United States v. Sylvio J. Grasso

SMITH, TIMBERS, Before OAKES Judges. Circuit OAKES, Judge: Circuit presents recurring This issue appeal the appellee whether retrial of the defendant original after his trial ended in a mistrial by sponte sua declared would the double clause of violate the Amendment. is one Fifth The issue to “escape meaningful categorization,” said the “virtually all the cases turn on facts,” Illinois v. 458, 464, 1066,1070, L.Ed.2d (1973). Appeal here the Govern an order of ment from the United States the District Court for District of Connecti cut, Zampano, Judge, granting Robert C. appellee’s motion dismiss his indict evasion on double tax ment for (D.Conn.1976). grounds. We affirm. 16, 1975, April appellee was indicted

On for three counts of income tax evasion years pursuant 1970 and 26 U.S.C. 7201. Trial on November began § 4, 1975, Clarie, before T. Emmet Chief Judge, jury. During eight next days Government called over witnesses, one of whom was a Daniel Har- ris; witnesses, presented defendant ten himself; including called Government rebuttal; three witnesses in over 300 docu- exhibits; ments were admitted as and the parties jury in- requests filed extensive for structions. On Noveniber when wit- the Government’s final rebuttal heard, Judge nesses remained to be Clarie after declared mistrial on own motion two-day hearing. was precipitated The mistrial Harris, recantation Government witness ics, and whether or not . multiple serving offender then a term of . . Harris eight thirty years believed,” im- imprisonment could rather than whether or sale of He posed for the heroin. Grasso evaded taxes. Clarie’s from there necessity favorable consideration view was a “manifest had received declaring of Parole was to be so the Board released mistrial” ends “the December, justice, public justice, direct prison His de- [not] testimony was to the that he improper effect feated.” Clarie found no Grasso, engaged conduct on the appellee, prosecutors numerous or agents. the sale He involving of heroin Government explicitly transactions stated that “the year testimony 1970. The issue thus estab- of double jeopardy could be illegal argued” appellee’s source lished an event Government decid- unreported proceed in that alleged income calendar ed to with a retrial. The Assistant testimony did year. Attorney Harris’s not relate objec- recorded his years tax 1971. His declaration mistrial “for the over day half consumed record.” For the lasted defense Mr. Rothblatt course, Honor, said: “Of pages transcript. your 120 the defend- agrees ant with everything your Honor testified, days after Harris had Several decided, except your Honor’s decision to son, turn appellee’s contacted who in declare it a We mistrial. would renew our appel- him to contact the court or advised request for judgment acquittal.” counsel, tele- Henry lee’s Rothblatt. Harris Judge law subsequently sought Clarie’s clerk and asked The Government phoned retry appellee, tell to call Rothblatt “Dan” at who him dismiss the moved a. on proceeded to in- indictment given jeopardy grounds. number. Rothblatt double jail, Judge Zampano granted motion, at the local where he terview so that held, being is the tape-recorded appeals a full it Government that that deci- sion. testimony. recantation Harris’s recanting witness stated that false

testimony was influenced threats made I. prosecutors Government and Internal argument The Government’s first in agents charge Revenue Service is that defendant consented to the dec alleged being tax threats that his of a plain laration mistrial. The law is revoked, parole would be that he would that, if enough a defendant himself moves years 30 sen- have to serve the full of his mistrial or he consents for a to a declara tence, might and that he in addition be on the made court’s own perjury charge indicted because his prosecution, or on the motion of the motion grand in- previous jury to have any he will considered waived stant ease. See, jeopardy plea. e. g., United Dinitz, 607-08, 600, v. immediately

