U.S. v. Crouch, 76-2361

Decision Date06 February 1978
Docket NumberNo. 76-2361,76-2361
Citation566 F.2d 1311
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert W. CROUCH and Albert Kudelka, Jr., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Dick DeGuerin, Joe J. Newman, Houston, Tex., for defendants-appellants.

James R. Gough, U. S. Atty., Anna E. Stool, Carl Walker, Jr., Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, GOLDBERG and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

This is a double jeopardy case. Defendants were tried in district court on a fifteen count indictment alleging various firearms related offenses. 1 After the jury had been sworn and the government had presented its case, the trial judge declared a mistrial. The defendants then filed pleas of former jeopardy alleging that the declaration of mistrial was sua sponte and not supported by "manifest necessity". United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). 2 The district judge denied the motions, declaring that the mistrial was granted in response to the defendants' motions for mistrial made during the trial and not made sua sponte. The defendants took a direct appeal from this ruling. A panel of this court relying on United States v. Bailey, 512 F.2d 833 (5 Cir. 1975), dismissed the direct appeal for lack of finality under 28 U.S.C. § 1291. In the meantime, the Supreme Court in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) decided that appeals such as the present appeal are final judgments within the meaning of 28 U.S.C. § 1291. The Supreme Court applying Abney has directed this court to reach the merits of the present case. Crouch v. United States, --- U.S. ----, 97 S.Ct. 2945, 53 L.Ed.2d 1075 (1977).

I.

The events at the defendants' trial as described by the trial judge in his memorandum opinion are as follows:

Three motions for mistrial were made during the course of the trial. The first occurred on the morning of February 19, 1976, during the testimony of Fred Beck, a former employee of defendant Crouch. Before Beck was called, Crouch's counsel approached the bench to state that the prosecution had agreed that evidence relating to a different case filed in the Houston Division of this District would not be entered into evidence. The prosecutor did not expressly confirm or deny this statement. The Court did not approve or disapprove the agreement, stating merely that it would see how the case developed. Beck testified that after he had left Crouch's employment he discovered that Crouch wished to "get rid of him", and that, as a result, he sought protection from the Bureau of Alcohol, Tobacco and Firearms, which was investigating the case. When asked by the prosecutor whether he was given money by the ATF as a result of seeking their protection, Crouch's attorney objected on the ground that the question was leading and suggestive. The Court sustained the objection and directed the prosecutor to ask the witness only what was said. When the prosecutor asked how the information came to him, the witness replied that ATF agents allowed him to listen to a tape recording of someone conversing with Crouch. Thus, in substance, Beck testified that he learned that Crouch wanted to kill him by listening to a tape of a conversation between Crouch and a third party that was played for him by federal agents.

The jury was excused, and Crouch's counsel objected on three grounds: (1) that the statement was hearsay; (2) that the recording was obtained in violation of Massiah v. United States, 377 U.S. 201 (84 S.Ct. 1199, 12 L.Ed.2d 246) (1964); and (3) that the elicitation of the statement violated the agreement between counsel because the tape recording pertained solely to the Houston case. Accordingly, Crouch's counsel moved in the alternative to strike and for the declaration of a mistrial. Counsel for appellant Kudelka adopted the motion for mistrial. The court, after a lengthy inquiry, granted the motion to strike, but denied the motion for mistrial. The jury was recalled and Crouch's counsel reurged both his motion to strike and for mistrial in their presence. The Court again denied the motion for mistrial, struck the question and Beck's answer from the record and instructed the jury not to consider them for any purpose.

