United States v. Robert W. Crouch and Albert Kudelka, Jr.

editorial, ative, promotional and tasks. But “assured freedom, and the rial here, conclude, do that an as we of once we rights of all [her] existed, relationship and its these employment the book creation of design and Appellant’s alone.” irrelevant. facts become cover [hers] Murray this to offer Allowing at 2-3. brief by appellant sug alleged facts No she in- which agreement upon “control” — intended for the parties copy gest the corporation demonstrate sisted—to has thus right appellant. to be in She powers supervisory requisite lacked the presumption failed to overcome the an to employee permit her work would over is of title parties mutual intent sim- for hire doctrine the works circumvent employer.8 in copyright shall be as demanding freedom creative ply of Accordingly, judgment we affirm the Mur- We employment. decline condition of court. district rule, where, such adopt ray’s invitation Judge no of of here, employer panel has intention No member nor an as hired employee regular having work of active on the supervising the service Court material. certain produce requested polled the Court be specifically choosing not to exercise its corporation, banc, (Rule rehearing en Federal Rules it to delegated Murray Procedure; of right supervision, Local Fifth Appellate of Circuit with demands. her Rehearing in accordance 12) Petition for En Rule is Banc DENIED. argue also seems Appellant disputes surrounding of the existence precise compensation and of method the par between relationship of the

nature judgment. The summary precludes

ties is that to this contention answer

simple has any facts disputed these neither of America, UNITED STATES pivotal issue of bearing whatsoever on Plaintiff-Appellee, relations employment of an the existence hip.7 Kudelka, Robert W. and Albert CROUCH Running through appellant’s briefs, Defendants-Appellants. Jr., in this seems and motions case pleadings, No. 76-2361. tying together theory be the thread her copy she this case: that is entitled to the Appeals, right she is the book’s author. This because Fifth Circuit. misconcep notion indicates fundamental 6, 1978. Feb. the law this area. The fact that appellant authored the book the technical Banc Rehearing Rehearing En and is the works for sense immaterial under 9, 1978. Denied March doctrine, which the employer hire defines law. We purposes copyright author for allegations that

accept Murray’s as true she and performed

wrote the book various cre- clearly general copy compensation is 8. We also note the rule that scheme collater- certificate, not Mur- in this was obtain al. are concerned whether case profits corporation, ray prima to a of the entitled share ed is facie evidence sum, compensa- therein, precise including ownership for neither the form of stated facts tion, amount, 209; validity. Novelty See nor the is determinative. § U.S.C. Textile Bourne, Moreover, supra. the nature of the Corp., Mills v. Joan Fabrics F.2d employment relationship dispositive; not Copyright n.1 Cir. Nimmeron § 141.1 applica- example, (1976). for hire doctrine works indepen- employer parties are ble when the Lin-Brook, supra; Brattle- dent contractor. boro, supra. Newman, Houston, DeGuerin, Joe

