dissenting:
In the name of the double jeopardy clause of the Fifth Amendment of the United States Constitution,1 the majority has sanctioned the dismissal of a federal income tax evasion indictment after eight days of trial and at a time when the trial was all but concluded. Since I believe that the majority has either ignored or glossed over critical facts with respect to the combined conduct of defendant and his trial counsel, and that such conduct heavily contributed to, and amounted to implied consent to, the trial court’s declaration of a mistrial, I respectfully dissent.
I.
Since “virtually all [double jeopardy] cases turn on the particular facts . .”, Illinois v. Somerville, 410 U.S. 458, 464 (1973), a good starting point here is a brief reference to important facts ignored by the majority which precipitated the mistrial and the subsequent double jeopardy claim.
On September 9, 1975 — two months before Grasso’s income tax evasion trial began in the district court — government witness Harris told a member of the staff of defense attorney Rothblatt that his testimony before the grand jury regarding Grasso’s narcotics dealings had been false. During the course of Grasso’s trial which began on November 6, the government made out against him a strong case of unreported income for the years 1969 and 1971. On November 11 and 12 Harris testified for the government regarding the year 1970. Harris did not testify at all regarding 1969 or 1971. On November 12 Rothblatt informed the court that the witness Harris previously *55had refused to be interviewed by a member of his staff.
On the evening of November 20 — after Rothblatt had rested defendant’s case and after Rothblatt’s motion for a directed verdict had been denied — Rothblatt had a tape-recorded interview with Harris, during the course of which Harris recanted his testimony. Less than two hours later Harris recanted his recantation to Special Agents of the Intelligence Division of the Internal Revenue Service. Harris told the I.R.S. agents that his recantation to Rothblatt was a lie which had been induced by threats.
On the next day, November 21, with the trial all but over, Rothblatt informed Chief Judge Clarie of Harris’ recantation and moved to dismiss the indictment on the ground of prosecutorial misconduct. After three days of hearings out of the presence of the jury, the court on November 26 declared a mistrial sua sponte.
The September 9 memorandum of the interview between Harris and a member of Rothblatt’s staff, during which Harris disclosed that he had lied before the grand jury, came to light subsequent to Judge Clarie’s declaration of a mistrial. When it did come to light, Rothblatt, who was the attorney of record in the civil action in connection with which the interview with Harris had been conducted, filed an affidavit stating that he “was simply not aware” of the memorandum until after the mistrial had been declared.
Whatever may be said as to the knowledge on the part of the Rothblatt firm regarding the existence of the memorandum of the critical interview with Harris two months before the tax evasion trial of Rothblatt’s client began,2 I recognize that this case is on a different footing with respect to the volitional element which was present in other cases where consent to a mistrial has been implied from the conduct of defense counsel. See, e. g., United States v. Gentile, 525 F.2d 252 (2 Cir. 1975), cert. denied, 425 U.S. 903 (1976). Nevertheless, I find it difficult to blink at the hard fact that Grasso here invokes the protection of the double jeopardy clause triggered by the declaration of a mistrial which was granted to remedy a prejudicial situation brought about by his counsel’s negligent failure to examine his own records. If Rothblatt had checked his office records, as he said he would, after the matter of a prior interview of Harris by a member of Rothblatt’s staff came up in court on November 12, Harris’ credibility of course would have emerged as a principal issue at the appropriate time, namely, upon Rothblatt’s cross-examination of Harris.
II.
It seems to me that the concept of implied consent to the declaration of a mistrial, as applied to the facts of this case, involves more than scrutiny of counsel’s role in precipitating the sua sponte ruling. Counsel should bear the responsibility, at the very least, to state his client’s objection to the mistrial declaration and to assert his client’s “valued right to have his trial completed by a particular tribunal”, Wade v. Hunter, 336 U.S. 684, 689 (1949), at the time the mistrial is declared, and not sit back and wait for a subsequent double jeopardy hearing.
Here defendant’s counsel did almost precisely the opposite. In declaring a mistrial, Judge Clarie stated that “the defendant Grasso can not get a fair and impartial trial under the present circumstances.” To this attorney Rothblatt responded:
“[T]he defendant agrees with everything that your Honor has decided, except your Honor’s decision to declare it a mistrial. We would renew our request for judgment of acquittal.” (emphasis added).
After the case was reassigned for trial, Grasso’s counsel discovered that his client did not agree at all with everything Judge *56Clarie had decided. He asserted for the first time that Judge Clarie had ignored “several ways to cope with [Harris’ recantation] without introducing reversible error. . [T]here was simply no justification . . .for taking away the defendant’s opportunity for a favorable verdict.” As the majority holds, Rothblatt’s statement in response to Judge Clarie’s declaration of a mistrial on November 26 cannot be read as an objection to a mistrial. Unlike the majority I am not at all sure that the statement did not amount to an express consent to a mistrial. But whether it did or not, such an affirmative effort on the part of defendant’s counsel to reinforce the trial judge’s position hardly can be dismissed as “silence”.
