UNITED STATES of America, Appellee, v. Robert Lee GREEN, a/k/a Hope, Appellant.
No. 79-5124
United States Court of Appeals, Fourth Circuit.
Decided Dec. 18, 1980.
636 F.2d 925
Argued Aug. 27, 1980.
We reverse the judgment of the district court and remand the case for further proceedings in accordance with this opinion.
REVERSED AND REMANDED.
WIDENER, Circuit Judge, concurring:
While I concur in the result, I think our circuit precedent in United States v. Taylor, 305 F.2d 183 (4th Cir. 1962), is sufficient for our purposes as relied upon by the majority as persuasive.
Reliance on the Jimenez case, I think, is misplaced, and I do not construe our opinion as establishing the rule of that case in this circuit if the same or similar facts were presented to us.
In that connection, I also do not agree with the majority that there are only two cases which bear on the question before us. The case of United States v. Santarpio, 560 F.2d 448 (1st Cir. 1977), was on substantially the same facts as Jimenez and arrived at an opposite result under the same statute considered in Jimenez as here,
one statute in conjunction with another. We take no position on this question. Santarpio does not dilute the authority of Jimenez for the proposition that, absent other statutory authority,
Glenn L. Cook, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and MURNAGHAN, Circuit Judges.
MURNAGHAN, Circuit Judge:
Robert Lee Green was charged with conspiracy to distribute heroin.
At a jury trial of Green and two others, United States Special Agent Robert Dixon testified about the alleged conspiracy. Dixon had been working for four years for the Drug Enforcement Agency. Prior to that he was, for five years, a police officer in Washington, D. C. Defense counsel adroitly asked Dixon whether, at Green‘s arrest, his arms then exhibited the puncture marks frequently found on heroin users.1 Dixon stated that he could not remember the name of the arresting officer.2
With that answer by Dixon, the cross-examination took on an added aspect favorable to the defendant, since a truly informational response was going to make Dixon look as though he either possessed a very poor memory or was disingenuous. Dixon, after examining the relevant government form, augmented his answer:
Mr. Green was processed by myself at the U.S. Marshall‘s office. At the time he was arrested, I believe, by Special Agent McCormack. He was currently incarcerated for armed robbery. (Emphasis added.)
It is elementary, of course, that customarily reference to another, independent conviction of a defendant is altogether improp
Now Green is before us appealing from a denial of his motion to dismiss on grounds of double jeopardy. The district judge who had presided at the trial in which the mistrial was granted to Green4 concluded:
All right. The Court is satisfied that Agent Dixon was not the individual who is in charge of the case, that this was not a tactic that was planned ahead of time by the Government, that this was a spur of the moment statement. Unfortunate, it is true, but via the agent. I think that he, personally, frankly I think that although he intended to make a statement, and he probably intended it to have an effect on the Jury, he did not realize what effect it was really going to have and that was to end the case at that point against Mr. Green. He was agitated by the effective cross examination that was being conducted against him on this point of whether or not he had actually filled out the form, and he lost his cool, so to speak, and spilled the beans, and in doing so, resulting in a mistrial. But I do not believe it is a situation in which justice would be served by ending all prosecution. I do not believe it would be a violation of the double jeopardy clause to require the trial to commence again.
When a mistrial is declared without the defendant‘s request or consent, a new trial may be held, without violating the Double Jeopardy Clause, only if there was a manifest necessity for the mistrial or the ends of public justice would otherwise be defeated. United States v. Dinitz, 424 U.S. 600, 606-07, 96 S.Ct. 1075, 1078-1080, 47 L.Ed.2d 267 (1976). However, when a mistrial is declared at the defendant‘s request, the considerations are different. Id. at 607, 96 S.Ct. at 1079. In such a situation, in the absence of prosecutorial or judicial overreaching or misconduct, ““a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant‘s motion is necessitated by prosecutorial or judicial error.“” Id. quoting from United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). Nevertheless, as stated in Dinitz, the request by the defendant for a mistrial does not eliminate all possibility of a double jeopardy bar. Where the prosecutorial error was designed to lead the defendant into moving for a mistrial, there may not be a reprosecution:
The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by judge or prosecutor’ threatens the ‘[h]arass-ment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant. Id., 424 U.S. at 611, 96 S.Ct. at 1081.