Dick J. Tex., defendants-appellants. for Anna E. Gough, Atty., James R. U. S. Walker, Stool, Jr., Attys., Asst. U. S. Carl Houston, Tex,, plaintiff-appellee. for THORNBERRY, GOLDBERG Before CLARK, Judges. and Circuit THORNBERRY, Judge: Circuit Defend- case. jeopardy This is a double on a fifteen court ants tried in district were various firearms alleging count indictment After the had been related offenses.1 presented sworn and the case, judge declared a mistrial. its pleas of former then filed the declaration jeopardy alleging supported and not sponte mistrial was sua necessity”. United by “manifest Wheat.) Perez, L.Ed. district denied the (1824).2 justice in of 18 violation Conspiring re- and obstruction 1. make false statements XV). (Counts and required kept by XIV spect § U.S.C. information §§ dealers in violation of U.S.C. firearms consistently followed 2. standard has been This (Count I); 924(a) counts and substantive Somerville, years. Illinois v. See over making records false statements in firearms (Count 924(a) and 2 of 18 U.S.C. §§ violation Jorn, XII); justice conspiring in viola- to obstruct II— Downum v. XIII); (Count and 1510 18 U.S.C. §§ 1( “get wished to rid of ered that Crouch motions, declaring that the mistrial was result, him”, that, sought as a to the defendants’ mo- response granted Alcohol, from the Bureau of protection during the trial and tions for mistrial Firearms, was investi- Tobacco and defendants took sponte. The sua not made gating the case. When asked A ruling. panel appeal from a direct prosecutor given money whether he was v. Bai- on United States relying this court seeking ATF a result of their by the 833 Cir. dismissed ley, protection, attorney objected on Crouch’s finality for lack of under 28 appeal direct ground leading meantime, In the the Su- U.S.C. § suggestive. The Court sustained Abney preme objection prosecutor and directed the was said. only ask the witness what such as the appeals decided that how the in- When the asked judgments are final within appeal present him, the witness re- formation came to of 28 1291. The meaning U.S.C. § him to plied agents that ATF allowed Abney has direct- Supreme applying Court of someone tape recording listen to a to reach the of the this court merits ed Thus, in sub- conversing with Crouch. States, Crouch v. United 432 case. present stance, that he learned Beck testified 903, 2945, L.Ed.2d 1075 97 53 U.S. S.Ct. listen- that Crouch wanted to kill him (1977). between ing tape to a of a conversation played that was party Crouch and a third I. agents. for him federal the defendants’ trial events at The excused, The coun jury was and Crouch’s in his memo as described (1) objected grounds: sel on three that as follows: randum are hearsay; (2) statement was for mistrial were made Three motions in violation of recording was obtained the trial. The first during the course of States, v. Massiah United U.S. [84 19, morning February occurred on 1199, 12 (1964); and S.Ct. L.Ed.2d 246] 1976, Beck, of Fred during the elicitation of the statement vio employee a former of defendant Crouch. agreement lated the between counsel be called, was Before Beck Crouch’s counsel solely cause the tape recording pertained approached the bench to state that Accordingly, the Houston case. agreed had that evidence re- prosecution Crouch’s counsel moved in the alternative in the lating to a different case filed to strike and the declaration of a for Houston Division of this District would appellant mistrial. Counsel for Kudelka prose- not be entered into evidence. The adopted the motion for mistrial. The expressly deny cutor did not confirm or court, lengthy inquiry, granted after a The ap- this statement. Court did not strike, the motion to but denied the mo prove disapprove agreement, stat- jury tion for mistrial. The was recalled ing merely that it would see how the case reurged and both his Crouch’s counsel Beck he developed. testified after motion to strike for mistrial in their and presence. he discov- The denied the employment again had left Crouch’s Court States, Jersey, (3 Cir.), v. nor (1963); Gori United Court of New L.Ed.2d 100 denied, 364, 1523, (1961); 1023, 447, cert. 81 S.Ct. 6 L.Ed.2d 901 414 U.S. S.Ct. Hunter, States, 684, 834, (1973); Grogan Wade v. v. United 336 U.S. Montana, denied, (1948); (5 Keerl v. State of cert. L.Ed. 974 394 F.2d 287 Cir. 135, 469, (1909); 830, 97, (1968); 29 S.Ct. 53 L.Ed. 734 21 L.Ed.2d 100 States, Logan States, v. United (9 Howard v. United 372 F.2d 294 Cir. States, Simmons 1967); 36 L.Ed. 429 Tolan United 370 F.2d 799 States, L.Ed. 968 1967); Rothaus United Cir. Glover, 506 F.2d 291 1963); v. United Gilmore 528 Cir. Mary 1974); denied, Whitfield v. Warden of the (5 Cir.), cert. F.2d 44 Corrections, land House of F.2d 1118 (1959). Supe- Russo v. States ex rel. counsel, however, ka’s did not mistrial, withdraw struck for motion and objection.3 the record . from his answer Beck’s and them not to consider instructed Taylor As the con- direct examination any purpose. for tinued, questioned the prosecutor him and third motions second about the arrest defendant Crouch. examination of during the direct occurred Taylor stated he had arrested ATF Taylor, the Michael Agent Special Crouch in November of 1973and had told investigation. charge agent him he and his why being arrested defend- that he arrested testified Taylor rights. constitutional The prosecutor him advised August Kudelka ant then asked whether Crouch and had a rights, his constitutional Taylor replied statement and that he did Taylor then stat- him. conversation time, not. For third Crouch’scounsel he whether had asked Kudelka ed that the ground moved for mistrial on a statement. make impermissibly shown was, and response Kudelka’s what asked that defendant Crouch exercised Fifth had said that Kudelka Taylor answered Amendment to remain silent. Croch agreement with he had an strike, did Counsel not move to Kudelka, to his he, would “stick whereby denied the mistrial. motion for Crouch would that in return story” and Tuesday, February On fees, him, legal pay all of his care of take hearing held in which he in-chambers owning the up wound see that he granting announced his intention of a two- that rea- in For shop Galveston. pawn adjournment personal week because of rea- chose not son, Taylor stated that Kudelka open stated in subsequently sons. He court statement. Out of make further that the case would be continued until counsel presence jury, the Crouch’s the However, the 9. on March 8 trial March Agent by he was surprised stated mistrial, the defendants judge declared a govern- testimony because Taylor’s judge immediately objected, and the held had ten- represented that it ment The another in-chambers conferencé.4 statements made defendants all dered to judge plea denied defendants’ of former The custody. were in they them while by jeopardy April 20 and issued a memoran- the statement ruled that opinion dum week later. duty had a as the stricken failed to do so. Counsel and had disclose for a then moved

