Petition — United States v. Grasso

RECEIVED |

MAY 6 1977

In the Supreme Court of the United

OCTOBER TERM, 1976

UNITED STATES OF AMERICA, PETITIONER

V.

SyLvio J. GRASSO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Wave H. McCree, In.,

Solicitor General,

Myron C. Baux,

Acting Assistant Attorney General,

FRANK H. EASTERBROOK,

Assistant to the Solicitor General,

RoBert E. LINDSAY,

CHARLES E. BROOKHART,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Ce OL ALLL! LLL — — — -_—- — =r"

INDEX

e

Question presentddd

Constitutional provision involved

Reasons for granting the petition

EEE RO SOE Re ee *

CITATIONS

Arizona v. Washington, No. 76-1168,

certiorari granted, April 18, 1977 6, 10, 13

Crist v. Cline, No. 76-1200, jurisdiction

postponed, April 25, 1977 6, 8, 13

Gori v. United States, 367 U.S. 364

Himmel farb v. United States, 175 F. 2d

924, certiorari denied, 338 U.S. 860

Holland v. United States, 348 U.S. 121

Illinois v. Somerville, 410 U.S. 438

Roberts v. United States, 477 F. 2d 544

Scott v. United States, 202 F. 2d 354, cer-

tiorari denied, 344 U.S. 879

United States v. Appawoo, C.A. 10, No.

76-1024, decided April 28, 1977

United States v. Dinitz, 424 U.S. 600

ited States v. Martin Linen Supply Co.,

ue 90-200, decided April 4, 1977 12-13

United States v. Massei, 355 U.S. 595. 2

United States v. Pappas, 445 F. 2d 1194. 8

United States v. r bw F. .

tition for a writ of certiorari pend-

— No. 76-1040 6, 11, 12, 13

United States v. Scott, 544 F. 2d 903,

petition for a writ of certiorari pend-

ing, No. 76-1382 ___..............-.----- 6, 11, 13

United States v. Sedgwick, 345 A. 2d 465,

certiorari denied, 425 U.S. 968 12

Wade v. Hunter, 336 U.S. 684 11

Constitution and statute:

Constitution of the United States, Fifth

Amendment

Internal Revenue Code of 1954, 26 U. 8. C.

— — — 2

In the Supreme Court of the United States

OCTOBER TERM, 1976

No.

UNITED STATES OF AMERICA, PETITIONER

*.

SYLVIO J. GRASSO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

pp. la-25a) is not yet reported. The opinion of the

district court (App. C, infra, pp. 27a-42a) is re-

ported at 413 F. Supp. 166.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, p. 26a) was entered on March 9, 1977. On

(1)

2

March 30, 1977, Mr. Justice Marshall extended the

time within which to file a petition for a writ of

certiorari to and including May 8, 1977 (a Sunday).

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Double Jeopardy Clause bars a sec-

ond trial of a defendant whose first trial is termi-

nated, following his motion for a dismissal of the

indictment, by a declaration of mistrial neither ob-

jected to nor expressly concurred in by the defendant.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution provides

in relevant part:

* * * (NJor shall any person be subject for the

same offence to be twice put in jeopardy of life

or limb * * *.

STATEMENT

Respondent was indicted for attempted evasion of

taxes due for 1969, 1970, and 1971, in violation of

Section 7201 of the Tnternal Revenue Code of 1954,

26 U.S.C. 7201. A jury trial began on November 4,

1975. The prosecutor used a method of proof that

required, in addition to showing a substantial in-

crease in net worth, proof of either a likely source

of taxable income (Holland v. United States, 348

U.S. 121) or the lack of any significant nontaxable

income that might have accounted for the increase

in net worth (United States v. Massei, 355 U.S. 595).

The prosecutor called Daniel Harris as a witness

to testify about a likely source of taxable income for

respondent. Harris testified that he and respondent

had engaged in numerous transactions involving the

sale of heroin in 1970 (App. A, infra, p. 2a). Dur-

ing Harris’s testimony on November 12, 1975, de-

fense counsel, Henry Rothblatt, stated that the de-

fense had not been able to interview Harris (Nov.

12 Tr. 2). When the prosecutor responded that he

believed that Harris had been interviewed by the de-

fense, Rothblatt stated that he would telephone his

associate to determine whether that was so (id. at 2-

4; App. A, infra, p. 18a). The matter was appar-

ently left there. In fact, Harris had been interviewed

by an attorney from Rothblatt’s firm approximately

two months before trial. Harris stated at that inter-

view that he had lied when he had told a grand jury

„

On the evening of November 20, 1975, after almost

all of the evidence in the case had been submitted,

Harris gave a tape-recorded statement to Rothblatt,

4

The next morning Rothblatt informed the district

court of Harris’s recantation and filed a motion to

dismiss the entire indictment on the ground of prose-

cutorial misconduct (App. A, infra, pp. 3a, 18a). A

lengthy hearing was held outside the presence of the

jury (id. at 3a, 19a). Harris was called as a wit-

ness but refused to testify (id. at 3a). At the con-

clusion of the hearing the district court denied the

motion to dismiss but declared a mistrial. The court

stated that respondent could “not get a fair and im-

partial trial under the present circumstances” (App.

C, infra, p. 30a), because the “issue would become

whether or not he was selling narcotics, and whether

or not Harris could be believed” (ibid.)

rather than whether respondent evaded taxes.

In the court’s view, there was manifest necessity

for declaring a mistrial” so that “the ends of justice,

publie justice, would [not] be defeated” (App. C,

infra, p. 31a). The court concluded that the prose-

cutors had not acted improperly and that no sanc-

tions should be imposed on them (ibid.). The prose-

cution objected to any termination of the trial. De-

fense counsel responded to the court’s ruling as fol-

lows (App. A, infra, pp. 4a, 21a): “Of course, your

Honor, the defendant agrees with everything that

your Honor has decided, except your Honor’s deci-

sion to declare it a mistrial. We would renew our

request for judgment of acquittal.”

The government sought to retry respondent, who

moved to dismiss the indictment on double jeopardy

grounds. The district court granted the motion (App.

C, infra, pp. 27a-42a). The district judge, who was

not the judge who had presided at the trial, con-

cluded that respondent had not consented to the mis-

222.258 2 —

ty.

A divided panel of the court of appeals affirmed.

Observing that the only motion offered was the mo-

tion to dismiss and that respondent had expressed

a preference for an “acquittal” over a mistrial, the

court concluded that respondent had neither requested

nor consented to the declaration of mistrial (App. A,

infra, pp. 4a-6a). The majority also concluded that

the declaration of mistrial was not in the sole interest

of the defendant (id. at 10a n.1) and that the fail-

ure of the trial court to make explicit findings about

the alternatives to a mistrial operated to bar a re-

trial (id. at 13a-l4a). The court then held that be-

cause there were obvious alternatives to a mistrial

that the trial court had not explored, it could not be

said with assurance that “manifest necessity” re-

quired a mistrial (id. at 9a-17a).

Judge Timbers dissented (App. A, infra, pp. 17a-

25a). He argued that defense counsel should bear

the responsibility of stating whether a mistrial would

be objectionable. He concluded (id. at 20a-21a) that

Rothblatt had assented to the district court’s state-

ment that a fair trial could not be had and that,

under these circumstances, respondent’s “failure to

object to the mistrial constitutes a bar to his subse-

quent double jeopardy claim” (id. at 21a). Judge

Timbers explained (id. at 25a) that s lince the

very reason for requiring a hearing to determine the

grounds for a mistrial declaration is to protect the

valued] right of the defendant [to have his case re-

solved by the jury], it does not strike me as unrea-

sonable in the context of our adversary system to

require him to assert that right.”

REASONS FOR GRANTING THE PETITION

This case presents a facet of the problems that

have arisen in the wake of Illinois v. Somerville, 410

U.S. 458, and United States v. Dinitz, 424 U.S. 600,

concerning the propriety, under the Double Jeopardy

Clause, of holding a second trial after the first trial

is terminated prior to verdict. Three cases present-

ing one or another aspect of the retrial problem are

before the Court in Lee v. United States, No. 76-5187,

argued April 25, 1977; Arizona v. Washington, No.

76-1168, certiorari granted, April 18, 1977; and

Crist v. Cline, No. 76-1200, jurisdiction postponed,

April 25, 1977. Other related cases include United

States v. Scott, 544 F.2d 903 (C.A. 6), petition for a

writ of certiorari pending, No. 76-1382, and United

States v. Sanabria, 548 F.2d 1 (C.A. 1), petition for

a writ of certiorari pending, No. 76-1040. .

1. The Court held in Dinitz that the most signifi-

cant factor in determining whether a second trial

may be held after the first trial has been terminated

of our

We have furnished to counsel for respondent copies

brief in Lee, our petition in Scott, and our memorandum in

Sanabria.

7

before verdict is whether the defendant has been de-

prived of his valued right to receive the verdict of

the factfinder at the first trial. “The important con-

sideration, for purposes of the Double Jeopardy

Clause, is that the defendant retain primary control

over the course to be followed in the event of * * *

error” (424 U.S. at 609; footnote omitted). The de-

fendant may exercise this control both by what he

does and by what he does not do. In the present case

respondent exercised both sorts of control.

Respondent set in motion the events that led to

the termination of his trial. He contended that a

serious—indeed, fatal—error occurred in his trial.

