United States v. Frank Stevens

177 F.3d 579, 1999 U.S. App. LEXIS 10840, 1999 WL 333214

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 27, 1999
• Docket: 97-2035
• Status: Published

Opinions

MOORE, J., delivered the opinion of the court, in which SILER, J., joined. KENNEDY, J. (pp. 589-93), delivered a separate dissenting opinion.

KAREN NELSON MOORE, Circuit Judge.

Frank Stevens wds indicted for his alleged involvement in the theft of a piece of construction equipment. After the government’s key witness against him refused to testify, the district court ordered a mistrial and denied Stevens’s motion to dismiss the charges on double jeopardy grounds. Because the government has had one opportunity to convict the defendant, at which it was unable to compel the testimony of its key witness and failed to produce other evidence sufficient to convict, we hold that further prosecution is barred by the Double Jeopardy Clause. We therefore REVERSE the decision of the district court.

I. BACKGROUND

Frank Stevens, Donald Faulkner, and Carlo Bommarito were indicted for stealing a Caterpillar 936E Wheel Loader in violation of 18 U.S.C. §§ 659 (Interstate or foreign shipments by carrier) and 371 (Conspiracy). The indictment alleged that Bommarito and another person, John Pree, stole the Caterpillar at Stevens’s urging. Stevens had allegedly selected the Caterpillar to be stolen after meeting with Faulkner, who acted as Stevens’s intermediary with the person who bought the stolen equipment, James Sellars.

Pree was the government’s key witness against Bommarito, and when Pree announced his refusal to testify the charges against Bommarito were dismissed. The government was also aware that it might have trouble with Frank Pizzo, its key witness against Stevens. Pizzo is Faulkner’s brother-in-law. The government had therefore prepared a motion to compel Piz-zo’s testimony and was also prepared to grant him immunity if necessary to prevent him from asserting his Fifth Amendment privilege.

Stevens and Faulkner went to trial on April 29, 1997. During his opening statement, the prosecutor described the evidence he planned to present. He told the jury that Pizzo would testify about a conversation he had with Stevens at Faulkner’s car wash. Stevens allegedly told Piz-zo, “Tell Donald [Faulkner] to tell them guys to get that stuff out of there”; Stevens told Pizzo that Faulkner would know what he meant. J.A. at 73 (Prosee. Opening St.). The prosecutor explained that “them” referred to Sellars and an associated construction company and that the “stuff’ was the stolen Caterpillar. The defense responded that any such testimony by Pizzo would be “a bold-faced lie.” J.A. at 75 (Def. Opening St.).

On May 1, the third day of trial, Pizzo and his attorney informed the court that Pizzo would refuse to testify regardless of whether he was granted immunity. His stated reason was “deep concerns for the welfare of my family.” J.A. at 80 (Pizzo Test.). Pizzo never gave a full explanation of his concerns, but his lawyer mentioned a decapitated rodent left at Pizzo’s door and telephone threats directed towards him and his father.¹ When called to the stand, Pizzo continued to refuse to testify after the district court had granted him immunity from prosecution and had explained the consequences of contempt of court.

The court sent Pizzo to jail to reconsider his options and continued the trial until May 6. Pizzo still refused to testify. The government indicated its intent to move for a mistrial, but it decided to wait until the close of the evidence in the hope that Pizzo might yet change his mind. The government finished presenting the rest of its evidence on May 21. Recalled from jail once more, Pizzo still refused to testify.

In the absence of Pizzo’s testimony, the government’s case against Stevens came down to (1) evidence that Stevens had once rented space in a building near which an earlier illegal transaction between Sellars and Faulkner had occurred and (2) a somewhat incriminating receipt that looked like ones that a witness, Mary Parsley, had typed for Stevens. The government also sought to introduce Pizzo’s grand jury testimony, but the district court excluded most of it.

