United States v. Sartori

• Decision Date: 18 March 1983
• Docket Number: Crim. No. R-82-00232.
• Citation: 560 F. Supp. 427
• Parties: UNITED STATES of America v. Hellfried E. SARTORI.
• Court: U.S. District Court — District of Maryland

560 F. Supp. 427

UNITED STATES of America v. Hellfried E. SARTORI.

Crim. No. R-82-00232.

United States District Court, D. Maryland.

March 18, 1983.

Glenda G. Gordon, Asst. U.S. Atty., Baltimore, Md., for plaintiff.

Michael E. Marr, Stephen A. Hecker, and Marr & Bennett, P.A., Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

The undersigned member of this Court has been assigned this case for the limited purpose of deciding a motion to dismiss, filed by the defendant on the ground of double jeopardy under the Fifth Amendment. The motion came on for hearing on Friday, February 18, 1983, and is now ready for decision.

I. Background

The defendant, Hellfried E. Sartori, is charged in an indictment with three violations of 21 U.S.C. §§ 331(d), 333(b), and 355 for alleged fraudulent interstate distribution of drugs not approved by the Food and Drug Administration (FDA).

The Government's theory of the case, expressed in the opening statement, was that the defendant defrauded cancer patients by selling them cesium chloride, a substance not approved by the FDA for cancer treatment, as a cure for cancer. The defendant allegedly fraudulently induced these cancer victims to pay $2,000 for an amount of cesium chloride worth $65.

The defendant was arraigned on June 25, 1982 before the Honorable Joseph H. Young.

The prosecutor was apparently aware of the work of Judge Young with the American Cancer Society (ACS). At the end of the arraignment proceedings, the following colloquy¹ took place between Judge Young and counsel:

"MS. GORDON (prosecutor): ... since this case does involve at least in part the treatment of cancer patients, the Government, in an abundance of caution would ask the Court to inform counsel and the Defendant of your own activities in that regard, if you think it's appropriate.

THE COURT: I guess that I am the self-styled lay leader in the American Cancer Society. I am a former Chairman of the National Board. I am presently on the Board of Directors as Delegate at Large or Director at Large, and chair some of the committees. And, I participate actively in the Cancer Center.

MR. MARR (defendant's counsel): How does Your Honor feel about holistic medicine and its approach to the treatment of cancer victims?

THE COURT: There is a committee of unproven methods. I am not on that committee and I have not participated in any discussions relating to medical matters, except in research matters related to public issues.

The organization delayed, it delayed individuals being involved in it. The American Cancer Society is composed of 50 percent medical people and 50 percent lay, and I am on the lay side, so if you have any reason, either of you, please tell me now; of course if you think that I should recuse myself, I will be happy to do so.

MS. GORDON: Thank you, Your Honor.

MR. MARR: Thank you, Your Honor.

THE COURT: Anything further?

MR. MARR: No, Your Honor. Thank you very much.

MS. GORDON: Thank you very much."

At the pre-trial conference, Judge Young again reminded counsel of his ACS-related activities, and neither counsel requested his recusal. Neither the Government nor defense counsel indicated any objection to Judge Young continuing to handle the case.

When the case was called for trial on November 8, 1982, prior to the impaneling of the jury, Judge Young noted a proposed voir dire question, advanced by the defense, requesting that potential jurors be asked if they or members of their families had ever been active in the American Cancer Society.² Judge Young again reminded counsel of his ACS activities, but was assured by counsel that the objectives and programs of the American Cancer Society were not at issue in the case and that they saw no need for him to recuse himself.³

During the voir dire proceedings, the prosecutor brought to Judge Young's attention that he had not asked the Government voir dire questions relating to laetrile and DMSO. The colloquy at the bench went as follows:

"MS. GORDON: ... Also, Your Honor, you didn't ask the questions about laetrile and DMSO. There will be testimony in this case, somewhat incidental, about it.

THE COURT: What does laetrile have to do with this case? I would think it's incidental.

MS. GORDON: Well, Dr. Sartori used laetrile and DMSO in addition to cesium chloride.

THE COURT: He's not being charged with that.

MS. GORDON: True. But the witnesses, when they describe the cancer therapy, may mention that in addition to the ...

THE COURT: They will not be allowed to mention it as far as I'm concerned. How is it relevant?

MS. GORDON: It may not be severable.

