United States v. Cimino
| Decision Date | 29 June 1955 |
| Docket Number | Docket 23605.,No. 339,339 |
| Citation | 224 F.2d 274 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John CIMINO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Julio E. Nunez, Asst. U. S. Atty. for Southern Dist. of N. Y., New York City (J. Edward Lumbard, U. S. Atty., on the brief), for plaintiff-appellee.
Robert Mitchell, New York City, for defendant-appellant.
Before CLARK, Chief Judge, and MEDINA and HINCKS, Circuit Judges.
The defendant's claim of double jeopardy rests on the declaration of a mistrial in prior proceedings involving this indictment for a sale of heroin in violation of 21 U.S.C. §§ 173, 174. Judge Palmieri declared a mistrial on the motion of the government when, after the impaneling and the swearing in of the jury, one juror spontaneously rose to say: "Your Honor, I am very much against narcotics, I think I should point that out to you now." This effort of the trial judge to preserve the defendant from any possible bias on the part of the jury was not an abuse of his discretion, see United States v. Potash, 2 Cir., 118 F.2d 54, certiorari denied Potash v. United States, 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540, and did not constitute double jeopardy in the later proceedings before a new jury. Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L. Ed. 146.
Affirmed.
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...Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (incompetent juror and outside influence on jury); United States v. Cimino, 2 Cir., 224 F.2d 274 (prejudiced juror); Scott v. United States, 91 U.S.App.D.C. 232, 202 F.2d 354 (withdrawal of counsel); United States v. Perez, ......
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United States v. Gori
...New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244; Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; United States v. Cimino, 2 Cir., 224 F.2d 274; United States v. Potash, 2 Cir., 118 F.2d 54, certiorari denied Potash v. United States, 313 U.S. 584, 61 S.Ct. 1103, 85 L......
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People v. Dodge
...the declaring of a mistrial. The exercise of that discretion has been favored and upheld. Gori v. United States, supra; United States v. Cimino, 2 Civ., 224 F.2d 274. It is significant that a conference took place involving defense counsel and that after further questioning and the granting......