424 U.S. 600 (1976), 74-928, United States v. Dinitz

Docket Nº:No. 74-928
Citation:424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267
Party Name:United States v. Dinitz
Case Date:March 08, 1976
Court:United States Supreme Court

Page 600

424 U.S. 600 (1976)

96 S.Ct. 1075, 47 L.Ed.2d 267

United States



No. 74-928

United States Supreme Court

March 8, 1976

Argued December 2, 1975




For repeated misconduct by respondent's counsel (Wagner) during the opening statement period in respondent's criminal trial, the trial judge expelled Wagner and asked respondent's co-counsel (Meldon) if he was prepared to proceed with the trial. Upon being advised that Meldon had not discussed the case with witnesses, the judge gave him until the next morning to prepare. At that time, Meldon advised the judge that respondent wanted Wagner to try the case. After the judge had set forth the alternatives of (1) a delay pending appellate review of the propriety of Wagner's expulsion, (2) continuation of the trial with Meldon as respondent's main counsel, or (3) declaring a mistrial to permit respondent to obtain other counsel, Meldon made a motion for a mistrial, which the judge granted. Before his second trial, respondent filed a motion on double jeopardy grounds to dismiss the indictment, which the judge denied. Respondent represented himself at the second trial, which resulted in his conviction. The Court of Appeals reversed, holding that the exclusion of Wagner and the judge's questioning of Meldon left respondent with "no choice" but to request a mistrial; that, under the circumstances, respondent could not be said to have voluntarily relinquished his right to proceed before the first jury; and that the Double Jeopardy Clause barred the second trial because there had been no manifest necessity for Wagner's expulsion.

Held: The Double Jeopardy Clause does not bar respondent's retrial. Pp. 606-612.

(a) Though this Court has held that whether there can be a new trial after a mistrial has been declared without the defendant's request depends on whether "there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated," United States v. Perez, 9 Wheat. 579, 580, different considerations obtain when the mistrial has been declared at the instance of the defendant, whose request for a mistrial ordinarily removes any barrier to reprosecution even if necessitated by prosecutorial or judicial error. Pp. 606-608.

(b) The Court of Appeals erred in holding that the manifest necessity standard should be applied to a mistrial motion when the

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defendant has "no choice" but to request a mistrial. Though the Double Jeopardy Clause bars retrials where "bad faith conduct by judge or prosecutor," United States v. Jorn, 400 U.S. 470, 485 (plurality opinion), threatens the "[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant, Downum v. United States, 372 U.S. 734, 736, here there is no contention or record showing that the trial judge's expulsion of Wagner was in bad faith to goad respondent into requesting a mistrial or to prejudice his acquittal prospects. Pp. 608-611.

504 F.2d 854, reversed and remanded.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 612. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 613. STEVENS, J., took no part in the consideration or decision of the case.

STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment was violated by the retrial of the respondent after his original trial had ended in a mistrial granted at his request.

The respondent, Nathan Dinitz, was arrested on December 8, 1972, following the return of an indictment charging him with conspiracy to distribute LSD and with

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distribution of that controlled substance in violation of 84 Stat. 1260, 1265, 21 U.S.C. §§ 841(a)(1), 846. On the day of his arrest, the respondent retained a lawyer named Jeffrey Meldon to represent him. Meldon appeared with the respondent at his arraignment, filed numerous pretrial motions on his behalf, and was completely responsible for the preparation of the case until shortly before trial. Some five days before the trial was scheduled to begin, the respondent retained another lawyer, Maurice Wagner, to conduct his defense. Wagner had not been admitted to practice before the United States District Court for the Northern District of Florida, but on the first day of the trial, the court permitted him to appear pro hac vice. In addition to Meldon and Wagner, Fletcher Baldwin, a professor of law at the University of Florida, also appeared on the respondent's behalf.1

The jury was selected and sworn on February 14, 1973, and opening statements by counsel began on the following afternoon. The prosecutor's opening statement briefly outlined the testimony that he expected an undercover agent named Steve Cox to give regarding his purchase of LSD from the respondent. Wagner then began his opening statement for the defense. After introducing himself and his co-counsel, Wagner turned to the case against the respondent:

Mr. Wagner: After working on this case over a period of time, it appeared to me that, if we would have given nomenclature, if we would have named this case so there could be no question about identifying it in the future, I would have called it The Case --

Mr. Reed [Asst. U.S. Attorney]: Your Honor, we object to personal opinions.

