dissenting.
I disagree with my learned colleagues both on the law and on inferences to be drawn from the facts.
Before the first trial commenced the government gave notice that the grand jury testimony of Martin would be offered in evidence. That testimony was read in evidence over a permitted continuing objection with the prosecutor having assured the court that irrelevant statements had been excluded. The assurance proved to be in error since as the majority recites at pages 139-140 of its opinion some irrelevant and prejudicial material was read to the jury.
As the prejudicial material was being read the defendant made no additional objection but quite properly contented himself with his continuing objection made initially. Nor did the trial judge at any point sustain the continuing objection or call to attention of the prosecutor the possible error in assurance previously given.
The entire grand jury testimony read extended over some thirty-two pages of transcript. After the reading defendant moved for a mistrial. Judge Shell, believing that error had been committed in connection with admission of some of the material, granted a mistrial.
At the second trial and in denying a plea of double jeopardy, Judge Williams found on the part of the prosecutor no intentional misconduct or gross negligence. On appeal the defendant makes no contention of intentional misconduct designed to provoke a mistrial; he does allege gross prosecutorial negligence.
The majority makes no effort to review the findings of Judge Williams under any appropriate standard. It relegates mention of his crucial findings on lack of misconduct and gross negligence to its footnote 4 and makes it own independent finding of “pros-ecutorial error undertaken to harass or prejudice the defendant.”
I would accept the findings of Judge Williams, an experienced and conscientious trial judge, as not being clearly erroneous. It is clear that in the course of the ongoing first trial it was error to read into the record some substantial portions of the grand jury testimony but I find in the record no egregious error on the part of the prosecution of such consequence as to impel a finding of intentional harassment or intent to abort the trial.
It has generally been the rule that the double jeopardy clause does not prevent reprosecution when the first trial has ended in a mistrial declared upon motion of the defendant. Lee v. United States,-U.S. -, -, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Parker v. United States, 507 F.2d 587 (8th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1576, 43 L.Ed.2d 782 (1975); Roberts v. United States, 477 F.2d 544 (8th Cir. 1973).
But presently it must be conceded to the majority that within limitations a defendant’s mistrial motion may not remove the double jeopardy bar. It is the nature and extent of these limitations that precipitate this dissent.
*142Lee v. United States, supra; United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); and United States v. Jorn, supra, all contain dicta tending to cause one to suspect that there may be circumstances in which prosecutorial misconduct, or even perhaps some day prosecu-torial negligence in some degree, will invoke double jeopardy, but the majority cites, and I can find, no Supreme Court case on appropriate facts holding that gross negligence or intentional prosecutorial trial error not calculated to produce a mistrial will support a claim of double jeopardy by one who moves for mistrial.1
In my view, Lee, Dinitz and Jorn, all supra, do not require in this ease a departure from the general rule. When read in full, both Dinitz and Jorn seem to require that the prosecution act with intent to induce a request for mistrial by defendant before prosecutorial overreaching will be found or to require a design on the part of the prosecution to prejudice the defendant by procuring a trial at a different time and under circumstances less favorable to the defendant. It is conceded that no such design on the part of the prosecution was present in the case at bar.
Moreover, the broad reach of double jeopardy to be applied by the majority presents practical problems. I agree with Judge Bell’s dissent in United States v. Dinitz, 492 F.2d 53, 63 (5th Cir. 1974), stating that:
[T]he ratio decidendi is too extreme to be workable and will give rise to much reluctance in granting mistrials. The trial courts will understand that society will be better served by completing a trial even after clear error has arisen and the defendant seeks a mistrial, then the alternative of a mistrial and the possible bar of double jeopardy based on error. The time and expense involved in completing the trial, taking an appeal, and in the retrial, will often be a small price to pay to protect the societal interest in law enforcement.
Accordingly, I cannot vote to reverse on double jeopardy grounds.
. The majority cites United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1082, 47 L.Ed.2d 267 (1976), for the proposition that error “motivated by bad faith or undertaken to harass or prejudice” the defendant bars retrial. This quotation may be deceptive when taken out of context. However, when read along with the two preceding paragraphs, it is clear that Dinitz requires bad faith harassment intended to goad the defendant into requesting a mistrial before reprosecution will be barred. A careful reading of United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), likewise does not fully support the majority opinion here. Analysis of footnote 12 following the discussion of overreaching indicates that Jorn requires that the prosecutorial impropriety justifying mistrial must result from a fear of acquittal, thus retaining the traditional intent element, before reprosecution will be barred.
United States v. Wilson, 534 F.2d 76, 80 (6th Cir. 1976), cited in support of the majority opinion, states that it is unclear from the Dinitz opinion whether “overreaching” would extend to gross negligence on the part of a prosecutor which led to mistrial.