He induced the district court to halt the trial and

hold a lengthy hearing concerning the nature and

effects of Harris’s recantation. At the conclusion of

this hearing, he agreed with the district court’s

evaluation that the prospect of completing the trial

properly was slight. Once defense counsel had put

in motion the events that led to the declaration of a

mistrial, we believe he must be held to have had an

obligation to inform the court if respondent, contrary

to appearances, would have preferred to proceed to

verdict rather than have a mistrial.

After all, the valued right to receive the verdict

of the factfinder at the first trial is the defendant’s

right. In an adversary system of criminal justice,

the defendant should have some obligation to inform

the court whether he desires to exercise that right

or whether, instead, he is content with a mistrial

proposed by the court. We therefore urge here the

position of the dissenting judge below—that the fail-

ure explicitly to object to the declaration of a mis-

trial should be taken as consent. Here, as in Dinitz,

the defendant was not deprived of the opportunity

to exercise primary control over the course of events

to be followed when a question arose concerning the

wisdom of proceeding with the trial.

The court of appeals’ holding, that an explicit ob-

jection to the declaration of a mistrial is unnecessary,

conflicts with the holdings of several other courts of

appeals. Those courts hold that silence in the face

of a declaration of a mistrial must be taken as con-

sent, at least when the defendant has sufficient op-

portunity to indicate whether he wishes to accept

the mistrial or proceed to verdict at the first trial.’

The Court may resolve this conflict in Crist v. Cline,

supra, in which the defendant apparently did not ob-

ject to the declaration of a mistrial, and the proper

disposition of this case therefore may be influenced

by this Court’s disposition of Crist.”

In addition to the cases collected at App. A, infra, p. 22a,

see Roberts v. United States, 477 F.2d 544, 545-546 (C. A. 8) ;

United States v. Pappas, 445 F.2d 1194, 1199-1200 (C. A. 3) ;

Scott v. United States, 202 F.2d 354, 355-356 (C. A. D. C.).

certiorari denied, 344 U.S. 879. But see Himmelfarb v. United

States, 175 F.2d 924, 931 n. 1 (C. A. 9), certiorari denied, 338

U.S. 860.

* Presumably, the Court would reach this issue in Crist only

if it first rejected Montana’s argument that the state rule

postponing the “attachment” of jeopardy in a jury trial until

the first witness testifies is consistent with the Fifth Amend-

ment.

. Respondent’s request for an order dismissing the

indictment on account of prosecutorial misconduct

also amounted to an explicit request to terminate the

trial for the very reason that induced the district

court to grant a mistrial. Under these circumstances,

the argument we have made in Lee (Br. 14-27)

would apply to this case. Respondent affirmatively

sought a termination of the ongoing trial, a trial

that the prosecutor sought to continue (App. C,

infra, p. 32a). This aggressive request to terminate

the trial surrendered respondent’s valued right to re-

ceive the verdict of the jury. True, respondent would

have preferred a punitive order dismissing the indict-

ment or grating an “acquittal” to the grant of a mis-

trial (see App. A, infra, p. 4a), but he also evidently

preferred a mistrial to the continuation of his trial.’

* After the district court had announced that, in its view

manifest necessity required the declaration of a mistrial, 25

spondent’s counsel stated (App. A, infra, p. 4a) that “the

defendant agrees with everything that your Honor has de-

cided, except your Honor’s decision to declare it a mistrial.

We would renew our request for judgment of acquittal.”

The court of appeals construed this statement as implicitly

withholding consent to the declaration of a mistrial. But this

is a strained reading of counsel's statement; it is more natu-

rally read as a statement that respondent preferred an “acquit-

tal” to a mistrial, but would accept a mistrial if that was the

best he could obtain. Counsel had the opportunity to object

in more easily understood terms. He could have said, for

example: “Your Honor, if you will not dismiss the indictment,

10

Since respondent was responsible for the termination

of the trial, at the time it was terminated, and for

reasons respondent had pressed upon the court, the

Double Jeopardy Clause does not bar a second trial.

2. Another factor of potential significance is that

respondent contributed to the events that led to the

declaration of a mistrial. Although we do not ques-

tion the finding of the courts below that defense

counsel was not guilty of any deliberate impropriety,

counsel’s neglect to learn the substance of Harris’s

disclosures to counsel’s associate until after Harris

had left the witness stand made it much more diffi-

cult to conduct the trial in the ordinary course. As

Judge Timbers pointed out (App. A, infra, pp. 18a-

20a), but for Mr. Rothblatt’s neglect Harris could

have been cross-examined about the matters that

formed the basis of his later recantation, and if

Harris had been confronted with his prior incon-

sistent statements to Rothblatt’s associate there

might never have been a perceived need to terminate

the trial. What weight, if any, should be attached

to the role of the defense in precipitating a pre-

verdict termination is a question that is before the

Court in Arizona v. Washington, supra, in which a

mistrial was declared in response to an improper

opening statement by defense counsel.

3. In many cases the central question is whether

a defendant may be tried a second time after the

then the defendant desires to continue with the case and

present his arguments to the jury.” He did not do so, however.

Only the prosecutor asked the court to carry on with the trial.

11

first trial ended because of an error or circumstance

over which the defendant had no control. In such

cases the court must decide, as it did in Wade v.

Hunter, 336 U.S. 684, whether competing societal

interests outweigh the defendant’s valued right. to

receive the verdict of the factfinder at the first trial.

In the present case, however, respondent controlled

or influenced the Ccumstances that led to a termi-

nation of his trial. He persuaded the district court

to terminate the trial, contending that the error was

so serious that the prosecution should not be allowed

to continue. The prosecutor, on the other hand, asked

the district court to proceed with the trial (App. C,

infra, p. 32a). Respondent was in fact entitled to

no relief at all. The district court found no evidence

of prosecutorial misconduct (id. at 3la), and the

court of appeals concluded that respondent’s inter-

ests could have been protected without either termi-

nating the trial or dismissing the indictment (App.

A, infra, pp. 14a-16a). Respondent should not now

be entitled to immunity from further prosecution be-

cause he persuaded the district court to give him

improper relief; the relief may have been less than

he requested, but it was more than he should have

received. We submit that a defendant who induces

a court erroneously to terminate a trial may properly

be required to stand trial a second time.

We have made a similar argument in United

States v. Sanabria, supra, and United States v. Scott,

12

supra.’ The First Circuit in Sanabria accepted this

argument, and under its analysis a second trial could

have been held in this case if the district court had

granted respondent’s motion to dismiss the indict-

ment.” Here, as in Sanabria, supra, 548 F.2d at 6,

“a future prosecution * * * will not threaten one of

the principal private interests protected by the clause:

the criminal defendant’s interest in preserving a dis-

trict court’s ruling that he is not criminally responsi-

ble.” The analysis of Sanabria conflicts with the an-

„See also United States v. Sedgwick, 345 A.2d 465 (D.C.

App.), certiorari denied, 425 U.S. 966, which is strikingly

similar to the present case. The defendant Sedgwick requested

an order dismissing the indictment as punishment for the

prosecutor's failure to disclose certain allegedly exculpatory

material. The trial court instead declared a mistrial and re-

served decision upon the motion to dismiss. Some months later

the court dismissed the indictment. The court of appeals re-

versed, finding no suppression of exculpatory material and

holding that a second trial would not violate the Double Jeop-

ardy Clause because the trial court had acted under a reason-

able, if erroneous, belief that the mistrial was necessary to

protect the defendant’s interest. Cf. Gori v. United States,

367 U.S. 364. Three Justices dissented from the denial of cer-

tiorari in Sedgwick.

See also United States v. Appawoo, C. A. 10, No. 76-1024,

decided April 28, 1977 (a second trial may be held after a

district court erroneously dismisses an indictment in mid-

trial at the defendant’s request, where the dismissal is based

upon the alleged unconstitutionality of the underlying statute).

Because neither respondent’s request for an order dis-

missing the indictment nor the district court’s grant of a

mistrial resolved any issue of substantive criminal responsi-

bility, the termination was not a true acquittal, and a second

trial is not barred by the holding of United States v. Martin

13

alysis of the court of appeals in the present case. If

the First Circuit is right in Sanabria, a second trial

would not have been barred if the district court had

granted respondent the dismissal he avidly sought,

and respondent should not gain freedom from a sec-

ond trial because the district court improvidently

granted a mistrial rather than improvidently dis-

missing the indictment.

4. If the Court accepts our central argument in

Lee, then it might be appropriate to grant the peti-

tion in the instant case and remand for a second

trial. In any other event, however, the proper dis-

position of the present petition would depend upon

the nature of the Court’s analysis in Lee, the ques-

tions left open by that decision, whether the Court

deems it appropriate to grant review in other cases

(such as Sanabria or Scott) to address those ques-

tions, and the disposition of Arizona v. Washington,

supra, and Crist v. Cline, supra. Because so many

contingencies may affect the proper disposition of

this case, we can make no recommendation at the

present time whether the Court should grant this

petition or hold it pending its disposition of other

cases.

a Supply Co., No. 76-120, decided April 4, 1977, slip op.

14

CONCLUSION

Consideration of the petition should be deferred

pending the Court’s decision in Lee.

Respectfully submitted.

Wane H. McCree, IR.,

Solicitor General.