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The Court: Objection sustained. The purpose of the opening statement is to summarize the facts the evidence will show, state the issues, not to give personal opinions. Proceed, Mr. Wagner.

Mr. Wagner: Thank you, Your Honor. I call this the Case of the Incredible Witness.

App. 20. The prosecutor again objected, and the judge excused the jury. The judge then warned Wagner that he did not approve of his behavior, and cautioned Wagner that he did not want to have to remind him again about the purpose of the opening statement.

Following this initial incident, the trial judge found it necessary twice again to remind Wagner of the purpose of the opening statement and to instruct him to relate "the facts that you expect the evidence to show, the admissible evidence." Id. at 82. Later on in his statement, Wagner started to discuss an attempt to extort money from the respondent that had occurred shortly after his arrest. The prosecutor objected and the jury was again excused. Wagner informed the trial judge of some of the details of the extortion attempt and assured the court that he would connect it with the prospective Government witness Cox. But it soon became apparent that Wagner had no information linking Cox to the extortion attempt, and the trial judge then excluded [96 S.Ct. 1078] Wagner from the trial and ordered him to leave the courthouse.2

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The judge then asked Meldon if he was prepared to proceed with the trial.3 Upon learning that Meldon had not discussed the case with the witnesses, the judge gave Meldon until 9 o'clock the following morning to prepare. Meldon informed the judge that the respondent was

in a quandary, because he hired Mr. Wagner to argue the case and he feels he needs more time to obtain outside counsel to argue the case for him.

The judge responded that "[y]ou are his counsel and have been," but stated that he would consider the matter "between now and 9:00 o'clock tomorrow morning." Id. at 35.

The next morning, Meldon told the judge that the respondent wanted Wagner, and not himself or Baldwin, to try the case. The judge then set forth three alternative courses that might be followed -- (1) a stay or recess pending application to the Court of Appeals to review the propriety of expelling Wagner, (2) continuation of the trial with Meldon and Baldwin as counsel, or (3) a declaration of a mistrial which would permit the respondent to obtain other counsel. Following a short recess, Meldon moved for a mistrial, stating that, after

full consideration of the situation and an explanation of the alternatives before him, the respondent feels that he would move for a mistrial, and that this would be in his

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best interest.

Id. at 41. The Government prosecutor did not oppose the motion. The judge thereupon declared a mistrial, expressing his belief that such a course would serve the interest of justice.

Before his second trial, the respondent moved to dismiss the indictment on the ground that a retrial would violate the Double Jeopardy Clause of the Constitution. This motion was denied. The respondent represented himself at the new trial, and he was convicted by the jury on both the conspiracy and distribution counts.4 A divided panel of the Court of Appeals for the Fifth Circuit reversed the conviction, holding that the retrial violated the respondent's constitutional right not to be twice put in jeopardy.5 492 F.2d 53. The appellate court took the view that the trial judge's exclusion of Wagner and his questioning of Meldon had left the respondent no choice but to move for a mistrial. Id. at 59. On that basis, the court concluded that the respondent's request for a mistrial should be ignored, and the case should be treated as though the trial judge had declared a mistrial over the objection of the defendant. Ibid. So viewing the case, the court held that the Double Jeopardy Clause barred the second trial of the respondent, because there had been no manifest necessity requiring the expulsion of Wagner.6 The Court of Appeals

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granted [96 S.Ct. 1079] rehearing en banc and, by a vote of 8-7, affirmed the decision of the panel.7 504 F.2d 854. We granted certiorari to consider the constitutional question thus presented. 420 U.S. 1003.


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