United States v. Dante Edward Gori

WATERMAN, Circuit Judge

(dissenting).

It is quite clear that the district judge, on February 4, 1959, ordered a mistrial because of actions which he believed to constitute trial misconduct on the part of the Assistant United States Attorney.1 Accordingly, it must first be asked if a mistrial for this reason may be ordered by a district judge, acting entirely sua sponte, without giving rise subsequently to valid plea of former jeopardy under the Fifth Amendment. If not, a second question arises: did the defendant here expressly or impliedly request or consent to the mistrial order? I believe that both these questions must be answered in the negative, and therefore I dissent.

The former jeopardy clause of the Fifth Amendment reads as follows: “ * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; * * *” The clause consistently has been interpreted not only to forbid multiple punishment for the same offense but also to forbid successive exposures to a single punishment. United States v. Ball, 1896, 163 U.S. 662, 666-671, 16 S.Ct. 1192, 41 L.Ed. 300; Ex parte Lange, 1873, 18 Wall. 163, 169, 85 U.S. 163, 169, 21 L.Ed. 872; and see also United States v. Sabella, 2 Cir., 1959, 272 F.2d 206, 208-210. Thus, once a jury has been impaneled and sworn2 it is said jeopardy attaches, and *49if a mistrial is then ordered, subsequent prosecution is barred, Green v. United States, 1957, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199; Bassing v. Cady, 1908, 208 U.S. 386, 391, 28 S.Ct. 392, 52 L.Ed. 540; McCarthy v. Zerbst, 10 Cir., 1936, 85 F.2d 640, 642, certiorari denied 299 U.S. 610, 57 S.Ct. 313, 81 L.Ed. 450; Cornero v. United States, 9 Cir., 1931, 48 F.2d 69; Ex parte Ulrich, D.C.W.D.Mo.1890, 42 F. 587, reversed on other grounds, C.C.W.D.Mo.1890, 43 F. 661, appeal dismissed sub nom. Ulrich v. McGowan, 1893, 149 U.S. 789, 13 S.Ct. 1053, 37 L.Ed. 967, unless the defendant has consented to the mistrial order, Blair v. White, 8 Cir., 1928, 24 F. 2d 323; Barrett v. Bigger, 1927, 57 App.D.C. 81, 17 F.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. 1955, 130 F.Supp. 198, 204. It is settled that a plea of former jeopardy does not lie when a mistrial is ordered because of the jury’s inability to reach an agreement after submission, Keerl v. State of Montana, 1909, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734; Dreyer v. People of State of Illinois, 1902, 187 U.S. 71, 84-87, 23 S.Ct. 28, 47 L.Ed. 79; Logan v. United States, 1892, 144 U.S. 263, 297-298, 12 S.Ct. 617, 36 L.Ed. 429; United States V. Perez, 1824, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165, or when a juror is discovered to be incompetent or becomes incapacitated, Thompson v. United States, 1894, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146; Simmons v. United States, 1891, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; United States v. Potash, 2 Cir., 1941, 118 F.2d 54, certiorari denied 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540; United States v. Haskell, D.C.E.D.Pa.1823, 26 Fed.Cas. page 207, No. 15,321. There are also eases disallowing the plea of former jeopardy when the mistrial order resulted from the courtroom conduct of particular persons. Prior to this case the prosecuting attorney has not been included in this group. See United States v. Cimino, 2 Cir., 1955, 224 F.2d 274 (exclamations of a juror); 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 (withdrawal of associate counsel appointed by the court); United States v. Giles, D.C.W.D.Okl.1937, 19 F.Supp. 1009 (exclamations of a trial judge questioning Government’s good faith in prosecuting); but cf. United States v. Whitlow, D.C. D.C.1953,110 F.Supp. 871 (misconduct of defendant’s counsel held too minor to nullify plea of former jeopardy). For reasons to be set forth subsequently I am of the opinion that a mistrial ordered because the trial judge believed that the prosecuting attorney was guilty of misconduct presents a different problem than that presented in these cases.

All the cases purporting to be exceptions to the rule that a mistrial may not be ordered without the defendant’s consent “once jeopardy has attached” rely upon the authority and rationale of United States v. Perez, supra. There, 9 Wheat, at page 580, Justice Story said:

“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. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faith*50ful, 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.”

