U.S. v. Fine, 80-7987

• Decision Date: 27 April 1981
• Docket Number: No. 80-7987,80-7987
• Citation: 644 F.2d 1018
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe L. FINE and Walter F. Johnsey, Defendants-Appellants. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1018

644 F.2d 1018

UNITED STATES of America, Plaintiff-Appellee, v. Joe L. FINE and Walter F. Johnsey, Defendants-Appellants.

No. 80-7987.

United States Court of Appeals,

Fifth Circuit.

Unit B

April 27, 1981.

Phillip A. Wittman, Stephen H. Kupperman, New Orleans, La., for Fine.

L. Drew Redden, F. Timothy McAbee, Birmingham, Ala., for Johnsey.

J. R. Brooks, U. S. Atty., Dayle E. Powell, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before MARKEY ^*, Chief Judge, and HILL and THOMAS A. CLARK, Circuit Judges.

MARKEY, Chief Judge:

After a judgment of acquittal on certain counts, and declaration of a mistrial on other counts, Johnsey and Fine moved to dismiss the remaining counts on Double Jeopardy grounds. This appeal is from denial of that motion. We affirm.

Background

In October 1979, following an 18-month investigation by a grand jury, a 32 page, 19-count indictment was returned. Named defendants were the Drummond Company, three of its officers (Gary Neal Drummond, Elbert A. Drummond, and Clyde Clifton Black), Walter F. Johnsey, Joe L. Fine, Eddie Herbert Gilmore, and Jack Biddle. All defendants were charged in Count 1 (the RICO count) with violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. Counts 2 through 12 charged the three company officers with mail fraud transactions with a George Jones. Count 13 charged Johnsey and the Drummonds with wire fraud transactions with First Virginia Mortgage and Real Estate Investment Trust Company. Count 14 charged Fine with using his state Senator position to extort money from Gerald Ingle. Counts 15 through 19 charged Johnsey and Fine, in mail fraud terms, with devising, with Norman Reid, a scheme to defraud Alabama Power Company of the loyal services of its employee, Johnsey, and to deprive Alabama's citizens of their right to honest government.

Defendants Johnsey and Fine moved to dismiss Count 1 and for severance. The government strenuously opposed the motions, relying heavily on particular language in this court's opinion in United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied sub nom. Delph v. United States, 439 U.S. 953, 99 S.Ct. 349, 50 L.Ed.2d 344 (1978). Though the trial court expressed reservations on whether the government could sustain RICO count 1, it denied the motions. In pretrial proceedings, the trial court warned the government of the necessity of establishing the existence of an enterprise and a conspiracy. The government told the court it would first establish the existence of a conspiracy and that defendants were members of it, before introducing statements of co-conspirators. United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979).

After six months of discovery and skirmish, ¹ trial began on May 5, 1980. In two months of virtually continuous trial, defendants and the court repeatedly asked that the government submit proof purporting to establish the existence of the "enterprise" and conspiracy required to undergird a RICO count. Exhibiting a monumental patience, expressing appropriate concern for the onerous burden on defendants, and The government made a proffer to the court of anticipated evidence relating to counts 14 through 19. A motion of Johnsey and Fine for a mistrial on those counts was granted.

                relying on the government's repeated promises to "connect it up," the trial court permitted the government to present to the jury weeks of inflammatory testimony and exhibits relating to what the government viewed as predicate crimes without the submission of proof going to the existence of an enterprise and conspiracy.  2  On July 8, 1980, the court entered a judgment of acquittal on Count 1.  On July 11, 1980, the court granted motions for acquittal on Counts 2-13, on which the government had introduced all of its evidence.  Those actions left only Johnsey and Fine as defendants, and only Counts 14-19 as pending
                

In November 1980, Johnsey and Fine moved for dismissal of counts 14 through 19, on the ground that their reprosecution on those counts would violate the double jeopardy clause of the Fifth Amendment to the Constitution. Intentional misconduct of the government was alleged to lie in its joinder of "eight defendants on wholly unrelated charges that it sought to cross fertilize under the umbrella of RICO." On November 24, 1980, the trial court orally denied the motions. On November 25, 1980, the Clerk's Minutes reflecting that decision were issued, and Johnsey and Fine noticed this appeal. On November 26, 1980, the trial court entered an order holding the motions to dismiss not to have been frivolous.

