UNITED STATES of America, Appellee, v. Robert Lee GREEN, a/k/a Hope, Appellant, 636 F.2d 925

MURNAGHAN, Circuit Judge: Robert Lee Green was charged with conspiracy to distribute heroin. 21 U.S.C. § 846. At a jury trial of Green and two others, United States Special Agent Robert Dixon testified about the alleged conspiracy. Dixon had been working for four years for the Drug Enforcement Agency. Prior to that he was, for five years, a police officer in Washington, D. C. Defense counsel adroitly asked Dixon whether, at Green’s arrest, his arms then exhibited the puncture marks frequently found on heroin users. Dixon stated that he could not remember the name of the arresting officer.

With that answer by Dixon, the cross-examination took on an added aspect favorable to the defendant, since a truly informational response was going to make Dixon look as though he either possessed a very poor memory or was disingenuous. Dixon, after examining the relevant government form, augmented his answer: Mr. Green was processed by myself at the U.S. Marshall’s office. At the time he was arrested, I believe, by Special Agent McCormack.

He was currently incarcerated for armed robbery. (Emphasis added.) It is elementary, of course, that customarily reference to another, independent conviction of a defendant is altogether improper. It can hardly be doubted that the impropriety was something of which an experienced United States Special Agent was aware. Green moved for and quite correctly was granted a mistrial. Now Green is before us appealing from a denial of his motion to dismiss on grounds of double jeopardy. The district judge who had presided at the trial in which the mistrial was granted to Green concluded: All right.

The Court is satisfied that Agent Dixon was not the individual who is in charge of the case, that this was not a tactic that was planned ahead of time by the Government, that this was a spur of the moment statement. Unfortunate, it is true, but via the agent. I think that he, personally, frankly — I think that although he intended to make a statement, and he probably intended it to have an effect on the Jury, he did not realize what effect it was really going to have and that was to end the case at that point against Mr. Green.

He was agitated by the effective cross examination that was being conducted against him on this point of whether or not he had actually filled out the form, and he lost his cool, so to speak, and spilled the beans, and in doing so, resulting in a mistrial. But I do not believe it is a situation in which justice would be served by ending all prosecution. I do not believe it would be a violation of the double jeopardy clause to require the trial to commence again.

When a mistrial is declared without the defendant’s request or consent, a new trial may be held, without violating the Double Jeopardy Clause, only if there was a manifest necessity for the mistrial or the ends of public justice would otherwise be defeated. United States v. Dinitz, 424 U.S. 600, 606-07, 96 S.Ct. 1075, 1078-1080, 47 L.Ed.2d 267 (1976). However, when a mistrial is declared at the defendant’s request, the considerations are different. Id. at 607, 96 S.Ct. at 1079.

In such a situation, in the absence of prosecutorial or judicial overreaching or misconduct, “ ‘a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.’ ” Id. quoting from United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). Nevertheless, as stated in Dinitz, the request by the defendant for a mistrial does not eliminate all possibility of a double jeopardy bar.

Where the prosecutorial error was designed to lead the defendant into moving for a mistrial, there may not be a reprosecution: The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by judge or prosecutor’ .. . threatens the ‘[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.

Id., 424 U.S. at 611, 96 S.Ct. at 1081. The issue whether the prosecution deliberately provoked a mistrial becomes one for the district judge to resolve, and his determination will not be disturbed if supported by the record. United States v. Gamble, 607 F.2d 820, 823 (9th Cir. 1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1059, 62 L.Ed.2d 781, rehearing denied, 445 U.S. 955, 100 S.Ct. 1609, 63 L.Ed.2d 792 (1980).

The Fifth Circuit interprets the bad faith necessary to constitute the Double Jeopardy Clause a bar to further prosecution as confined to “grossly negligent or intentional misconduct that seriously prejudices the defendant.” United States v. Davis, 589 F.2d 904, 906 (5th Cir. 1979), cert. denied, 441 U.S. 950, 99 S.Ct. 2178, 60 L.Ed.2d 1055 (1979). A trial court’s determination that the judge’s or prosecutor’s action was not conducted in bad faith will not be set aside unless clearly erroneous. Id. Cf. United States v.

Venable, 453 F.Supp. 25, 27 (E.D.Pa.1978), affirmed, 585 F.2d 71 (3d Cir. 1978), holding that a prosecutor’s improper comment on the defendant’s failure to testify, in violation of his Fifth Amendment rights, was not intended to induce a mistrial and could not be equated with gross negligence. The initial question then becomes whether what happened was purposefully designed by anyone, prosecutor or witness, to bring about a mistrial. The district judge determined that Dixon did not contemplate that his spur-of-the-moment “blurt” would have that consequence.

We find that conclusion to be supported by the record and not clearly erroneous. As a reflexive counterpunch, the reference to Green’s conviction for armed robbery lacks the appearance of a scheme to secure abortion of the present trial and retrial in circumstances presumably more favorable to the prosecution.

While not controlling on the question by any means, the absence of a prosecutorial desire for a mistrial is rendered somewhat more credible by (1) the United States Attorney’s attempt to have the district judge curatively instruct the jury to disregard Dixon’s impropriety, in lieu of a mistrial; (2) the fact that the jury proceeded to convict the two codefendants of conspiracy to distribute heroin. Another question of some relevance is whether Special Agent Dixon is to be included within the term “prosecutor” for the purpose of those rules.