for both defendants II. statement ground mistrial on analysis is starting point The in our that no instruc- highly prejudicial sowas disagreement fundamental between impact its from the would remove judge concerning defendants and the trial The Court overruled jury. minds of the declaration of mistrial. the reason for Although the Court struck motions. both strenuously insist that the The defendants agreement as to the Taylor’s personal aborted the trial for it, judge trial disregard and directed the mistrial motions reasons and later used the cross-ex- subsequently counsel Crouch’s at for the declara to it and made trial as an excuse Taylor respect ex- amined point The objection. his Kudel- tion of mistrial. defendants pressly withdrew trial, Early his motion. While 3. counsel informed did not withdraw mistrial in the defense unnecessary question, objections, motions and we find it to decide this the trial court note, however, practice positions that the better counsel we other taken one defense recognize judge explicitly applicable to either to both defense the trial should be deemed explicitly agreements clearly The when tendered unless stated otherwise. such counsel agree- give imprimatur position such was ac- refuse to claim that judge judge. quiesced trial ments. in the trial disagrees opinion states as his memorandum counsel he was of the view that Kudelka’s made of this conference. No record was trial, the trial judge adjourning the action of we could not consider his explanation. admittedly personal Fayerweather Ritch, the trial for reasons.5 276, 305, U.S. then ask this court to make The defendants (1904). S.Ct. 49 L.Ed. 193 See also subsequent the inference declara- Pyke, Hassenflu v. 491 F.2d 1094-95 Cir. also personal tion of mistrial was made for “It is inappropriate ... judge trial in his memoran- appellate opinion reasons. base an on assertions de- stated that dum mistrial was hors the record.” to the defendants’ granted pursuant re- A similar claim was the defend We hold that quests. judge’s ant in United Pappas, States v. granting statement of his motivation in (3 Cir.), nom., cert. denied sub Misch dispositive mistrial is on the issue. lich v. United 449, 10 (1971). L.Ed.2d 368 In Pappas de Just as courts will not review the fense counsel made a mistrial law, of a motion which legislature enacting motives Peck, denied. The next (6 Cranch) 87, day Fletcher v. U.S. trial judge stated that after L.Ed. reflection United Darby, decided to abort trial for the reasons L.Ed. 609 urged by the defendant. The Motel, defendant Heart of Atlanta Inc. v. urged, as defendants Crouch and Kudelka 348, 13 here, contend the mistrial was not (1964), this court will not re granted response to the motion for mis view the processes mental of a trial judge. trial but was in granted fact sua sponte. judge’s A statement of his mental processes The Third Circuit denied this claim stating: absolutely unreviewable. This court has Here, however, no means observing process. mental compels record conclusion that the Morgan, 409, 422, States v. declared a solely in response to the (1941), L.Ed. 1429 defend- Mr. ant’s request, although day Justice after Frankfurter stated the rule we fol request made, had been low today. explicitly “We have held in this [de- interest was the exclusive mo- very litigation that ‘it fendant’s] was not the function underlying tivation the declaration of probe court to the mental processes mistrial. Accordingly, a second of the trial of Secretary’ Agriculture]. [Morgan [of by was not barred 1, 18, v. 773, 776, [the U. 304 defendant] U.S. 58 S.Ct. 82 S.] jeopardy double clause. (1938). L.Ed. 1129 Just as a judge cannot be subjected to such a scrutiny, Id. at 1200. so the integrity of the administrative proc III.

