure. In his experience such procedure does not reconcile differences, but in fact accentuates them. Hence it should be reserved for clarifying issues otherwise presented ambiguously or in a one-sided fashion. Here the important issue seemed fully presented, and there was the added difficulty of superseding the judgment of a distinguished visitor who had graciously complied with our request for help. Though we have acted similarly in other cases, it appears not to be a settled practice in other circuits. See, e. g., National Latex Products Co. v. Sun Rubber Co., 6 Cir., 276 F. 2d 167.

. No point was made on this appeal as to this mistrial, which appears to have been granted upon motion of defendant after associate defense counsel was observed talking with one of the jurors.

. “Patrick Joseph Deery, a witness called on behalf of the Government, having been duly sworn, was examined and testified as follows:

“Direct Examination by Mr. Passalacqua:

“Q. Mr. Deery, how long have you been an agent of the F. B. I.? A. Approximately eight and a half years.
“Q. Do you know the defendant Gori?
A. Yes, sir, I do.
“Q. Do you know the co-defendant Corbett, who is not on trial today? A. Yes, sir. “Q. When did you see the defendant Gori for the first time? A. February 10, 1958.
“Q. At about what time? A. Late in the evening, six o’clock.
“The Court: Please keep your voice up.
“The Witness: Yes, sir. “Q. Were you alone or were you with another agent? A. No, I was with other agents.
“Q. Where did you see the defendant?
A. I saw him in his automobile in the lower part of Manhattan, or Brooklyn. We observed his automobile at that time.
“Q. Do you recall the type of automobile he had? A. Yes, he had a— “The Court: Mr. Passalacqua, please do not get immaterial evidence in here.
I admonish you not to. Did you have a talk with him, yes or no?
“Mr. Passalacqua: Your Honor, will you please allow me— “The Court: No, I won’t allow you to try your case your way, because if you try it your way, we are going to have another mistrial.
“Mr. Passalacqua: Your Honor, I think — please allow me— “The Court: I will give you the whole field. When I think you ought to stop, I will stop you. Go ahead, you try your case your own way.
“Mr. Passalacqua: Thank you.
“Q. Did you observe the defendant on February 11, 1958?
“The Court: Excluded.
“Mr. Gottesman: Objection.
“A. Yes.
“Q. When did you see the defendant Gori for the first time?
“Mr. Gottesman: Objection.
“The Court: That has been already answered, February 10th.

“Q. When did you see him for the second time? A. February- — - “The Court: Excluded. You haven’t even proved he saw him the second time. “Q. Did you see him after February 10, 1958? A. Yes, I did. “Q. Was he alone? A. He met another individual. “Q. Where did you see him on February 11th— “The Court: If you ask one more question that alludes to suspicion, I will withdraw a juror and put this case over to January of next year. Now, I want this crime proved, not nine others. “Mr. Passalacqua: I am not referring— “The Court: That is exactly what you are going to lead this jury to believe. These agents are helpless. They have got to — . Juror No. 1, step out. I declare a mistrial and I don’t care whether the action is dismissed or not. I declare a mistrial because of the conduct of the district attorney. “Mr. Passalacqua: I am not— “The Court: You heard me. I don’t want any more District Attorneys coming down here telling me how I am going to try the cases. And tell your chief if he doen’t want to put any more cases on before me, it is all right with me. That’s all.”

. So in Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412, where the Court of Appeals, 9 Cir., 259 E.2d 128, had originally reversed a conviction and directed an acquittal, but later modified this to direct a new trial, 9 Cir., 261 E.2d 181, on motion of the government • ■ and against defense objection, the Supreme Court rejected thé plea of double jeopardy. •

. See, e. g., Blair v. White, 8 Cir., 24 E. 2d 323; Barrett v. Bigger, 57 App.D.C. 81, 17 E.2d 669, certiorari denied 274 U.S. 752, 47 S.Ct. 765, 71 L.Ed. 1333; United States v. Harriman, D.C.S.D. N.Y., 130 F.Supp. 198, 204, notwithstanding Mr. Justice Holmes’ view to the contrary stated in Kepner v. United States, 195 U.S. 100, 136, 24 S.Ct. 797, 49 L.Ed. 114.

