United States v. Broderick
This text of 425 F. Supp. 93 (United States v. Broderick) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
MEMORANDUM OPINION
The defendant has moved the court to dismiss the indictment against him on the grounds that the mistrial in his first trial was occasioned by prosecutorial overreaching and thus a second trial is barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution. For reasons to follow, the court finds that the motion is correct and should be granted.
The defendant was charged in an eight count indictment alleging violations of 8 U.S.C. Section 1324(a)(2). 1 The indictment charged the defendant with attempting to transport eight Hatians citizens knowing that they had illegally entered the United States.
The defendant was brought to jury trial before this court on October 27, 1976. Out of the presence of the jury and prior to the presentation of evidence, the defense asked for a ruling on a potentially troublesome hearsay problem and requested the prosecutor not to elicit testimony of a conversation between the Hatians prior to their arrival in the United States. Allegedly the Ha-tians were told that someone would pick them up after they arrived by plane in the United States. Defense counsel strongly contended that this statement was inadmis-sable hearsay and highly prejudicial. The *95 prosecutor stated that she had no knowledge of the statement and that she would not go into it. The court ratified the prosecutor’s agreement not to elicit the statement. 2
In the government’s opening statement, the prosecutor said that testimony from the aliens would establish that the pilot had told the Hatians as they were leaving the plane to get into a truck. Defense counsel immediately moved for a mistrial on the grounds that it was apparently now the prosecutor’s intent to offer the pilot’s hearsay testimony into evidence. The court denied the motion for a mistrial because the prosecutor represented that the statement was made in the presence of the defendant and was not, therefore, hearsay. 3
In the second day of trial, the prosecutor, without requesting a bench conference or giving any indication of her intent to do so, elicited the hearsay statement from the last government witness to testify. A bench conference ensued at which defense counsel objected to the statement and moved for a mistrial. When questioned by the court as to why she asked the question after she stated that she would not, the prosecutor said that she had done some research and had concluded that the statement was “qualified hearsay.” After admonishing the prosecutor for not requesting a bench conference outside the presence of the jury for a rehearing on the issue of the admissibility of the statement, the court sustained the objection and granted the defendant’s motion for a mistrial. 4
*96 The issue presented by defendant’s motion to dismiss is whether the double jeopardy clause of the Fifth Amendment would be violated by a retrial of defendant after the first trial ended in a mistrial granted at defendant’s request. The exact issue has been recently addressed by the United States Fifth Circuit Court of Appeals in United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976). In that opinion, after surveying the relevant Supreme Court decisions, the court concluded,
[ujnder ordinary circumstances, a defendant’s request for a mistrial removes any constitutional barrier to retrial. * * * But the Supreme Court recognizes that there may be exceptions to that rule— rare cases involving circumstances which are “attributable to prosecutorial * * overreaching,” * * *. Where “prose-cutorial overreaching” exists, a defendant’s mistrial request does not remove the constitutional double jeopardy barrier to a retrial. In such a case, the mere fact that the defendant requested a mistrial is not controlling. * * * Thus, a stringent analysis of the prosecutor’s conduct, considering the totality of the circumstances prior to the mistrial, to determine if there was “prosecutorial overreaching” is our inquiry. If “prosecutorial overreaching” is found, a second trial is barred by the Double Jeopardy Clause notwithstanding the fact that the defendants requested the mistrial. * * * To
find “prosecutorial overreaching,” the Government must have, through “gross negligence or intentional misconduct,” caused aggravated circumstances to develop which “seriously prejudice[d] a defendant” causing him to “reasonably conclude that a continuation of the tainted proceeding would result in a conviction.” Id., at 1255, 1256. citations omitted, (emphasis added.)
The court finds that the “prosecutorial overreaching”, defined in Kessler, occurred in this case. Clearly, the hearsay statement which the prosecutor elicited despite her agreement not to do so, “caused aggravated circumstances to develop which ‘seriously prejudice[d] [the] defendant causing him to ‘reasonably conclude that a continuation of the tainted proceeding would result in a conviction.’ ” Id. The statement identified the defendant’s truck as the vehicle waiting for the Hatians at the airport and indicated the defendant was expecting a planeload of *97 illegal aliens. The statement directly contradicted the defense that the defendant did not know that the people he was giving a ride to were illegal aliens, and that he was there only to pick up farm machinery parts in his truck.
The last element in the Kessler test, that gross negligence or intentional misconduct by the government must trigger the mistrial, is also present in this case. The prosecutor’s conduct involved both intentional misconduct and gross negligence. She deliberately elicited the statement, even though she had been twice cautioned not to do so because of its prejudicial and hearsay nature. Furthermore, she had agreed not to elicit it and the trial judge ratified this agreement. Thus the prosecutor triggered the mistrial through intentional misconduct. The prosecutor says that through over night research, she became convinced that the statement was admissible in evidence. If this is true, the problem could have been entirely avoided by arguing her position again and obtaining a ruling from the court. She chose instead to deliberately ask the witness the prohibited question in the presence of the jury. In so doing the prosecutor invited the mistrial.
The Constitution and laws of the United States bars the further prosecution of the defendant under circumstances of prosecu-torial misconduct such as are present in this case.
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Cite This Page — Counsel Stack
425 F. Supp. 93, 1977 U.S. Dist. LEXIS 18022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-broderick-flsd-1977.