“In the face of the government’s complete failure to present to the District Court a reasoned argument for the admissibility of this evidence . . . we decline to speculate about grounds for admissibility . . . .”
How later courts described this case
- “In the face of the government’s complete failure to present to the District Court a reasoned argument for the admissibility of this evidence . . . we decline to speculate about grounds for admissibility . . . .”
Written by the judges who cited it.
The opinion
PECK, Senior Circuit Judge,
concurring in part, dissenting in part.
I concur in the affirmance of defendant-appellant’s conviction under the twenty counts for violation of 21 U.S.C. § 841 (1976), and in the vacation of the conviction as to the involuntary manslaughter charge, and dissent only from the majority’s remand for retrial. As is clearly demonstrated in the majority opinion, the United States attorney was guilty of questionable action in requesting and obtaining an indictment for murder “with malice aforethought,” and of censorable conduct in eliciting the gay relationship testimony which forms the basis for the vacation of the manslaughter conviction and which we unanimously “believe to have been done intentionally.” The Government thereafter argued that this testimony was admissible, but neither by a preliminary showing nor by a subsequent proffer of proof did it present any evidentiary basis for that contention. The remand would presumably open the door for the Government to do that which it declined an opportunity to do at trial. I do not feel that it is entitled to another bite at the apple.
Given the fact that defendant was sentenced to twenty valid concurrent 5-year prison terms, we should exercise our discretion to simply vacate a twenty-first invalid concurrent 3-year term, and not permit the United States attorney to subject the defendant to another trial,, necessary only because of the Government’s misconduct at the first trial. United States v. Brown, 529 F.2d 962, 970 (1976).