Myron C. BAUM,

Acting Assistant Attorney General.

FRANK H. EASTERBROOK,

Assistant to the Solicitor General.

RosBertT E. LINDSAY,

CHARLES E. BROOKHART,

Attorneys.

May 1977.

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 276—September Term, 1976.

(Argued October 18, 1976 Decided March 9, 1977.)

Docket No. 76-1284

UNITED STATES OF AMERICA, Appellant

V.

SyLvio J. Grasso, Appellee

Before: SMITH, OAKES and TIMBERS, Circuit

Judges.

OAKES, Circuit Judge:

This appeal presents the recurring issue whether

retrial of the defendant appellee after his original

trial ended in a mistrial declared by the trial judge

sua sponte would violate the double jeopardy clause of

the Fifth Amendment. The issue is one said to “es-

cape meaningful categorization,” as “virtually all of

the cases turn on the particular facts,” Illinois v.

Somerville, 410 U.S. 458, 464 (1973). Appeal here

is by the Government from an order of the United

States District Court for the District of Connecticut,

Robert C. Zampano, Judge, granting the appellee’s

motion to dismiss his indictment for tax evasion on

double jeopardy grounds. 413 F.Supp. 166 (D. Conn.

1976). We affirm.

On April 16, 1975, appellee was indicted on three

counts of income tax evasion for the years 1969, 1970

and 1971, pursuant to 26 U.S.C. § 7201. Trial began

on November 4, 1975, before T. Emmet Clarie, Chief

Judge, and a jury. During the next eight trial days

the Government called over 40 witnesses, one of whom

was a Daniel Harris; the defendant presented ten

witnesses, including himself; the Government called

three witnesses in rebuttal; over 300 documents were

admitted as exhibits; and the parties filed extensive

requests for jury instructions. On November 26,

1975, when only the Government’s final rebuttal wit-

nesses remained to be heard, Judge Clarie declared

a mistrial on his own motion after a two-day hearing.

The mistrial was precipitated by a recantation by

Government witness Harris, a multiple offender then

serving a term of imprisonment of eight to thirty

years imposed in 1971 for the sale of heroin. He had

received favorable consideration from the Board of

Parole and was to be released from prison in Decem-

ber, 1975. His direct testimony was to the effect that

he and the appellee, Grasso, had engaged in numerous

transactions involving the sale of heroin in the year

1970. The testimony thus established an illegal source

for the appellee’s alleged unreported income in that

calendar year. Harris's testimony did not relate to

the tax years 1969 or 1971. His testimony lasted a

day and a half and consumed over 120 pages of tran-

seript.

Several days after Harris had testifled, he contacted

the appellee's son, who in turn advised him to contact

the court or appellee’s counsel, Henry Rothblatt. Har-

ris telephoned Judge Clarie’s law clerk and asked him

to tell Rothblatt to call “Dan” at a given number.

Rothblatt proceeded to interview Harris at the local

jail where he was being held, and tape-recorded a full

recantation of Harris's trial testimony. The recanting

witness stated that his false testimony was influenced

by threats made by Government prosecutors and In-

ternal Revenue Service agents in charge of the tax

case, the alleged threats being that his parole would

be revoked, that he would have to serve the full 30

years of his sentence, and that he might in addition

be indicted on a perjury charge because of his previous

grand jury testimony in the instant case.

Rothblatt immediately informed the court of Har-

ris’s recantation and filed a motion to dismiss based

on prosecutorial misconduct. See, e.g., Giglio v.

United States, 405 U.S. 150 (1972). Hearings were

held outside the presence of the jury, with ten wit-

nesses testifying, but Harris refused to testify, rely-

ing on the Fifth Amendment. Judge Clarie declared

a mistrial on the basis that the defendant Grasso

could “not get a fair and impartial trial under the

present circumstances,” since “the issue would be-

da

come whether or not he was selling narcotics, and

whether or not . . . Harris could be believed,” rather

than whether or not Grasso evaded taxes. In Judge

Clarie’s view there was a “manifest necessity for

declaring a mistrial” so that “the ends of justice,

public justice, would [not] be defeated.” Judge

Clarie found no improper conduct on the part of the

prosecutors dr Government agents. He explicitly

stated that “the issue of double jeopardy could be

argued” in the event the Government decided to pro-

ceed with a retrial. The Assistant United States

Attorney recorded his objection to the declaration of

mistrial “for the record.” For the defense Mr. Roth-

blatt said: “Of course, your Honor, the defendant

agrees with everything that your Honor has decided,

except your Honor’s decision to declare it a mistrial.

We would renew our request for judgment of ac-

quittal.”

The Government subsequently sought to retry ap-

pellee, who moved to dismiss the indictment on double

jeopardy grounds. Judge Zampano granted the mo-

tion, so that it is the Government that appeals that

decision.

I.

The Government's first argument is that the de-

fendant consented to the declaration of a mistrial. The

law is plain enough that, if a defendant himself moves

for a mistrial or he consents to a declaration of mis-

trial made on the court’s own motion or on the motion

of the prosecution, he will be considered to have waived

any double jeopardy plea. See, ¢.g., United States v.

5a

Dinitz, 424 U.S. 600, 607-08 (1976); United States

v. Tatco, 377 U.S. 463, 467 (1964); United States v.

Goldstein, 479 F.2d 1061, 1065-68 (2d Cir.), cert.

denied, 414 U.S. 873 (1973); United States v. Pap-

pas, 445 F.2d 1194, 1199-1200 (3d Cir.), cert. denied,

404 U.S. 984 (1971) ;, United States v. Burrell, 324

F.2d 115, 119 (7th Cir. 1963), cert. denied, 376 U.S.

937 (1964); Note, Mistrial and Double Jeopardy, 49

N. V. U. L. Rev. 937, 948 (1974). But here the ap-

pellee neither requested a mistrial nor consented

thereto. As Judge Zampano found below, “the only

motion offered or intended to be offered [by the ap-

pellee] was the motion to dismiss,” 413 F. Supp. at

170, and, from Judge Clarie’s two references during

his oral ruling to the principle of double jeopardy,

it may be inferred that he believed he was granting

a mistrial sua sponte and not in response to the de-

fendant’s request, cf. United States v. Gentile, 525

F.2d 252, 255 (2d Cir. 1975) (fact that judge was

unaware of double jeopardy problem contributes to

inference that defense counsel consented to mistrial),

cert. denied, 425 U.S. 903 (1976).

Nor can Mr. Rothblatt’s remarks made after the

judge had ruled, quoted above, in any way be con-

strued as consenting to the mistrial. He very plainly

said that he agreed with everything the court said,

“except your Honor’s decision to declare it a mis-

trial,” and he renewed his request for a judgment of

acquittal. It is true that he did not say that he ob-

jected to the mistrial and wished to proceed to the

6a

jury, but affirmative consent may not be inferred

from that silence.

II.

The Government argues in the alternative that, if

there were no actual consent to the mistrial, consent

should be implied because defense counsel's conduet

precipitated the mistrial. See United States v. Gen-

tile, supra, 525 F.2d at 252-58; United States v.

White, 524 F.2d 1249, 1252 (5th Cir. 1975), cert.

denied, —— U.S. —— (1976); cf. United States v.

Dinitz, supra (no double jeopardy where misconduct

by chief defense counsel in opening statement re-

sulted in his expulsion, followed by defense request

for mistrial). Following the Government’s launching

of an investigation into the reasons for the witness

Harris’s recantation, particularly whether there were

threats of violence made against the witness, attorney

Rothblatt’s office voluntarily turned over to the Gov-

ernment memoranda of interviews of one Joseph Rose

and of Harris conducted by attorney Ronald Gold-

farb, a law clerk in that office. These interviews had

been conducted in September, 1975, in connection

with a pending civil rights action in which appellee

Grasso was the plaintiff; the interviews took place on

or about September 10, 1975, two months prior to

commencement of trial in the criminal case. The

Government calls our attention to the fact that the

Goldfarb memoranda state that Harris told Goldfarb

that he (Harris) had lied to Government agents con-

cerning Grasso’s activities in narcotics, and that Gold-

7a

farb had reason to believe Harris would sign a state-

ment to that effect after his parole hearing sched-

uled for September, 1975. Thus the Government ar-

gues that defense counsel knew or should have known

by September, 1975, that there was a contradiction in

stories by Harris and failed to disclose this informa-

tion to Judge Clarie. The Government therefore con-

tends that the mistrial was a direct result of defense

counsel’s late production of the contradictory state-

ment of Harris. The suggestion is that the defense

chose not to contradict Harris with his prior incon-

sistent statement but waited until the trial was near-

ing completion to move for dismissal on the basis of

the inconsistent statements in the tape recording of

Harris.

When this suggestion of improper conduct on the

part of defense counsel was made below, not by affi-

davit but by a “supplemental memorandum” in op-

position to the defendant’s motion to dismiss, Mr.