Obviously, it is in the interests of the United States Attorney to use all reasonable steps to prevent such an occurrence as took place here. However, there is no indication of the slightest kind that this was other than a spontaneous “blurting out” by the agent in no way planned, anticipated, or condoned by the United States Attorney. We, of course, hold the United States Attorney to high standards of conduct for he, as well as the courts, has a direct responsibility to insure not only that actual justice be done but that the appearance of justice as well be rigidly guaranteed.

However, it would be too simplistic to reach out and ensnare within the term “prosecutor” every federal agent involved in a criminal matter, including those involved in the collection of evidence and the preparation for trial, although control of the prosecution is strictly in the hands of others, i. e., members of the office of the United States Attorney. In this connection, it is perhaps not amiss to remind ourselves that other interests than those of the defendant are involved. His interests must be scrupulously observed and protected.

Nevertheless, the public interest in the prevention, punishment, and deterrence of crime cannot be totally ignored. The defendant’s inconvenience in having to face a second trial weighed in the circumstances of this case against a total denial to the public of a right to have the issue of defendant’s guilt or innocence litigated does not suffice to invoke the double jeopardy protections of the Fifth Amendment. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial.

It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). We have already quoted the Supreme Court’s opinion in United States v.

Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976): The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.

However, when the prosecutor or the judge acts erroneously but without such a malevolent purpose, retrial is not precluded even though the error was such as to present the defendant with a “ ‘Hobson’s choice’ between giving up his first jury and continuing a trial tainted by prejudicial, judicial or prosecutorial error.” Id. at 609, 96 S.Ct. at 1080. We have concluded that there was adequate support in the record for the finding by the district judge that there was no judicial or prosecutorial intention to provoke a mistrial request. Accordingly, we affirm. AFFIRMED. .

The objective of defendant’s counsel was to show addiction, and hence personal use, as refutation of the contention that Green was a distributor. Testimony previously elicited from Dixon arguably supplied support for such a defense approach. . In answer to a question by the Court Dixon had responded that he, himself, had no knowledge “whether or not the arms or body of Mr. Green were examined when he was arrested.” . E. g., United States v. Johnson, 610 F.2d 194, 196 (4th Cir. 1979). The government asserts no basis justifying a departure from the customary rule in Green’s case.

Indeed it characterized as “the proper remedy” the trial judge’s grant of a mistrial because of the Dixon statement. . The case continued as to the codefendants, who were found guilty. . Green makes no assertion of misconduct by the district judge. . In United States v.

Rumpf, 576 F.2d 818, 822 (10th Cir. 1978), cert. denied, 439 U.S. 893, 99 S.Ct. 251, 58 L.Ed.2d 239 (1978), the government’s reference to two syringes in opening statement despite counsels’ agreement that they would not be introduced in evidence was deemed insufficient to bar retrial following a mistrial asked for and obtained by the defendants. “Bad faith does not include mistakes or errors.” Double jeopardy did not bar retrial in United States v.

Beasley, 479 F.2d 1124, 1127 (5th Cir. 1973), where the mistrial resulted from a question posed to a witness by the prosecutor which was “undoubtedly improper because it suggested that the defendant had been a fugitive from justice as a result of some undisclosed crime....” The court concluded that there was insufficient proof “that the prosecutor intended to abort the proceedings in order to improve the chance of a conviction on retrial.” The court was impressed by the fact, also present in the instant case, “that the district attorney preferred to continue with the first trial.” .

The same is true for the conclusion that the United States Attorney’s office had no advance knowledge of, and in no way encouraged, the Dixon statement. . The Assistant United States Attorney said: “I was just as surprised as anyone else when the statement came out.” Defense counsel stated that he did not suggest that the United States Attorney told Dixon to make the improper and unresponsive remark. .

The strongest thrust of Green’s argument derives from the fact that, viewed from his perspective alone, the impact on him of the Dixon statement was equally injurious, whether it was cunningly contrived to force a defendant’s demand for a retrial, or, as the district judge found, it was a spur-of-the-moment expression with no such evil motive. “What difference,” the defendant may be expected to ask, “what he thought ? It’s what he did that hurt!” Yet motivation frequently makes a difference, and it matters here.

The invocation of the double jeopardy principle to bar retrial is the application of a strong sanction deemed necessary effectively to discourage despicable prosecutorial behavior such as a planned below-the-belt punch to force a defendant to seek mistrial. Where the underlying cause of the error is less serious, less likely to be aped in other prosecutions, different considerations have to be allowed sway. Green is a member of a large class of persons: those prosecuted for criminal offenses.

If double jeopardy were extended to a case like his, where there was no attempt to achieve a defendant-requested mistrial, the class as a whole, though not Green individually, of course, could be expected to suffer. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution.

In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest. United States v. Tateo, supra, 377 U.S. at 466, 84 S.Ct. at 1589. . In this essential respect, the present case is fundamentally distinguishable from cases where a mistrial was rendered necessary by purposeful prosecutorial activity, as for example United States v. Kessler, 530 F.2d 1246, 1257 (5th Cir. 1976) (“... intentional misconduct by the Government regarding the AR-180, a known false exhibit, which caused serious prejudice to the defendants’ rights to a fair jury trial.”) . Cf. Divans v.

California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977) (denial of stay by Justice Rehnquist): Any order granting a mistrial at the behest of a defendant in a criminal case is typically based upon error or misconduct on the part of other counsel or the court. In order to elevate such a typical order into one which could form the basis of a claim of double jeopardy, it must be shown not only that there was error, which is the common predicate to all such orders, but that such error was committed by the prosecution or by the court for the purpose of forcing the defendant to move for a mistrial.