Issue

The sole issue before us is whether the trial court correctly determined that retrial of Johnsey on Count 14, and retrial of Johnsey and Fine on Counts 15 through 19, are not barred by the double jeopardy clause of the Fifth Amendment.

OPINION

The court is again confronted with the necessity of balancing the numerous competing interests surrounding application of the double jeopardy clause, an area of the law it has often visited. In United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976), a case primarily relied on here by Johnsey and Fine, the court emphasized the interest in discouraging intentional prosecutorial misconduct designed to provoke a mistrial and thus produce a second and improved chance to try a defendant. In that case, the prosecutor had introduced hearsay of a person known to be unavailable and had introduced a known false exhibit, a rifle. In United States v. Crouch, 566 F.2d 1311 (5th Cir. 1979), and in United States v. Garza, 603 F.2d 578 (5th Cir. 1979), the court referred to the interest in preserving the freedom of trial courts to declare mistrials, without undue fear that an effective acquittal will result when an appellate court finds prosecutorial misconduct and orders dismissal of the indictment.

In other mistrial-double jeopardy cases in this court, ³ and in the Supreme Court, ⁴ other interests, expressed or no, were present and to varied degrees influential, e. g., the accused's interest in preserving his or her right to a fair trial, the public's interest in maintaining the integrity of the judicial process by discouraging undue profit to either accused or accuser in requesting or provoking a mistrial, the societal interest in having the issue of a defendant's guilt or innocence litigated, and the public interest in assuring that a prosecutor's proper parameters of performance do not expand into a prosecutor's vicious vendetta of vindictiveness.

Present also is the deference due the determination of the trial judge, infinitely more familiar than are we with all actions, words, and attitudes of the actors in the eight-month drama played before him. Presented with opposing critical reviews of that drama, containing only those segments favoring each critic's evaluation, we can but look for clear evidence that the first reviewer, who was on the scene, was wrong.

Before us, the parties devote their briefs and argument primarily to a review of the prosecutor's actions, from convening the grand jury on. Johnsey and Fine, refusing any role to human frailty, honest mistake, or incompetence, cite apparent shortcomings in the prosecutor's evidence, in its presentation to the grand jury and the court, in the prosecutor's broken promises to the court, and in the prosecutor's questioning of witnesses. All of that, they say, stemmed from either gross negligence or from an intentional and improper prosecutorial design to convict at all costs.

Johnsey and Fine thus emphasize society's interest in even-handed, objective prosecution limited to the facts and the law. The government explains its conduct in this case as stemming from its duty to prosecute a grand jury's indictment, ⁵ from an honest belief that this court's opinion in Elliott authorized joinder of these eight defendants and 18 counts under a RICO count, and from a sincere belief that a jury could infer existence of an enterprise from evidence of separate crimes. ⁶ In sum, Johnsey and Fine attribute improper motives to the prosecutors and the government asserts an unassailable prosecutorial purity. ⁷

Johnsey and Fine have been subjected to a very expensive ordeal, having survived an eighteen month grand jury investigation, six months of pretrial proceedings, a two month trial, and the prosecutor's resistance to this appeal. ⁸ Their motion to dismiss counts 14-19, as was said in relation to a mistrial request in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), has as its objective "The avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions." Their plight, in light of what they view as an unnecessary RICO prosecution occasioned only by prosecutorial mischief, creates an emotional aura of sympathy. ⁹ Moreover the interest of Johnsey and Fine in being free of prosecutor-produced multiple prosecutions must weigh heavily in the scales. Their present motion, however, must be decided on the facts and established decisional tools applicable to double jeopardy questions.

A primary tool, controlling here, looks to the cause of the mistrial. When that cause lies in action of the prosecution, whether it forces defendant to request mistrial or produces a sua sponte court declaration, the touchstone lies in analysis of that action. Mere error, though it may justify a mistrial, will not normally form a basis for dismissal. The prosecutorial action causing a mistrial must descend to the level of intentional misconduct, gross negligence, or "prosecutorial overreaching." ¹⁰

In analyzing the prosecutor's actions here, we look only to those heard or observed by the jury, that is, those actions that so tainted or prejudiced the jury as to have forced the defendants to forego their right to go...