dissenting:
Because I disagree with Section V of Judge Thornberry’s able opinion, I respectfully dissent from the majority’s holding in this ease.
Defendants Crouch and Kudelka ask this court to adopt a rule that when a trial court first overrules a mistrial motion and significant proceedings then take place, the court before declaring a mistrial must give the defendants an opportunity to choose between (1) withdrawing their mistrial motions and continuing the trial and (2) reasserting their motions. The majority admits that “such a course of conduct obviously would have been the better practice . in the circumstances of this case,” yet declines to require such a procedure. I fully agree with the majority as to the desirability of such a practice but also believe that the policies of the double jeopardy clause as articulated by the Supreme Court in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), require our adoption of this rule.
In Dinitz the Supreme Court stated that: Even when judicial or prosecutorial error prejudices a defendant’s prospects of securing an acquittal, he may nonetheless desire ‘to go to the first jury and, perhaps, end the dispute then and there with an acquittal.’ United States v. Jorn, [400 U.S. 470, 484, 91 S.Ct. 547, 27 L.Ed.2d 543 (1970)]. Our prior decisions recognize the defendant’s right to pursue this course in *1322the absence of circumstances of manifest necessity .
96 S.Ct. at 1080.
The Court recognized that the defendant generally faced a “Hobson’s choice” between giving up his first jury and proceeding with a tainted trial, and stressed that in light of this predicament “[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retains primary control over the course to be followed in the event of such error." Id. at 1081 (emphasis supplied).
The procedure for declaring the mistrial utilized by the court below hardly satisfied the policy of allowing the defendants to retain primary control over this aspect of the proceedings. The mistrial was declared by the trial judge over two weeks after the defendants’ mistrial motions first were denied. The trial judge declared the mistrial without asking the defendants whether they wished to proceed with the trial and without giving the defendants an opportunity to withdraw their mistrial motions.
The events which transpired between the last mistrial motion and March 8th mistrial declaration, including the conclusion of the government’s presentation, the beginning of the defendants’ case, and the two week recess, easily could have changed the defendants’ perception as to whether, on March 8th, it was in their interest to have a mistrial declared. For example, it is possible that the remainder of the government’s case had gone poorly, that the defendants’ case was going well, or that the recess might have mitigated some of the prejudicial effects of the prosecutorial errors. The defendants were in the best position to assess these factors and determine whether or not to withdraw their mistrial motions. I believe that Dinitz requires that the decision be made by the defendants, who should retain “primary control over the course to be followed . . . .” Id.
Adopting the rule proposed above would allow the defendants to retain such control without imposing any significant burden on the trial court. The majority in the instant case admit that it is the “better practice.” Furthermore, such a rule is not inconsistent with the Second Circuit’s decision in United States v. Goldstein, 479 F.2d 1061 (2nd Cir. 1973), which is discussed in Section V of the majority opinion. In Goldstein the defendant made his motion for mistrial after the case had gone to the jury and the trial judge had given a modified “Allen ” charge. Two hours later when it appeared that the jury was deadlocked, the trial judge granted the motion. The most obvious distinction between Goldstein and the instant case is that in Goldstein, as the Second Circuit opinion points out, no in court proceedings took place between the mistrial motion and the judge’s mistrial declaration that might have changed the defendant’s perceptions regarding the desirability of a mistrial. Id. at 1066. More importantly, the Goldstein court concluded that the mistrial was declared with the defendant’s “consent” because the judge’s remarks before discharging the jury made it clear that he was about to declare a mistrial, yet defense counsel did not make use of the opportunity to “disabuse the judge of the idea that they still wanted” a mistrial. Id. Here on the other hand, the defendants had no reason to expect the. sudden declaration of mistrial and were given no opportunity to withdraw their motions. In no way can defendants be said to have “consented” to the mistrial declaration; that crucial difference is precisely why I feel compelled to dissent in this case.
In conclusion, I would hold that the double jeopardy clause bars retrial of defendants Crouch and Kudelka because they were not given an opportunity to withdraw their mistrial motions before the mistrial was declared. I therefore respectfully dissent.