United States v. Romano, No. 72-3166

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGOLDBERG, CLARK and RONEY, Circuit
Citation482 F.2d 1183
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony ROMANO and Stanley Yassen, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Jack Riki LYNOTT, Defendant-Appellant.
Docket NumberNo. 72-3166,72-3171.
Decision Date23 October 1973

482 F.2d 1183 (1973)

UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Anthony ROMANO and Stanley Yassen, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,
v.
Jack Riki LYNOTT, Defendant-Appellant.

Nos. 72-3166, 72-3171.

United States Court of Appeals, Fifth Circuit.

August 6, 1973.

Rehearing Denied August 31, 1973.

Rehearing Denied October 5, 1973.

Stay Denied October 23, 1973.


482 F.2d 1184
COPYRIGHT MATERIAL OMITTED
482 F.2d 1185
John A. Howard, Atlanta, Ga. (Court appointed), for Jack Riki Lynott

William J. Schloth, U. S. Atty., J. Reese Franklin, O. Hale Almand, Asst. U. S. Attys., Macon, Ga., for United States.

E. Louis Adams, Albany, Ga. (Court appointed), for Michael Anthony Romano.

Martin K. Leppo, Michael A. Paris, Boston, Mass., for Stanley Yassen.

Before GOLDBERG, CLARK and RONEY, Circuit Judges.

Rehearing Denied No. 72-3166 August 31, 1973.

Rehearing Denied No. 72-3171 October 5, 1973.

Stay Denied October 23, 1973. See 94 S.Ct. 293.

GOLDBERG, Circuit Judge:

Appellants, Jack Riki Lynott, Stanley Yassen, and Michael Anthony Romano, were tried before a jury and convicted on both counts of a two count indictment charging them with (1) violating the Dyer Act, 18 U.S.C. § 2312, by transporting a stolen automobile in interstate commerce while knowing it to have been stolen, and (2) violating the general conspiracy statute, 18 U.S.C. § 371, by conspiring to violate 18 U.S.C. § 1952 through a conspiracy to travel and cause travel in interstate commerce with intent to commit extortion in violation

482 F.2d 1186
of the laws of Georgia. In this case appellants have conjured a potpourri of errors, all of which we have clinically microscoped and diagnosed. Finding no infirmity, we affirm

I. THE PROCEEDINGS BELOW

This case first came on for jury trial on Wednesday, September 20, 1972. After six witnesses had testified, the trial judge declared a mistrial because the prosecution had made an improper opening argument. When this case came on for a second trial, on Monday September 25, 1972, appellants moved to dismiss on the ground that they were being twice put in jeopardy. The district judge denied appellants' motion, holding that there was no double jeopardy because the mistrial had been declared at appellants' behest. The second trial was then held.

Viewed in the light most favorable to the government, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704, the evidence introduced at the second trial established that Oscar Stephens had been employed as a salesman in Marvin Aultman's used car businesses in Albany and Sylvester, Georgia. Beginning in 1971, Stephens and Aultman received stolen automobiles from the Boston, Massachusetts area from appellant Stanley Yassen and others, and then sold these vehicles in various Georgia automobile auctions. Apparently, Stephens and Aultman were not as diligent in paying for the stolen automobiles as they were in selling them, for by September 1, 1971, they owed Yassen several thousand dollars for automobiles he had sent down to them. The failure of Stephens and Aultman to make prompt recompense for their ill-gotten inventory precipitated the events leading to appellants' indictment and conviction.

Around September 1, 1971, appellants traveled to Albany, Georgia from Massachusetts in a green 1968 Pontiac Firebird that recently had been stolen in Quincy, Massachusetts. Appellants intended to collect the money owed by Stephens and Aultman to appellant Yassen, and in their efforts to collect this debt appellants resorted to some rather unorthodox collection practices—abduction and attempted extortion. On the evening of September 1, 1971, appellants Lynott and Yassen abducted Oscar Stephens at gunpoint from the parking lot behind his home. They drove for a short period of time, changed cars, and were joined by appellant Romano. Appellants then took Stephens to the Sylcree Motel in East Dougherty, Georgia, where they attempted to extort payments from Stephens by threatening him and his family with bodily harm. During this time, appellants were also attempting to locate Marvin Aultman in the hope of extorting payments from him.