Without in any way disagreeing with the result in the Perez case or with the results in the cases which have relied upon it, I submit that as a guide for determining when subsequent prosecution is to be barred by the former jeopardy clause of the Fifth Amendment, Justice Story’s discussion in Perez is analytically inadequate. If the former jeopardy clause is to be taken seriously as a constitutional right of criminal defendants and if one accepts the principle that jeopardy attaches at the commencement of trial, it defies analysis to hold that this constitutional right can always be nullified by some discretionary act on the part of the judge at the first trial.3 The inadequacy of such a “discretionary” rationale becomes peculiarly apparent in the present case. The majority opinion is at pains to demonstrate the propriety of the Assistant United States Attorney’s conduct. They state that the Assistant United States Attorney did nothing to instigate a mistrial, that he merely performed his assigned duties “under trying conditions.” The action of the district judge in ordering the mistrial, expressly characterized as “over-assiduous” and “over-zealous,” is thus clearly regarded by my colleagues as having been a mistaken action. Plow then can it be said that the district judge did not abuse his discretion in ordering a mistrial ? I cannot follow my colleagues on this issue; the result they reach is to me a non sequitur. However, my dissent is based upon other grounds, for I believe the question before us should be resolved without any reliance whatever upon amorphous principles of discretion.

Even if all other questions in the law of former jeopardy remain unsettled it is clear that in the one case where the trier of fact has fully considered the evidence against a defendant and the defendant has been acquitted that man may not thereafter be prosecuted for the same offense. United States v. Ball, 1896, 163 U.S. 662, 669-670, 16 S.Ct. 1192, 41 L.Ed. 300. As a corollary, a prosecuting attorney, sensing that the trier of fact will acquit if the case being tried is completed, may not enter a “nolle prosequi” during the trial without the bar of former jeopardy attaching. See Green v. United States, 1957, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199; Cornero v. United States, 9 Cir., 1931, 48 F.2d 69, 71, 74 A.L.R. 797; Ex parte Ulrich, D.C. W.D.Mo.1890, 42 F. 587, 595, reversed on other grounds, C.C.W.D.Mo.1890, 43 F. 661, appeal dismissed sub nom. Ulrich v. McGowan, 1893, 149 U.S. 789, 13 S.Ct. 1053, 37 L.Ed. 967; United States v. Shoemaker, C.C.D.Ill.1840, 27 Fed.Cas. page 1067, No. 16,279; and cf. Frankfurter, J., concurring, Brock v. State of North Carolina, 1953, 344 U.S. 424, 428-429, 73 S.Ct. 349, 97 L.Ed. 456. Therefore, what the prosecuting attorney is forbidden to do directly by nolle he ought not to be permitted to do indirectly by way of trial misconduct. I would hold that misconduct by a prosecuting attorney during trial may not deprive a defendant without his consent of the right to have that trial completed.

So far as I have been able to discover, of the cases permitting retrial subsequent to a mistrial that had been ordered after the initial trial had begun, in only two have the factors that produced the mistrial order been within the control of the prosecution. These two cases are Wade v. Hunter, 1949, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974, rehearing denied 337 U.S. 921, 69 S.Ct. 1152, 93 L.Ed. 1730, and Lovato v. State of New Mexico, 1916, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244, and neither case contradicts the conclu*51sion expressed in the preceding paragraph. Wade v. Hunter involved court martial proceedings initiated at the front during the invasion of Germany during the Second World War. There the Court, at pages 691-692 of 336 U.S., at pages 838-839 of 69 S.Ct., found “extraordinary reasons” justifying adjournment of the first trial. The circumstances of the Wade ease would appear to objectively preclude any possibility that the adjournment ordered there resulted from a fear that the trier of fact would decide against the prosecution. Similarly, the abuse was objectively impossible under the facts in Lovato. There the identical jury which had been discharged so that the defendant could be arraigned prior to trial was reimpaneled to hear the case after the defendant’s arraignment.

The references throughout this opinion to “misconduct” on the part of the Assistant United States Attorney should not be taken as indicating that, on this point, I am in accord with the District Judge and, with him, believe that the conduct of the Assistant United States Attorney was improper. I agree with my colleagues that the Assistant United States Attorney attempted conscientiously to present his case in a manner consistent with the rulings of the district judge. However, the significant fact is the district judge’s belief. This erroneous belief deprived appellant of his right to take his case to the jury as the jury was then constituted. It is implicit in the former jeopardy clause that, as in criminal proceedings generally, the injurious consequences of erroneous rulings by the trial judge have to be borne by the prosecution rather than by the defendant.

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

*52As 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*53cisión 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 *49A.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 *52the 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.