Rothblatt filed an affidavit, uncontroverted in the

record, stating that, at the time Goldfarb interviewed

Harris and certain other inmates incarcerated in the

Hartford area, “we are not aware that Harris was

going to be a witness in this case.” It went on to

say that, when Harris first testified, Rothblatt as-

sumed “he was among the inmates who had refused

to talk to Mr. Goldfarb in September.” The affidavit

stated that he (Rothblatt) did not become aware of

the memoranda prepared by Goldfarb until after

he had returned to his office in New York following

the declaration of the mistrial. The Rothblatt affi-

8a

davit concluded that “in over 35 years as an active

trial practitioner I have never undertaken, and would

certainly never recommend, the reckless trial strategy

suggested by the Government.” Judge Zampano be-

low found that “it is plain from the record that there

was neither impropriety Inlor misconduct on the

part of defense counsel” and that Rothblatt had per-

formed his “affirmative duty to notify the trial judge

that a witness had recanted his sworn testimony.”

413 F. Supp. at 171.

There is nothing in this record to contradict either

Mr. Rothblatt’s affidavit or Judge Zampano’s finding

of “neither impropriety Inlor misconduct.” More-

over, it hardly seems likely that experienced trial

counsel would run the risk, had he known of the

statement of Goldfarb, of letting Harris leave the

stand without cross-examination in regard to that

statement, failing to introduce the statement itself

(after authentication by Goldfarb if necessary), and

waiting for a possible further recantation that could

be tape-recorded. The contrary suggestion seems to

us farfetched; the Government here impugns Mr.

Rothblatt’s integrity as a member of the Bar and of-

ficer of the court based purely on conjecture. There

is nothing to indicate that Mr. Rothblatt initiated the

jail visit resulting in the tape recording. Quite to

the contrary, so far as appears Harris himself ini-

tiated it. Nor was there anything improper in Mr.

Rothblatt’s visiting Harris during the trial in the

absence of Government counsel and without advising

Government counsel of Harris’s request for the visit.

9a

Our adversary system prescribes no legal or moral

duty that would require counsel to advise his op-

ponent that a witness who has previously testified

for the opponent in a pending case wants to talk with

him,

III.

When a mistrial is declared sua sponte by a court

without defendant’s consent, express or implied, the

double jeopardy clause permits retrial of the defend-

ant only if, in the words of Mr. Justice Story, “there

[was] a manifest necessity for the [mistrial], or the

ends of public justice would otherwise be defeated.”

United States v. Perez, 22 U.S. (9 Wheat.) 579, 580

(1824). This court has recently commented in United

States v. Gentile, supra, 525 F.2d at 255, on the “wis-

dom” of Justice Story’s further statement in Perez

that “it is impossible to define all the circumstances

which would render it proper” for the trial court to

grant a mistrial without giving rise to a defense of

double jeopardy, 22 U.S. (9 Wheat.) at 580, and

Mr. Justice Black's comment in Wade v. Hunter, 336

U.S. 684, 690 (1949), relative to the impossibility of

laying down a “rigid formula” on the subject. See

also Illinois v. Somerville, supra, 410 U.S. at 464.

At the same time, as Judge Waterman once sug-

gested, United States v. Gori, 282 F.2d 43, 50 (2d

Cir. 1960) (en banc) (dissenting opinion), aff'd, 367

U.S. 364 (1961), it has not always been crystal clear

how much discretion the Perez test leaves to a trial

judge in a given set of circumstances. The very

10a

vagueness of the Story formulation, while maintain-

ing its verity, necessarily makes application impre-

cise. See Comment, Double Jeopardy and Reprosecu-

tion After Mistrial: Is the Manifest Necessity Test

Manifestly Necessary?, 69 Nw. U.L. Rev. 887, 890

(1975). It was once thought, for example, that a sua

sponte mistrial did not bar retrial if the mistrial had

been declared “in the sole interest of the defendant.”

Gori v. United States, 367 U.S, 364, 369 (1961).

But we are now required, in resolving the question of

“manifest necessity,” to determine whether the trial

judge considered all the procedural alternatives to a

Even if this test still governed, it would not allow retrial

here. Judge Clarie declared the mistrial to be in the interest

of the defendant, but the judge himself noted that Harris

was a “crucial” Government witness whose lack of credi-

bility “contaminate[d] the trial.“ Had the evidence of the

recantation been adduced, despite the introduction in rebuttal

of Harris’s grand jury testimony, or contrary testimony by

the Government agents, the jury, like Judge Clarie, in all

probability would not have believed Harris’s testimony in any

respect. The declaration of a mistrial did operate to prevent

the defense from discrediting a key Government witness on

an essential element of the crime, a likely source of unreported

income, as to the tax year 1970, and from more generally

claiming Government misconduct in the case. Further, as

Judge Zampano held, 413 F. Supp. at 172, reprosecution

would have given the Government “a solid tactical advan-

tage.” It could have refrained from calling Harris and pre-

sented its case against appellee for the year 1970 without his

testimony or proceeded to seek convictions solely for the years

1969 and 1971. Cf. United States v. Kin Ping Cheung, 485

F.2d 689, 691-92 (5th Cir. 1973) (Government on retrial

could sever and avoid embarrassment of having its own wit-

ness exculpate a defendant).

lla

mistrial, so as “not to foreclose the defendant’s op-

tion [to have his cause tried by the original jury]

until a scrupulous exercise of judicial discretion leads

to the conclusion that the ends of public justice would

not be served by a continuation of the proceedings.”

United States v. Jorn, 400 U.S. 470, 485 (1971)

(plurality opinion of Harlan, J.). Jorn has been

*In United States v. Gentile, 525 F.2d 252, 257 (2d Cir.

1975), dicta suggest that the Jorn test is itself dicta and the

holding a mere reaffirmation of Gori, and that J/Ilinois v.

Somerville, 410 U.S. 458 (1973), vitiated the force of the

Jorn rationale. But the “consideration of other alternatives”

test in Jorn seems, with due respect to the Gentile opinion

writer, more likely to have been the central holding of the case.

After reviewing the history of the double jeopardy clause in

the Supreme Court, and concluding that even under the Gori

“sole interest” test there was not a case of mistrial solely for

defendant's benefit, Mr. Justice Harlan continued that the

Gori test “does not adequately satisfy the policies under-

pinning the double jeopardy provision,” 400 U.S. at 483, be-

cause declaration of a mistrial, even solely for defendant's

benefit, but without his consent and without exploration of

othe: means of dealing with the situation, overlooks one of a

defendant's rights in a criminal prosecution: the “valued

right to have his trial completed by a particular tribunal.” /d.

at 484, quoting Wade v. Hunter, 336 U.S. 684, 689 (1949).

Justice Harlan's plurality opinion thus lays it down as a

constitutional principle that a judge “must always temper

the decision whether or not to abort the trial by considering

the importance to the defendant of being able, once and for

all, to conclude his confrontation with society through the

verdict of a tribunal he might believe to be favorably disposed

to his fate.” 400 U.S. at 486. Section III of the Jorn opinion

applies the law to the facts of the case solely under the “con-

sideration of other alternatives” doctrine rather than the Gori

“sole interest” analysis.

Illinois v. Somerville, 410 U.S. 458 (1973), does not vitiate

the force of Jorn, id. at 471, but rather articulates the sensible

12a

read to require the trial judge at least to consider

viable alternative curative measures before sua sponte

declaring a mistrial. See, e. g., United States ex rel.

Stewart v. Hewitt, 517 F.2d 993, 996 (3d Cir. 1975) ;

United States v. Spinella, 506 F.2d 426, 432 (5th

Cir.) (Wisdom, J.), cert. denied, 423 U.S. 917

(1975); United States v. Lansdown, 460 F.2d 164,

168-69 (4th Cir. 1972).

Since evaluation of discretion is involved, a neces-

sary procedural corollary of Jorn is that, before a

trial judge declares a mistrial, he must make explicit

findings, preferably after a hearing, that there are

no reasonable alternatives to mistrial. See, e.g., Whit-

field v. Warden, 486 F.2d 1118, 1122 (4th Cir. 1973),

cert. denied, 419 U.S. 876 (1974). If no alternatives

can be found, a mistrial may be declared, and a re-

trial cannot be attacked on double jeopardy grounds

unless wrongdoing or negligence on the part of the

Government caused the mistrial. See United States

v. Glover, 506 F.2d 291 (2d Cir. 1974). Thus socie-

exception to it, that “where the declaration of a mistrial imple-

ments a reasonable state policy and aborts a proceeding that

at best would have produced a verdict that could have been

upset at will by one of the parties, the defendant's interest

in proceeding to verdict is outweighed by the competing and

equally legitimate demand for public justice.” Id. at 471

(emphasis added). Somerville holds, then, that the double

jeopardy clause will not bar retrial even though the examina-

tion of alternatives mandated by Jorn is not undertaken if to

do so would be futile because clearly no reasonable alterna-

tive existed. Accord, United States er rel. Stewart v. Hewitt,

517 F.2d 993, 996 (3d Cir. 1975) ; United States v. Williams,

411 F. Supp. 854, 858 (S.D.N.Y. 1976).

13a

ty’s interest in “fair trials designed to end in just

judgments,” Illinois v. Somerville, supra, 410 U.S. at

470, is protected. If reasonable alternatives to a mis-

trial are available, the trial should continue.

A failure to make any findings denigrates the de-

fendant’s “valued right to have his trial completed

by a particular tribunal.” Wade v. Hunter, supra, 336

U.S. at 689, quoted in United States v. Jorn, supra,

400 U.S. at 484. For this reason, when a trial ends

in a mistrial without any findings having been made

as to alternatives to mistrial, the double jeopardy

clause will usually bar a retrial of the defendant.