In any event, I would hold that Grasso’s failure to object to the mistrial constitutes a bar to his subsequent double jeopardy claim. Other courts have required affirmative conduct on the part of a defendant to preserve a double jeopardy claim.3 See, e. g., United States v. Gordy, 526 F.2d 631, 635 & n. 1 (5 Cir. 1976); United States v. Phillips, 431 F.2d 949 (3 Cir. 1970); United States v. Sedgwick, 345 A.2d 465, 473 (D.C. Ct.App.1975), cert. denied, 423 U.S. 1028 (1975); cf. Scott v. United States, 202 F.2d 354 (D.C.Cir.), cert. denied, 344 U.S. 879 (1952). But see Himmelfarb v. United States, 175 F.2d 924 (9 Cir.), cert. denied, 338 U.S. 860 (1949); People v. Compton, 6 Cal.3d 55, 63, 490 P.2d 537, 542, 98 Cal.Rptr. 217, 222 (1971). And our Court has held defendants culpable for their silence in three cases where we have rejected double jeopardy claims. United States v. Gentile, supra, 525 F.2d at 255; United States v. Beckerman, 516 F.2d 905, 909 (2 Cir. 1975); United States v. Goldstein, 479 F.2d 1061, 1067 (2 Cir.), cert. denied, 414 U.S. 873 (1973). In each of these cases, in holding the defendant to have consented impliedly to the declaration of a mistrial, we weighed as a principal factor the defendant’s failure to assert his interest in having his guilt determined by the existing jury.
These decisions recognize that the double jeopardy clause does not confer upon a defendant a license to take undue advantage of the contradictory possibilities which arise when a mistrial is declared. I would not construe the double jeopardy clause so as to permit a defendant who is ready to sacrifice his interest in reaching an existing jury in exchange for a dismissal on double jeopardy grounds to obviate the need for his reaching any jury at all. Such a defendant might be all too willing to sit by silently and refrain from bringing to the trial court’s attention alternative solutions.4 I see nothing in the double jeopardy bar which either requires that this choice be left to the defendant or which relieves him of the normal obligation to make a timely objection to an adverse ruling by the trial court. On the contrary, requiring the defendant to assert his right to have his guilt decided by the existing jury will assure that a subsequent double jeopardy dismissal in fact does serve to vindicate the right asserted. Such a requirement moreover would tend to alleviate the problems which underlay the holding of Gori v. United States, 367 U.S. 364, 369 (1961), that a mistrial “granted in the sole interest of the defendant” does not necessarily bar all retrial. Protecting a defendant’s interests through resort to a mistrial would be much less a matter of navigating “a narrow compass between Scylla and Charybdis”, id., if the defendant could be relied upon, and indeed required, to participate in the determination.5
*57A requirement that the defendant take affirmative steps to preserve his right to a determination by the existing jury ultimately looks toward the same end the majority seeks to achieve by requiring the trial judge to make “explicit findings, preferably after a hearing, that there are no reasonable alternatives to mistrial.” Ante, p. 52. The common objective of both the majority and this dissent is a reasoned consideration of possible alternatives — insulated from the heat of the kitchen into which the trial judge is thrust when compelled to declare a mistrial sua sponte. But I disagree with the majority’s premise that procedural strictures applicable to the trial court alone will protect fully the integrity of the double jeopardy prohibition. The majority, while placing all responsibility on the court’s shoulders, appears to rely on the therapeutic effect of a hearing to coax the defendant out of his corner and into taking a stand.
“This procedure may result in counsel’s consent to the mistrial, or in his insistence on dismissal as the only alternative. In either case, defendant cannot then argue on appeal that there were other reasonable alternatives to mistrial that should have been explored.” 552 F.2d at 54.
Aside from its misplaced reliance on what does not go on in the realistic world of the trial court, the majority ignores the fact that, even after a sua sponte declaration of a mistrial, a proceeding must have participating parties. Since the very reason for requiring a hearing to determine the grounds for a mistrial declaration is to protect a right of the defendant, it does not strike me as unreasonable in the context of our adversary system to require him to assert that right.
I would remand with instructions to reinstate the indictment for retrial.6
. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; . . . ” XJ.S.Const, amend V, cl. 2.
. I had supposed that the day had long since passed when one member of a law firm would be permitted to disclaim knowledge of the existence of a critical document in the possession of his firm — when the disclaimer of such knowledge is invoked to cloak his client with the protection of the double jeopardy clause.
. The Supreme Court explicitly left this question open in Gori v. United States, 367 U.S. 364, 365 n. 6 (1961).
A knowing, voluntary, and intelligent waiver of a double jeopardy right is not a condition to permitting a retrial following a mistrial. United States v. Dinitz, 424 U.S. 600, 609 n. 11 (1976).
. Grasso’s about face in first agreeing and then disagreeing with Judge Clarie’s ruling of November 26 is a striking example.
. Judge Friendly concluded in United States v. Gentile, supra, 525 F.2d at 256-57, that the continuing validity of the Gori approach was put into question by Mr. Justice Harlan’s plurality opinion in United States v. Jorn, 400 U.S. 470 (1971), but that in light of Illinois v. Somer*57ville, 410 U.S. 458 (1973), it cannot yet be consigned to oblivion with any certainty. I continue to prefer Judge Friendly’s cautious assessment in Gentile rather than the attenuated footnote treatment by the majority here. Ante, pp. 51-52 n. 2.
. Ironically, although I would remand the case for reinstatement of the indictment and retrial, whereas the majority affirms the judgment of the district court, I do not share the majority’s criticism of the conduct of the district court. Ante, pp. 53-54. Based on my careful review of the entire record, I am satisfied that both Chief Judge Clarie and Judge Zampano, on the facts before them, discharged their respective judicial responsibilities in a commendable fashion. My quarrel with the result, and hence my dissent, is directed at quite a different quarter, as my dissenting opinion makes plain.