Stephens was permitted to contact his wife from the motel. He informed her that he had been taken in a green Firebird to the Sylcree Motel, where he was being held captive and in danger. Mrs. Stephens then contacted the family attorney, Fred E. Bartlett, Jr., and informed him of her husband's plight. Attorney Bartlett contacted the Albany police department and relayed the contents of his conversation with Mrs. Stephens. He reported that Mr. Stephens had been abducted in connection with a transaction involving stolen cars and was being held at the Sylcree Motel by a group of men driving a green Firebird or Camaro. The Albany police then contacted the county police, who verified that a green Firebird was parked outside the Sylcree Motel. The next morning the Albany police, acting both on the information received from Bartlett and on supporting information supplied by the county police and the FBI, arrested appellants for kidnapping when they drove through Albany, Georgia, with Stephens. Appellants were held in state custody for fifteen days until the state grand jury declined to indict them for kidnapping. Thereafter, on September 17, 1971, appellants were arrested by the FBI for violating 18 U.S.C. § 2312.

482 F.2d 1187

After a four day jury trial, at which the jury heard and considered all of the evidence concerning the foregoing events, the jury found appellants guilty of (1) violating the Dyer Act, 18 U.S.C. § 2312, by knowingly transporting a stolen vehicle in interstate commerce, and (2) violating 18 U.S.C. § 371 by conspiring to travel and cause travel in interstate commerce with intent to commit extortion in violation of the laws of Georgia.

In this appeal appellants jointly attack their convictions, raising numerous points that we will deal with seriatim.1

II. DOUBLE JEOPARDY

Appellants contend that their second trial violated the double jeopardy clause of the Fifth Amendment because the mistrial at the first trial was declared as a result of prosecutorial misconduct and for the benefit of the prosecution. However, a factual analysis of the events surrounding the declaration of a mistrial establishes that the mistrial was declared at appellants' behest and thus that appellants' arguments are without merit.

In its opening remarks to the jury the prosecution stated: "So the evidence will show the motive behind this extortion which is involved in this second count was that there was some nine other stolen cars involved beside this one. . . ." Appellant Yassen then moved for a mistrial on the ground that the indictment only mentioned one stolen automobile. At this point, the trial judge denied the motion.

The prosecution then continued its opening statement, saying that although the evidence would show that nine other stolen cars were involved in the case, the government expected to actually prove the theft of only three of the cars. After six witnesses had testified on the first day of the trial, it became apparent that the government was not going to prove that all nine vehicles were stolen. The trial judge then stopped the proceedings saying:

"The Court, during the day, has been researching the question of whether or not a mistrial should be granted on the remarks of the prosecuting attorney that he could prove there were nine stolen cars but was only going to establish proof that there were three, and it is the judgment of this Court that the United States has two options. It may elect to present evidence on all nine automobiles or the Court will declare a mistrial."

The government, having already admitted that it was unprepared to prove the theft of all nine vehicles, did not contest the granting of a mistrial.

Although appellants now argue that the mistrial was declared sua sponte by the court at the election of the government and for the government's benefit, it is clear that this is not the case. None of the defendants objected in any way to the court's declaration of a mistrial. In fact, when counsel for appellant Yassen, who has been acknowledged to be appellants' lead counsel at the trial, attempted to get the court to put off the retrial, he showed his awareness that the mistrial was being declared pursuant to his motion. He stated:

"Well, I think, if Your Honor please, although I felt that I had good grounds for a mistrial, and I think Your Honor realizes that after your clerk has perused the law. . . ."

Moreover, in denying appellants' motion to dismiss on the grounds of double jeopardy, the district judge stated his reasons for declaring the mistrial:

"The basic reason for the granting of a mistrial in this case was the fact
482 F.2d 1188
that a motion for a mistrial was made by the defendants at the time that the prosecutor in his opening statement made the statement that is in the record, that regardless of the fact that the court, in ruling on the motion, put it in the alternative, that is, by telling the United States that the United States would have to prove the theft of nine automobiles or the court would grant a mistrial, it was obvious to the court at that time that the United States was not prepared to prove nine automobiles. The prosecuting attorney had so stated, the United States did not have witnesses for nine automobiles stolen in Massachusetts. So that alternative was obviously an empty gesture.
". . So it is the Court\'s view of the motion . . . that this motion was properly granted and on account of it having been initiated by the defendant in the case. . . ."