Rothblatt 424 U.S. 96 informed States 1075, (1976); court 47 267 of Harris’s recantation and filed L.Ed.2d United S.Ct. Tateo, v. prosecutorial motion dismiss 377 U.S. based States 84 S.Ct. See, Giglio 1587, (1964); g., misconduct. e. 12 L.Ed.2d 448 United States, 150, 763, Goldstein, 1061, (2d 405 92 U.S. S.Ct. 31 479 F.2d 1065-68 (1972). Hearings Cir.), denied, 873, 151, L.Ed.2d 104 were held cert. 414 U.S presence jury, (1973); outside ten 38 L.Ed.2d 113 1194, testifying, Pappas, (3d Cir.), witnesses but Harris refused to 445 F.2d 1199-1200 relying denied, testify, 449, on the Fifth Amendment. 92 cert. S.Ct. Judge declared mistrial (1971); Clarie on the ba- L.Ed.2d Bur get rell, sis that (7th 1963), the defendant could “not Grasso cert. impartial present denied, a fair and trial under the

circumstances,” Note, “the (1964); since issue would be- Dou L.Ed.2d Mistrial and come selling Jeopardy, whether not he was ble narcot- 49 N.Y.U.L.Rev. Joseph Rose of Harris conducted of one re appellee neither But here (1974). Goldfarb, a attorney law clerk Ronald consented thereto. mistrial nor quested a below, “the These had been con- Zampano found office. interviews As September, to be offered in connection or intended ducted motion offered pending rights appellee] was motion dis civil action which [by the 170, and, miss,” plaintiff; appellee was the the inter- Grasso during his rul place oral on or about September two references took Clarie’s views principle jeopardy, it ing to the of double prior two months to commencement that he believed he was inferred in the criminal case. The Govern- sponte and not in granting a mistrial sua calls our attention to fact ment request, cf. to the defendant’s response state that Harris told memoranda Goldfarb Gentile, States v. (Harris) that he had lied Goldfarb 1975)(fact judge was unaware (2d Cir. concerning ac- Grasso’s agents Government jeopardy problem contributes to narcotics, had and that Goldfarb tivities that defense counsel consented to inference sign a state- to believe Harris reason mistrial), 903, 96 S.Ct. hearing parole effect after his ment to that L.Ed.2d Thus the September, 1975. scheduled argues counsel that defense Government Mr. remarks Nor can Rothblatt’s by September, have known knew or should ruled, quoted after the made in sto- that there was contradiction above, any way be construed as consent this by Harris and failed disclose ries ing very plainly mistrial. said He to Clarie. The Govern- information agreed everything he the court that the mistrial contends that ment therefore said, “except your to Honor’s decision de of defense counsel’slate was a result direct mistrial,” it a and he renewed his clare contradictory statement production judgment acquittal. of It is request for the de- suggestion The of Harris. say objected he did not that he to true that to Harris with chose not contradict fense proceed mistrial and wished but waited prior inconsistent statement his affirmative consent not but jury, nearing completion was until that silence. inferred the basis of the incon- move for dismissal on recording of tape statements in sistent II. Harris. argues in the alter The Government that, suggestion improper if actual consent con-

