United States v. Goldstein
Decision Date | 25 May 1973 |
Docket Number | Docket 73-1165.,No. 796,796 |
Citation | 479 F.2d 1061 |
Parties | UNITED STATES of America, Appellant, v. Albert GOLDSTEIN et al., Appellees. |
Court | U.S. Court of Appeals — Second Circuit |
Michael B. Pollack, Atty., Dept. of Justice (Dennis E. Dillon, Atty., Dept. of Justice, Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., on the brief), for appellant.
Thomas J. O'Brien, New York City (Kostelanetz & Ritholz, James M. La Rossa, Joseph E. Brill, New York City, on the brief), for appellees Goldstein, Caesar, Jacobson and Geller.
Jerome Lewis, New York City (H. Elliot Wales, New York City, on the brief), for appellee Wisch.
Before CLARK, Associate Justice,* and WATERMAN and FEINBERG, Circuit Judges.
We thus must answer two questions. First, does the language of section 3731 prevent an appeal by the Government? And second, was Judge Weinstein correct in holding that the double jeopardy clause barred a second trial? For reasons which follow, we conclude that an appeal does lie to this court from the order below, and, further, that the indictment was erroneously dismissed. Accordingly, we reverse and remand for further appropriate proceedings.
On January 7, 1972, appellees were indicted in the Eastern District of New York, on 20 counts charging various violations of federal internal revenue laws, 26 U.S.C. §§ 7201, 7206, and conspiracy to violate those provisions.1 Trial commenced on September 5, 1972, before Judge Orrin G. Judd. Jury deliberation began on the morning of October 5.2 The jury was excused for the evening after failing to reach a verdict with respect to any defendant on any count. That evening, Judge Judd had a brief exchange with Juror No. 2 (Mrs. Rappaport), which he related to counsel after jury deliberation had recommenced the following morning. As he explained it, she had asked to see him "on a personal matter." The judge had observed her "sniffling" and "quite ill at ease during the day" and he "started commiserating with her on her illness." She replied that she was "all right" but just felt "incapable."
and then pointed out with respect to requiring the jury's return on Tuesday:
There would be Friday night, all day Saturday, all day Sunday, all day Monday. So there would be three full days and four nights of separation during which it would be impossible to avoid pollution of the jury . . . .
Judge Judd then called the jury back into the courtroom and told them that he would ask them "to go back and to consider further and tell me whether further deliberation would be useful," although he pointed out that he did not intend to have them stay "late tonight" or return on the following Tuesday. He then gave what the Government accurately describes as a modified "Allen charge." Thereafter, defense counsel moved for a mistrial on the ground that the jury was in "deadlock, which apparently is a hopeless one." The motion was denied.
At approximately 5 o'clock, the jury foreman sent a second note, which said:
After reviewing most of the testimony and raising what arguments and persuasion we could bring to bear, Mrs. Rappaport has insisted that under no circumstances can she vote guilty on any of the Counts.
Judge Judd thereupon stated his view that this meant "a disagreement on seventeen counts" and resolved to "bring the Jury in and see." The jury was brought in; they announced a verdict of not guilty on count 20, involving only appellee Goldstein, and were polled at the Government's request. The judge then asked: "And it's clear that you are in disagreement on the rest of the counts?", to which the foreman replied "I am afraid so." The judge then continued:
The judge then went on to disclose, among other things, that the government attorney was from the Organized Crime section of the Justice Department, that defendant Goldstein's tax returns disclosed income from gambling, and that certain defendants had threatened a witness prior to the trial. Counsel took vigorous exception to these comments—a concern which we share—and moved to dismiss the indictment. The motion was denied.
The case was set for retrial before Judge Weinstein, but prior to trial, defendants moved to dismiss the indictment principally on the ground of double jeopardy. The judge granted the motion; while his order of January 8, 1973 dismissing the indictment contained no express findings, the bases for the order were carefully stated during the course of the hearing held on the motion. We set these out extensively:
From the subsequent order dismissing the indictment, the Government appeals.4
At the outset, appellees claim that the Government cannot appeal from Judge Weinstein's order dismissing the indictment on double jeopardy grounds. The 1970 amendments to the Criminal Appeals Act, enacted as Title III, § 14 of the Omnibus Crime Control Act of 1970, P.L. 91-644, 84 Stat. 1880, 1890, 91st Cong., 2d sess., U.S.Code Cong. & Admin.News 1970, p. 5804, were designed to eliminate much of the tortuous statutory construction, e. g., United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), and United States v. Apex Distributing Co., 270 F.2d 747 (9th Cir. 1959) (en banc), to which federal courts had been put in interpreting the coverage of the predecessor act. See S.Rep. No. 91-1296, 91st Cong., 2d sess., at 2 (1970). But a principal purpose of the amendments was to broaden considerably those situations in which the Government could appeal. Id.5 While the predecessor act was to be strictly construed against the Government's right to appeal, e. g., United States v. Sisson, supra, 399 U.S. at 291, 90 S.Ct. 2117, the present statute expressly directs that its provisions "shall be liberally construed to effectuate its purposes."
Appellees do not—and...
To continue reading
Request your trial-
Commonwealth v. Washington
...States v. Puleo, 817 F.2d 702, 705 (11th Cir.),cert. denied, 484 U.S. 978, 108 S.Ct. 491, 98 L.Ed.2d 489 (1987); United States v. Goldstein, 479 F.2d 1061, 1067 (2d Cir.),cert. denied, 414 U.S. 873, 94 S.Ct. 151, 38 L.Ed.2d 113 (1973). And, in Peretz v. United States, 501 U.S. 923, 936, 111......
-
Cooc v. Hedgpeth, No. CIV S-10-0882 GEB EFB P
...is left to the sound discretion of the trial court after consideration of all the relevant circumstances); United States v. Goldstein, 479 F.2d 1061, 1069 (9th Cir. 1973) (trial court is in the best position to determine the likelihood that a jury will be able to reach a verdict). The decis......
-
Commonwealth v. Edwards
...though he has a fair opportunity to do so, a court may presume his consent" [quotation and citation omitted]); United States v. Goldstein, 479 F.2d 1061, 1067 (2d Cir. 1973) ("Consent [to a mistrial] need not be express, but may be implied from the totality of the circumstances attendant on......
-
U.S. v. Crouch, 76-2361
...of fact shall not be set aside unless clearly erroneous." McNeal v. Hollowell, 481 F.2d 1145, 1151 (5 Cir. 1973); United States v. Goldstein, 479 F.2d 1061, 1067 (2 Cir. 1973); United States v. Wilson, 534 F.2d 76, 82 (6 Cir. We note that a finding of prosecutorial misconduct requires that ......