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UNITED STATES v. KHAIT

September 17, 1986.

UNITED STATES of America
v.
Mikhail KHAIT, Defendant.



The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

 Defendant Mikhail Khait has moved for an order dismissing the indictment against him on the ground that his continued prosecution is barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. For the reasons that follow, the motion is denied.

 I.

 The chronology of events which led to this motion is undisputed by the parties:

 On January 17, 1985 defendant and others were indicted for extortion, and for conspiracy to commit extortion. They were charged, inter alia, with threatening a New York businessman named Boris Granik.

 On March 3, 1986 jury selection began in the trial of Khait. That day, the government was informed that Granik, who was to be the government's main witness at trial, would refuse to testify if called. He indicated he would not testify because on March 2, 1986 his wife had received a telephone call threatening her and her family with death if he testified. Both parties agreed to complete jury selection, and did so. Court was adjourned until the next day so the government could determine whether it wished to proceed with the trial. The jury had not yet been sworn.

 On March 4, the next day, Granik appeared in court with his attorney and iterated his refusal to testify. The government then informed the court it would seek an order of civil contempt against Granik should he refuse to testify. The government suggested that a contempt sanction could not be imposed unless a jury had been sworn and Granik refused thereafter to testify. Defendant agreed. *fn1" The jury was sworn, and upon Granik's continued refusal to testify, I found him in civil contempt and ordered his incarceration. Then, at the government's request I adjourned the trial until March 20.

 On March 20, over the government's objection, I released Granik: there had been no indication from him that he would testify, and I concluded that any further incarceration would not serve any useful coercive purpose.

 On April 1, after another adjournment, the government moved for a mistrial with the objective of recommencing the trial at a later date. Defendant opposed the motion, asserting that he was ready to proceed to trial. I granted the motion for a mistrial, formally discharged the jury, and this motion ensued. *fn2"

 II.

 Defendant argues that because jeopardy attached with the swearing of the jury, and because the jury was subsequently discharged upon the government's motion for a mistrial, the Double Jeopardy Clause of the Fifth Amendment bars his reprosecution on the indictment. He characterizes the question at issue on this motion to be whether there was "manifest necessity" for the declaration of a mistrial following Granik's refusal to testify; he argues that there was no such necessity because the government knew its main witness would not be available to testify and yet proceeded to the empanelling of a jury. Defendant stresses that the government declined the court's invitation to hold a hearing concerning the alleged threats to Granik, and did not produce evidence linking defendant to those threats.

 The government agrees that the "manifest necessity" standard applies, but contends that there was a manifest necessity for the declaration of a mistrial upon the facts of the case. It argues that no factual hearing was necessary to link defendant Khait to the alleged threats, and that there was no hint of government misconduct upon which a retrial could be barred. The government suggests that the mistrial was granted only after ...


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