native there were no When this implied was consent should be defense counsel duct on below, by by “sup- precipi defense counsel’s conduct made affidavit but because mistrial. v. plemental opposition tated the See States memorandum” in 252-58; Gentile, dismiss, at supra, 525 F.2d Mr. the defendant’s motion to White, (5th affidavit, an uncontroverted v. Rothblatt filed States that, 1975), record, stating at the time Cir. U.S. (1976); 49 L.Ed.2d 375 cf. Unit certain interviewed Harris and Goldfarb Dinitz, (no supra jeopar in Hartford ed other inmates incarcerated area, misconduct chief defense coun “we that Harris dy where were not aware It went opening going .statement resulted to be a witness this case.” sel that, testified, request say followed defense first expulsion, when Harris mistrial). in- Following among Government’s “he was Rothblatt assumed launching investigation into the rea who had talk to Mr. Gold- an mates refused to recantation, September.” stated for the witness Harris’s farb in The affidavit sons (Rothblatt) whether there were threats of that he did not'become aware particularly witness, until attorney prepared by memoranda Goldfarb against made violence New voluntarily turned over to he had returned to his office in office after Rothblatt’s following the mis- of interviews York the declaration of memoranda the Government III. The Rothblatt affidavit trial. concluded 35 years “in over as an active trial aWhen is declared sua undertaken, have never practitioner sponte by without con a court defendant’s recommend, certainly would never the reck- sent, express or implied, jeopar the double strategy suggested by less trial the Govern- dy permits clause retrial of the defendant Judge Zampano ment.” below found that if, in the Story, Justice words Mr. from the plain “it is record that there was necessity “there manifest for the [was] impropriety neither misconduct [mistrial], public justice or the [n]or ends of part of defense counsel” and that Rothblatt otherwise be defeated.” Perez, performed (9 Wheat.) had his “affirmative to no- duty U.S. tify recently trial 6 L.Ed. 165 This court has that a had re- witness Gentile, commented su canted his testimony.” sworn pra, F.2d on the “wisdom” of at 171. Story’s further Justice statement in Perez impossible There is “it nothing in this record define all the cir either contradict Mr. Rothblatt’s affidavit cumstances which would proper” render it grant Judge Zampano’s finding im court to of “neither mistrial with propriety Moreover, giving out rise to a jeop defense misconduct.” it' of double [n]or (9 Wheat.) ardy, hardly likely seems 6 L.Ed. experienced and Mr. Justice risk, Black’s comment counsel would run in Wade known of Hunter, Goldfarb, letting the statement L.Ed. impossibili relative to the leave the stand without cross-examination ty laying “rigid down formula” on statement, regard failing to that to intro subject. also See Illinois v. su (after duce the statement itself authentica pra, 410 S.Ct. 1066. necessary), waiting if Goldfarb recantation that could possible for a further time, At the same Waterman contrary tape-recorded. suggestion suggested, Gori, once United States v. farfetched; to us the Government seems (2d 1960) (en banc) (dissent- impugns integrity here Mr. Rothblatt’s as a ing aff’d, 364, opinion), 367 U.S. 81 S.Ct. of the Bar and officer of the court member 1523, (1961), 6 L.Ed.2d 901 always it has not noth purely conjecture. based on There is crystal been clear how much discretion the ing to indicate that Mr. initiated Rothblatt given test judge Perez leaves to a trial in a jail tape recording. the resulting visit in the very set of circumstances. The vagueness Quite contrary, appears so far as formulation, Story of maintaining the while Harris himself initiated it. Nor was there verity, necessarily application its makes im- anything improper in Mr. Rothblatt’s visit Comment, precise. See Double Jeopardy ing during the absence of the Reprosecution After Mistrial: Is the advising Government counsel and without Necessity Manifestly Test Manifest Neces- Government request counsel of for sary?, 887, Harris’s (1975). 69 Nw.U.L.Rev. 890 It adversary the system prescribes visit. Our thought, example, a for sua was once legal no or moral duty require that would sponte mistrial did not bar retrial if the opponent counsel advise his that a wit had been declared “in the sole in- previously ness who has testified the for of the defendant.” Gori v. terest United opponent 364, 369, in a pending States, 1523, case wants to talk 367 U.S. 81 S.Ct. 1527, (1961).1 him. 6 L.Ed.2d 901 But we are governed, spite if 1. Even this test still the it would not introduction rebuttal of Harris’s jury testimony, contrary grand testimony by retrial here. allow Clarie declared the or defendant, agents, jury, mistrial but the be interest of the the Government the like Clarie, judge probability himself noted that Harris was a in all would not have be- testimony any respect. “crucial” Government witness whose lack of lieved Harris’s credibility operate the a prevent “contaminate[d] trial.” Had the declaration of mistrial did adduced, discrediting key of evidence the recantation been de- from the defense a Govern- 52 227, (1975); 917, 46 147 96 L.Ed.2d S.Ct. resolving question of the required,