The government conceded that without Pizzo’s testimony it did not have sufficient evidence to convict Stevens.² It therefore moved for a mistrial on the grounds that Pizzo was unavailable and that the government was prejudiced because it had promised the jury Pizzo’s testimony. The government argued that this prejudice could not be cured by a cautionary instruction. The court granted the government’s motion and denied Stevens’s motion for a judgment of acquittal.

In the course of ruling on the mistrial and on the admissibility of Pizzo’s grand jury testimony, the district court considered the issue of whether either party was responsible for Pizzo’s “unavailability.” Referring to United States v. Khait, 643 F.Supp. 605, 609 (S.D.N.Y.1986), which held that there was manifest necessity for a mistrial because there was a “distinct possibility” that the defendant was responsible for a witness’s refusal to testify, the district judge said:

And I’m satisfied regardless of this New York case, that this Court can’t make any finding relative to that, and I think that is particularly true and should be noted on the record in the context of everything. I mean, we have had a number of things happen in this case that could point to Mr. Pizzo not testifying for some reason not having to do with either one of these Defendants. I mean, there are just too many other things that have gone on in the case that might point to somebody or something else being a reason for Mr. Pizzo not testifying that doesn’t have to do with Mr. Faulkner or Mr. Stevens, and that there just is not enough, there is nothing, I don’t think, to show except that him not testifying would be favorable to both.

J.A. at 301. The court also concluded that the government was not responsible in the sense that it had not been negligent in beginning the trial without better assuring itself of Pizzo’s testimony.

The trial against Faulkner proceeded, and Stevens filed a motion to dismiss the indictment against him on double jeopardy grounds. The court denied the motion, holding that the mistrial was justified by manifest necessity.

II. JURISDICTION

Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), held that an order denying a motion to dismiss on double jeopardy grounds is a “final decision” for purposes of 28 U.S.C. § 1291. We therefore have jurisdiction over this interlocutory appeal.

III. ANALYSIS

The Double Jeopardy Clause protects not only the rights against re-trial after an acquittal and against multiple punishments for the same offense but also “a defendant’s valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949). “Even if the first trial is not completed, a second prosecution ... increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.” Arizona v. Washington, 434 U.S. 497, 503-04, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (footnotes omitted). When a criminal trial ends in a mistrial, re-prosecution is permitted only if there was “manifest necessity for the [mistrial] or the ends of public justice would otherwise be defeated.” United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 580, 6 L.Ed. 165 (1824). In this case, the government argues that there was manifest necessity due to unfair prejudice to the government and the refusal of its key witness to testify.

A. STANDARD OF REVIEW

The standard of review for a double jeopardy claim after a mistrial varies according to the issues involved. See Washington, 434 U.S. at 510, 98 S.Ct. 824 (discussing “the spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny”); Harpster v. Ohio, 128 F.3d 322, 328 (6th Cir.1997) (explaining that we “apply greater scrutiny in some cases than ... in others”), cert. denied, — U.S. -, 118 S.Ct. 1044,140 L.Ed.2d 109 (1998); United States v. Sisk, 629 F.2d 1174, 1178-79 (6th Cir.1980), cert. denied, 449 U.S. 1084 (1981). The classic situation justifying a mistrial is a hung jury. In deciding at what point further deliberations by a particular jury would be fruitless or unduly coercive, the trial judge has wide discretion. See Perez, 22 U.S. at 580; see also Washington, 434 U.S. at 509-10, 98 S.Ct. 824. In contrast, “the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence.” Washington, 434 U.S. at 508, 98 S.Ct. 824 (citing Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), a case involving an unavailable witness). The determination that the jury has been biased by a party’s prejudicial remarks lies on the spectrum between these two extremes but is considered “an area where the trial judge’s determination is entitled to special respect.” Washington, 434 U.S. at 510, 98 S.Ct. 824. This seemingly variable standard of review can be seen merely as reflecting the different levels of review for findings of fact and questions of law. See id. at 520 n. 1, 98 S.Ct. 824 (Marshall, J., dissenting) (agreeing with majority’s standard of review). The appropriate standard of review is determined by whether the underlying reasons for the mistrial concern issues best left to the informed discretion of the trial judge or issues that resemble pure questions of law for which closer appellate review is appropriate.