. See full discussion in United States v. Sabella, 2 Cir., 272 F. 2d 206, and Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, a 5-4 decision where the two opinions are notable for their historical exegesis of the plea. The question in Green was as to jurisdiction, after reversal on appeal, to retry the accused for the greater offense of which he had been originally acquitted. But the majority, in sustaining the plea and pointing out that it “prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict,” reiterate, 355 U.S. at page 188, 78 S.Ot. at page 224: “At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforeseeable circumstances * * * arise during [the first] trial making its completion, impossible, sucb as the failure of a jury to agree on a verdict.’ Wade v. Hunter, 336 U.S. 684, 688-689 [69 S.Ct. 834, 837, 93 L.Ed. 974].” In United States v. Whitlow, D.C.D.C., 110 E.Supp. 871 — a case criticized in 67 Harv.L.Rev. 346 (1953) for inflexibility — the court upheld the plea when the mistrial had been declared because of the misconduct of the defendant’s counsel.

Furthermore, although we reach contrary conclusions, I agree with my colleagues that the correct disposition of the issue before us does not depend upon whether the district judge was acting to protect the defendant or whether he was acting to punish imagined disobedience. If the former, I maintain that the district judge must give the defendant the right to decide whether his interest will be better protected by having a new trial or by proceeding with the present one. The defendant here was denied that choice; his retrial should not be permitted. If the latter, I think it equally clear that the maintenance of a court’s authority and of a trial judge’s control of a trial cannot be had at the expense of a defendant's constitutional rights.

I conclude that a district judge, acting sua sponte, does not have power to order a mistrial because of trial misconduct by the prosecuting attorney without giving rise to a sustainable plea of former jeopardy should retrial be attempted. Thus it becomes necessary to consider whether this appellant in some manner may be said to have consented to the mistrial order. Although I find the court’s opinion unclear on this point, it may be that my colleagues imply consent from two actions by appellant during the trial. My colleagues mention the fact that appellant made objections which might have led to the mistrial order, and they also mention that he did not protest the order itself.

As to the first ground, objections to testimony cannot be said to constitute consent to a subsequent mistrial order, for objections to testimony obviously assume that the trial is to continue.

Moreover, as a matter of policy, I oppose a rule that would inhibit defense counsel from making objections during a trial lest, by objecting, counsel be found to have consented, in advance, to a mistrial order.

Finally, I think the part the defendant’s objections played in leading to the mistrial order in the present case has been overemphasized in the court’s opinion.4 As to the contention that consent may be implied from appellant’s failure to object to the mistrial order, similar contentions were made and rejected in Himmelfarb v. United States, 9 Cir., 1949, 175 F. 2d 924, 931-932, certiorari denied 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527; Ex parte Glenn, C.C.N.D.W.Va.1901, 111 F. 257, 259, reversed on other grounds 189 U.S. 506, 23 S.Ct. 851, 47 L.Ed. 921; United States v. Watson, D.C.S.D.N.Y. 1868, 28 Fed.Cas. page 499, No. 16,651. Under different circumstances than here present one court may have implied consent from a failure to object to a mistrial order. In Scott v. United States, 1952, 91 U.S.App.D.C. 232, 202 F. 2d 354, certiorari denied 344 U.S. 879, 881, 73 S.Ct. 176, 97 L.Ed. 681, during the absence of the jury but in the presence of the defendant and his attorney, the trial judge stated he had decided to declare a mistrial.

The jury was then called back into the courtroom and the order announced. During this time no objection was made. In the present case, however, the possibility of a mistrial had not been suggested until almost immediately before the district judge angrily ordered a juror discharged. The suddenness and vehemence of the order renders it highly unrealistic for us to imply consent here from appellant’s failure to protest.

I would reverse with directions to dismiss the information.

On Petition of Appellant for Rehearing.

PER CURIAM.

On the merits of this appeal we find nothing to add to the discussions already had. Appellant, however, objects to the procedure in banc followed here and claims a right of oral argument. This is a point we should discuss, since counsel generally should be apprised of our procedure so far as we have developed it. There is of course nothing secret as to our processes of advancing a case to the point of adjudication.

We have recently adopted our Rule 25(b) dealing with petitions for rehearing. This reads as follows:

“(b) Disposition. Any petition for rehearing shall be addressed to the court as constituted in the original hearing. It shall be disposed of by the court as so constituted unless a majority of said court or any active judge of this court, either from a suggestion by petitioner or sua sponte, shall be of the opinion that the case should be reheard in banc, in which event the Chief Judge shall cause that issue to be determined by the active judges of this court. Rehearing, whether by the court as constituted in the original hearing or in banc, shall be without oral argument and upon the papers then before the court, unless otherwise ordered.” (Eff. April 25, 1960.)

