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  • United States v. Marvin Mandel, United States of America v. William A. Rodgers, 550 F.2d 1001, 4th Cir. (1977)

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    The court dismissed the appeal of Marvin Mandel et al. who were appealing the denial of their plea of double jeopardy. After 12 weeks of the government presenting evidence, the trial court granted the defendants' motion for a mistrial. A new judge then denied the defendants' motion to dismiss the indictment on double jeopardy grounds and scheduled a retrial. The court found that under United States v. Lansdown, the denial of a double jeopardy claim is not appealable when the mistrial was granted on the defendant's own motion and without prosecutorial bad faith. Here, the new judge found no bad faith by the prosecution or original judge that provoked the mistrial. Therefore, the appeal was dismissed.

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    Filed: 1977-03-08 Precedential Status: Precedential Citations: 550 F.2d 1001 Docket: 77-1166

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    The court dismissed the appeal of Marvin Mandel et al. who were appealing the denial of their plea of double jeopardy. After 12 weeks of the government presenting evidence, the trial court granted the defendants' motion for a mistrial. A new judge then denied the defendants' motion to dismiss the indictment on double jeopardy grounds and scheduled a retrial. The court found that under United States v. Lansdown, the denial of a double jeopardy claim is not appealable when the mistrial was granted on the defendant's own motion and without prosecutorial bad faith. Here, the new judge found no bad faith by the prosecution or original judge that provoked the mistrial. Therefore, the appeal was dismissed.

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    United States v. Marvin Mandel, United States of America v. William A. Rodgers, 550 F.2d 1001, 4th Cir. (1977)

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    The court dismissed the appeal of Marvin Mandel et al. who were appealing the denial of their plea of double jeopardy. After 12 weeks of the government presenting evidence, the trial court granted the defendants' motion for a mistrial. A new judge then denied the defendants' motion to dismiss the indictment on double jeopardy grounds and scheduled a retrial. The court found that under United States v. Lansdown, the denial of a double jeopardy claim is not appealable when the mistrial was granted on the defendant's own motion and without prosecutorial bad faith. Here, the new judge found no bad faith by the prosecution or original judge that provoked the mistrial. Therefore, the appeal was dismissed.

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    of 3

    550 F.

    2d 1001

    UNITED STATES of America, Appellee,


    v.
    Marvin MANDEL et al., Appellants.
    UNITED STATES of America, Appellee,
    v.
    William A. RODGERS, Appellant.
    Nos. 77-1166, 77-1167.

    United States Court of Appeals,


    Fourth Circuit.
    Submitted March 1, 1977.
    Decided March 8, 1977.

    Jervis S. Finney, U. S. Atty., Barnet D. Skolnik, Ronald S. Liebman, and


    Daniel J. Hurson, Asst. U. S. Attys., Baltimore, Md., for the United
    States.
    Michael E. Marr, Sutley & Marr, Baltimore, Md., for William A. rodgers.
    Arnold M. Weiner, Baltimore, Md., for Marvin Mandel.
    William G. Hundley, Washington, D.C., for W. Dale Hess.
    Thomas C. Green, Washington, D.C., for Harry W. Rogers, III.
    Charles G. Bernstein, Baltimore, Md., for Ernest N. Cory.
    Before CRAVEN, BUTZNER and WIDENER, Circuit Judges.
    PER CURIAM:

    Marvin Mandel, W. Dale Hess, Harry W. Rogers, III, William A. Rodgers, and
    Ernest N. Cory appeal an order of the district court denying their plea of double
    jeopardy. The government moves to dismiss the appeal on the ground that the
    order is not appealable under 28 U.S.C. 1291 or 1292. We grant the motion
    to dismiss.

    After the government had spent approximately 12 weeks presenting its


    evidence, the district court granted the defendants' motion for a mistrial.
    Another judge was designated to preside over the retrial. On January 12, 1977,
    he orally denied a motion to dismiss the indictment on the ground of double
    jeopardy and set the case for retrial on April 13, 1977. Subsequently, he filed a
    memorandum and order supplementing his previous oral rulings.

    Contending that the denial of the plea of double jeopardy is a final order within
    the meaning of 28 U.S.C. 1291, the defendants have appealed. On the other
    hand, the government asserts that an order granting a mistrial on the motion of
    a defendant is nonappealable.

    In United States v. Lansdown, 460 F.2d 164 (4th Cir. 1972), applying the
    exception to the final judgment rule set forth in Cohen v. Beneficial Industrial
    Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), we took
    jurisdiction to hear and determine an appeal from an order denying a plea of
    double jeopardy.* Post-trial consideration of the issue, we reasoned, could
    provide only inadequate relief because the double jeopardy prohibition was
    intended to prevent the hardship of undergoing a second trial. See Green v.
    United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). We
    restricted our holding, however, by stating that it did not apply in cases where a
    mistrial was declared at the request of the defendant. 460 F.2d at 171 n.8. A
    recent decision of the Supreme Court, however, casts doubt on this unqualified
    restriction when the record discloses that bad faith conduct by the prosecution
    or the judge caused the defendant to request a mistrial. See United States v.
    Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Nevertheless,
    we need not determine in this case whether the restriction in Lansdown should
    be qualified by Dinitz.

    The newly-designated district judge found that neither the prosecutor nor the
    former trial judge acted in bad faith to provoke a mistrial. In the memorandum
    supplementing his oral rulings, he said, with reference to actions taken after the
    discovery of attempts by third persons to cause a mistrial and tamper with the
    jury:

    6 actions were undertaken by the Court and Government for the purpose of
    The
    preserving the trial and preventing the jury from being tainted by prejudicial
    publicity. They were intended to enhance the defendants' prospects for a fair trial
    rather than to prejudice the defendants. 4 Defendants' motions to dismiss must
    accordingly be denied.
    In note 4 he added:

    7 Court has considered the "totality of the circumstances" and is of the opinion
    The
    that the record as a whole falls far short of demonstrating bad faith prosecutorial
    misconduct.
    8

    The district judge's findings are amply supported by the record. Accordingly,
    since the mistrial was granted on the defendants' motion without bad faith
    provocation by the court or the prosecutor, this appeal must be dismissed.
    United States v. Lansdown, 460 F.2d at 171 n.8.

    Jurisdiction for such appeals is one of the issues in Abney v. United States, No.
    75-6521, which was argued before the Supreme Court on January 17, 1977

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