The issue whether the prosecution deliberately provoked a mistrial becomes one for the district judge to resolve, and his determination will not be disturbed if supported by the record. United States v. Gamble, 607 F.2d 820, 823 (9th Cir. 1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1059, 62 L.Ed.2d 781, rehearing denied, 445 U.S. 955, 100 S.Ct. 1609, 63 L.Ed.2d 792 (1980).
The Fifth Circuit interprets the bad faith necessary to constitute the Double Jeopardy Clause a bar to further prosecution as confined to “grossly negligent or intentional misconduct that seriously preju
The initial question then becomes whether what happened was purposefully designed by anyone, prosecutor or witness, to bring about a mistrial. The district judge determined that Dixon did not contemplate that his spur-of-the-moment “blurt” would have that consequence. We find that conclusion to be supported by the record and not clearly erroneous.7 As a reflexive counterpunch, the reference to Green‘s conviction for armed robbery lacks the appearance of a scheme to secure abortion of the present trial and retrial in circumstances presumably more favorable to the prosecution.
While not controlling on the question by any means, the absence of a prosecutorial desire for a mistrial is rendered somewhat more credible by
(1) the United States Attorney‘s attempt to have the district judge curative-ly instruct the jury to disregard Dixon‘s impropriety, in lieu of a mistrial;
(2) the fact that the jury proceeded to convict the two codefendants of conspiracy to distribute heroin.
Another question of some relevance is whether Special Agent Dixon is to be included within the term “prosecutor” for the purpose of those rules. Obviously, it is in the interests of the United States Attorney to use all reasonable steps to prevent such an occurrence as took place here. However, there is no indication of the slightest kind that this was other than a spontaneous “blurting out” by the agent in no way planned, anticipated, or condoned by the United States Attorney.8 We, of course, hold the United States Attorney to high standards of conduct for he, as well as the courts, has a direct responsibility to insure not only that actual justice be done but that the appearance of justice as well be rigidly guaranteed.
However, it would be too simplistic to reach out and ensnare within the term “prosecutor” every federal agent involved in a criminal matter, including those involved in the collection of evidence and the preparation for trial, although control of the prosecution is strictly in the hands of others, i. e., members of the office of the United States Attorney. In this connection, it is perhaps not amiss to remind ourselves that other interests than those of the defendant are involved. His interests must
Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964).9
We have already quoted the Supreme Court‘s opinion in United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976):
The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.
However, when the prosecutor or the judge acts erroneously but without such a malevolent purpose,10 retrial is not precluded even though the error was such as to present the defendant with a “Hobson‘s choice” between giving up his first jury and continuing a trial tainted by prejudicial, judicial or prosecutorial error.” Id. at 609, 96 S.Ct. at 1080.11 We have concluded that there was adequate support in the record for the finding by the district judge that there was no judicial or prosecutorial intention to provoke a mistrial request.
AFFIRMED.
WINTER, Circuit Judge, dissenting:
I respectfully dissent.
The majority and I are in substantial agreement as to the basic rules which govern the outcome of this case: Ordinarily when a defendant has successfully requested a mistrial because of judicial or prosecutorial error, the Double Jeopardy Clause is no bar to his retrial. But if a defendant was deliberately provoked into requesting a mistrial, then the Double Jeopardy Clause prevents a retrial. See, United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Holleman, Mistrials and the Double Jeopardy Clause, 14 Ga.L.Rev. 45 (1979). We differ, however, in how those rules are to be applied where, as in this case, there is more than mere judicial or prosecutorial error but less than a deliberate attempt by the government to provoke a mistrial. I think that, because defendant was the victim of deliberate misconduct on the part of a government agent who occupied a principal role in defendant‘s initial prosecution, and because this misconduct provoked defendant‘s successful motion for a mistrial, the Double Jeopardy Clause bars his retrial. To me, the constitution compels this result whether or not the government agent actually intended that a mistrial would result from his misconduct. I would hold that the motion to dismiss the indictment on the ground of double jeopardy should have been granted.