Here, we apply this flexible standard of review by giving appropriate deference to the district court’s determinations about the prejudicial effect of the government’s opening statement, in light of its later failure to produce Pizzo, and about whether Stevens was responsible for Pizzo’s refusal to testify or the government was negligent in failing to anticipate it. Although the district court discussed both of the government’s asserted grounds for a mistrial — unfair prejudice due to its opening statement and the bare fact of its key witness’s refusal to testify — the court’s decision appears to have rested primarily on the latter. Because the basis for the mistrial and re-prosecution was “the unavailability of critical prosecution evidence,” the district court’s decision is subject to “the strictest scrutiny.” Washington, 434 U.S. at 508, 98 S.Ct. 824. We hold that Pizzo’s refusal to testify did not create a manifest necessity for a mistrial. We also hold that declaring a mistrial on the basis of the government’s claim of unfair prejudice would have been an abuse of discretion.

B. THE MANIFEST NECESSITY STANDARD

The Supreme Court and the Courts of Appeals have consistently refused to establish categorical rules for when a mistrial is manifestly necessary or required by the ends of public justice. See Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Harpster, 128 F.3d at 328. Each case must turn on its own facts. However, the Supreme Court’s opinion in Somerville outlines a “general approach” that can at least serve as a starting point. The Court held that “[a] trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.” Id. at 464, 93 S.Ct. 1066. These two criteria explain most, but not all, of the circumstances in which federal courts have permitted re-prosecution following a mistrial.

The first category — “an impartial verdict cannot be reached” — -includes the classic hung jury as well as eases in which the jury is incurably tainted. For example, in Arizona v. Washington, 434 U.S. at 499, 516, 98 S.Ct. 824, the Supreme Court approved the district court’s holding that a mistrial was manifestly necessary after defense counsel told the jury that the prosecutor had intentionally withheld exculpatory evidence in a previous trial. Our decision in United States v. Cameron, 953 F.2d 240 (6th Cir.1992), also belongs in this category. There, the trial judge dismissed the jury and recused himself after discovering that several jurors had read a newspaper article calling the judge’s integrity into question. The judge thought it would be “ ‘unseemly to say the least for me to poll this jury as to whether they’re going to have any confidence in the Judge.’ ” Id. at 242. This court agreed that the judge acted within his discretion in finding that a mistrial was manifestly necessary. See id. at 244.

The second Somerville category- — “a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial” — explains the decision in Somerville itself. After the trial had begun, the prosecutor in Somerville discovered a defect in the indictment. This defect guaranteed reversal of any conviction. See Somer-ville, 410 U.S. at 460, 93 S.Ct. 1066. In this situation, the ends of public justice require a mistrial rather than a wasteful trial and appellate reversal. Given that a serious error had occurred, the Court asked whether that error guaranteed reversal of any conviction and whether the defendant would then be subject to retrial. As the Court pointed out in a later decision, it would be anomalous to tell trial judges that if they recognize a serious error on the spot the defendant must be set free, while if they refuse to acknowledge an error that is later corrected on appeal the defendant can be retried. See United States v. Dinitz, 424 U.S. 600, 610, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

While Somerville outlined a “general approach” for when a mistrial is manifestly necessary, there is a line of unavailable-witness cases in the lower courts that does not fit neatly under either of the Somer-ville criteria. These lower court decisions, and the Supreme Court decisions involving unavailable witnesses, are discussed below.

C. PREJUDICE

In its opening statement, the government told the jury that Pizzo would testify and what it expected him to say. The government’s argument that its subsequent failure to produce Pizzo was so prejudicial as to justify a mistrial is meritless.

