The opinion of the court was delivered by: DUFFY
On August 23, 1977, the trial of defendant Irving Goldman on charges of conspiracy and mail fraud commenced. The trial was aborted on September 6, 1977, when I declared a mistrial during the redirect examination of the government's chief witness. Pending retrial, defendant has moved to dismiss the indictment on the grounds that retrial would place him in double jeopardy in violation of his rights under the Fifth Amendment to the Constitution and would deprive him of his rights to a speedy trial under the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq.
The Fifth Amendment's prohibition against placing a defendant in double jeopardy does not bar the retrial of a defendant who has requested or consented to a mistrial for prosecutorial or judicial error, so long as the error was not the product of intentional provocation or bad faith. Lee v. United States, 432 U.S. 23, 97 S. Ct. 2141, 2146-2147, 53 L. Ed. 2d 80, 45 U.S.L.W. 4661, 4663-64 (1977); United States v. Dinitz, 424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075 (1976); United States v. Jorn, 400 U.S. 470, 485, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971). Consent need not be express; rather, it may be implied from a totality of the circumstances. United States v. Goldstein, 479 F.2d 1061 (2d Cir.), cert. denied, 414 U.S. 873, 38 L. Ed. 2d 113, 94 S. Ct. 151 (1973).
A different situation is presented, however, when a mistrial is declared by the court sua sponte, in the absence of a request or consent by the defendant. In such a case, the double jeopardy clause precludes retrial unless the court makes explicit findings that no reasonable alternative curative measures exist. United States v. Grasso, 552 F.2d 46 (2d Cir. 1977), cert. pending, 45 U.S.L.W. 3781 (May 31, 1977).
Recognizing that double jeopardy claims "turn on the particular facts . .." Illinois v. Somerville, 410 U.S. 458, 464, 35 L. Ed. 2d 425, 93 S. Ct. 1066 (1973), defendant has attempted to shape the facts precipitating the mistrial declaration in this case to fit into those legally recognized precepts which would bar his retrial. Thus, he argues that the mistrial was deliberately provoked and forced upon him by the government and declared by this Court sua sponte without his request or consent and in the absence of findings. The record, however, belies his view both as to the precipitating cause of the mistrial and his lack of involvement in its declaration.
The events leading to the mistrial declaration began with certain questioning on redirect examination by the government of Jack Zander, its chief witness and an alleged co-conspirator. The government elicited from Zander that he had admitted to the prosecutor the previous afternoon that he had not been truthful with respect to certain areas of his testimony on cross-examination. Zander then testified to his receipt of certain cash payments from defendant. The prosecutor then began to question Zander about the substance of their prior discussion. To demonstrate that Zander's testimony regarding the sequence of statements made during that discussion was inconsistent with the prosecutor's notes of the meeting, the government requested that he be treated as a hostile witness. This request was granted.
During the course of the questioning that ensued, the following exchange took place between the prosecutor and Zander:
Q. Do you remember saying to me then "What if Mr. Goldman says I received cash?"?
Q. And do you remember my telling you that you shouldn't count on the fact that it would be one on one, your word against his?
A. Well -- yes, you made that comment.
Q. And do you remember at that point you told me that you had received $1500 or so of cash from him? Do you remember that?
Q. $1500, Mr. Zander. Do you remember saying that ...