United States v. Dinitz

• Citation: 492 F.2d 53
• Decision Date: 10 June 1974
• Docket Number: No. 73-2109.,73-2109.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nathan George DINITZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

492 F.2d 53 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Nathan George DINITZ, Defendant-Appellant.

No. 73-2109.

United States Court of Appeals, Fifth Circuit.

April 4, 1974.

Rehearing Granted June 10, 1974.

Fletcher N. Baldwin, Jr., Univ. of Fla. College of Law, Gainesville, Fla. (Court-appointed), for defendant-appellant.

William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Nick P. Geeker, Asst. U. S. Attys., Pensacola, Fla., for plaintiff-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

Rehearing En Banc Granted June 10, 1974.

CLARK, Circuit Judge:

I.

Nathan George Dinitz was convicted of violating 21 U.S.C. § 846 by conspiring to distribute a schedule I controlled substance (LSD) and of violating 21 U. S.C. § 841(a)(1) by distributing LSD. Dinitz's first trial ended in a mistrial. He contends that retrying him violated his fifth amendment rights against double jeopardy. Because we agree that the retrial constituted double jeopardy, we do not reach any of the other arguments Dinitz advances.

Like almost all mistrial-double jeopardy cases this one turns on the facts of its particular procedural context. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Dinitz was charged with participating in a sale of LSD to Steve Cox, a government informer. He initially employed Attorney Jeffrey Meldon to represent him. Meldon appeared with him at arraignment and filed numerous pretrial motions. Approximately five days before Dinitz's trial, Attorney Maurice Wagner was hired to act as lead counsel and conduct the trial. Wagner had not been admitted to practice before the Northern District of Florida, but the court allowed him to appear pro hac vice in Dinitz's case. Meldon was also present at trial along with a professor of law from the University of Florida,¹ as counsel for Dinitz. After the jury had been sworn and the government had made its opening statement, Wagner began an opening statement in behalf of Dinitz. The crux of the government's case on both counts was to be the testimony of agent Cox as to the circumstances of his purchase from Dinitz. Wagner's trial strategy was to attack the credibility of Cox, and a part of this strategy was to put before the jury at the outset the idea that Dinitz had been "set up" with the sale to Cox as a predicate for a subsequent extortion attempt. Wagner intended to offer proof that a week after his arrest Dinitz had received a phone call from someone who offered to arrange for all charges to be dropped if Dinitz would pay over a certain amount of money. Obviously, Wagner hoped the jury would infer from this evidence either that Cox was the extortionist or that he had some part in the scheme. Ample proof of the attempt at extortion was known to be available to the defense but, as it subsequently developed, no connection between Cox and the extortion attempt could ever be demonstrated.² In the early part of his opening statement, Wagner started an attack obviously aimed at Cox.

Mr. Wagner: After working on this case over a period of time it appeared to me that if we would have given nomenclature, if we would have named this case so there could be no question about identifying it in the future, I would have called it the case—

Mr. Reed (Asst. U. S. Attorney): Your honor, we object to personal opinions.

The Court: Objection sustained. The purpose of the opening statement is to summarize the facts that the evidence will show and state the issues, not to give personal opinions.

Mr. Wagner: Thank you, your honor. I call this the case of the incredible witness.

The jury, then, was removed from the courtroom and the court warned Wagner in the following terms:

The Court: You appeared at this trial late, you showed up, you were not counsel of record, you have never filed an appearance. This court was not aware of your participation until the jury was to be selected. I do not approve of your behavior and if you attempt to bait this court once again I am going to refuse to allow you to practice law in this court again.

