U.S. v. Martin

• Decision Date: 22 August 1977
• Docket Number: No. 77-1111,77-1111
• Parties: UNITED STATES of America, Appellee, v. Louis MARTIN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 135

561 F.2d 135

UNITED STATES of America, Appellee, v. Louis MARTIN, Appellant.

No. 77-1111.

United States Court of Appeals,

Eighth Circuit.

Submitted June 13, 1977.

Decided Aug. 22, 1977.

Henry L. Jones, Little Rock, Ark., for appellant; Wiley A. Branton, Washington, D. C., on brief.

Samuel A. Perroni, Asst. U. S. Atty., Little Rock, Ark., for appellee; W. H. Dillahunty, U. S. Atty., and Sandra W. Cherry, Asst. U. S. Atty., Little Rock, Ark., on brief.

Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.

STEPHENSON, Circuit Judge.

Appellant Louis Martin was charged on November 4, 1975, in a two-count indictment in violation of 18 U.S.C. § 152. The first count charged Martin with making a false oath and account in relation to a bankruptcy proceeding, in that he filed a schedule representing that he and his wife had $50.00 on hand, wherein he fraudulently failed to disclose other assets of money and cash totalling $565.12. The second count charged Martin with fraudulently transferring and concealing assets in the amount of $2,060.12 in contemplation of bankruptcy. On May 4, 1976, Martin's first trial was terminated when the district court, ¹ pursuant to Martin's motion, declared a mistrial. On November 29, 1976, Martin's second trial began and on December 1, 1976, the jury returned a verdict of guilty on both counts. The district court ² sentenced Martin to 18 months' imprisonment on the first count and 2 years' supervised probation on the second count. In this appeal Martin alleges the following errors: (1) the district court erred in denying Martin's motion to dismiss the indictment because (a) the Double Jeopardy Clause barred Martin's retrial, (b) the government's conduct before the grand jury required dismissal, and (c) the government's conduct following the grand jury required dismissal; (2) the district court erred in failing to grant Martin's motion in limine; (3) the district court prejudiced the jury by the manner in which it questioned Martin's expert witness; (4) the district court erred in refusing to give one of Martin's requested instructions and in giving one of the government's requested instructions. We are persuaded that under the circumstances of this case, the Double Jeopardy Clause of the Fifth Amendment ³ barred Martin's retrial. Accordingly, we reverse.

Background

On December 16, 1974, Martin, a lawyer employed by Pulaski County, Arkansas, and his wife, employed by the state of Arkansas, filed their voluntary petition in bankruptcy in the Eastern District of Arkansas. The petition contained a schedule of debts which listed eight creditors and a total indebtedness of $19,447.62. Of the total indebtedness, $18,382.61 represented debts that Martin and his wife owed to six student loan creditors.

Before evidence was presented in his first trial, Martin filed a motion in limine requesting that the district court prohibit any mention or reference to student loans and exclude any documents referring to student loans or that reference to student loans be excised. Martin attached as exhibits to his motion in limine 22 Arkansas Gazette newspaper articles illustrating the publicity which accompanied his attempt to discharge the student loan debts. In addition to the newspaper articles, affidavits by Martin and his wife were filed attesting to obscene and racial remarks directed at the Martins as a result of their bankruptcy petition. Martin's counsel stated to the court during the hearing on the motion that the defense would agree to stipulate "to the amount of money in certain accounts at a certain time, when that money went to the account and when it left the account." The purpose of this stipulation was to avoid the mentioning of student loans.

Following a lengthy hearing, the district court granted Martin's motion in limine. While ruling on the motion, the court stated to the government's attorney:

You cannot use student loans. And I admonish you not to unduly use loans and lending institutions. * * * Talk about debts, or use other words, because the Court is sincere in believing that there has been an undue amount of publicity to the extent that Louis Martin will be prejudiced if student loans or an undue emphasis on loan and lending institutions is used to the extent that would infer indirectly what I am telling you not to do directly.

A short time later the district court clarified his ruling by stating to the government's attorney:

I am going to back up at this time and clarify the ruling by saying that you cannot name the specific creditors. * * * I have got to rule that you cannot name the specific creditors.

* * * So, when I ruled, and to clarify my ruling further, I will say that you cannot go into it, name the creditors, and go beyond that into the making of the loans * * *.

In addition to his motion in limine, Martin asked the district court at this time to prohibit the government's attorney from reading Martin's grand jury testimony to the jury as substantive evidence. Appellant argued that most of the statements contained in Martin's grand jury testimony were irrelevant and prejudicial. The government's attorney, however, assured the court that the irrelevant statements contained in the grand jury testimony had been excluded. The district court denied Martin's request but cautioned the government that the use of Martin's grand jury testimony must not violate any of the court's prior rulings. In addition, the court indicated that Martin's objection to the use of the grand jury testimony would be treated as a continuing objection.

Early in the trial, after two witnesses had testified for the government, the government's attorney read a substantial portion of Martin's grand jury testimony to the jury. As a result the appellant subsequently moved for a mistrial. The district court, in granting the mistrial, stated:

I feel that error has been made and it will be reversed on appeal, if there is a conviction. And so the Court feels that there is no alternative other than to declare a mistrial at this point.

Between the first and second trials, Martin filed a motion to dismiss the indictment, contending in part that the United States Attorney had engaged in an ex parte conversation with Judge Shell on the day of the mistrial declaration. In anticipation of being called as a witness at the hearing on the motion, Judge Shell recused himself. The case was then assigned to Judge Williams.

In addition to alleging the ex parte conversation, Martin contended that the Double Jeopardy Clause barred a second trial and that the government's conduct before the grand jury required a dismissal of the indictment. The appellant also renewed all motions filed in the first trial including the motion in limine. After a hearing was held, Judge Williams denied Martin's motion to dismiss the indictment and the motion in limine. ⁴

The second trial began on November 29, 1976, and Martin again renewed his motion in limine. The district court denied the motion and allowed the evidence concerning student loans. Martin was subsequently found guilty by the jury on both counts of the indictment.

Martin raises numerous issues in this appeal. In light of the total circumstances of the case, we need only discuss his Double Jeopardy claim.

Double Jeopardy

The dispositive question on this appeal is whether the Double Jeopardy Clause was violated by a retrial of Martin after the first trial ended in a mistrial granted at Martin's request.

The Fifth Amendment's prohibition against placing a defendant "twice in jeopardy" represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1970). The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

In analyzing the question of whether the Double Jeopardy Clause bars a retrial of a defendant after a mistrial declaration, the Supreme Court has distinguished cases where mistrials are declared sua sponte by the court and cases where mistrials are granted at the defendant's request or with his consent. In the former, the defendant is precluded from deciding whether or not to take the case from the jury a decision in which the defendant has a significant interest. United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547. Because of the defendant's preclusion in this important decision, the Double Jeopardy inquiry focuses upon the "manifest necessity" for the mistrial. See United States v. Dinitz, 424 U.S. 600, 606-08, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, supra, 400 U.S. at 480-81, 91 S.Ct. 547; United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824).

Different considerations obtain when a mistrial is declared at the defendant's request. United States v. Dinitz, supra, 424 U.S. at 607, 96 S.Ct. 1075. The Double Jeopardy Clause generally would not stand in the way of reprosecution where the defendant has requested a mistrial. Lee v. United States, --- U.S. ----, ----, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547. The Supreme Court has recognized, however, limited circumstances where a defendant's mistrial request does not remove the Double Jeopardy bar. For example, the Double Jeopardy Clause protects a defendant against governmental actions intended to provoke mistrial requests. United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. 1075. It bars retrials...