Appeal from dismissal of indictment for tax evasion in the United States District Court for the District of Connecticut, Robert C. Zampano, Judge, on ground that retrial would violate double jeopardy clause of Fifth Amendment. Affirmed.
Smith, Oakes and Timbers, Circuit Judges. Timbers, 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 "escape meaningful categorization," as "virtually all of the cases turn on the particular facts," Illinois v. Somerville, 410 U.S. 458, 464, 35 L. Ed. 2d 425, 93 S. Ct. 1066 (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 witnesses 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 December, 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 transcript.
Several days after Harris had testified, he contacted the appellee's son, who in turn advised him to contact the court or appellee's counsel, Henry Rothblatt. Harris 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 Internal 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 Harris's recantation and filed a motion to dismiss based on prosecutorial misconduct. See, e.g., Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). Hearings were held outside the presence of the jury, with ten witnesses testifying, but Harris refused to testify, relying 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 become 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 or Government agents. He explicitly stated that "the issue of double jeopardy could be argued" in the event the Government decided to proceed with a retrial. The Assistant United States Attorney recorded his objection to the declaration of mistrial "for the record." For the defense Mr. Rothblatt 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 acquittal."
The Government subsequently sought to retry appellee, who moved to dismiss the indictment on double jeopardy grounds. Judge Zampano granted the motion, so that it is the Government that appeals that decision.
The Government's first argument is that the defendant 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 mistrial 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, e.g., United States v. Dinitz, 424 U.S. 600, 607-08, 47 L. Ed. 2d 267, 96 S. Ct. 1075 (1976); United States v. Tateo, 377 U.S. 463, 467, 12 L. Ed. 2d 448, 84 S. Ct. 1587 (1964); United States v. Goldstein, 479 F.2d 1061, 1065-68 (2d Cir.), cert. denied, 414 U.S. 873, 38 L. Ed. 2d 113, 94 S. Ct. 151 (1973); United States v. Pappas, 445 F.2d 1194, 1199-1200 (3d Cir.), cert. denied, 404 U.S. 984, 92 S. Ct. 449, 30 L. Ed. 2d 368 (1971); United States v. Burrell, 324 F.2d 115, 119 (7th Cir. 1963), cert. denied, 376 U.S. 937, 11 L. Ed. 2d 657, 84 S. Ct. 791 (1964); Note, Mistrial and Double Jeopardy, 49 N.Y.U.L. Rev. 937, 948 (1974). But here the appellee neither requested a mistrial nor consented thereto. As Judge Zampano found below, "the only motion offered or intended to be offered [by the appellee] 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 defendant'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, 47 L. Ed. 2d 753, 96 S. Ct. 1493 (1976).
Nor can Mr. Rothblatt's remarks made after the judge had ruled, quoted above, in any way be construed 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 mistrial," and he renewed his request for a judgment of acquittal. It is true that he did not say that he objected to the mistrial and wished to proceed to the jury, but affirmative consent may not be inferred from that silence.
The Government argues in the alternative that, if there were no actual consent to the mistrial, consent should be implied because defense counsel's conduct precipitated the mistrial. See United States v. Gentile, supra, 525 F.2d at 252-58; United States v. White, 524 F.2d 1249, 1252 (5th Cir. 1975), cert. denied, 426 U.S. 922, 96 S. Ct. 2629, 49 L. Ed. 2d 375 (1976); cf. United States v. Dinitz, supra (no double jeopardy where misconduct by chief defense counsel in opening statement resulted 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 Government memoranda of interviews of one Joseph Rose and of Harris conducted by attorney Ronald Goldfarb, 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 concerning Grasso's activities in narcotics, and that Goldfarb had reason to believe Harris would sign a statement to that effect after his parole hearing scheduled for September, 1975. Thus the Government argues 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 ...