Most important, whether the jury was incurably prejudiced against the government is irrelevant because as a matter of law the government did not have sufficient evidence to convict. As a matter of law, the jury would have had no choice but to acquit.

Even if the government had enough evidence to convict without Pizzo’s testimony, it was not significantly prejudiced by an opening statement which described incriminating evidence that it could not, in fact, produce. Indeed, Stevens could well argue that the government gained an unfair advantage when the prosecutor “testified” to the jury. Any prejudice against the government that would arise from its breaking its promise to produce Pizzo would be too slight to justify a mistrial over the defendant’s objection. Cf. Frazier v. Cupp, 394 U.S. 731, 735, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir.1986) (“If an opening statement is an objective summary of evidence the government reasonably expects to produce, a subsequent failure in proof will not necessarily result in a mistrial.”). Any slight prejudice to the government arising from its failure to produce Pizzo was insufficient to justify a mistrial.

D. UNAVAILABLE WITNESS

The parties have identified only one case in which the Supreme Court has permitted re-prosecution after a mistrial due to the unavailability of witnesses. Wade v. Hunter involved a court-martial held during the American advance into Germany in World War II. Key civilian witnesses were ill during the initial trial, which was continued to await their testimony. Shortly thereafter, the defendant’s army division moved to another town, and distance made it impossible for the witnesses to attend further proceedings. Instead, the matter was transferred to another division, where the defendant was convicted. See Wade, 336 U.S. at 686-87, 69 S.Ct. 834. The Supreme Court upheld the decision to retry the defendant, rejecting the district court’s view that the only reason for dissolving the first court-martial was “to get more witnesses,” and characterizing the basis for the discontinuation of the initial trial as required by “the tactical situation brought about by a rapidly advancing army.” Id. at 691, 69 S.Ct. 834.

In a more typical unavailable-witness case, the Court held that a prosecutor’s failure to secure the presence of his witnesses before beginning the trial did not create a manifest necessity for a mistrial. See Downum, 372 U.S. at 737, 83 S.Ct. 1033. Although the Court refused to adopt a per se rule that the absence of a witness could never justify a mistrial, it quoted favorably from a lower court opinion that held:

[W]hen the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance. While their absence might have justified a continuance of the case in view of the fact that they were under bond to appear at that time and place, the question presented here is entirely different from that involved in the exercise of the sound discretion of the trial court in granting a continuance in furtherance of justice. The situation presented is simply one where the district attorney entered upon the trial of the case without sufficient evidence to convict.... There is no difference in principle between a discovery by the district attorney immediately after the jury was impaneled that his evidence was insufficient and a discovery after he had called some or all of his witnesses.

Id. at 737-38, 83 S.Ct. 1033 (quoting Cornero v. United States, 48 F.2d 69, 71 (9th Cir.1931)).³

It is possible to explain the outcomes in Wade and Downu-m, using Somerville’s “general approach.” Wade was similar to a hung jury case in that the tribunal was rendered unable to complete its proceedings — it was not the witnesses who were absent but the court itself.⁴ In Downum the court remained capable of producing an impartial verdict; applying Somer-ville ’s second criterion, no error had occurred that would guarantee reversal and retrial if there were a conviction. As in Stevens’s case, any conviction would have resulted in a reversal for insufficient evidence, after which there can be no retrial. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).⁵ Thus, under the Somerville approach, the prosecution’s failure to produce an essential witness is simply a failure of proof. No retrial would be permitted no matter what the reason for the witness’s unavailability.