ess must be equally respected.” Cf. Hick man v. Taylor, 495, 385, 329 U.S. 67 S.Ct. 91 The then arises whether L.Ed. (1947). The judge’s trial state consistently with the jeopardy provi double ment of his mental process is so impervious sions of the fifth amendment the defend to attack that even if he were to come ants may be tried again following the forward today and declare that his memo granting of their motions for mistrial. We randum hold, misstated his reasons for the mis- many held,6 courts have others open 5. The 1977); Kessler, stated in court: United States v. 530 F.2d 1246 (5 1976); Wilson, Jury, Ladies and Cir. United States Gentlemen of the v. because of matters, personal (6 1976); going White, some I am to have to Cir. United States v. adjourn this case for two weeks. F.2d 1249 Cir. United States v. DiSil vio, (3 Cir.), denied, 520 F.2d 247 cert. 423 U.S. 23, 6. Lee v. United 432 U.S. 97 S.Ct. 1015, 447, (1975); 96 S.Ct. 46 L.Ed.2d 386 Unit 2141, 80, 547, 53 L.Ed.2d 91 S.Ct. 27 L.Ed.2d Jamison, U.S.App.D.C. 300, ed States v. (1977); Dinitz, United States v. (1974); Beasley, 505 F.2d 407 600, United States 1075, v. (1976); 96 S.Ct. Unit- Cir.), denied, 479 F.2d 1124 Jorn, cert. 470, 547, U.S. ed States v. 91 S.Ct. 924, 252, (1973); 94 S.Ct. Tateo, L.Ed.2d 158 463, 1587, U.S. 84 S.Ct. 12 L.Ed.2d Kennedy, States v. 548 F.2d 608 if cases cited above or is retried unless case one may be the defendants upon which the mistrial motion was forced by error prompted mistrial motion was by prosecutorial the defendants over- faith or undertaken by bad “motivated by reaching7 “motivated bad faith or un- v. Din- United States prejudice.” or harass prejudice.” pros- dertaken harass or itz, 600, 1075, 47 L.Ed.2d 96 S.Ct. creating may not act in bad faith in ecutor In Lee United v. (1976). prompt a defendant’s motion for errors 53 L.Ed.2d mistrial; otherwise once a sees explicitly recog- the Court 88-89 he could force a going badly, that his ease is motion for mistrial nized a defendant’s mistrial have another chance at con- to retrial: ordinarily any removes bar victing the defendant. This would circum- United States Writing for Court [in purpose jeopardy vent of the double Dinitz, reit- supra], Mr. Justice Stewart clause.8 the rule that “where circumstanc- erated leading proposition case for this to prosecutori- es not attributable develop Kessler, in this circuit is judicial overreaching, a motion al or 1976): ordinarily is the defendant Thus, analysis prosecu- of the stringent any repros- barrier assumed to remove conduct, considering totality tor’s ecution, motion even if the defendant’s mistrial, prior the circumstances judicial or by prosecutorial necessitated “prosecutorial if there determine error. “prose- If overreaching” inquiry. is our found, a overreaching” is second cutorial defendant, by requesting a Where the Jeopardy is barred the Double mistrial, his choice favor exercised the fact notwithstanding Clause Jeopar- the trial the Double terminating requested the mistrial. not stand dy generally would Clause overreaching”, To “prosecutorial find way reprosecution. Only if have, through “gross Government must underlying error was “motivated bad misconduct,” intentional negligence preju- to harass or faith or undertaken de- aggravated caused circumstances to id., 1075, 47 dice,” velop “seriously prejudicefd] a de- would there barrier “reasonably him con- causing fendant” ' to retrial[.] clude that continuation tainted proceeding would result in a conviction.” IV. Dinitz, United States at supra, 424 if present case at We must now decide 47 L.Ed.2d at contemplated by the “ordinary” one [footnote omitted]. 