holding that “the evidence reveals a sufficient basis for the jury to be satisfied beyond a reasonable doubt that each of the asserted transactions took place, but no evidence linking them together in a single overall conspiracy”
How later courts described this case
- holding that “the evidence reveals a sufficient basis for the jury to be satisfied beyond a reasonable doubt that each of the asserted transactions took place, but no evidence linking them together in a single overall conspiracy”
- holding there was a prejudicial variance where the jury spent “two entire days listening to obviously shocking and inflammatory discussions about assault, kidnapping, guns and narcotics” and concluding the prejudicial nature of this evidence “cannot be underestimated. No defendant ought to have a jury which is considering his guilt or innocence hear evidence of this sort absent proof connecting him with the subject matter discussed”
- finding “sufficient basis for the jury to be satisfied beyond a reasonable doubt that each of the asserted transactions took place, but no evidence linking them together in a single overall conspiracy”
- holding that defendant was prejudiced at trial by two days of testimony about assault, kidnapping, guns and narcotics although there was no evidence linking the defendant to these acts
Written by the judges who cited it.
The opinion
HENRY J. FRIENDLY, Circuit Judge
(concurring):
Applauding Judge Van Graafeiland’s opinion as I do, I would go further in one respect, namely, by directing dismissal of the indictment rather than leaving the district court an uncharted discretion whether and how to proceed with this incubus. The opinion convincingly demonstrates that the indictment cannot fairly be' read as charging the Flynn conspiracy alone. Granted that we have authority to take the course directed by my brother, see United States v. Russano, 257 F.2d 712, 716 (2 Cir. 1958), we are not obliged to do so; one reason why the Russano court believed that dismissal “would not be in the interests of justice” doubtless was that, as to one of the two conspiracies, the statute of limitations apparently had run. Here the statute of limitations would present no obstacle to new indictments and neither, if Ball v. United States, 163 U.S. 662, 672 , 16 S.Ct. 1192 , 41 L.Ed. 300 (1896), retains the health I believe it has, would double jeopardy.
Under such circumstances the interests of the judicial system, of the defendants and, for that matter, of the Government would be best served by dismissing the indictment for failure of proof of the single conspiracy charged and allowing the Government to seek new indictments for the several conspiracies to which the evidence points. However, in order to permit a disposition to be made, I subordinate my personal views and join - in Judge Van Graafeiland’s opinion.