MR. MARR: Judge, can I say something? It may not be. There will be testimony, I think, that laetrile is a substance that enhances cesium and rubidium uptake by cancer cells. That, of course, would make it relevant, at least from our point of view.

MS. GORDON: It was part and parcel of what Dr. Sartori was doing.

THE COURT: I feel like I'm back to last week with DMSO.

MR. MARR: We can't get away from it.

MS. GORDON: Right."⁴

At another point in the colloquy between counsel and the Court at the bench, the prosecutor told the Court that "some people know laetrile by the name of Vitamin B-17."⁵

Judge Young asked the following question on voir dire:

"Earlier I referred to the drug cesium chloride. There may be, during the course of the trial, reference to certain other drugs used in cancer treatments on some occasions—specifically, laetrile and Vitamin B-17 and DMSO.

Has any member of the panel or close personal friend ever used any of these substances, do you know anything about them, have you ever had any contact with them or worked with them?"⁶

A jury was thereafter chosen and sworn.

Later that day, the Government's third witness, Dr. Keith Brewer, testified to certain approaches to cancer treatment which he endorsed, involving the uses of substances other than cesium chloride, such as laetrile and vitamins.⁷

According to Judge Young's Memorandum and Order, it was at this point that he "... no longer believed that his long involvement in the field of cancer was consistent with the appearance of judicial propriety which is so critical to the criminal justice system."⁸

At the conclusion of the testimony of Dr. Brewer, Judge Young called counsel to the bench for a conference. Unfortunately, the bench conference was unrecorded.⁹

According to Judge Young's Memorandum:

"At that time the Court's concerns were explained to counsel. In particular, counsel were told that the Court did not wish to be put in a situation where someone familiar with the Court's activities in the field of cancer might question the impartiality of the Court's actions in the instant case. Counsel were further informed that, while the Court realized that the jury was the trier of fact, the Court would have to rule on evidentiary questions and defendant's promised motion for judgment of acquittal as well as determine the defendant's sentence if the jury returned a conviction. The Court asked defendant's counsel if he would agree to permit another judge to sentence the defendant. The defendant's counsel replied in the negative. At the conclusion of the conference at the bench, the trial resumed for approximately a half hour during which time the Court considered alternatives to a mistrial, but determined there were none available in light of § 455(a) and the ends of justice."¹⁰

There were two subsequent off-the-record discussions at the bench with counsel¹¹ before Judge Young advised the jury at the conclusion of the testimony of the next witness that:

"... a mistrial in this case is required by manifest necessity since the ends of public justice, it seems to me, at this time could be defeated by allowing the trial to continue."¹²

During the unrecorded bench conferences, defense counsel objected to the declaration of a mistrial.¹³

Apparently, during the various unrecorded bench conferences, the Government counsel expressed concern that the declaration of a mistrial might result in a bar to retrial through the Double Jeopardy Clause of the Fifth Amendment.¹⁴

At the hearing before the undersigned judge on the double jeopardy motion, Government counsel stated that she asked Judge Young not to declare a mistrial but, instead, to have another judge assigned to take over the trial. According to her and not disputed by defense counsel, Judge Young said that he could not do that and gave as his reason that Judge Murray of this Court had been reversed by the Fourth Circuit Court of Appeals for doing the same thing recently. Judge Young was apparently referring to the decision of the Fourth Circuit in Whalen v. Ford Motor Credit Co., 684 F.2d 272 (en banc), cert. denied, ___ U.S. ___, 103 S.Ct. 216, 74 L.Ed.2d 172 (1982), a civil case.

After this case was reassigned to Judge Ramsey for trial, the defendant filed his motion to dismiss on the ground of double jeopardy.

II. Discussion

The Supreme Court has recognized that there are two entirely different situations leading to the declaration of a mistrial and that those situations are governed, in the double jeopardy context, by different legal standards. The first type of situation is one in which, as here, the defendant has objected to the declaration of a mistrial. In that case, a new trial may be held, without violation of the Double Jeopardy Clause, only if there was a "manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated." United States v. Perez, 22 U.S. (9 Wheat.) 579 at 580, 6 L.Ed. 165 (1824); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949).

In the second type of situation, a new trial may be held, without violation of the Double Jeopardy Clause, when the original trial was ended through a request for the mistrial, or a consent...