Although some of the language in Dow-num supports such a broad result, it would be contrary to the courts’ many refusals to adopt mechanical rules or tests for applying the Double Jeopardy Clause. Instead, lower courts have focused on factors such as the reason for and duration of the witness’s unavailability and whether either party is at fault. The parties in this case focus on whether the government learned that essential testimony would not be forthcoming before or after the jury was sworn. This factor could explain Wade and Downum, as well as some lower court decisions. See, e.g., United States v. Ziegele, 479 F.2d 773, 775 (3d Cir.1973) (rejecting double jeopardy claim when government’s key witness had become ill after start of first trial); United States v. Gallagher, 743 F.Supp. 745, 748-49 (D.Or.1990) (rejecting double jeopardy argument in part because “the government reasonably believed that [the witness] would testify when the trial began”). If this factor were determinative, then Stevens’s double jeopardy claim would fail. The government knew that Pizzo was reluctant to testify and was prepared to overcome any valid legal objections he had to doing so: it subpoenaed him and prepared to offer immunity. It was not forewarned that he would refuse to testify even under the threat of contempt. In addition, as we discuss further below, there was nothing more the government could have done even if it had known in advance that Pizzo planned to refuse to testify. Even under the very high standard of government responsibility for assuring the availability of its witnesses suggested by the language of Downum and Comero, Pizzo’s refusal to testify was as much of a surprise to the government as it was to the district court.

We do not think, however, that this factor is determinative. Relying exclusively on this factor, like relying exclusively on the two Somerville categories, would treat all cases the same regardless of the reason for the witness’s absence. Timing is more important in a case like Downum or Ziegele. In Ziegele, if the prosecutor had known before empaneling the jury that the key witness was ill, the Doumum rule would apply because the prosecutor would knowingly have taken a chance by proceeding. The proper course would have been to wait until the witness recovered. But the point at which the prosecutor learns that a witness will “absent” by refusing to testify does not necessarily affect what can be done. We held in United States v. Johnson, 736 F.2d 368 (6th Cir.1984), that a recalcitrant witness cannot be held in contempt until actually called to testify. In so holding, we recognized that the government would be required to take a risk, since jeopardy would attach when the jury was impaneled. See id. at 360-61. We noted, however, that “[t]he government’s real problem is not double jeopardy; it is [the witness’s] recalcitrance.” Id. at 363.⁶ A somewhat analogous situation was presented in Malinovsky v. Court of Common Pleas, 7 F.3d 1263 (6th Cir.1993), cert. denied, 510 U.S. 1194, 114 S.Ct. 1300, 127 L.Ed.2d 652 (1994). There, the state was unable to obtain a ruling on the admissibility of its key evidence without going to trial. At trial, the court ruled that the evidence was inadmissible hearsay, and the state filed a mid-trial appeal. Id. at 1266. During the pendency of the appeal, which ultimately was successful, the trial court discharged the jury due to the government’s failure to prosecute. Id. at 1269. We held that the Double Jeopardy Clause barred a subsequent prosecution.

In deciding whether a witness’s unavailability creates a manifest necessity for a mistrial, it is helpful to consider what purpose is served by declaring a mistrial.⁷ In the situations covered by the Somerville approach, a retrial is necessary to obtain a competent tribunal or to free the proceedings of a fatal procedural defect. In some cases of suddenly unavailable witnesses, such as Wade and Ziegele, the mistrial acts as an extended continuance to allow the witnesses to be present. Here, however, there are only two possible purposes served by the mistrial. One is to allow the government to gather more evidence against the defendant; this purpose is generally impermissible under the Double Jeopardy Clause. See Washington, 434 U.S. at 507-08, 98 S.Ct. 824; Burks, 437 U.S. at 10-11, 98 S.Ct. 2141. While the government might need some time to restructure its presentation, a short continuance should usually be sufficient. The other possible purpose is the hope that the witness will eventually agree to testify. This purpose is equally unacceptable. By impaneling a jury and calling the witness, the government obtained an opportunity to coerce the witness’s testimony. Pizzo spent three weeks in jail under a civil contempt order and was subject to additional criminal sanctions, but he did not change his mind. At this point, the government has had sufficient opportunity to make its case, and Stevens has endured, a lengthy trial, not knowing until the end whether it would result in a verdict in his case. The purposes of the Double Jeopardy Clause would be defeated by allowing the government to make another attempt.