21, Hollowell, (1970); United States ex rel. (5 531 v. 481 F.2d 1145 439 F.2d McNeal Cir. denied, 951, 1476, Montgomery Brierley, 1973), (3 v. 414 F.2d 552 Cir. cert. States, (1974); United States v. Roma 1969); Gregory U.S.App. v. United 39 L.Ed.2d 567 133 no, 1973), sub (5 482 F.2d 1183 Cir. cert. denied denied, 317, 1016, cert. D.C. 410 F.2d States, 1129, nom., v. Yassen United 143, 865, (1969); Va 90 24 L.Ed.2d 119 S.Ct. 866, (1974); 94 38 753 (5 carro v. United 360 F.2d 606 Cir. Goldstein, 1973); (2 v. F.2d 1061 Cir. States 479 Broderick, F.Supp. 425 1966); United States v. (8 Roberts v. United 477 F.2d 544 Cir. Slayton, (S.D.Fla.1977); Hairston v. 333 93 Iacovetti, 1973); United States v. F.2d 1147 466 (W.D.Va.1971). F.Supp. 197 denied, 908, (5 1972), 410 93 Cir. cert. (1973); States 35 L.Ed.2d complain any not mis- 7. The defendants do Lansdown, 1972); (4 Unit v. F.2d Cir. part judge of caused conduct on the Pappas, (3 Cir.), ed States v. 445 F.2d 1194 only ques- the mistrial motions. Therefore nom., sub Mischlich v. United cert. denied States, prosecutorial misconduct. tion here concerns 10 L.Ed.2d Walden, United States v. 448 F.2d subject person Nebraska, shall 1971); Houp [N]or (4 v. State of Cir. put jeopardy of life denied, to be twice same offence 427 F.2d 254 cert. Cir. U.S.Const., or limb .... Amend. V. Henderson, U.S.App.D.C. you A Would ask the question again, in his memorandum judge The trial please part? sir? The first motions were not the mistrial states that by prosecutorial Q the defendants upon you employ- forced What caused to leave the finding review of ment of Mr. Crouch? misconduct. Our provision of Fed.R.Civ.P. limited A I was aware of all these— fact 52(a) “findings which provides Q Excuse only No. me. I am con- errone- clearly be set aside unless shall not cerned if there disagree- was some Hollowell, v. 481 F.2d ous.” McNeal ment arose you got and fired and/or 1973); Cir. United States Gold you did quit, rather than the details. stein, Crouch, A Mr. he when returned from Wilson, United States trip, told me he He couldn’t use me. 1976). me, said, he said couldn’t use and I said, “Why?” And he “I can’t use finding prosecuto that a We note you anymore.” requires the miscon rial misconduct said, mean, I gross negli you you have been a result of And “What do duct must said, “Yes, fire me?” And some- gence or intentional misconduct. Kes n like thing that.” sler, arising misconduct from the we found govern evidence said, introduction into “Well, I quit. And I You are ment known false exhibit. We charac of a firing not me.” terized the introduction as intentional mis said, And he you going stay “Are arising conduct. In another case in a dis and day?” work rest of the And I circuit, judge trict court in this the district said, “Of course not. I’m leaving found that a invited now,” and packed the rest of by asking question which she my stuff and left. specifically agreed not to ask. The Q After you employment had left the asking ruled that Crouch, Mr. had it at- your come to violation her agreement had been tention that might Mr. Crouch be de- ratified amounted to in getting you, sirous of rid of so to tentional misconduct. United speak? Broderick, F.Supp. (S.D.Fla.1977). Yes, A sir. to the facts of the present Q now turn information, And as a result of that appeal. Clearly, precipitated the error that did seek you protection from the the first mistrial motion is the most serious. AT&F agency? Beck, During of Fred a for- Yes, A sir. Crouch, employee mer of defendant the fol- Q your seeking And result

