United States v. Castellanos, 680

• Decision Date: 04 May 1973
• Docket Number: No. 680,Docket 72-2337.,680
• Parties: UNITED STATES of America, Appellant, v. Luis CASTELLANOS, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

478 F.2d 749 (1973)

UNITED STATES of America, Appellant, v. Luis CASTELLANOS, Appellee.

No. 680, Docket 72-2337.

United States Court of Appeals, Second Circuit.

Argued April 10, 1973.

Decided May 4, 1973.

Paul M. Bergman, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. New York, L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appellant.

Frank T. Geoly, Fontana & Geoly, Brooklyn, N. Y., for appellee.

Before SMITH, HAYS, and TIMBERS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This appeal presents a single substantive question—may a district court order the dismissal of an indictment on grounds of double jeopardy solely because two previous trials of an accused have resulted in deadlocked juries? Judge Dooling answered that question in the affirmative, and ordered the indictment against Luis Castellanos dismissed, 349 F.Supp. 720. For the reasons below, we reverse.

The relevant facts may be quickly stated. The underlying indictment alleges a conspiracy to sell cocaine. The main government witness at both trials was Horace D. Balmer, a New York City undercover detective, who testified about appellee's involvement in the alleged conspiracy. At each trial, the defense was presented wholly through the testimony of the defendant himself, who denied any narcotics dealings, and a number of character witnesses. The first jury was discharged after it deadlocked 11 to 1 for conviction; the second after it split 7 to 5 for acquittal.

After the second mistrial, appellee moved for a judgment of acquittal pursuant to Rule 29(c), Fed.R.Crim.P., and "for such other and further relief as to this Court may seem just and proper." Judge Dooling, in a written memorandum, denied the motion for acquittal, noting that there "was unmistakably an issue for the jury to resolve." However, concluding that he had the power to grant a motion to dismiss where there had been two previous jury disagreements and the record indicated no special circumstances contributing thereto in either trial, Judge Dooling ordered the indictment dismissed on grounds of double jeopardy. It is this order from which the government appeals.

I.

At the outset, appellee confronts us with a claim that we lack jurisdiction over the appeal. He bases his argument upon the language of 18 U.S.C. § 3731, which provides:

"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."

Castellanos contends that since Judge Dooling held that further prosecution was barred by the Double Jeopardy Clause, the statute forbids appeal.

We cannot accept appellee's argument, which would have the effect of making the district courts the final arbiters of the constitutional meaning of the Clause. An order such as the one here, dismissing an indictment on grounds of double jeopardy prior to the impaneling of a new jury, was clearly appealable under the predecessor to the present § 3731. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Nothing in either the legislative history or the language of the new statute, Pub.L. 91-644, Title III, § 14(a), 84 Stat. 1890, indicates the slightest intention to cut back the scope of former § 3731. Indeed, quite the opposite seems true, for the statute was described as designed to eliminate "technical distinctions in pleadings as limitations on appeals by the United States," Conference Rep. No. 91-1768, 91st Cong., 2d Sess.; 1970 U.S.Code Cong. & Admin.News at 5848, and the text of the law itself instructs us that its "provisions shall be liberally construed."

The reference to the Double Jeopardy Clause in the statute, rather than barring appeal in a case like this, seems designed to meet the unrelated problem posed by the Supreme Court's interpretation of the old Criminal Appeals Act in United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). There, the Court construed a provision that allowed appeals "From the decision or judgment sustaining a motion in bar, where the defendant has not been put in jeopardy,"

". . . as confining the Government\'s right to appeal . . . to situations in which a jury has not been impaneled, even though there are cases in which a defendant might constitutionally be retried if appeals were allowed after jeopardy had attached." Id. at 302-303, 90 S.Ct. at 2137.

The Court explicitly rejected Mr. Justice White's position that the statutory language merely restated the prohibition of the Fifth Amendment, holding instead that the statute forbade appeals from rulings made after jeopardy attached, regardless of whether or not retrial would have been constitutionally barred after appellate review. Id. at 304-306, 90 S.Ct. 2117.¹

The new statute was apparently aimed at this dilemma, seeking to make the government's right to appeal coextensive with its ability to retry the defendant if its arguments on the merits should prevail on review. Id. at 306-307, n. 61, 90 S.Ct. 2117. But of course, the government's ability to retry Castellanos is precisely what is at issue here. At worst then, we lack jurisdiction and must dismiss only if Judge Dooling's ruling is correct, and conversely, if the order below is in error, we have jurisdiction and must reverse. In short, the question of our jurisdiction is bound up with the merits, and it is to these that we now turn.

II.

As the Supreme Court has recently reminded us in Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), the "fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial" is United States v. Perez, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165 (1824). In that case, speaking for a unanimous Court, Mr. Justice Story held that where a jury is properly discharged for failure to agree upon a verdict and a mistrial declared, the defendant may be put to a new trial without violating the Double Jeopardy Clause:

"We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere." Id. at 580

This "manifest necessity" standard has been "consistently adhered to," Somerville, supra, 410 U.S. 458, 93 S.Ct. 1066, by the Supreme Court in the nearly one hundred and fifty years since Perez. Thus, the essential question in each case involving double jeopardy contentions after the declaration of a mistrial has been whether the trial judge abused his discretion in terminating the trial short of verdict. If so, retrial is barred. As might be expected, since trial judges may declare mistrials for a variety of reasons, the inquiry is a factual one, and the Supreme Court has often sharply divided on the issue of whether a particular mistrial declaration meets the "manifest necessity" standard. See, e. g., Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L. Ed. 974 (1949); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); United States v. Jorn, supra; Illinois v. Somerville, supra. But at least two common threads run through all these cases: the recognition that the Perez doctrine defines the parameters of analysis, and the agreement that the "classic example" of "manifest necessity" is the discharge of a genuinely deadlocked jury. Downum, supra, 372 U.S. at 736, 83 S.Ct. 1033.

Had Castellanos here claimed that one or both of the mistrials were improperly declared, his double jeopardy claim would be within the analytical framework of the "manifest necessity" formulation. Perez warns that such mistrials should be declared only "with the greatest caution, under urgent circumstances, and for very plain and obvious causes," 9 Wheat. (22 U.S.) at 580. If it appeared here that there was no "manifest necessity" for the mistrials — that the trial judge acted too quickly, or that it seemed that the jury was not really deadlocked — we might well be able to hold that the Double Jeopardy Clause barred retrial. But such is not the case here. Judge Dooling noted, and neither side disagrees, that the jury deadlocks were genuine, and that there was no sense in leaving the case in either panel's hands any longer. Indeed, Castellanos does not appear to have objected to either mistrial declaration.

Thus, since each mistrial here concededly met the "manifest necessity" test, any claim of double jeopardy would appear to be barred by Perez and its progeny. Judge Dooling attempted to distinguish Perez, however, on the ground that but one mistrial was there involved. He noted that the Double Jeopardy Clause is designed not only to protect against double punishment, but also against the risk of multiple trials for a single offense. Price v. Georgia, 398 U. S. 323, 326, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Judge Dooling recognized, as has the Supreme Court on repeated occasions, that a criminal trial represents a heavy personal strain for a defendant, and that an accused has an important interest in getting a final verdict out of the first jury he faces. See Jorn, supra, 400 U.S. at 479, 91 S.Ct. 547 (opinion of Harlan, J.); Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Since these policies behind the Double Jeopardy Clause were threatened by the prospect of a third trial here, Judge Dooling ruled that the Fifth Amendment required dismissal.

We cannot agree. It is obvious that the defendant...