now Lansdown, 164, v. 460 F.2d United States whether necessity,” to determine “manifest (4th 1972). Cir. 168-69 procedural considered all judge the trial a so as “not alternatives is in of discretion evaluation Since have option his the defendant’s [to foreclose volved, procedural corollary of necessary jury] original until tried cause that, Jorn judge a trial declares a before judicial scrupulous exercise of discretion mistrial, findings, explicit he must make the ends of leads to conclusion that hearing, preferably after there are served justice would be public See, alternatives mistrial. reasonable the proceedings.” continuation Warden, v. 1118, g., Whitfield 486 F.2d e. Jorn, 400 U.S. 470, 485, v. 91 S.Ct. denied, States 1973), cert. (4th Cir. 419 U.S. (1971) (plurality 27 L.Ed.2d 543 139, 876, (1974). If L.Ed.2d Harlan, J.).2 Jorn has been read opinion found, a mistrial no alternatives can judge declared, at least to con require and a retrial cannot be at measures grounds viable alternative curative unless sider tacked on double See, sponte declaring wrongdoing sua a mistrial. or negligence before ex rel. v. Hew g., Stewart See e. United States the Government caused mistrial. Glover, itt, 1975); 993, (2d (3d 506 F.2d 291 517 F.2d Cir. Spinella, (5th 1974). society’s Thus interest in “fair 506 F.2d Cir. designed just judgments,” J.), to end in Cir.) (Wisdom, 423 U.S. trials completed by element of the ment witness crime, an essential his tribunal.” income, likely unreported source of 557, quoting Wade v. S.Ct. at Id. year generally to the tax from more Hunter, 69 S.Ct. claiming Further, misconduct in the case. Government plurality Justice L.Ed. 974 Harlan’s held, Judge Zampano lays opinion it thus down as a constitutional 172, reprosecution given have always temper principle that a “must advantage.” Government “a solid tactical It whether or not to abort the trial decision considering calling Harris and could refrained importance to the defendant year presented against appellee case its for able, all, being once to conclude proceeded without his society through verdict confrontation solely years convictions seek might favorably believe to be a tribunal Ping Cheung, Cf. United States v. Kin 1971. disposed (5th 1973) (Govern- to his fate.” 400 U.S. at 91 S.Ct. 691-92 485 F.2d Cir. applies retrial ment on could sever and avoid embar- III of Section the Jorn having exculpate rassment its own witness solely case the facts under the law to defendant). doctrine of other alternatives” “consideration analysis. “sole interest” rather than Gori Gentile, Illinois (2d 1975), suggest dicta that the Jorn test vitiate does not holding L.Ed.2d dicta and the a mere reaffirma- itself 471, 547, Gori, Somerville, Jorn, but id. at 91 S.Ct. tion of and that Illinois v. 410 the force 458, 1066, (1973), it, exception U.S. 93 S.Ct. 35 L.Ed.2d 425 the sensible rather articulates the Jorn But imple vitiated force the rationale. the declaration of a mistrial that “where the “consideration of other alternatives” test in policy and aborts a ments a reasonable state seems, respect Jorn with due the Gentile produced proceeding would have that at best writer, likely opinion more to have been the by upset will at that could have been verdict holding reviewing of the case. After central parties, interest in of the defendant’s one the history jeopardy in the Supreme of the double clause the by outweighed proceeding the to verdict is Court, concluding un- and that even equally competing legitimate demand for interest” test there was not a der the Gori “sole 471, public justice.” at 1074 Id. at 93 S.Ct. benefit, solely for case mistrial defendant’s holds, then, added). (emphasis Somerville Mr. continued that the Gori test Justice Harlan jeopardy clause will not bar retrial the double satisfy policies adequately not the under- “does pinning though examination the of alternatives even jeopardy provision,” 400 the double is not undertaken to do so mandated Jorn if 556, S.Ct. at because declaration U.S. at 91 clearly because no would be futile reasonable mistrial, solely even for defendant’s bene- Accord, existed. United States ex alternative fit, explo- his and without but without consent Hewitt, (3d 517 Stewart v. F.2d rel. dealing the ration of other means of situa- Williams, 1975); tion, rights States v. United Cir. F.Supp. one of a in overlooks defendant’s (S.D.N.Y.1976). right prosecution: the “valued to have criminal Somerville, Hewitt, 996; supra, supra, at Stewart v. U.S. F.2d at Illinois 1073, protected. Williams, If 93 S.Ct. at reasonable States available, (S.D.N.Y.1976). to a mistrial are alternatives In all the but clearest cases, explicit should continue. findings way trial are the best judge to perils a trial avoid of the any findings A failure to make deni jeopardy double clause. the defendant’s “valued grates completed by case, trial his have On the facts of the instant Hunter, Wade v. supra, tribunal.” obvious which alternatives to mistrial quoted at explored, existed but were not we hold Jorn, supra, jeopardy