This would not hold true in cases in which it is clear

that there are no alternatives, Note 2 supra. When,

for example, the trial, if continued, “at best would

have produced a verdict that could [be] upset at

will by one of the parties,” Illinois v. Somerville,

supra, 410 U.S. at 471; ef. United States v. Gentile,

supra, 525 F.2d at 258 (multiple defendants created

“dilemma” for trial judge, in that either declaring

mistrial or continuing trial could have led to conten-

tion of error by one of the defendants), no findings

are required for a declaration of mistrial, and the

double jeopardy clause will not bar retrial. See United

States ex rel. Stewart v. Hewitt, supra, 517 F.2d at

996; United States v. Williams, 411 F. Supp. 854, 858

(S.D.N.Y. 1976). In all but the clearest cases, ex-

plicit findings are the bes: way for a trial judge to

avoid the perils of the double jeopardy clause.

On the facts of the instant case, in which obvious

alternatives to mistrial existed but were not explored,

14a

we hold that the double jeopardy elause bars retrial.

The options available to Judge Clarie were several.

Harris could have been recalled for further defense

eross- examination, and, in the event his claim of Fifth

Amendment privilege were upheld, he could have been

granted immunity from possible perjury charges in

order to force him to testify. See United States v.

Spinella, supra, 506 F.2d at 432. Alternatively, upon

such recall, the tape recording of his recantation

could have been admitted. See Fed. R. Evid. 804(a)

(1), (2), (b) (3) (5). His previous testimony could

have been struck with appropriate instructions. See

United States v. Newman, 490 F.2d 139, 144-46 (3d

Cir. 1974); United States v. Cardillo, 316 F.2d 606,

611-13 (2d Cir.), cert. denied, 375 U.S. 822 (1963).

Any consideration of these reasonable possibilities was

at best oblique. And, while the judge was acting

In declaring a mistrial, Judge Clarie stated:

The Court has, as counsel may well imagine, has given

considerable thought to this problem that has arisen. I

never had the question arise in this form during a trial

before.

But the Court is of the opinion that because of the

perjury issue injected into the trial by the testimony of

Daniel Harris, that the defendant Grasso can not get a

fair and impartial trial under the present circumstances.

If the issue went to the jury it would not be whether

or not he failed to pay his income taxes; the issue would

be of selling narcotics, which is in and of itself a kind

of abhorrent business to most every one of us. The issue

would become whether or not he was selling narcotics,

and whether or not this man, Daniel Harris, would be

believed.

[Footnote continued on page 15a

15

with the very best of intentions, to protect the de-

fendant from an unfair trial, the appropriate course

was to solicit suggested alternatives from defense

counsel. See Whitfield v. Warden, supra, 486 F.2d

at 1123; Jones v. Anderson, 404 F. Supp. 182, 188

(S.D. Ga. 1974), affd, 522 F.2d 181 (5th Cir.

1975); Note, supra, 49 N.Y.U.L. Rev. at 952. This

procedure may result in counsel’s consent to the mis-

trial, or in his insistence on dismissal as the only

* [Continued]

To do that we'd have to go ‘way back to the statement

to the three Hartford policemen and ti County Detective

in 71, and get the facts as to how the story originated,

with the documents which are in evidence. And we'd

have to begin to review the testimony before the grand

jury that Mr. Buckley deduced when he was prosecutor,

or assistant prosecutor.

We'd have to review the tape, as has been filed in evi-

dence by counsel, which he procured at the jail. We'd

have to review the statement of the I.R.S. witnesses, who

went over and received from him what is claimed to be

an apparent contradiction of the tape.

And the issue of Mr. Grasso’s income tax evasion

would be well lost in the question of whether or not Daniel

Harris committed perjury. That would be the nub of

the case, rather than the question of the defendant's

failure to pay his income taxes.

For this reason the Covrt is of the opinion that the

motion to dismiss would be denied, but that a mistrial

should be ordered, because there is a manifest necessity

for declaring a mistrial. Otherwise, the ends of justice,

public justice, would be defeated.

léa

alternative. See United States v. Sedgwick, 345 A.2d

465, 473 (D.C. Ct. App.), cert. denied, 423 U.S. 1028

(1975). In either case, defendant cannot then argue

on appeal that there were other reasonable alterna-

tives to mistrial that should have been explored. The

responsibility, however, is on the court to ask, and

not on the defendant on his own to suggest, alter-

natives in a sua sponte mistrial situation. Useful

alternatives may result from such an inquiry, al-

though of course the court is free explicitly to reject

them as inadequate to cure the situation.

There can be no claim here that, if continued, the

proceeding would have produced a verdict that could

have been upset at will by one of the parties. Strik-

ing Harris’s testimony, for example, would almost

certainly not have resulted in reversible error. The

Government, moreover, had proof of other sources

of 1970 income (such as from defendant’s bail bond-

ing business) that would have likely produced un-

reported income. Even were this not so, the case cer-

tainly could have gone to the jury with regard to

calendar years 1969 and 1971.

Here, after argument on a motion to dismiss, the

court declared a mistrial without hearing either

side’s views on the subject. This was done with no

mention of the alternatives raised above, and no find-

ings on the question of alternatives, the statement

being only that the issues would be confused if the

trial were continued. See note 3 supra. As was true

in Jorn, however well intentioned, the trial judge

here “made no effort to exercise a sound discretion

17a

to assure that, taking all the circumstances into ac-

count, there was a manifest necessity for the sua

sponte declaration of this mistrial.” 400 U.S. at 487,

quoted in Illinois v. Somerville, swpra, 410 U.S. at

466.

Judgment affirmed.

TIMBERS, Circuit Judge, dissenting :

In the name of the double jeopardy clause of the

Fifth Amendment of the United States Constitution,’

the majority has sanctioned the dismissal of a federal

income tax evasion indictment after eight days of

trial and at a time when the trial was all but con-

cluded. Since I believe that the majority has either

ignored or glossed over critical facts with respect to

the combined conduct of defendant and his trial c.un-

sel, and that such conduct heavily contributed to, and

amounted to implied consent to, the trial court’s de-

claration of a mistrial, I respectfully dissent.

I.

Since “virtually all [double jeopardy] cases turn

on the particular facts . . .”, Illinois v. Somerville,

410 U.S. 458, 464 (1973), a good starting point here

is a brief reference to important facts ignored by the

„„ nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; . . U.S. Const.

amend. V, cl. 2.

18a

majority which precipitated the mistrial and the sub-

sequent double jeopardy claim.

On September 9, 1975—two months before Grasso’s

income tax evasion trial began in the district court

—government witness Harris told a member of the

staff of defense attorney Rothblatt that his testimony

before the grand jury regarding Grasso’s narcotics

dealings had been false. During the course of Grasso’s

trial which began on November 6, the government

made out against him a strong case of unreported

income for the years 1969 and 1971. On November

11 and 12 Harris testified for the government regard-

ing the year 1970. Harris did not testify at all re-

garding 1969 or 1971. On November 12 Rothblatt

informed the court that the witness Harris pre-

viously had refused to be interviewed by a member

of his staff.

On the evening of November 20—after Rothblatt

had rested defendant’s case and after Rothblatt’s mo-

tion for a directed verdict had been denied—Rothblatt

had a tape-recorded interview with Harris, during

the course of which Harris recanted his testimony.

Less than two hours later Harris recanted his re-

cantation to Special Agents of the Intelligence Di-

vision of the Internal Revenue Service. Harris told

the I. R. S. agents that his recantation to Rothblatt

was a lie which had been induced by threats.

On the next day, November 21, with the trial all

but over, Rothblagt informed Chief Judge Clarie of

Harris’ recantation and moved to dismiss the indict-

ment on the ground of prosecutorial misconduct.

19a

After three days of hearings out of the presence of

the jury, the court on November 26 declared a mis-

trial sua sponte.

The September 9 memorandum of the interview

between Harris and a member of Rothblatt's staff,

during which Harris disclosed that he had lied before

the grand jury, came to light subsequent to Judge

Clarie’s declaration of a mistrial. When it did come

to light, Rothblatt, who was the attorney of record

in the civil action in connection with which the in-

terview with Harris had been conducted, filed an

affidavit stating that he “was simply not aware” of

the memorandum until after the mistrial had been

declared.

Whatever may be said as to the knowledge on the

counsel. See, e.g., United States v. Gentile, 525 F.2d

252 (2 Cir. 1975), cert. denied, 425 U.S. 903 (1976).

Nevertheless, I find it difficult to blink at the hard

fact that Grasso here invokes the protection of the

double jeopardy clause triggered by the declaration

of a mistrial which was granted to remedy a preju-

dicial situation brought about by his counsel’s negli-

gent failure to examine his own records. If Roth-

blatt had checked his office records, as he said he

would, after the matter of a prior interview of

Harris by a member of Rothblatt’s staff came up in

court on November 12, Harris’ credibility of course

would have emerged as a principal issue at the ap-

propriate time, namely, upon Rothblatt’s cross-ex-

amination of Harris.

II.

It seems to me that the concept of implied con-

sent to the declaration of a mistrial, as applied to the

facts of this case, involves more than scrutiny of

counsel’s role in precipitating the sua sponte ruling.

