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