lowing transpired: protection, you given paid were Q Now, [by prosecutor]. Okay. I moneys certain your move loca- say you

believe left you Mr. Crouch’s tion?

employment around October of ’73. Yes, A sir. Yes, A sir. Mr. DeGUERIN: attorney]. If [Defense Q why you employ- And did leave his Your please, leading Honor this is you quit, you desired, ment? Did or were suggestive of the answer object fired? to it. negligence part govern ‘overreaching’

9. Mere on the of the is limited to intentional miscon States, enough. gross negli ment is not Lee v. United 432 duct or whether it would extend to 23, 32-34, 2141, 2147-2148, gence part prosecutor U.S. 97 S.Ct. 53 L. on the of or 80, Jorn, Wilson, Ed.2d 89 United States v. led to mistrial.” United States v. 534 470, 484, 547, 76, (6 1976). 91 S.Ct. 27 F.2d 80 n.6 L.Ed.2d 543 Cir. We have held in DiSilvio, 1124, Beasley, United States v. United States v. 520 F.2d 247 denied, 924, 252, 1975). observed, Cir.), cert. Indeed one circuit has prosecutorial “It that is unclear from the Dinitz over [United Dinitz, reaching gross negligence. (1976)] States v. includes 96 S.Ct. 1075 whether It Walker, believing danger. that his life was in it is. Just Mr. THE COURT: attorney objected only was after Crouch’s said, please. was Sus- him what ask the govern- did question the form of the to tained. attorney imprecise question ask the ment’s Thank Mr. WALKER: [Prosecutor]. objected to testimo- precipitated the Honor. you, Your discussing A review of the cases mis- ny.11 this infor- Walker). How did Mr. Q (By part re- prosecutor, on the of the conduct you? to mation come v. In following: veals the Alcohol, and Firearms Tobacco A The Romano, 1973), cert. 1183 Cir. a tape to listen to allowed me agents States, nom., denied sub Yassen v. having a con- of someone recording 1129, 866, 38 L.Ed.2d with Mr. Crouch— versation an inadvertent (1974), prosecutor the me, Hon- Excuse Your Mr. DeGUERIN: argu- opening during comment prejudicial for the Court a Motion or. We have We in mistrial. which resulted a ment Jury. of the presence of the out inadver- the comment was found that since prosecutorial miscon- tent there was not First, claim the defendants Henderson, duct. concerning taped the murder testimony (1970), 439 F.2d 531 the U.S.App.D.C. and a violation Mas hearsay was threat prosecutor opening argument announced at v. siah United calling he was the defendant’s mother (1964).10 it is L.Ed.2d While witness; prosecutor the failed to as a when we will assume that unnecessary decide witness, the the defendant’s proposed call recording was testimony concerning granted. mistrial motion was The District a If this were direct violation of Massiah. a no of Columbia Circuit found misconduct. conviction, we note that from a appeal Montgomery ex In United States rel. Pearce, North Carolina Brierley, 414 F.2d (1969), his summation new even remand would allow and an “old “pro” called the defendant were a violation of Massi if the Third found that a mis- pro”. The Circuit part on the some evil motive ah. Absent objec- resulting from defendant's incongruous it we find government, did not prejudicial to these comments tion free as a result go defendants to allow the overreaching. prosecutorial from result when the most their mistrial motions cases, we find Like above mentioned get a result of reversal in a they could not a question was prosecutor’s appears retrial. It from appeal direct is a harass, but attempt to vex or deliberate government’s attorney the record that brought part, mere inadvertence on his was that Beck’s testimo objec- wanted to demonstrate large aby extent defendants’ government attempt improper judge’s was not tainted and the trial to have ny question Beck had a basis for his clarified. payments of, way —which was indicative counsel 10. Massiah United it, (1964) pro- put buying the Government undertook to “Any interroga- testimony. paid hibits the use in court secret has mon- The Government defendant, indictment, only purpose ey, and after the find- tion of the from and it was for that it protection ing paid. of the without the I And I think indicated it was for presence of counsel.” protection afforded a witness. Further, I asked the whether or not witness attorney response 11. The stated him come to that Mr. information had objection purpose elic- defendants’ killing, having or him Crouch had indicated testimony: iting objected to said, “Yes.” killed. He spoken, I would WALKER: I have not MR. going. that is as far as was And speak. . like . that led me, objected. And the Court said Counsel to this, already it been indi- into because has say what was said. in this courtroom the Government cated And I asked the witness— then force, ATF, through have some expla- contemporaneous note that this is a money. paid witnesses not an after the rationalization. nation and fact statement he did do Appellants’ that not so. the defendants contend Next agree an a asking was in breach of is that mere testimony the contention the testimony con bring