Counsel should bear the responsibility, at the very

least, to state his client’s objection to the mistrial

declaration and to assert his client’s “valued right

to have his trial completed by a particular tribunal”,

Wade v. Hunter, 336 U.S. 684, 689 (1949), at the

time the mistrial is declared, and not sit back and

wait for a subsequent double jeopardy hearing.

Here defendant’s counsel did almost precisely the

opposite. In deciaring a mistrial, Judge Clarie stated

that “the defendant Grasso can not get a fair and

impartial trial under the present circumstances.” To

this attorney Rothblatt responded :

2la

“(T]he defendant agrees with everything that

your Honor has decided, except your Honor’s de-

cision to declare it a mistrial. We would renew

our request for judgment of acquittal.” (em-

phasis added).

After the case was reassigned for trial, Grasso’s

counsel discovered that his client did not agree at all

with everything Judge Clarie had decided. He as-

serted for the first time that Judge Clarie had ig-

nored “several ways to cope with [Harris’ recanta-

tion] without introducing reversible error.

[T]here was simply no justification . . . for taking

away the defendant’s opportunity for a favorable

verdict.”

As the majority holds, Rothblatt’s statement in re-

sponse to Judge Clarie’s declaration of a mistrial on

November 26 cannot be read as an objection to a mis-

trial. Unlike the majority I am not at all sure that

the statement did not amount to an express consent

to a mistrial. But whether it did or not, such an

affirmative effort on the part of defendant’s counsel

to reinforce the trial judge’s position hardly can be

dismissed as silence“

In any event, I would hold that Grasso’s failure to

object to the mistrial constitutes a bar to his sub-

sequent double jeopardy claim. Other courts have

required affirmative conduct on the part of a defend-

ant to preserve a double jeopardy claim.’ See, e.g.,

*The Supreme Court explicitly left this question open in

Gori v. United States, 367 U.S. 364, 365 n. 6 (1961).

A knowing, voluntary, and intelligent waiver of a double

jeopardy right is not a condition to permitting a retrial fol-

United States v. Gordy, 526 F.2d 631, 635 & n. 1

(5 Cir. 1976); United States v. Phillips, 431 F.2d

949 (3 Cir. 1970); United States v. Sedgwick, 345

A.2d 465, 473 (D.C. Ct. App. 1975), cert. denied,

423 U.S. 1028 (1975); ef. Scott v. United States,

202 F.2d 354 (D.C. Cir.), cert. denied, 344 U.S. 879

(1952). But see Himmelfarb v. United States, 175

F. 2d 924 (9 Cir.), cert. denied, 338 U.S. 860 (1949);

People v. Compton, 6 Cal. 3d 55, 63, 490 P.2d 537,

542, 98 Cal. Rptr. 217, 222 (1971). And our Court

has held defendants culpable for their silence in three

cases where we have rejected double jeopardy claims.

United States v. Gentile, supra, 525 F.2d at 255;

United States v. Beckerman, 516 F.2d 905, 909 (2

Cir. 1975) ; United States v. Goldstein, 479 F.2d 1061,

1067 (2 Cir.), cert. denied, 414 U.S. 873 (1973). In

each of these cases, in holding the defendant to have

consented impliedly to the declaration of a mistrial,

we weighed as a principal factor the defendant’s fail-

ure to assert his interest in having his guilt deter-

mined by the existing jury.

These decisions recognize that the double jeopardy

clause does not confer upon a defendant a license to

take undue advantage of the contradictory possibili-

ties which arise when a mistrial is declared. I would

not construe the double jeopardy clause so as to per-

mit a defendant who is ready to sacrifice his interest

in reaching an existing jury in exchange for a dis-

missal on double jeopardy grounds to obviate the need

lowing a mistrial. United States v. Dinitz, 424 U.S. 600, 609

n. 11 (1976).

23a

for his reaching any jury at all. Such a defendant

might be all too willing to sit by silently and refrain

from bringing to the trial court’s attention alterna-

tive solutions.“ I see nothing in the double jeopardy

bar which either requires that this choice be left to

the defendant or which relieves him of the normal

obligation to make a timely objection to an adverse

ruling by the trial court. On the contrary, requir-

ing the defedendant to assert his right to have his

guilt decided by the existing jury will assure that a

subsequent double jeopardy dismissal in fact does

serve to vindicate the right asserted. Such a require-

ment moreover would tend to alleviate the problems

which underlay the holding of Gori v. United States,

367 U.S. 364, 369 (1961), that a mistrial “granted

in the sole interest of the defendant” does not neces-

sarily bar all retrial. Protecting a defendant’s in-

terests through resort to a mistrial would be much

less a matter of navigating “a narrow compass be-

tween Scylla and Charybdis”, id., if the defendant

could be relied upon, and indeed required, to par-

ticipate in the determination.’

*Grasso’s about face in first agreeing and then disagreeing

with Judge Clarie’s ruling of November 26 is a striking

example.

*Judge Friendly concluded in United States v. Gentile,

supra, 525 F.2d at 256-57, that the continuing validity of the

Gori approach was put into question by Mr. Justice Harlan's

plurality opinion in United States v. Jorn, 400 U.S. 470

(1971), but that in light of Illinois v. Somerville, 410 US.

458 (1973), it cannot yet be consigned to oblivion with any

certainty. I continue to prefer Judge Friendly’s cautious

. K

24a

A requirement that the defendant take affirmative

steps to preserve his right to a determination by the

existing jury ultimately looks toward the same end

the majority seeks to achieve by requiring the (vial

judge to make “explicit findings, preferably after a

hearing, that there are no reasonable alternatives to

mistrial.” Ante, pp. 2256-7. The common objective

of both the majority and this dissent is a reasoned

consideration of possible alternatives—insulated from

the heat of the kitchen into which the trial judge is

thrust when compelled to declare a mistrial sua

sponte. But I disagree with the majority’s premise

that procedural strictures applicable to the trial court

alone will protect fully the integrity of the double

jeopardy prohibition. The majority, while placing all

responsibility on the court’s shoulders, appears to rely

on the therapeutic effect of a hearing to coax the de-

fendant out of his corner and into taking a stand.

“This procedure may result in counsel’s consent

to the mistrial, or in his insistence on dismissal

as the only alternative. . In either case, de-

fendant cannot then argue on appeal that there

were other reasonable alternatives to mistrial

that should have been explored.” — F.2d at

Aside from its misplaced reliance on what does

not go on in the realistic world of the trial court,

the majority ignores the fact that, even after a sua

sponte declaration of a mistrial, a proceeding must

assessment in Gentile rather than the attenuated footnote

treatment by the majority here. Ante, pp. 2255-2256 n. 2.

25a

have participating parties. Since the very reason for

requiring a hearing to determine the grounds for a

mistrial declaration is to protect a right of the de-

fendant, it does not strike me as unreasonable in

the context of our adversary system to require him

to assert that right.

I would remand with instructions to reinstate the

indictment for retrial.

* Ironically, although I would remand the case for reinstate-

ment of the indictment and retrial, whereas the majority

affirms the judgment of the district court, I do not share the

majority’s criticism of the conduct of the district court. Ante,

pp. 2259-2260. Based on my careful review of the entire

record, I am satisfied that both Chief Judge Clarie and Judge

Zampano, on the facts before them, discharged their respective

judicial responsibilities in a commendable fashion. My quarrel

with the result, and hence my dissent, is directed at quite a

different quarter, as my dissenting opinion makes plain.

26a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

ninth day of March one thousand nine hundred and

seventy-seven.

Present: HON. J. JOSEPH SMITH

Hon. JAMES L. OAKES

HON. WILLIAM H. TIMBERS

Circuit Judges

76-1284

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

*.

SYLVIO J. GRASSO, DEFENDANT-APPELLEE

Appeal from the United States District Court

for the District of Connecticut

This cause came on to be heard on the transcript

of record from the United States District Court for

the District of Connecticut, and was argued by coun-

sel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the judg-

ment of said District Court be and it hereby is af-

firmed in accordance with the opinion of this court.

A. DANIEL FUSARO

Clerk

A true copy, by

A. DANIEL FUSARO ARTHUR HELLER

Clerk Deputy Clerk

[SEAL |

27a

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Criminal No. H-75-52

[Filed May 13, 1976, U.S. District Court,

New Haven, Conn.]

UNITED STATES OF AMERICA

*.

SyLvio J. GRASSO

RULING ON DEFENDANT'S

MOTION TO DISMISS

The issue presented by defendant’s motion to dis-

miss is whether the Double Jeopardy Clause of the

Fifth Amendment will be violated by the retrial of

the defendant, Sylvio J. Grasso, after his original

trial ended in a mistrial declared by the trial judge,

sua sponte.

I,

The moving papers indicate that on April 16, 1975,

the defendant was indicted on three counts of income

tax evasion for the years 1969, 1970 and 1971, in

violation of 26 U.S.C, § 7201. Since the government

revealed its intention to proceed on a net worth theory

of prosecution, the defendant moved for and received

broad pretrial discovery. Trial commenced on No-

vember 4, 1975, before the Honorable T. Emmet

Clarie, Chief Judge, and a jury duly empanelled and

sworn. During the next eight trial days, the gov-

ernment called over 40 witnesses to testify on its

case-in-chief; the defendant presented ten witnesses,

including himself; the government called three wit-

nesses in rebuttal; and, over 300 documents were ad-

mitted as exhibits. In addition, the parties filed ex-

tensive requests for jury instructions. On November

26, 1975, as the government was preparing to call

its final rebuttal witnesses, Judge Clarie aborted the

trial on his own motion after a two-day hearing.

