United States v. Grasso

• Decision Date: 13 May 1976
• Docket Number: Crim. No. H-75-52.
• Citation: 413 F. Supp. 166
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Sylvio GRASSO.

413 F. Supp. 166

UNITED STATES of America v. Sylvio GRASSO.

Crim. No. H-75-52.

United States District Court, D. Connecticut.

May 13, 1976.

Peter Dorsey, U. S. Atty., New Haven, Conn., Michael Hartmere, Asst. U. S. Atty., Hartford, Conn., David H. Beitz, Dept. of Justice, Washington, D. C., for plaintiff.

Donald Cardwell, Hartford, Conn., Henry Rothblatt, New York City, Frank Berall, Hartford, Conn., for defendant.

RULING ON DEFENDANT'S MOTION TO DISMISS

ZAMPANO, District Judge.

The issue presented by defendant's motion to dismiss is whether the Double Jeopardy Clause of the Fifth Amendment will be violated by the retrial of the defendant, Sylvio J. Grasso, after his original trial ended in a mistrial declared by the trial judge, sua sponte.

I.

The moving papers indicate that on April 16, 1975, the defendant was indicted on three counts of income tax evasion for the years 1969, 1970 and 1971, in violation of 26 U.S.C. § 7201. Since the government revealed its intention to proceed on a net worth theory of prosecution, the defendant moved for and received broad pretrial discovery. Trial commenced on November 4, 1975, before the Honorable T. Emmet Clarie, Chief Judge, and a jury duly empanelled and sworn. During the next eight trial days, the government called over 40 witnesses to testify on its case-in-chief; the defendant presented ten witnesses, including himself; the government called three witnesses in rebuttal; and, over 300 documents were admitted as exhibits. In addition, the parties filed extensive requests for jury instructions. On November 26, 1975, as the government was preparing to call its final rebuttal witnesses, Judge Clarie aborted the trial on his own motion after a two-day hearing.

The circumstances leading to the mistrial were as follows. During the course of the government's direct case, one Daniel Harris was called to testify. Harris had multiple felony convictions in his background and was presently serving a term of imprisonment of 8-30 years imposed in 1971 for the sale of heroin. However, he had had favorable consideration from the Board of Parole and was due to be released from prison in December, 1975. Harris testified at length that he and the defendant had engaged in numerous transactions involving the purchase and sale of heroin in the year 1970. The obvious purpose of this evidence was to establish an illegal source for the defendant's alleged unreported income in the calendar year 1970. Harris' testimony extended over a period of a day and a half and consumed over 120 pages of transcript.

Several days after he testified, Harris contacted Henry Rothblatt, the defendant's attorney, and requested an interview at the local jail. Rothblatt visited Harris and recorded a full recantation of Harris' trial testimony. Among other things, Harris stated that his false testimony was influenced by coercion and threats made by government prosecutors and the agents in charge of the tax case. He asserted that when he informed these officials prior to trial that he did not wish to appear, they responded that unless he changed his mind his parole would be revoked, he would have to serve the full 30 years of his sentence, and he would also be indicted on a perjury charge because of his grand jury appearance in the instant case. As a consequence, he claimed he was forced to testify falsely against the defendant.

Rothblatt immediately relayed Harris' disclosures to Judge Clarie and filed a motion to dismiss based on prosecutorial misconduct, citing as authority Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Hearings were held on November 21 and 25, at which ten witnesses were heard outside the presence of the jury. However, Harris refused to testify, relying on the protections afforded by the Fifth Amendment.

On November 26, Judge Clarie ruled in relevant part as follows.

The Court: The Court has, as counsel may well imagine, given considerable thought to this problem that has arisen. I never had the question arise in this form during a trial before.

But the Court is of the opinion that because of the perjury issue injected into the trial by the testimony of Daniel Harris, that the defendant Grasso can not get a fair and impartial trial under the present circumstances.

If the issue went to the jury it would not be whether or not he failed to pay his income taxes; the issue would be of selling narcotics, which is in and of itself a kind of abhorrent business to most every one of us. The issue would become whether or not he was selling narcotics, and whether or not this man, Daniel Harris, could be believed.

