UNITED STATES of America, Plaintiff-Appellee, v. Leo E. HEYMANN, Defendant-Appellant, 586 F.2d 1039

PER CURIAM: Affirmed on the basis of the written reasons for ruling by Judge Schwartz dated October 6, 1977, see Exhibit A attached. AFFIRMED. Appendix A to follow APPENDIX A UNITED STATES OF AMERICA vs. LEO E. HEYMANN Crim. A. No. 75-681. United States District Court, E. D. Louisiana. Oct. 6, 1977. REASONS FOR RULING CHARLES SCHWARTZ, District Judge. This matter came before the Court on October 5, 1977 on defendant’s motion to dismiss, founded upon the constitutional prohibition against putting a defendant twice in jeopardy for the same offense, at which time same was and is DENIED.

Succinctly put, defendant argues that by integrating evidence utilized in a previous trial (Criminal No. 75-680) into a subsequent trial (Criminal No. 75-681), the double jeopardy clause of the United States Constitution, Amendment V precludes further prosecution of charges emanating from the November 1974 incident. In particular, defendant avers that “multiple prosecutions” and prosecutorial misconduct and neglect are prohibitive of a second trial.

Having carefully considered and thoroughly reviewed the record in its entirety, the Court specifically finds there to be no “prosecutorial misconduct” nor “prosecutorial overreaching” in the Government’s prior prosecution of the defendant. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); cf. United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976). Accordingly, there is no constitutional impediment to allowing this matter to proceed forthwith by retrial. Hardwick v. Doolittle, 558 F.2d 292, esp. 297 (5th Cir. 1977) .

Moreover, the per curiam opinion of the Fifth Circuit indicates its awareness of the double jeopardy claim as its aversion to it was the predicate for its reversal. Further, the opinion especially sanctioned a retrial as the last paragraph of same concludes, “The judgment appealed from is reversed; the case is remanded for a new trial.” . In the previous trial, the district court granted defendant’s motion for a judgment of acquittal on charges stemming from Mr. Heymann’s alleged April 1974 incident. .

The subsequent trial held before Judge Robert J Kelleher resulted in a jury conviction on the charges arising out of the November 1974 incident, but was reversed per curiam by the Fifth Circuit (Summary Calendar # 76-2202) which held that the use of evidence of the April 1974 transaction was reversible error violative of the double jeopardy clause of the U.S. Constitution Amendment V. Accordingly, the Fifth Circuit reversed the conviction and “remanded for a new trial.”