I.
As I read the district court‘s findings, they are that Agent Dixon, not by agreement or plan of trial strategy arrived at with the Assistant United States Attorney who was trying the case1 but on his own motion, intentionally and deliberately brought to the attention of the jury defend-ant‘s prior criminal record. The district court also found that Agent Dixon intended his remark to have an effect on the jury. Although a strategy conceived on his own, this was no mere inadvertence or “blurt” as the majority suggests. Indeed, when all of the circumstances are considered, the findings of the district court may well have been charitable; the record gives strong indications that Dixon was deliberately vindictive.
The district court‘s finding as to the deliberate character of the volunteered prejudicial testimony and its intended effect to hurt defendant has ample support in the record. Agent Dixon was a four-year veteran of the Drug Enforcement Administration. He had impressive credentials as a Metropolitan Police Department Officer in Washington, D. C., before joining DEA. Since joining DEA he had made over 150 arrests and participated in approximately 35 cases. Manifestly he was the agent in charge of the instant case; he sat at counsel table throughout the entire trial. Significantly, the government had been advised that defendant would not testify because of his record. Undoubtedly, as the agent in charge, Dixon had that knowledge.
When called as the government‘s last witness, Dixon testified, inter alia, that heroin dealers will not distribute heroin through heavy users. The government‘s other evidence had depicted defendant as a heroin distributor. Dixon‘s attention was directed to an entry in a ledger indicating that defendant had received a large amount of drugs for his personal use. Then defendant‘s attorney began to question Dixon about the DEA form which was filled out when defendant was arrested. It showed that defendant was a heroin user. That fact had been determined by the DEA agent who processed defendant by the routine examination of defendant‘s arms for needle marks. Thus, by this point in Dixon‘s testimony, he had significantly aided
II.
The majority‘s conclusion that the Double Jeopardy Clause does not proscribe a retrial on these facts rests upon two propositions: (1) Dixon was not a “prosecutor” within the meaning of the Dinitz rule, and (2) there was no finding that Dixon intended to cause a mistrial. I do not think that singly or in combination they support the majority‘s result.
I cannot read Dinitz as limiting the rule it articulates only to bad-faith conduct by the prosecutor. Dinitz says that “[t]he Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests....” (emphasis added) 424 U.S. at 611, 96 S.Ct. at 1081. Of course Dinitz also says that “bad-faith conduct by judge or prosecutor” bars retrials, Id. (quoting United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971)), but I would not read the latter as an exclusive enumeration. In any event, Dixon was functionally little different from the prosecutor in this case. He was closely intertwined with the prosecution: he processed defendant when he was arrested, arrested the leaders of the heroin ring, and, with his intimate knowledge of the case, was the agent who sat at counsel table and assisted in the trial of the case. While I agree that the prosecution should not be tarred with misconduct by every government witness, as, for example, a witness who is unconnected to the government or even a government agent who played a minor role in the case, it should not be able to escape the consequences of misconduct by one who plays a principal role in the prosecution. In this respect, I think Dinitz fully applicable.
The second purported escape hatch from Dinitz‘s proscription is more troublesome. I accept as a fact that Dixon‘s testimony was not a deliberate effort to precipitate a mistrial. Dixon made a malicious attempt to harm defendant; but, the district court found, he intended nothing more.