any Taylor testify out that to so is question ment not to allowed pending Houston case. A puts things high. a once misconduct. This a little cerning circuit in United States prepared district court in We not to hold that the mere are Broderick, has breach of supra, held the asking question, of a in the absence aof amounted to misconduct. agreement to, an agreement ever specific not would insu- the conduct in the instant do not think prosecution. a late defendant from See First, level. case rises to this unlike Bro Hale, 171, 95 genuine disagreement derick as to there is a 45 L.Ed.2d 99 United States Second, the the agreement. existence of 1976); Impson, Walker in judge Broderick ratified the States, v. United 404 F.2d 900 Cir. agreement; present in case Ivey United F.2d 770 any agree explicitly refused to enforce 1965). We it think that takes more than a finally, ment. we think even if And that government’s single to vitiate there its agreement, were a ratified breach ability try these on these inadvertent, was unlike agreement in a very charges. serious After review of the deliberately Broderick which was violated. made by three mistrial the defend- motions ants, we are of that opinion The second motion for mistrial oc decision court’s that the motions were not during testimony special curred by is brought prosecutorial overreaching Alcohol, agent Taylor of Tobacco and clearly not erroneous. Agent Taylor Firearms testified Bureau. Kudelka had that he defendant said Tateo, In United States v. agreement with defendant Crouch would his whereby story Kudelka stick to (1964),Mr. Justice stated: Harlan pay legal Crouch would fees and Corresponding to the of an accused see to it that Kudelka get pawn would be given a fair trial is in the societal shop in attorney Galveston. Crouch’s con interest in one whose is punishing guilt testimony tends elicited was in clear after he has obtained such a trial. pretrial discovery violation of a order. high It be a indeed for price socie- government attorney stated after the de ty pay every granted were accused fense objection, counsel had voiced his “The immunity punishment from because witness me. surprised That’s all know.” defect sufficient to constitute revers- Certainly, agent’s surprised if the error ible in the proceedings leading the government attorney, it cannot said standpoint conviction. From the of a de- attorney that the was guilty of intentional fendant, it is at doubtful that appel- least misconduct.12 they late courts as zealous as would be are in appellants’ against third motion for now protecting the effects mistrial agent Taylor was made after testi of improprieties pretrial at the trial or fied stage that when was to make if they Crouch asked knew that reversal aof attorney specifically 12. Since with- Crouch’s motion. The trial stated in his memoran- motion, drew this mistrial we note an inconsist- dum did not Kudelka waive ency arguing guilty in mistrial motion. Since under Kessler anal- forcing ysis, finding misconduct Un- mistrial motion. of misconduct would benefit Kessler, Kudelka, der should Crouch not be allowed to we will assume that his mistrial mo- argue prompted this error caused him to make a was not waived and was find, pros- however, prosecutorial motion for mistrial and that the error error. We grossly negligent ecutorial misconduct and then turn around and error was not or inten- waive his mistrial motion. As discussed tional. See Roberts v. United 1973) supra, regarding (motion note there confusion 544 Cir. one defendant was apply effect of one defendant’s motion other held other defendant in a case jointly represented defendant’s case. Defendants and Ku- both Crouch defendants were argue they attorney). delka both waived this one After a review of' this record and the the accused irrevo- put would conviction defendants, the we are not prose- arguments of further of the reach beyond cably therefore, practice the Jeopardy to the Double reality, prepared hold that cution. rights as the retrial serves defendants’ Fifth Amendment bars of retrial Clause interest. society’s well as the defendants of these defendants. Since two motions and the made at least mistrial many same find analogy, we By upon not the defend- motions were forced finding context of true in the notions are misconduct, prosecutorial we find ants If the are courts misconduct. prosecutorial to re- that the fifth amendment is no bar miscon- finding prosecutorial quick too regarding the express trial. We no be that result would the inevitable duct mo-, sua granted sponte. were mistrial stop granting result simply would judges trial There are valid reasons for mistrial. tions judgment district Accordingly, we trial why allow a system in our court is AFFIRMED. not yet trial and forfeit erroneous abort an try right to a lawbreaker. government’s GOLDBERG, dissenting: Judge, Circuit of de- practice not to disturb wishWe they when are merited. claring mistrials disagree I with V of Because Section I Thornberry’s opinion, respect- able