It is thus apparent that the mistrial was granted at the behest of appellants, on their behalf, and because of the prosecutor's inadvertent2 prejudicial opening remarks. The law is well established that

"where circumstances develop not attributable to prosecutorial or
...

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51 practice notes
  • State v. Alger, No. 12903
    • United States
    • Idaho Supreme Court
    • December 6, 1979
    ...S.Ct. 449, 46 L.Ed.2d 387 (1975) (double hearsay sufficient because each prong satisfied by Aguilar standards); United States v. Romano, 482 F.2d 1183 (5th Cir.) Cert. denied, 414 U.S. 1129, 94 S.Ct. 866, 38 L.Ed.2d 753 (1973) (triple hearsay); United States v. Wilson, 479 F.2d 936 (7th Cir......
  • Diamond v. Marland, No. CV474-40.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • May 28, 1975
    ...492. In construing § 27-207, the Courts of Georgia have engrafted upon it the requirement of probable cause. United States v. Romano, 482 F.2d 1183, 1189 (5th Cir.). "There must be probable cause" for the arrest. Kelly v. State, 129 Ga.App. 131, 132, 198 S.E.2d 910. See also Rockholt v. Sta......
  • Com. v. Bolden
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 28, 1977
    ...[472 Pa. 639] 520 F.2d 247 (3d Cir. 1975); United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974); United States v. Romano, 482 F.2d 1183 (5th Cir. 1973), cert. denied, 414 U.S. 1129, 94 S.Ct. 866, 38 L.Ed.2d 753 (1974); United States v. Beasley, 479 F.2d 1124 (5th Cir.), cert.......
  • The City of Massillon v. Mark A. Kohler, 81-LW-2380
    • United States
    • Ohio Court of Appeals
    • October 21, 1981
    ...87 . United States v Rumpf (CA10 NM) 576 F2d 818, cert den 439 US 893, 58 L Ed 2d 239, 99 S Ct 251; United States v Romano (CA5 Ga) 482 F2d 1183, cert den 414 US 1129, 38 L Ed 2d 753, 34 S Ct 866; Torres v State (Alaska) 519 P2d 788; Muller v State (Alaska) 478 P 2d 822; State v Manning (Io......
  • Request a trial to view additional results
51 cases
  • State v. Alger, No. 12903
    • United States
    • Idaho Supreme Court
    • December 6, 1979
    ...S.Ct. 449, 46 L.Ed.2d 387 (1975) (double hearsay sufficient because each prong satisfied by Aguilar standards); United States v. Romano, 482 F.2d 1183 (5th Cir.) Cert. denied, 414 U.S. 1129, 94 S.Ct. 866, 38 L.Ed.2d 753 (1973) (triple hearsay); United States v. Wilson, 479 F.2d 936 (7th Cir......
  • Diamond v. Marland, No. CV474-40.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • May 28, 1975
    ...492. In construing § 27-207, the Courts of Georgia have engrafted upon it the requirement of probable cause. United States v. Romano, 482 F.2d 1183, 1189 (5th Cir.). "There must be probable cause" for the arrest. Kelly v. State, 129 Ga.App. 131, 132, 198 S.E.2d 910. See also Rockholt v. Sta......
  • Com. v. Bolden
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 28, 1977
    ...[472 Pa. 639] 520 F.2d 247 (3d Cir. 1975); United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974); United States v. Romano, 482 F.2d 1183 (5th Cir. 1973), cert. denied, 414 U.S. 1129, 94 S.Ct. 866, 38 L.Ed.2d 753 (1974); United States v. Beasley, 479 F.2d 1124 (5th Cir.), cert.......
  • The City of Massillon v. Mark A. Kohler, 81-LW-2380
    • United States
    • Ohio Court of Appeals
    • October 21, 1981
    ...87 . United States v Rumpf (CA10 NM) 576 F2d 818, cert den 439 US 893, 58 L Ed 2d 239, 99 S Ct 251; United States v Romano (CA5 Ga) 482 F2d 1183, cert den 414 US 1129, 38 L Ed 2d 753, 34 S Ct 866; Torres v State (Alaska) 519 P2d 788; Muller v State (Alaska) 478 P 2d 822; State v Manning (Io......
  • Request a trial to view additional results

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