Appeal from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, denying appellant's motion to dismiss three counts of an indictment on the ground of double jeopardy. The court had declared a mistrial and severed the trial of appellant and a codefendant when it learned that the sole witness about to testify against the appellant had been murdered and determined that substitute evidence against the appellant would unfairly prejudice the codefendant. Held that appellant had withdrawn his previous motion for a mistrial but that the mistrial was properly declared on the basis of manifest necessity and that the double jeopardy clause therefore does not bar appellant's retrial. Affirmed.
Before Oakes and Meskill, Circuit Judges, and Blumenfeld, District Judge.*fn*
This expedited appeal raises anew the question whether there was "manifest necessity," United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824), for the declaration of a mistrial. What makes this case unique is that the mistrial was declared following the killing of the Government's only witness against appellant, Richard Mastrangelo. The killing occurred on the witness's way to the courtroom to testify in a trial in which the Government's case against the codefendant, Joseph Dazzo, was essentially complete. The United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, denied appellant's motion to dismiss Counts 1, 4, and 5 of the indictment on the ground of double jeopardy. We hold first that appellant had for all practical purposes withdrawn his previous motion for a mistrial on other grounds, so that United States v. Dinitz, 424 U.S. 600, 611, 96 S. Ct. 1075, 1081, 47 L. Ed. 2d 267 (1976), does not apply and we must examine the declaration of the mistrial under the manifest-necessity standard. We hold second, however, that the court's ordering a mistrial after the witness's murder was proper under that standard, and we accordingly affirm.
Appellant Mastrangelo and his codefendant Joseph Dazzo were charged in a superseding indictment, along with three others who were severed before trial, with conspiracy to import and to possess with intent to distribute substantial quantities of marijuana, 21 U.S.C. § 846(1) (Count 1), possession with intent to distribute of approximately 23.4 tons of marijuana (a Schedule I controlled substance) and 499,000 Methaqualone tablets (a Schedule II controlled substance), 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2 (Count 4), and intentional importation into the United States at Yancarib Enterprises in Queens, New York, aboard the vessel Terry's Dream, of the same amounts of marijuana and Methaqualone, 21 U.S.C. §§ 952(a), 960, 18 U.S.C. § 2 (Count 5). Count 6, which was severed before the Mastrangelo-Dazzo trial, charged Mastrangelo with knowingly and corruptly endeavoring to influence the due administration of justice, 18 U.S.C. § 1503.*fn1
The Government's evidence at the trial before Judge Weinstein that commenced on April 27, 1981, established the existence of a conspiracy to import boatloads of marijuana into New York from Colombia, South America, between November 10, 1977, and November 11, 1978. On the latter date law enforcement officers in Queens interrupted the offloading of a 75-foot shrimp boat known as Terry's Dream, which members of the conspiracy had purchased in Florida in November 1977, and used several times for marijuana importation. At the Yancarib Marina in Queens the officers seized the shrimp boat, a tugboat called the Bill Mather, four trucks, three vans, and a Buick sedan. The vessels and vehicles contained a total of 23.4 tons of marijuana and 499,000 Methaqualone tablets. The persons offloading the boat escaped.
At trial, four witnesses connected codefendant Joseph Dazzo to the purchase and repair of the tugboat used to bring the Terry's Dream into New York harbor. Frederick Ardolino identified Dazzo as one person who was with him in Virginia to purchase the Bill Mather in February 1978. Alfred Jensen, the agent for the seller of the Bill Mather, corroborated Ardolino's testimony. James Muller and Kathleen Muller, employees at a family-owned boatyard in Brooklyn, testified about repair work on the Bill Mather in April 1978, identifying Dazzo as the person who used the alias "John Ward, Jr.," and directed the repair work.
Important to the sequence of events and to the judge's later ruling on the mistrial was the cross-examination of Ms. Muller on April 29. Dazzo's attorney inquired about a statement she had made to one Haggerty, an investigator employed by Dazzo who had shown her some pictures of people. Asked if she had recognized any of the people, she replied that one of the pictures looked like the person who had identified himself as John Ward. The following colloquy then occurred:
Q. But you did-Did you also tell Mr. Haggerty that you were not sure-
A. I had reasons, what I said to Mr. Haggerty, when he was in my office.
On redirect, the Government asked Ms. Muller to explain the circumstances of her conversation with Haggerty. After she explained that Haggerty had said he was an investigator for Dazzo's attorney, the Government asked her the following question:
Q. You recall on cross-examination you started to say you had reasons for telling Mr. Haggerty what you told him. What were those reasons?
To this, Mastrangelo's counsel, Mr. Coiro, objected, seeking a sidebar conference. The court excused the jury, questioned the witness, and then announced that it would issue the following curative instruction:
You can say-we can stipulate that she would have answered in words or substance that she did not feel under the circumstances that she wanted to be fully candid with Mr. Haggerty.
Although the Government and Dazzo's attorney agreed to the curative instruction, appellant's counsel, alleging that the questioning implied that the witness had been threatened, moved for a mistrial. Judge Weinstein denied this motion and, after giving the instruction to the jury, again inquired whether it was satisfactory. Counsel for the ...