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March 18, 1994

JOHN PAPAJOHN, et al., Defendants.

The opinion of the court was delivered by: DENIS R. HURLEY

 HURLEY, District Judge

 In the above-referenced prosecution, Defendant John Papajohn is charged, in a one-count superseding indictment, with conspiracy to distribute and to possess with intent to distribute hashish, in violation of 21 U.S.C. ยงยง 846 and 841(b)(1)(C). Currently before the Court is Defendant Papajohn's motion to dismiss the indictment on the ground that further prosecution would violate the Double Jeopardy Clause of the Fifth Amendment. For the reasons set forth below, Defendant's motion is denied.

 Factual Background

 The trial of Defendant Papajohn and one of his co-defendants, Robert Seyfert, commenced on November 1, 1993. *fn1" In its opening statement, the Government discussed the evidence that, it contended, would link Defendant Papajohn to the conspiracy. One such item of evidence was Papajohn's palmprint, which was found on a paper bag containing several thousands of dollars. (Tr. at 121.) This bag of currency had been delivered to a confidential informant as payment for a shipment of hashish. (Id.)

 Counsel for Defendant Papajohn, James Merberg, also spoke of the palmprint during his opening statement. Contrary to the Government's contentions, Mr. Merberg suggested to the jury that the palmprint could not serve to link his client to the conspiracy because the Government's print expert would be unable to determine when or under what circumstances the palmprint had been placed on the bag. (Id. at 132.) In essence, Mr. Merberg suggested that the expert's testimony could not establish that Defendant Papajohn had handled the bag after it had been filled with currency.

 In the early morning hours of November 2, 1993, the Government's print expert conducted an examination of the paper bag. During this examination, the expert utilized a new technique for detecting prints -- a technique that had been developed approximately two months prior to the trial, but had not been available when the expert first examined the bag. Using this technique, the expert discovered Defendant Papajohn's fingerprints on the duct tape that had served to seal the currency inside of the bag. The discovery of the fingerprint was significant because, the Government contended, it would "show at least that Mr. Papajohn handled the bag after it was sealed up with the money in it." (Id. at 375.)

 During the morning recess on November 2, the Government informed Mr. Merberg of the expert's discovery; and at the luncheon recess, the Government provided Mr. Merberg with an opportunity to meet with the expert, question the expert with regard to his proposed testimony, and review the proposed exhibits. (Id. at 373.)

 On the following day, November 3, 1993, the parties brought the fingerprint evidence to the Court's attention. At that time, Mr. Merberg suggested that the newly discovered fingerprint evidence would conflict with the representations that he had made to the jury during his opening statement. (Id. at 383.) Such a conflict, he contended, would prejudice Defendant Papajohn (id.); and, therefore, the fingerprint evidence should be excluded under Federal Rule of Criminal Procedure 16(d)(2), or, in the alternative, the Court should declare a mistrial. (Id. at 370, 371, 384.)

 In response, the Government contended that it had complied with Rule 16, asserting that "as soon as the expert evidence was developed we informed the defense. There was no dilatory tactic." (Id. at 376.) Therefore, the Government argued, the fingerprint evidence should not be excluded. In response to the Court's concern that the conflict between Mr. Merberg's opening statement and the newly discovered fingerprint evidence may warrant a mistrial, the Government maintained that the evidence was admissible under Rule 16, and contended that Defendant Papajohn would suffer no prejudice from the introduction of the fingerprint. (Id. at 378.)

 After extensive oral argument, the Court denied defense counsel's motion to exclude the fingerprint evidence, finding that the Government had complied with the dictates of Rule 16. (See id. at 375-76.) In light of its decision regarding the admissibility of the fingerprint evidence, the Court granted defense counsel's motion for a mistrial, explaining that

this was a very close call. I think it was addressed to my discretion. I think I could have permitted the government to proceed and to grant the defense any type of continuation they may need, give any type of limiting instruction that may be required to bring out the timing of this new information and so forth. But I felt that the better approach was to take the position which I believe Mr. Merberg indicated. He said that if the government intends to offer this . . . [Defendant Papajohn is] entitled to a mistrial.

 (Id. at 468.) Moreover, the Court emphasized that the Government had not engaged in any wrongdoing or misconduct:

I don't want there to be any suggestion that the mistrial would be declared because of the inappropriateness of the government. . . . This is a situation where this case should be subject to retrial. This is a completely innocent mistake. This is a call that could go either way. I ...

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