Wagner then continued with his opening statement, bringing his chronological recitation of what the evidence would show up to the time of the indictment. At that point he began this statement: "some week or ten days later Nat Dinitz began to get telephone calls offering —." The government's objection again caused the jury to be removed from the courtroom. In the jury's absence the court asked Wagner what he was about to discuss. He responded that he was going to discuss the extortion attempt against Dinitz. The court demanded that he demonstrate that he had proof that Cox was the man who picked up the parcel at the trash container. When it became apparent that the defense had no such proof, the following exchange transpired (still in the absence of the jury):

The Court: You will leave this courtroom immediately and you will never practice law in this court again Mr. Wagner. I direct you to leave now. Mr. Marshal, see that he leaves the building immediately . . . . Wagner departs. This is the worst exhibition I have ever heard of since I have sat on the bench. It is plain character assassination, and I hope Mr. Meldon that you are not responsible for any part of it. I will ask you now if you are. Did you discuss with Mr. Wagner what his opening statement was going to consist of and the evidence that he was going to attempt to put before this jury with respect to those phone calls and extortion attempts?

Mr. Meldon: Your honor, I did not prepare the opening statement, and Mr. Wagner prepared his opening statement independently.

The Court: This is the worst exhibition I have seen. I am going to inquire of you further as to your knowledge of what Mr. Wagner was attempting to do. Mr. Wagner knew without doubt that this was inadmissible, highly prejudicial and nothing but character assassination, and I am going to inquire of you further, and if I find that you had anything to do with it I am going to take further action in your regard, too.

After the Assistant U. S. Attorney interjected that Meldon might well have been aware in advance of Wagner's intended trial tactics, the court continued to address Meldon as follows:

The Court: All right, convince me, Mr. Meldon, that you had no control over Mr. Wagner. You were the lead counsel in this case. Apparently, you called him in to be associated with you. Explain to me that you had no control over his activities and had no knowledge that he was planning to present this case in this manner.

Meldon thereupon denied ever telling Wagner that Cox was the extortionist and disclaimed any responsibility for Wagner's planned opening statement. The court then inquired of Meldon if he was prepared to proceed at that time, whereupon the following exchanges occurred:

Mr. Meldon: The Defendant has stated to me that since I was not hired to argue the case he is in a quandary because he hired Mr. Wagner to argue the case and he feels he needs more time to obtain outside counsel to argue the case for him.

The Court: That comes too late. You are his counsel and have been. I will consider it between now and 9:00 o'clock tomorrow morning.

* * * * * *

Mr. Meldon: I need additional time to prepare in that I have not discussed it with the witnesses and Mr. Wagner has done all of the preparation.

The Court: It is your responsibility to contact your witnesses and discuss this case with them between now and 9:00 o'clock tomorrow morning, because that is when we will continue.

At 9:00 the following morning in chambers Meldon again advised the court that Dinitz did not want him to try the case and that in any event, he was unprepared to take the lead in the trial at that time. The judge advised counsel that he did not think that the government or the defendant could get a fair trial and stated that he was seriously considering granting a mistrial. He then declared a thirty minute recess and requested counsel for both sides to consider the alternatives. After the recess, the transcript shows this colloquy:

Mr. Weldon: Your Honor, I have conferred with the Defendant and he wishes to move for a mistrial at this time and after full consideration of the situation and an explanation of the alternatives before him, he feels that he would move for a mistrial and that this would be in his best interest.

The Court: What does the Government have to say?

Mr. Crongeyer: Your Honor, we have discussed this at some length and we think that for the reasons you have set forth already on the record a mistrial might be appropriate in this case, and the Government would not oppose a mistrial.

The Court: Then I am going to declare a mistrial, gentlemen. I think under all of the circumstances in this case that it would be in the interest of justice to declare a mistrial and that is what I plan to do.

Subsequently, the court granted Meldon leave to withdraw as Dinitz's counsel. Prior to his second trial, Dinitz moved to dismiss the indictment on the basis of double jeopardy and alternatively to have Wagner reinstated as his trial counsel, but both motions were denied. At his second trial Dinitz represented himself and was convicted on both counts in the indictment.

II.

United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824) is the customary starting point for determining whether retrial following a pre-verdict discharge of the first jury violates the defendant's fifth amendment rights against double jeopardy.³ In Perez, a murder case, the trial judge acting sua sponte granted a mistrial after the jury was unable to agree on a verdict. The Supreme Court per Mr. Justice Story, in the course of holding that the fifth amendment's double jeopardy clause did not prohibit retrial stated, "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...