But additionally the court reserves the right, as the statute, 28 U.S.C. § 46(c), provides, to proceed in banc whenever a majority of the active judges think such course in the interest of justice and so vote. This necessarily involves the exercise of discretion in each particular case and we have kept formal rules to a minimum. So when the procedure in banc has been voted, we have proceeded to de cisión on only the original papers, Mc-Weeney v. New York, N. H. & H.

R. Co., 2 Cir., 282 F. 2d 34; Sperry Rand Corp. v. Bell Telephone Laboratories, 2 Cir., 272 F. 2d 29; Mueller v. Rayon Consultants, 2 Cir., 271 F. 2d 591; Reardon v. California Tanker Co., 2 Cir., 260 F. 2d 369, 375, certiorari denied California Tanker Co. v. Reardon, 359 U.S. 926, 79 S.Ct. 609, 3 L.Ed.2d 628; F. & M. Schaefer Brewing Co. v. United States, 2 Cir., 236 F. 2d 889, reversed United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 78 S.Ct. 674, 2 L.Ed.2d 721, or on the mere filing of additional briefs, American-Foreign S.S. Corp. v. United States, 2 Cir., 265 F. 2d 136, 144, vacated and remanded United States v. American-Foreign S.S. Corp., 80 S.Ct. 1336; In re Lake Tankers Corp., 2 Cir., 235 F. 2d 783, affirmed Lake Tankers Corp. v. Henn, 354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246, or after full oral argument, Pugach V. Dollinger, 2 Cir., 277 F. 2d 739, certiorari granted 80 S.Ct. 1614; United States v. Coppola, 2 Cir., 281 F. 2d 340; United States ex rel. Marcial v. Fay, 2 Cir., 247 F. 2d 662, certiorari denied Fay v. United States ex rel. Marcial, 355 U.S. 915, 78 S.Ct. 342, 2 L.Ed.2d 274; United States ex rel. Roosa v. Martin, 2 Cir., 247 F. 2d 659; United States v. Apuzzo, 2 Cir., 245 F. 2d 416, certiorari denied Apuzzo v. United States, 355 U.S. 831, 78 S.Ct. 45, 2 L.Ed.2d 43; and United States v. Santore, not yet decided.

Thus we have no set rule in this regard, but are guided by what we conclude are the needs of a particular case.

These various cases presented all the questions here adverted to, including the supersession of retired or visiting judges by a court comprised of only the active judges. As appears above, the Supreme Court passed upon many of the cases in their substantive aspects, but without raising any question as to the procedure. Petitioner has no absolute right to oral argument; where, as here appeared, the researches of the court and its staff had proceeded beyond that disclosed in the briefs of counsel, further briefs and oral argument would have been a barren formalism without advantage to the court and counsel and a waste of time for all concerned.

Petition denied.

. The district judge stated: “I declare a mistrial because of the conduct of the district attorney.”

. In a non-jury ease it is stated that jeopardy attaches once the defendant has pleaded and the court has begun to hear evidence. Clawans v. Rives, 1939, 70 App.D.C. 107, 104 E.2d 240, 242, 122 A.L.E. 1436; McCarthy y. Zerbst, 10 Cir., 1936, 85 F. 2d 640, 642, certiorari denied 299 U.S. 610, 57 S.Ct. 313, 81 L. Ed. 450.

. In Cornero v. United States, 9 Cir., 1931, 48 F. 2d 69, 72, 74 A.L.R. 797, it was suggested that when the Perez opinion referred to the discretion of the trial judge it contemplated the discretion involved in determining how long the jury should be required to deliberate prior to its discharge for having failed to reach a verdict.

. My colleagues refer to the defense’s “continuous formal objections.” This is misleading. At the morning session only did the defense interpose frequent objections. The first government witness, the shipper’s traffic manager, was then testifying. Primarily these objections were directed to the admissibility of certain bills of lading. The district judge consistently overruled the defense, and the frequency of the objections was caused in part from the district judge’s admonition to the defense to preserve this point. The district judge did not display notable impatience with the conduct of the Assistant United States Attorney or rule favorably to the defense until the abbreviated testimony of the third and fourth government witnesses, the two FBI agents, who testified in the afternoon. The district judge’s displeasure with the trial conduct of the Assistant United States Attorney during their examination, a displeasure that I join my colleagues in being unable to account for, was not instigated by defense counsel, ■whose role during this portion of the trial was entirely passive. The trial record discloses that neither counsel anticipated the course so suddenly taken and that the withdrawal of the juror must have been as much of a surprise to defense counsel as it was to the Assistant United States Attorney.