States U.S. at clause bars retrial. reason, For this options The when trial available to Clarie were any findings ends in a mistrial without hav several. Harris could have been recalled ing and, made cross-examination, been alternatives to for further defense usually the double clause will bar event his claim of Fifth Amendment privilege a retrial defendant. This would upheld, not were he have could been hold granted true cases in it immunity possible perjury which is clear that supra. there are alternatives. charges testify. Note in order to force him When, trial, continued, example, if Spinella, supra, See United produced “at best would have a verdict Alternatively, at 432. upon F.2d such re upset call, could at will by par tape one of the recording of his recantation [be] ties,” Illinois v. supra, 410 could been admitted. Fed.R.Evid. See 1074; 471, 93 S.Ct. at cf. United 804(a)(1), (b)(3)(5). previous States v. His testi Gentile, supra, 525 F.2d at (multiple mony could have been struck appropri created defendants “dilemma” for trial ate instructions. See United States v. judge, Newman, in that either declaring (3d or 144-46 continuing trial could Cardillo, have led to 1974); contention United States v. by one the defendants), (2d of error Cir.), no find 611-13 ings required are 60,11 for a declaration of 84 S.C.t. (1963). Any mis L.Ed.2d 55 trial, clause will consideration of possi these reasonable And, bar retrial. ex See rel. was at oblique.3 bilities best while the declaring mistrial, Judge grand jury Clarie stated: Buckley before the that Mr. de- has, prosecutor, imag- Court duced when was assistant counsel well ine, given thought prosecutor. considerable to this problem that has arisen. never had tape, We’d have review the as has been during question this arise in form counsel, pro- filed evidence which he before. jail. cured We’d have to review the But the Court that be- witnesses, statement of I.R.S. who went perjury injected cause of the issue into the him over received from what is claimed Harris, of Daniel apparent tape. be an contradiction of the get the defendant can not a fair Grasso of Mr. And issue Grasso’s income tax impartial present trial under the circumstanc- question lost in evasion would well es. per- or not Daniel whether Harris committed jury If the issue went to the it would not be jury. That nub of the pay or not he failed to whether income question than the rather the defendant’s taxes; narcotics, selling the issue would be of pay failure to his income taxes. of itself which is in and business to most a kind of abhorrent opinion this the is For reason Court every one of us. The issue denied, the to motion dismiss would be that selling whether or not he was would become ordered, that a mistrial but should be be- narcotics, man, and whether or not this Dan- necessity there is manifest for cause declar- Harris, iel would believed. Otherwise, justice, ing a mistrial. the ends go ’way To have to back do that we’d to justice, public would be defeated. police- the the statement to three Hartford going what ’71, And that is the Court is to do. County get men and the Detective in permit story the originated, The Court that to the the facts as to how the the documents which are in with go present to forward under the circum- trial evidence. And injustice begin testimony we’d have to to be an Mr. review the stances would to Grasso. that, taking all the circumstances assure best of acting very with the judge was account, necessity there was a manifest intentions, from an to the defendant into protect sponte of this mis- trial, to sua declaration appropriate course was the unfair for at at suggested from defense S.Ct. alternatives solicit trial.” Warden, supra, supra, 410 in Illinois v. Whitfield v. quoted counsel. See 1123; Anderson, at at 1071. Jones U.S. aff’d, (S.D.Ga.1974), affirmed. Judgment 1975); Note, (5th supra, 49 F.2d 181 may procedure This 952. N.Y.U.L.Rev. dissenting: TIMBERS, Judge, Circuit mistrial, or in counsel’s consent result jeopardy name of the In the on dismissal as in his insistence of the Unit- Fifth Amendment clause of the Sedg alternative. See Constitution,1 majority ed States wick, (D.C.App.), A.2d a federal income dismissal of sanctioned eight days after indictment tax evasion In either defend L.Ed.2d all the trial was at a time when trial and argue on that there appeal cannot then ant I believe concluded. Since but to mis other reasonable alternatives were over glossed or majority ignored has either explored. The that should have been trial respect to the combined with critical facts however, on the court responsibility, counsel, his trial of defendant and conduct ask, and not on the own to defendant on his heavily conduct contributed such suggest, sponte sua mis alternatives to, implied to, consent and amounted re situation. Useful alternatives trial re- court’s declaration of inquiry, although from such an sult spectfully dissent. reject course the court is free explicitly inadequate them cure the situation. I. that, no