To do that we'd have to go `way back to the statement to the three Hartford policemen and the County Detective in `71, and get the facts as to how the story originated, with the documents which are in evidence. And we'd have to begin to review the testimony before the grand jury that Mr. Buckley educed when he was prosecutor, or assistant prosecutor.

We'd have to review the tape, as has been filed in evidence by counsel, which he procured at the jail. We'd have to review the statement of the I.R.S. witnesses who went over and received from him what is claimed to be an apparent contradiction of the tape.

And the issue of Mr. Grasso's income tax evasion would be well lost in the question of whether or not Daniel Harris committed perjury. That would be the nub of the case, rather than the question of the defendant's failure to pay his income taxes.

For this reason the Court is of the opinion that the motion to dismiss would be denied but that a mistrial should be ordered, because there is a manifest necessity for declaring a mistrial. Otherwise, the ends of justice, public justice, would be defeated.

And that is what the Court is going to do. The Court is of the opinion that to permit the trial to go forward under the present circumstances would be an injustice to Mr. Grasso.

The Court can not find that there was improper conduct on the part of the prosecutor, or as far as the Government agents or investigators are concerned. The Court certainly is of the opinion that this man, Daniel Harris, couldn't be believed if he put his hand on two Bibles—I wouldn't believe him under any circumstances, after hearing what has been educed here in this trial. I don't think he is believable.

But to say that the Government knew he was not truthful and put him on notwithstanding that, I think would be an unfair accusation.

* * * * * *

But I think it would be unfair to Mr. Grasso to let that become a focal point of whether this case should be tried and go forward. Because if he were found guilty it would always be a conclusion of his, certainly, and possibly of others, that that was the reason for the jury's conclusion of guilt, because of the contamination of the alleged sale of narcotics, based upon perjurious testimony of Daniel Harris.

The Court is firmly of the opinion that a mistrial should be granted. And the Government can decide whether or not at any future time they wish to proceed further with the prosecution. At that time the issue of double jeopardy could be argued, and can move in proper form at that time.

That is the ruling of the Court. (Tr., November 26, 1975, pp. 12-14).

As soon as the judgment of the court was announced, Assistant United State's Attorney Hartmere responded:

Your Honor, for the record, the Government strongly opposes the Court's ruling. (Id., at 14).

In addition, Attorney Rothblatt took exception to the court's decision and unsuccessfully attempted to renew his request for a judgment of acquittal.

In discharging the jury, Judge Clarie further amplified his reasons for declaring a mistrial:

Now, because this, because of this perjury issue being injected into this trial by the testimony of the witness, Daniel Harris, the Court is of the opinion that a fair and impartial trial can not be assured for the defendant.

For this reason the jury is discharged, is discharged from giving a verdict in this case, because there is a manifest necessity for declaring a mistrial. Otherwise, the ends of justice would be defeated. The factual issues are income tax evasion—what the trial is all about, and they have been indelibly stained with the perjury of Daniel Harris concerning the defendant's alleged dealings in narcotics.

His statement infected and contaminated the trial so that the defendant could not get a fair trial on the allegations of income tax evasion with which he'd been charged.

* * * * * *

Now, I am not permitted to determine under the circumstances where the truth lies, but certainly under the circumstances I would not believe Daniel Harris.

In a case that starts out as an income tax evasion case it is necessary of course for the Government to demonstrate and prove that there were possible other sources of income, in addition to showing that he failed to report them. And it concerned all this extra money. It is incumbent upon the Government to demonstrate and show that there are possible sources of income.

Now, had Daniel Harris testified that the defendant was in the newspaper business, on the side, or that he was selling peanuts on the side, and he lied about it, it wouldn't be nearly as damaging as to say that he sold bundles of heroin. Once you get into that area of heroin and narcotics, it is the opinion of the Court that the question of truth or falsity of this Daniel Harris, a crucial witness, contaminates the trial; it leaves a stain.

Because the jury—many people today, anyone connected with narcotics, it is the most terrible thing that could happen to them, because everybody is so distressed about narcotics.

But here the man accuses the defendant of being involved in narcotics, in an income tax trial. And it seems to me that that has so contaminated the issues—particularly with the

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