Judge V. majority’s holding in fully from the dissent this ease. Ku defendants Crouch and Finally, requir write rule this a delka ask court and Kudelka ask this Defendants Crouch the defendants give court to ing the district adopt a rule when a trial court court to the record state opportunity an signifi- motion and first overrules mistrial mo stand on their they desire to whether take the court proceedings place, cant then made, or to continue previously tions give must declaring before the circumstances conclusion. In trial to be- opportunity to choose defendants an obviously case, a course of conduct such mo- (1) withdrawing their mistrial tween practice. have been better would reas- continuing the trial and tions and decline, however, gener to write this as majority their admits serting motions. Goldstein, States rule. In United al obviously that “such a course of conduct 1973) the defendant F.2d 1061 Cir. practice have the better been jury for mistrial while made a motion case,” yet de- in the circumstances of this trial Two hours later the deliberating. fully require procedure. clines such and the defendants

judge granted a mistrial majority as to the desirabili- agree with the an they never had effective claimed that practice but also believe ty such mis their motion for to withdraw chance clause as policies jeopardy of the double disagreed trial. The Second Circuit in United Supreme Court articulated easily could have held that Goldstein Dinitz, Similarly, judge. to the position clear require adoption our (1976), ample Kudelka had Crouch and defendants of this rule. during the course of opportunity Supreme stated that: In Dinitz the Fur motions for mistrial. withdraw their judicial prosecutorial when error Even thermore, have made the defendants could of se- prejudices prospects a defendant’s ei known to the trial position their may an nonetheless curing acquittal, February during ther the conference and, per- ‘to to the first go desire ad the two week during or at time dispute end the then and there haps, it is the In these circumstances journment. Jorn, acquittal.’ United States [400 to make responsibility of 547,27 L.Ed.2d 543 change in judge any known to the recognize (1970)]. prior Our decisions the mistrial mo regarding position their this course in pursue defendant’s tions. Furthermore, circumstances of the absence of manifest such a rule is not inconsistent necessity . with the Second Circuit’s decision in United Goldstein, States v. (2nd F.2d 1061 at 1973), which is discussed in Section V of the recognized that the defendant The Court majority opinion. In Goldstein the defend- faced a “Hobson’s choice” be- generally ant made his motion for mistrial after the up jury proceed- his first giving tween gone case had jury and the trial trial, and with a tainted stressed that in ing ” given charge. modified “Allen predicament important this light of “[t]he Two hours later when it appeared that the consideration, purposes for Double deadlocked, was judge grant- Clause, defendant re- Jeopardy ed the motion. The most obvious distinc- control over the course to primary tains tion between Goldstein and the instant case of such followed in the event error." Id. at Goldstein, is that as the Second Circuit supplied). 1081 (emphasis opinion points out, no in court proceedings procedure declaring the mistrial place took between the mistrial motion and utilized the court below hardly satisfied judge’s mistrial declaration that might the policy allowing the defendants to have changed the perceptions defendant’s retain control over primary aspect this regarding the desirability of a mistrial. Id. the proceedings. The mistrial was declared at 1066. More importantly, Goldstein over two weeks after the court concluded that the mistrial was de- defendants’ mistrial motions first were de- clared with the defendant’s “consent” be- nied. The judge declared the mistrial judge’s cause the remarks discharg- before asking without the defendants whether ing the jury made it clear that he was they wished proceed with the trial and mistrial, about to declare yet defense giving without the defendants an opportu- counsel did not make use the opportunity nity to withdraw their mistrial motions. to “disabuse the judge of the idea they The events which transpired between the still wanted” a mistrial. Id. Here on the last mistrial motion and March 8th mistrial hand, other the defendants had no reason to declaration, including the conclusion of the expect the. sudden declaration of mistrial government’s presentation, the beginning given and were no opportunity withdraw case, of the defendants’ and the two week their In way motions. no can defendants recess, easily could changed have the de- be said to have “consented” to the mistrial fendants’ perception whether, as to declaration; that crucial difference is pre- 8th, March it was in their interest to have cisely why I feel compelled to dissent in example, declared. For it possi- case. ble that the remainder of government’s conclusion, gone case had poorly, that I would hold the dou- defendants’ well, case ble going jeopardy was clause or that bars retrial of recess defend- might mitigated have ants Crouch some of the prejudi- Kudelka because they cial effects prosecutorial given were not errors. The an opportunity to withdraw defendants were in the position best their as- mistrial motions before the mistrial sess these factors and determine whether I declared. therefore respectfully dis- not to withdraw their mistrial motions. sent.

believe that Dinitz requires that the deci-

sion be 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 the instant

case admit that it is the practice.” “better

Case Details

Case Name: United States v. Robert W. Crouch and Albert Kudelka, Jr.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 6, 1978

Citation: 566 F.2d 1311

Docket Number: 76-2361

Court Abbreviation: 5th Cir.