730 F.2d 973 (4th Cir. 1984), 83-5129, United States v. Sartori

Docket Nº:83-5129.
Citation:730 F.2d 973
Party Name:UNITED STATES of America, Appellant, v. Hellfried E. SARTORI, Appellee.
Case Date:March 30, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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730 F.2d 973 (4th Cir. 1984)

UNITED STATES of America, Appellant,

v.

Hellfried E. SARTORI, Appellee.

No. 83-5129.

United States Court of Appeals, Fourth Circuit

March 30, 1984

Argued Nov. 4, 1983.

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J. Frederick Motz, U.S. Atty., Baltimore, Md. (Glenda C. Gordon, Asst. U.S. Atty., Baltimore, Md., on brief), for appellant.

Michael E. Marr, Baltimore, Md. (Stephen A. Hecker, Marr, Bennett & Carmody, P.A., Baltimore, Md., on brief), for appellee.

Before WINTER, Chief Judge, and PHILLIPS and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

Hellfried E. Sartori was charged before the Honorable Joseph H. Young in the United States District Court for the District of Maryland on six counts of mail fraud in violation of 18 U.S.C. Secs. 1341 and 2, one count of false statements in violation of 18 U.S.C. Secs. 1001 and 2, and three counts of fraudulent interstate distribution of drugs not approved by the Food and Drug Administration in violation of 21 U.S.C. Secs. 331(d), 333(b) and 355. After a jury had been empaneled and the government had called four witnesses, Judge Young recused himself and declared a mistrial. Subsequently, the government brought charges anew, and Sartori moved to dismiss on the ground that this second prosecution violated the fifth amendment's double jeopardy clause. District Court Judge Miller granted the motion. United States v. Sartori, 560 F.Supp. 427 (D.Md.1983). We affirm.

I.

Hellfried Sartori is a medical doctor practicing "wholistic" medicine. Claiming to be a cancer specialist, Sartori allegedly sold a chemical compound, cesium chloride, representing it as a cancer cure. Buyers paid $2,000 for the compound and for six months of "physical examinations, consultations and other personal services."

When Sartori was initially arraigned before Judge Young, the prosecutor, apparently aware of Judge Young's extensive involvement in the American Cancer Society (the ACS), requested the judge to inform counsel of his activities in the ACS. Judge Young told counsel that he was a "lay leader" of the ACS but stated that he was not involved with the "committee of unproven methods" which reviews alternative approaches to cancer cures similar to those advocated by practitioners of wholistic medicine. Judge Young also told counsel that he would recuse himself at the request of either party. Neither party, however, objected to his continued participation in the case. Before empaneling the jury, the judge again reminded counsel of his ACS activities, and again neither party requested recusal.

During the first day of trial, the government called four witnesses. The first two, relatives of two of Sartori's deceased cancer patients, testified regarding the treatment Sartori had prescribed for his former patients. The third witness, Keith Brewer, Ph.D., testified about the efficacy of cesium chloride, laetrille, vitamins and other novel approaches to cancer treatment. After Brewer's testimony, Judge Young convened

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an unrecorded bench conference to inform counsel that he contemplated declaring a mistrial. According to his memorandum opinion...

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