The circumstances leading to the mistrial were as

follows. During the course of the government’s di-

rect case, one Daniel Harris was called to testify.

Harris had multiple felony convictions in his back-

ground and was presently serving a term of imprison-

ment of 8-30 years imposed in 1971 for the sale of

heroin. However, he had had favorable consideration

from the Board of Parole and was due to be released

from prison in December, 1975. Harris testified at

length that he and the defendant had engaged in num-

erous transactions involving the purchase and sale of

heroin in the year 1970. The obvious purpose of this

evidence was to establish an illegal source for the

defendant’s alleged unreported income in the calendar

year 1970. Harris’ testimony extended over a period

of a day and a half and consumed over 120 pages of

transcript.

Several days after he testified, Harris contacted

Henry Rothblatt, the defendant’s attorney, and re-

29a

quested an interview at the local jail. Rothblatt vis-

ited Harris and recorded a full recantation of Har-

ris’ trial testimony. Among other things, Harris

stated that his false testimony was influenced by coer-

cion and threats made by government prosecutors

and the agents in charge of the tax case. He as-

serted that when he informed these officials prior to

trial that he did not wish to appear, they responded

that unless he changed his mind his parole would be

revoked, he would have to serve the full 30 years of

his sentence, and he would also be indicted on a per-

jury charge because of his grand jury appearance in

the instant case. As a consequence, he claimed he was

forced to testify falsely against the defendant.

Rothblatt immediately relayed Harris’ disclosures

to Judge Clarie and filed a motion to dismiss based

on prosecutorial misconduct, citing as authority Gig-

lio v. United States, 405 U.S. 150 (1972); Brady v.

Maryland, 373 U.S. 83 (1963); and Berger v. United

States, 295 U.S. 78 (1935). Hearings were held on

November 21 and 25, at which ten witnesses were

heard outside the presence of the jury. However,

Harris refused to testify, relying on the protections

afforded by the Fifth Amendment.

On November 26, Judge Clarie ruled in relevant

part as follows:

The Court: The Court has, as counsel may

well imagine, given considerable thought to this

problem that has arisen. I never had the ques-

tion arise in this form during a trial before.

30a

But the Court is of the opinion that because

of the perjury issue injected into the trial by

the testimony of Daniel Harris, that the de-

fendant Grasso can not get a fair and impar-

tial trial under the present circumstances.

If the issue went to the jury it would not be

whether or not he failed to pay his income taxes;

the issue would be of selling narcotics, which

is in and of itself a kind of abhorrent business

to most every one of us. The issue would be-

come whether or not he was selling narcotics,

and whether or not this man, Daniel Harris,

could be believed.

To do that we’d have to go ‘way back to the

statement to the three Hartford policemen and

the County Detective in 71, and get the facts

as to how the story originated, with the docu-

ments which are in evidence. And we'd have to

begin to review the testimony before the grand

jury that Mr. Buckley educed when he was

prosecutor, or assistant prosecutor.

We'd have to review the tape, as has been

filed in evidence by counsel, which he procured

at the jail. We'd have to review the statement

of the I.R.S. witnesses who went over and re-

ceived from him what is claimed to be an ap-

parent contradiction of the tape.

And the issue of Mr. Grasso’s income tax

evasion would be well lost in the question of

whether or not Daniel Harris committed perjury.

That would be the nub of the case, rather than

the question of the defendant’s failure to pay

his income taxes.

For this reason the Court is of the opinion

that the motion to dismiss would be denied,

31a

but that a mistrial should be ordered, because

there is a manifest necessity for declaring a

mistrial. Otherwise, the ends of justice, public

j

And that is what the Court is going to do.

is of the opinion that to permit the

forward under the present circum-

stances would be an injustice to Mr. Grasso.

The Court can not find that there was im-

proper conduct on the part of the prosecutor, or

as far as the Government agents or investigators

are concerned. The Court certainly is of the

opinion that this man, Daniel Harris, couldn’t

be believed if he put his hand on two Bibles—

I wouldn’t believe him under any circumstances,

after hearing what has been educed here in this

trial. I don’t think he is believable.

But to say that the Government knew he was

not truthful and put him on notwithstanding

that, I think would be an unfair accusation.

But I think it would be unfair to Mr. Gras-

so to let that become a focal point of whether

this case should be tried and go forward. Be-

cause if he were found guilty it would always

be a conclusion of his, certainly, and possibly

of others, that thet was the reason for the

jury’s conclusion of guilt, because of the con-

tamination of the alleged sale of narcotics,

based upon perjurious testimony of Daniel

Harris.

The Court is firmly of the opinion that a mis-

trial should be granted. And the Government

can decide whether or not at any future time

32a

they wish to proceed further with the prosecu-

tion. At that time the issue of double jeopardy

could be argued, and can move in proper form

at that time.

That is the ruling of the Court. (Tr., Novem-

ber 26, 1975, pp. 12-14).

As soon as the judgment of the court was announced,

Assistant United State’s Attorney Hartmere re-

sponded :

Your Honor, for the record, the Government

strongly opposes the Court’s ruling. (Id., at

14).

In addition, Attorney Rothblatt took exception to the

court’s decision and unsuccessfully attempted to re-

new his request for a judgment of acquittal.

In discharging the jury, Judge Clarie further am-

plified his reasons for declaring a mistrial:

Now, because this, because of this perjury

issue being injected into this trial by the testi-

mony of the witness, Daniel Harris, the Court

is of the opinion that a fair and impartial trial

can not be assured for the defendant.

For this reason the jury is discharged, is dis-

charged from giving a verdict in this case, be-

cause there is a manifest necessity for declar-

ing a mistrial. Otherwise, the ends of justice

would be defeated. The factual issues are income

tax evasion—what the trial is all about, and

they have been indelibly stained with the per-

jury of Daniel Harris concerning the defend-

ant’s alleged dealings in narcotics.

His statement infected and contaminated the

trial so that the defendant could not get a fair

trial on the allegations of income tax evasion

with which he’d been charged.

Now, I am not permitted to determine under

the circumstances where the truth lies, but cer-

tainly under the circumstances I would not be-

lieve Daniel Harris.

In a case that starts out as an income tax

evasion case it is necessary of course for the

Government to demonstrate and prove that there

were possible other sources of income, in addi-

tion to showing that he failed to report them.

And it concerned all this extra money. It is

incumbent upon the Government to demonstrate

and show that there are possible sources of in-

come.

Now, had Daniel Harris testified that the de-

fendant was in the newspaper business, on the

side, or that he was selling peanuts on the side,

and he lied about it, it wouldn’t be nearly as

damaging as to say that he sold bundles of

heroin. Once you get into that area of heroin

and narcotics, it is the opinion of the Court

that the question of truth or falsity of this

Daniel Harris, a crucial witness, contaminates

the trial; it leaves a stain.

Because the jury—many people today, anyone

But here the man accuses the defendant of

being involved in narcotics, in an income tax

trial. And it seems to me that that has so

34a

contaminated the issues—particularly with the

give and take of truth or falsity here—that

under the circumstances a fair trial could not be

secured for the defendant.

And above everything else it is the Court’s

duty—sometimes it is unpleasant after sitting

for eight days, as you have—and I have listened

for a couple of days to other testimony in the

case—with all the back up of business we have,

to have to declare a mistrial.

But justice comes first. And if that is what

is necessary, it is the duty of the Court to de-

clare a mistrial.

It is then up to the Government to decide

whether they want to try the case over again,

before another jury, and it is the privilege of

the defendant to argue at that time the principle

of double jeopardy. And at that time that issue

will be resolved at any future trial that might

be had.

So I briefly, summarily, have given you this

background in a nutshell. It is an unusual

hapening during the course of a trial, but those

things will and can happen.

The paramount thing is to assure every de-

fendant who comes into this court a fair trial.

That is the duty of the Court, and upon that

basis the Court will follow that principle. (Tr.,

November 25, 1975, pp. 15-16, 17-19).

When the government set his case down for a re-

trial, the defendant promptly filed the instant motion

to dismiss which Judge Clarie assigned to this Court

for disposition.

II.

It is settled law that, in the absence of the defend-

ant’s request or consent, there can be a new trial

after a mistrial has been declared if “there is a

manifest necessity for the [mistrial] or the ends of

public justice would otherwise be defeated.” United

States v. Perez, 9 Wheat. 579, 580 (1824). See also

United States v. Jorn, 400 U.S. 470, 481 (1971);

Wade v. Hunter, 336 U.S. 684, 691 (1949) ; Simmons

v. United States, 142 U.S. 148, 154 (1891). The

manifest necessity test of Perez obviously contem-

plates a sound and sensitive exercise of discretion

by the trial judge which must be tested on a case by

case basis. United States v. Dinitz, —— U.S. ——

(March 8, 1976); Illinois v. Somerville, 410 U.S.

458, 462 (1973); United States v. Gentile, 525 F.2d

252, 255-256 (2 Cir. 1975).