There can be claim here if con- jeopardy] tinued, “virtually all proceeding produced would Since [double .”, . facts upset that could have will cases turn on a verdict been Somerville, 410 parties. Striking one Harris’s Illinois point is a brief good starting here testimony, example, cer- almost by the important ignored tainly not have reference to facts resulted in reversible error. Government, moreover, the mistrial majority precipitated which proof claim. (such subsequent sources of 1970 and the other income business) defendant’s bail bonding be- months September 1975—two On likely produced would have in- unreported began income tax evasion fore Grasso’s so, Even were this come. not the case government witness district court — certainly gone jury could have de- the staff of told a member of regard years to calendar 1969 and 1971. attorney Rothblatt that his fense Here, argument jury regarding Grasso’s grand after on motion to before During dismiss, dealings the court had been false. declared a mistrial with- narcotics began on hearing trial which either of Grasso’s out side’s views on the sub- the course government out made ject. This was the November done no mention of strong unreported above, findings against raised him case alternatives and no 1971. years 1969 and On alternatives, for the question the state- income for the 11 and 12 Harris testified being only November ment the issues would be Har- regarding year government if the trial were continued. confused See testify regarding 1969 or Jorn, at all supra. As did note was true however ris intentioned, informed November Rothblatt here “made 1971. On well previously that the witness Harris effort exercise sound discretion the court ” XJ.S.Const, V, limb; any person subject . amend life . . . . nor shall put in of cl. 2. offence to be twice the same Gentile, by (2 1975), had refused be interviewed member 525 F.2d 252 Cir. of his staff. Neverthe less, I find it difficult to blink hard evening On the of November 20—after protection fact that Grasso here invokes the had defendant’s case Rothblatt rested jeopardy triggered of the double clause by for after Rothblatt’s motion a directed ver- the declaration of a mistrial which was tape- dict had been denied —Rothblatt had a granted to remedy prejudicial situation Harris, during interview with recorded brought about negligent his counsel’s which course of Harris recanted his testimo- failure to examine his own records. If ny. than two hours Harris Less later re- records, Rothblatt had checked his office as Agents to Special canted his recantation of would, said he after the matter of a Intelligence Division of the Internal prior interview of a member of Revenue Service. Harris told I.R.S. up Rothblatt’s staff came court No agents his recantation to Rothblatt vember credibility Harris’ of course lie was a which had been induced emerged would have a principal issue at threats. appropriate time, namely, upon Roth day, next November with the On the blatt’s cross-examination of Harris. over, trial all but Rothblatt informed Chief Judge Clarie of Harris’ recantation and II. to dismiss the moved indictment on the It seems to me concept of im- prosecutorial of ground misconduct. After plied consent to the of a declaration mis- hearings days presence three out of the trial, applied to the facts of this jury, the court November 26 de- involves more scrutiny than of counsel’s sponte. clared a mistrial sua role in precipitating sponte the sua ruling. September memorandum Counsel should bear the responsibility, at interview between Harris and a member of least, the very objection state his client’s staff, during Rothblatt’s which Harris dis- to the mistrial declaration and to assert his closed that he lied grand had before the client’s “valued to have com- jury, light came to subsequent pleted by tribunal”, Wade v. Clarie’s declaration aof mistrial. When it Hunter, at the time Rothblatt, to light, did come who was the declared, the mistrial and not sit back attorney record in the civil action in and wait for a subsequent with connection which the interview with hearing. conducted, Harris had been an affida- filed Here stating pre- defendant’s counsel vit did almost he “was simply not aware” cisely opposite. declaring until memorandum after the mistrial Judge Clarie had stated that been declared. “the defendant Grasso not get can impartial a fair and Whatever be said as knowl- present under the circumstances.” To this edge on the of the Rothblatt firm attorney responded: Rothblatt regarding existence of the memoran- defendant agrees everything with “[T]he dum of the critical interview with Harris decided, that your except Honor your has two months before the tax evasion trial of Honor’s decision to declare it mistrial. Rothblatt’s client began,2 recognize We would request renew our judg- this case is on a footing different acquittal.” added). ment (emphasis respect to the volitional element which was present in other cases where consent to a After reassigned trial, the case implied been from the conduct Grasso’s counsel discovered that his client See, of defense counsel. g., e. did agree everything Judge all with supposed day long I had that the since his firm—when the disclaimer such passed when one knowledge member of a firm law is invoked to cloak his client permitted knowledge to disclaim of the ex- protection clause. possession istence of a critical document in the 56 cases, holding (1973). asserted for the In each of these in He