There is a division of authority over whether Dinitz forbids reprosecution when a mistrial is caused by governmental bad-faith conduct short of an intention to cause a mistrial or whether it merely forbids reprosecution when the object of the misconduct was to cause a mistrial. The Fifth Circuit, in a series of decisions, has interpreted Dinitz as affording liberal protection against retrial in cases of deliberate government misconduct. For instance, in United States v. Kessler, 530 F.2d 1246, 1253-58 (5th Cir. 1976), the prosecution intentionally introduced a prejudicial false exhibit, and the defendant successfully moved for mistrial. The court acknowledged that under Dinitz retrial was normally permissible when trial ends on the defendant‘s motion. But the court found that “[w]here ‘prosecutorial overreaching’ is present, the interests protected by the Double Jeopardy Clause outweigh the public interest in conducting a second trial ending in acquittal or conviction.” Id. at 1255-56. The court continued: “To find ‘prosecutorial overreaching,’ the Government must have, through ‘gross
The Tenth Circuit, by contrast, has narrowly interpreted the language of Dinitz. In United States v. Nelson, 582 F.2d 1246 (10th Cir. 1978), cert. denied, 439 U.S. 1079, 99 S.Ct. 860, 59 L.Ed.2d 49 (1979), the prosecutor intentionally induced a DEA agent to testify that the defendant was a “major trafficker” in drugs, and the defendant moved for a mistrial which was granted. The district judge characterized the testimony as being as “reprehensible as any he had ever heard.” Id. at 1248. Nevertheless, the Tenth Circuit held that the Double Jeopardy Clause did not bar retrial.
The court followed an opinion by Mr. Justice Rehnquist sitting as a circuit justice in which the Justice permitted retrial where the defendant failed to show that the trial mistake “was committed by the prosecution or by the court for the purpose of forcing the defendant to move for a mistrial.” Id. at 1249 (quoting Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977). The Tenth Circuit concluded that the defendant must show that “the objectionable testimony ... was the product of a governmental scheme intentionally calculated to trigger the declaration of a mistrial.” 582 F.2d at 1249. Finding no such proof, the court saw no constitutional bar to the defendant‘s second trial.
I am persuaded that the approach of the Fifth Circuit is the better view. Dinitz did recognize that at least one form of prosecutorial misbehavior would foreclose retrial. Dinitz did not discuss the situation presented here: extreme and deliberate governmental misconduct short of an intentionally stimulated mistrial. Gross governmental misbehavior is drastically different from mere prosecutorial or judicial error. Dinitz contains language which supports the Fifth Circuit‘s distinction between mere error and “prosecutorial overreaching:”
[W]here circumstances develop not attributable to prosecutorial or judicial over-reaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant‘s motion is necessitated by prosecutorial or judicial error.
424 U.S. at 607, 96 S.Ct. at 1079 (quoting United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (emphasis added). Justice Rehnquist‘s opinion does not directly discuss egregious governmental misdeeds, although it admittedly supports the government‘s position; in any case, it does not necessarily follow that the views of a single justice represent the views of a majority of the Court.
Moreover, the Fifth Circuit decision is more faithful to the policies behind the Double Jeopardy Clause. A second trial subjects a defendant to the anxiety and expense which accompanies multiple prosecutions. The Double Jeopardy Clause protects a defendant from this burden except where the societal interest in “fair trials ending in just judgments” outweighs the defendant‘s interests. United States v. Kessler, 530 F.2d 1246, 1258 (5th Cir. 1976). When trial is brought to an end by egregious and deliberate misconduct of a government agent, the public interest in fair trials may not be served by retrial. If the prosecution has the chance to try its case more than once, its case becomes stronger through rehearsal and the likelihood of convicting an innocent defendant increases. Witnesses become more expert at relating their stories and more adept at fending off cross-examination. This case illustrates that double jeopardy concern. During the first trial, defense counsel was able to turn Dixon‘s testimony to his client‘s advantage. At a second trial, Dixon may well be more careful in his comments and make defense counsel‘s task more difficult.
In concluding that retrial of this defendant should be forbidden, I am fully aware of the public interest in the prevention, punishment and deterrence of crime. These are important considerations. Of equal, if not greater, importance is the principle that the government must deal fairly with those who are governed. The breach of fairness in this case, by one whose role was such a principal part of this prosecution, was so egregious that I would not permit defendant to be tried anew.