Before Smith, Oakes and Timbers, Circuit Judges.
Judgment in this case, 552 F.2d 46, Rehearing en banc denied, 568 F.2d 899 (2d Cir. 1977), was vacated by the United States Supreme Court, 438 U.S. 901, 98 S. Ct. 3117, 57 L. Ed. 2d 1144 (1978), and the case remanded in the light of United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978), and Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). Our panel majority decision upheld Judge Zampano's decision that the Double Jeopardy Clause barred a retrial because there was no "manifest necessity" for the trial judge to declare a mistrial sua sponte. The mistrial was declared when a prosecution witness recanted his testimony after nine trial days had elapsed, fifty-three witnesses had testified, and 300 documents had been introduced, with only one rebuttal witness remaining to be called.*fn1 We also held that findings should have been made as to available alternatives to mistrial, a holding similar to that of the Ninth Circuit Court of Appeals in Arizona v. Washington, 546 F.2d 829 (1977). When that case was reversed, our holding as to findings was plainly overruled by the Supreme Court, 434 U.S. at 516-17, 98 S. Ct. at 836 ("(n)o matter how desirable such procedural assistance may be, it is not constitutionally mandated . . . (where) (t)he basis for the trial judge's mistrial order is adequately disclosed by the record"). The Court moreover apparently deemphasized the importance of the trial judge's examining alternatives to a mistrial, for which such findings would have been helpful. Id. We acknowledge our errors in these respects and are of course bound not to repeat them.*fn2
United States v. Scott, supra, seems only indirectly relevant. That case, overruling United States v. Jenkins, 420 U.S. 358, 95 S. Ct. 1006, 43 L. Ed. 2d 250 (1975), held that where a defendant himself seeks and obtains a midtrial dismissal on grounds "unrelated to factual guilt or innocence," Double Jeopardy does not bar a Government appeal. In our case, Grasso did seek dismissal on the basis of prosecutorial misconduct, a ground, like the prejudicial preindictment delay in Scott, not related to "factual guilt or innocence." But Grasso's motion to dismiss was denied. Instead, the trial judge declared a mistrial.*fn3 Thus, the Supreme Court's reference to Scott in its remand order must have been intended to focus our attention on the general double jeopardy principles expounded there. We shall refer to those principles in our discussion of Arizona v. Washington, infra.
Arizona v. Washington, however, is obviously directly relevant to this case. There the Court held that there was "manifest necessity" for the declaration of a mistrial where defense counsel had improperly opened to the jury by calling attention to allegedly improper prior prosecutorial misconduct (suppression of evidence) which had caused the state supreme court to remand for the new trial then about to take place. In addition to holding that neither a "manifest necessity" finding nor an explanation of the mistrial ruling was constitutionally required, the Supreme Court emphasized the "special respect" that must be accorded a trial judge's determination of possible jury bias. 434 U.S. at 510, 98 S. Ct. 824. While conceding that, in Arizona, "(i)n a strict, literal sense, the mistrial was not "necessary,' " Id. at 511, 98 S. Ct. at 833, the Court went on to hold:
Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.
Id.*fn4 Thus, "necessity" is not to be taken literally; a trial judge's evaluation, at least as to events occurring before the jury, is to be accorded the highest deference.*fn5
This, however, does not end the inquiry, the Court reminds us. Id. at 514, 98 S. Ct. 824. We must satisfy ourselves that the trial court exercised "sound discretion."*fn6
We turn, then, to the specific trial problems which did trigger the mistrial declaration. Preliminarily we note that Judge Clarie, in denying the motion to dismiss, expressly found that there was no misconduct on the part of Government counsel. And in granting the motion at retrial to dismiss on double jeopardy grounds, Judge Zampano expressly found that "there was neither impropriety or misconduct on the part of defense counsel during the events and proceedings surrounding the mistrial nor was the motion to dismiss a frivolous petition."*fn7
The record*fn8 discloses that Judge Clarie declared a mistrial because he believed that allowing the veracity of Harris's testimony to become the focal point of the trial would be unfair to the defendant in several ways. First, the jury's aversion to narcotics might have prejudiced them against the defendant. Second, the sensational nature of Harris's narcotics testimony and recantation, as well as evidence of his retraction of the recantation, might have caused the jury to pay too little attention in their deliberations to the more technical tax evasion issues. Third, the defendant might have been convicted on "perjurious" testimony. Although the trial judge's judgment is certainly not immune from appellate scrutiny under Arizona, we hold that Double Jeopardy does not bar reprosecution of the defendant. After reviewing these three considerations, especially the evidence of the retraction of the recantation, and after according the trial judge's decision the "special respect" required by Arizona, we conclude that Judge Clarie could reasonably have found manifest necessity for declaring a mistrial.