Clarie had decided. ignored Judge Clarie had impliedly time that first defendant to have consented cope recanta- ways to “several weighed [Harris’ declaration of a we introducing reversible error. without tion] factor principal the defendant’s failure a simply justifica- was . [T]here having guilt in his to his interest assert taking the defend- away . tion . .for existing jury. by the determined opportunity for a favorable verdict.” ant’s the double recognize decisions that These holds, state- majority Rothblatt’s As the upon clause does not confer a de- jeopardy declara- response in to Clarie’s ment advantage fendant license to take undue 26 cannot be of a mistrial on November tion contradictory possibilities which arise a mistrial. Unlike objection an to read as when mistrial is declared. I would not majority all I am not at sure jeopardy construe double so as to clause express an statement did not amount to permit a defendant ready who sacrifice it whether did or consent to mistrial. But reaching existing interest an jury his not, part effort on such an affirmative exchange jeopardy for a dismissal double counsel to reinforce of defendant’s grounds reaching to obviate need his position hardly can be dismissed judge’s jury might any all. Such a defendant be “silence”. willing sit by silently all too and refrain event, Grasso’s any I would hold that bringing to trial court’s attention constitutes object to the mistrial failure nothing I see in the alternative solutions.4 subsequent jeopardy to his double bar requires double bar which either required courts claim. Other have affirma this choice left to the defendant on the of a conduct defendant tive obligation relieves him of the normal which See, claim.3 e. preserve double timely objection to make a to an adverse v. g., Gordy, 526 F.2d 635 contrary, ruling the trial court. On the (5 1976); 1 Cir. States v. Phil & n. right requiring the defendant to assert (3 1970); 949 lips, 431 F.2d existing guilt to have his decided (D.C. Sedgwick, v. 473 345 A.2d jury subsequent will assure that double denied, Ct.App.1975), cert. 423 1028 jeopardy dismissal fact serve to does States, (1975); cf. v. United 202 F.2d Scott vindicate the a re- asserted. Such denied, (D.C.Cir.), cert. 344 U.S. 879 moreover would tend to alleviate quirement (1952). But see v. United Himmelfarb underlay which problems holding Cir.), denied, States, (9 cert. F.2d States, v. United Gori (1949); People Compton, U.S. 860 v. (1961), “granted a mistrial in the sole 542, Cal.Rptr. 490 P.2d Cal.3d interest defendant” does neces- (1971). has held 217, 222 And our Court sarily Protecting bar retrial. all defend- culpable for their silence defendants through interests to a ant’s resort rejected cases three where we navigating less a matter much Gentile, v. jeopardy claims. United States compass 255; Scylla “a narrow between supra, 525 F.2d United States id., Charybdis”, if Beckerman, the defendant could be (2 1975); 516 F.2d 909 Cir. Goldstein, upon, required, partici- relied indeed United States v. (2 Cir.), U.S. 873 pate determination.5 agreeing face in first Supreme explicitly ques- Grasso’s about then Court left this 3. The disagreeing ruling States, No- Clarie’s open in 367 U.S. Gori United striking example. 26 is a vember (1961). n. 6 voluntary, intelligent knowing, waiver A Judge Friendly concluded jeopardy right is not a condition of a 256-57, Gentile, supra, 525 following permitting a mistrial. a retrial Unit- continuing validity approach of the Gori Dinitz, 424 U.S. n. ed States question by plu- put into Mr. Justice Harlan’s Jorn, rality in United States v. light but that in of Illinois v. Somer- adversary our system require him requirement that the defendant take A steps preserve right. to a assert affirmative existing jury determination ulti- I would remand with instructions to rein- mately looks toward the same ma- end the state indictment for retrial.6 jority requiring seeks achieve the trial judge make “explicit findings, preferably hearing,