The second and third motions for mistrial occurred during the direct examination of Special Agent Michael Taylor, the ATF agent in charge of the investigation. Taylor testified that he arrested defendant Kudelka in August 1974, advised him of his constitutional rights, and had a conversation with him. Taylor then stated that he had asked Kudelka whether he would make a statement. The prosecutor asked what Kudelka's response was, and Taylor answered that Kudelka had said that he had an agreement with Croch whereby he, Kudelka, would "stick to his story" and that in return Crouch would take care of him, pay all of his legal fees, and see that he wound up owning the pawn shop in Galveston. For that reason, Taylor stated that Kudelka chose not to make any further statement. Out of the presence of the jury, Crouch's counsel stated that he was surprised by Agent Taylor's testimony because the government had represented that it had tendered to defendants all statements made by them while they were in custody. The Court ruled that the statement would be stricken as the government had a duty to disclose and had failed to do so. Counsel for both defendants then moved for a mistrial on the ground that the statement was so highly prejudicial that no instruction would remove its impact from the minds of the jury. The Court overruled both motions. Although the Court struck Taylor's testimony as to the agreement and directed the jury to disregard it, Crouch's counsel subsequently cross-examined Taylor with respect to it and expressly withdrew his objection. Kudelka's counsel, however, did not withdraw his objection. 3 . . .

As the direct examination of Taylor continued, the prosecutor questioned him about the arrest of defendant Crouch. Taylor stated that he had arrested Crouch in November of 1973 and had told him why he was being arrested and of his constitutional rights. The prosecutor then asked whether Crouch made any statement and Taylor replied that he did not. For the third time, Crouch's counsel moved for a mistrial on the ground that the government had impermissibly shown that defendant Crouch exercised his Fifth Amendment right to remain silent. Counsel did not move to strike, and the Court denied the motion for mistrial.

On Tuesday, February 24, the trial judge held an in-chambers hearing in which he announced his intention of granting a two-week adjournment because of personal reasons. He subsequently stated in open court that the case would be continued until March 9. However, on March 8 the trial judge declared a mistrial, the defendants immediately objected, and the judge held another in-chambers conference. 4 The judge denied defendants' plea of former jeopardy on April 20 and issued a memorandum opinion a week later.

II.

The starting point in our analysis is the fundamental disagreement between the defendants and the trial judge concerning the reason for the declaration of mistrial. The defendants strenuously insist that the trial judge aborted the trial for personal reasons and later used the mistrial motions made at trial as an excuse for the declaration of mistrial. The defendants point to the action of the trial judge in adjourning the trial for admittedly personal reasons. 5 The defendants then ask this court to make the inference that the subsequent declaration of mistrial was also made for personal reasons. The trial judge in his memorandum opinion stated that the mistrial was granted pursuant to the defendants' requests. We hold that the trial judge's statement of his motivation in granting the mistrial is dispositive on the issue.

Just as courts will not review the motives of a legislature in enacting a law, Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L.Ed. 162 (1810); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), this court will not review the mental processes of a trial judge. A judge's statement of his mental processes is absolutely unreviewable. This court has no means of observing mental process. In United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941), Mr. Justice Frankfurter stated the rule we follow today. "We have explicitly held in this very litigation that 'it was not the function of the court to probe the mental processes of the Secretary' (of Agriculture). (Morgan v. U. S.) 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129 (1938). Just as a judge cannot be subjected to such a scrutiny, . . . so the integrity of the administrative process must be equally respected." Cf. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The trial judge's statement of his mental process is so impervious to attack that even if he were to come forward today and declare that his memorandum misstated his reasons for the mistrial, we could not consider his explanation. Fayerweather v. Ritch, 195 U.S. 276, 305, 25 S.Ct. 58, 49 L.Ed. 193 (1904). See also Hassenflu v. Pyke, 491 F.2d 1094-95 (5 Cir. 1974), "It is inappropriate . . . to base an appellate opinion on assertions dehors the record."

A similar claim was made by the defendant in United States v. Pappas, 445 F.2d 1194 (3 Cir.), cert. denied sub nom., Mischlich v. United States, 404 U.S. 984, 92 S.Ct. 449, 10 L.Ed.2d 368 (1971). In Pappas defense counsel made a mistrial motion which the trial judge denied. The next day the trial judge stated that after reflection he decided to abort the trial for the reasons urged by the defendant. The defendant urged,...

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