His first ground, that the jury's aversion to narcotics might have prejudiced them against the defendant, was not in and of itself sufficient to justify a mistrial. The testimony about the defendant's involvement in sales of narcotics was initially admitted in the Government's case as tending to show the existence of a source for the alleged nonreported income, a proper subject of proof. See United States v. Costanzo, 581 F.2d 28 (2d Cir. 1978) (in proving tax evasion by net worth method, Government may either negate all possible sources of nontaxable income or prove a likely source of unreported income), Cert. denied, 439 U.S. 1067, 99 S. Ct. 833, 59 L. Ed. 2d 32 (1979). Recantation of such testimony could prejudice only the Government, not the defendant, since any harm to the latter would have been done when the testimony was first admitted. But evidence of a retraction of the recantation would have cut the other way.*fn9
The second ground for the trial judge's mistrial determination was that the sensational nature of Harris's testimony and recantation, together with evidence of his retraction of the recantation, might cause the jury to pay too little attention to the more technical issues of tax evasion. Once again, we would be reluctant to uphold the mistrial declaration on this ground alone. Harris's testimony formed an important part of the Government's original case, to be sure, for it was probative of the source of the unreported income for one taxable year. But although the technical issues and evidence before the jury in this case were not simple (eight days of trial, over 300 exhibits), many cases of far greater complexity are tried before juries, and most have emotional aspects. Although a recantation (with or without a retraction) may have a dramatic effect upon a jury, so may a devastating cross-examination or a strikingly contradictory prior inconsistent statement. If the danger of jury confusion of technical issues were itself so great in this case as to require a mistrial, what would be done with all the much longer and more complex trials routinely tried before juries? E. g., United States v. Bernstein, 533 F.2d 775 (2d Cir.), Cert. denied, 429 U.S. 998, 97 S. Ct. 523, 50 L. Ed. 2d 608 (1976); United States v. Taylor, 562 F.2d 1345 (2d Cir.), Cert. denied, 434 U.S. 853, 98 S. Ct. 170, 54 L. Ed. 2d 124 (1977). It should also be noted that this ground, like the previous ground, would not be remedied at a new trial unless the Government were to forego presentation of this testimony, a course it was not obliged to pursue at the time of Judge Clarie's ruling.
But the third ground given for the declaration of mistrial, that it was unfair for the defendant to face being convicted on "perjurious" testimony, is the most justifiable. He could be so convicted even if evidence of the recantation were admitted, if the jury believed the evidence as to the witness's retraction. Both kinds of evidence would plainly have been admissible to impeach (or rehabilitate) the witness's prior testimony. Judge Clarie did not give any credence to the witness; in granting the mistrial he said to the jury that "(t)he factual issues . . . have been indelibly stained with the perjury of Daniel Harris . . . ." The probability/possibility that the original testimony was perjured thus has some weight as a ground for a mistrial in light of the evidence that the recantation was retracted, evidence which the jury might have believed.
But when we evaluate the judge's exercise of discretion, Arizona requires us to view the judge's three grounds in combination to give them the "special respect" to which they are entitled. The probable perjury may have exacerbated the possible prejudice and confusion arising from the narcotics testimony. Although the recantation would have cast doubt upon the defendant's involvement with narcotics and thus would have Attenuated any prejudice the prior testimony could have caused, the recantation, when coupled with evidence of a retraction, would have drawn even greater attention to the initial testimony. Moreover, if the jury disbelieved the recantation it might have conjectured that improper pressure caused it with clear prejudice to the defendant. Although the ...