after a that there are no reasona- Ante, p. alternatives

ble mistrial.” objective common

52. The of both the

majority and this is a con- dissent reasoned possible

sideration alternatives —insulat- ed the heat of the kitchen into which America, Appellee, UNITED STATES of when compelled thrust sponte. declare a mistrial sua But I disa- gree premise the majority’s proce- CLAIR, E. Garrison Appellant. ST. applicable dural strictures to the trial court No. Docket 76-1541. protect alone will fully integrity United States Court of Appeals, jeopardy prohibition. majority, Second Circuit. placing responsibility while all on shoulders, court’s appears rely on Argued March 1977. therapeutic hearing effect of a to coax Decided March 1977. out taking defendant of his corner and into Opinion March 1977. a stand. Certiorari 27,1977. Denied June procedure may “This result in counsel’s See 97 S.Ct. 2976. mistrial, or in consent his insis- tence on dismissal as the alternative. can- either defendant argue appeal

not then that there were

other reasonable alternatives to mistrial explored.” have been

that should

F.2d at misplaced

Aside from its reliance on what go on

does not in the realistic world court, majority ignores the fact

that, sponte even after a sua declaration of must proceeding partici-

pating parties. very Since reason

requiring a hearing determine the

grounds pro- for mistrial is to declaration defendant, right of the

tect a it does not

strike me unreasonable in the context ville, yet 410 U.S. 458 it cannot criticism of the conduct of the district court. consigned any certainty. to oblivion with Ante, my pp. Based 53-54. careful re- prefer Friendly’s continue cautious record, I am of the entire satisfied view assessment Gentile rather than the attenuat- Judge Zampano, Chief both Clarie majority ed footnote treatment here. them, discharged their on the facts before re- Ante, pp. 51-52 n. 2. judicial responsibilities spective in a commend- result, My quarrel fashion. with the able Ironically, although I would remand the case my dissent, quite a hence is directed at differ- retrial, of the indictment reinstatement quarter, dissenting my ent makes majority judgment whereas affirms the plain. court, majority’s I do not share the the district

Case Details

Case Name: United States v. Sylvio J. Grasso

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 9, 1977

Citation: 552 F.2d 46

Docket Number: 276, Docket 76-1284

Court Abbreviation: 2d Cir.