In deciding whether to declare a mistrial sua

sponte, a trial judge must carefully weigh the de-

fendant’s valued right to have his trial completed by

a particular jury, Downum v. United States, 372

U.S. 734, 736 (1963), with society’s interest in fair

trials designed to insure just judgments. United

States v. Jorn, supra at 480. Various factors may be

placed on the scale. A motion for a mistrial made by

the defendant or with his consent may remove the

barrier to reprosecution, even in the presence of

prosecutorial or judicial error. United States v. Jorn,

supra at 485; see also United States v. Dinitz, supra;

United States v. Gentile, supra. Another trial is per-

missible if the judge, in declaring a mistrial sua

sponte, was acting “in the sole interest of the defend-

ant,” United States v. Gori, 367 U.S. 364, 369 (1961),

or if “a verdict of conviction could be reached but

would have to be reversed on appeal due to an obvious

error in the trial.” Jllinois v. Somerville, supra at

464. On the other hand, jeopardy attaches if the de-

fendant “would be harassed by successive, oppres-

sive prosecutions,” or if the judge “exercises his au-

thority to help the prosecution, at a trial in which

its case is going badly, by affording it another, more

favorable opportunity to convict the accused.” Gori

v. United States, supra at 369; see also United S xtes

v. Jorn, supra at 486.

III.

Applying these principles to the facts in the in-

stant case, the Court, for several reasons, is com-

pelled to conclude that a retrial would violate the

defendant’s constitutional right not to be twice put

in jeopardy.

First, contrary to the government’s suggestion, the

defendant did not request a mistrial. The presenta-

tion of the motion to dismiss, the arguments of coun-

sel pursuant thereto, the ruling of the trial judge,

and the reaction of the attorneys immediately follow-

ing the announcement of the mistrial, disclose con-

clusively that the only motion offered or intended to

be offered was the motion to dismiss. There was no

mention of a request for a mistrial as an acceptable

alternative. It is also significant to note that Judge

37a

Clarie stated on two occasions during his oral rul-

ing that the “principle of double jeopardy” might be

a relevant consideration in the event the government

decided “to proceed further with the prosecution” be-

fore another jury. The references to a possible jeop-

ardy defense at a retrial clearly indicate Judge Clarie

was granting a mistrial swa sponte and not in re-

sponse to the defendant’s request. See United States

v. Dinitz, supra; United States v. Jorn, supra.

Second, the Court must reject the government’s

contention that there was an implied consent to the

mistrial because the defendant’s attorney engaged in

a course of conduct calculated to abort the trial.

Compare United States v. Gentile, supra. While it

is true that the dismissal petition triggered the sua

sponte declaration of a mistrial, it is plain from the

record that there was neither impropriety or miscon-

duct on the part of defense counsel during the events

and proceedings surrounding the mistrial nor was the

motion to dismiss a frivolous petition. As an officer

of the court and lawyer for the defendant, Attorney

Rothblatt had the affirmative duty to promptly notify

the trial judge that a witness had recanted his sworn

testimony. Probable perjurious testimony must, of

course, be immediately reported to the presiding judge

in the interests of justice and to preserve the in-

tegrity of the judicial process.

Recantation of a witness’ testimony at trial is not

a rare occurrence. See, e.g., United States ex rel.

Sostre v. Festa, 513 F.2d 1313 (2 Cir. 1975); United

States ex rel. Rice v. Vincent, 491 F.2d 1326 (2 Cir.

1974) ; United States v. Silverman, 430 F.2d 106 (2

Cir. 1970); United States v. Polisi, 416 F.2d 573 (2

Cir. 1969); United States v. Mitchell, 29 FRD 157

(D.N.J. 1962). Generally, false testimony is uncov-

ered after trial and fathers an action for relief under

Rule 33, Fed. R. Crim. P., or pursuant to 28 U.S.C.

§ 2255 or by way of a writ of habeas corpus.

When alleged perjury is revealed after a witness

has testified but while the trial is still in progress,

as in the case at bar, the trial judge has several

options available to insure that the jury receives the

impeaching evidence for its consideration in apprais-

ing the witness’ credibility. These include the recall

of the witness for further cross-examination and the

introduction, if necessary, of the affidavit, tape-re-

cording, or other document setting forth the recanta-

tion. Rules 607, 801 (d) (1), 804 (a) (2) and 804 (b)

(1), Federal Rules of Evidence (1975); ef. United

States v. Pfingst, 490 F.2d 262 (2 Cir. 1973), cert.

denied, 417 U.S. 919 (1974) ; United States v. Klein,

488 F.2d 481 (2 Cir. 1973), cert. denied, 419 U.S.

1091 (1974); United States v. Blackwood, 456 F.2d

526 (2 Cir.), cert. denied, 409 U.S. 863 (1972);

United States v. DeSisto, 329 F.2d 929 (2 Cir.), cert.

denied, 377 U.S. 979 (1964).

Thus, in the present case, if the incident involved

only a recantation, without more, it must be assumed

that, depending on the circumstances, Harris would

have been recalled for further examination or the

tape-recording would have been introduced into evi-

dence. Cf. United States v. Jorn, supra at 485. How-

ever, in addition to the repudiation of his incriminat-

ing testimony, Harris relayed to Rothblatt certain

facts which, if true, disclosed serious governmental

misconduct sufficient to justify a dismissal. Cf.

United States v. Gerry, 515 F.2d 130, 144 (2 Cir.

1975); United States v. McCord, Q09 F.2d 334, 349

(D.C. Cir. 1974), cert. denied, 421 S. 930 (1975).

Rothblatt’s disclosures to Judge Clarie and the de-

fendant’s motion to dismiss, therefore, were consis-

tent -with the obligations of trial counsel and the

procedural due process rights afforded an accused

at trial.

Third, the Court is constrained to overrule the

government’s argument that under the standards

enunciated in Gori, 367 U.S. at 369, reprosecution is

not barred because the mistrial was “obviously in the

sole interest of the defendant.” Judge Clarie notgd

after the hearing on the motion to dismiss that Harris

was a “crucial” government witness (Tr., November

26, 1975, p. 12) who “couldn’t be believed if he put

his hand on two Bibles” (Id.) and whose credibility

“eontaminates the trial” (Id. at 18). It necessarily

follows, therefore, that if the trial had been per-

mitted to continue and the recantation evidence had

been presented to the jury, it was more than likely

the jury would have completely discounted Harris’

testimony, as indeed Judge Clarie did, and acquitted

the defendant, at least with respect to the 1970 tax

year. There is little question that the recantation

provided unexpected but welcomed evidentiary weap-

onry in defense counsel’s arsenal to wage a strong

40a

assault on the government’s case by renewed cross-

examination and in summation. Few tools are more

valuable to the skillful and experienced trial advocate

to gain an acquittal in a criminal case than the

sword of impeachment in combination with the

shield of the doctrine of reasonable doubt. This is

especially true in the context of a complex net worth

tax prosecution wherein likely sources of unreported

income are vital to a conviction. The mistrial here

prevented defense counsel from discrediting a key

government witness on this essential element of the

crime and deprived the defendant of “the right to

seek a favorable verdict from the first jury.” United

States v. Glover, 506 F.2d 291, 298 (2 Cir. 1974).

As stated by Justice Harlan in Jorn:

in the final analysis, the judge must

always temper the decision whether or not to

abort the trial by considering the importance

to the defendant of being able, once and for

all, to conclude his confrontation with society

through the verdict of a tribunal he might be-

lieve to be favorably disposed to his fate. 400

U.S. at 486.

In addition, although the government objected to

the mistrial, reprosecution would give it a solid tacti-

cal advantage. With commendable candor at the oral

argument before this Court, government counsel ad-

mitted Harris would not be a witness on retrial.

Thus the government would have ample time to re-

trench, to reconstruct its evidence, and to present

its case against the defendant for the year 1970

4la

without the tainted Harris testimony; or, it might

proceed to seek convictions solely for the years 1969

and 1971. Cf. United States v. Kin Ping Cheung,

485 F.2d 689, 691-692 (5 Cir. 1973). While certainly

not Judge Clarie’s intention, it is evident that the

mistrial served “as a post-jeopardy continuance to

allow prosecution an opportunity to strengthen its

case.” Somerville, 410 U.S. at 469.

Fourth, the defendant has submitted evidence, not

controverted by the government, that a retrial would

be oppresive and would hamper the right to counsel

of his own choice. Cf. Green v. United States, 355

U.S. 184, 187-188 (1957). A retrial would constitute

the fourth major criminal trial instituted against

this defendant in recent years. In short, he is unable

to retain private counsel for the next trial; he is

substantially indebted to Attorney Rothblatt for serv-

ices rendered to date; and, he has strained his fi-

nancial resources to the limit.

Fifth, the trial was aborted after it had proceeded

at length with a substantial amount of evidence in-

troduced—far beyond the situation in Downwm and

Somerville. Cf. United States v. Glover, supra at

998. A conscientious preparation by court-appointed

counsel at this stage of the proceedings would re-

quire extraordinary intrusions on the lawyer’s time,

exhaustive research and inspection of records, tran-

scripts and exhibits, and would inevitably result in

an inordinate delay affecting the defendant’s right

to a speedy trial.

42a

Accordingly, the defendant’s motion to dismiss is

granted.

Dated at New Haven, Connecticut, this 13th day

of May, 1976.

/s/ Robert C. Zampano

United States District Judge

„ „ SOvERNMENT eee OFrICE, 1977 253002 68