Unlike the court that decided United States v. Gallagher, we do not believe the Double Jeopardy Clause bars re-proseeution only when the court finds that the witness “will never agree to testify.” Gallagher, 743 F.Supp. at 749. In some circumstances, such as sudden illness or other involuntary absence, the fact that the key witness will later be available justifies the delay and other burdens that a mistrial imposes on the defendant. Just as a mistrial allows an opportunity for the ill witness to be cured, proceeding with a trial gives the government the opportunity to “cure” the recalcitrant witness through contempt sanctions. Of course, if the witness turns out to be permanently unavailable — if illness ends in death rather than recovery — the government will be unable to proceed.⁸ The government is similarly unable to proceed when contempt sanctions fail to overcome the will of a witness like Pizzo. Once the trial court has given up coercing the witness, the indictment cannot be kept alive indefinitely in the hope that the witness will someday have a change of heart.

Because each case must be decided on its own facts, we leave open the possibility of permitting retrial in a case like Khait, where the district court expressly found a “distinet possibility” that the defendant had threatened the witness. See Khait, 643 F.Supp. at 609; see also United States v. Mastrangelo, 662 F.2d 946 (2d Cir.1981) (establishing the rule followed in Khait), cert. denied, 456 U.S. 973, 102 S.Ct. 2236, 72 L.Ed.2d 847 (1982). In such a case, we might agree that the “ends of public justice would be ... defeated,” Perez, 22 U.S. at 580, if the defendant by his own illegal actions could sabotage the government’s case. See Jorn, 400 U.S. at 486 (“[T]he judge must bear in mind the potential risks of abuse by the defendant of society’s unwillingness to unnecessarily subject him to repeated prosecutions.”) (plurality opinion). The Double Jeopardy Clause might then permit giving the government the opportunity to gather more evidence or to assure the safety of the reluctant witness. We of course need not decide whether we would join the Second Circuit in allowing retrial whenever “at the time the trial judge is faced with the question he reasonably concludes that there is a distinct possibility that the defendant participated in making the witness unavailable,” Mastrangelo, 662 F.2d at 952; whether we would require that the defendant’s culpability be demonstrated at an evidentiary hearing; or whether we would, like the dissent in Mastrangelo, see id. at 954-955 (Meskill, J., dissenting), subject the district court’s rejection of alternatives to particularly exacting review. In this case, the district court refused to find even a “distinct possibility” that Stevens was responsible for Pizzo’s contempt. The government having had its opportunity to overcome that contempt, it is not entitled to subject both Stevens and Pizzo to repeated attempts.

IV. CONCLUSION

Because Stevens’s first trial ended when the government discovered that it lacked sufficient evidence to support a conviction, we hold that any subsequent attempt to prosecute Stevens for the same crime is barred by the Double Jeopardy Clause. We therefore REVERSE the decision of the district court and order that the indictment be dismissed with prejudice.

1 . These incidents apparently occurred several months prior to the trial, around the time of an earlier date for which the trial had been scheduled.

2 . Responding to the defense’s claim of insufficient evidence, the prosecutor said:

Well, there is some evidence against his client, Your Honor. The Government is not going to argue that there is evidence that would necessarily sustain a verdict of guilt based on the record as it exists at this moment. If the Jury were to consider it.

The Government is not going to take the position that there is sufficient evidence at this point in the trial connecting Mr. Stevens to the theft of the Caterpillar wheel loader which is the subject of the indictment and as well as the conspiracy charge of Count 1.

To make that out, the Government would have sought the introduction of evidence previously noted and the testimony of Mr. Francis Pizzo, and that is the reason why the Government has moved for a mistrial because in his absence there is manifest necessity for granting a mistrial because the government cannot seek any further the case as to Mr. Stevens.

J.A. at 309.

3 .One other unavailable-witness case was Brock v. North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456 (1953). There, the Court permitted re-prosecution after key witnesses asserted their Fifth Amendment privilege at the first trial. The second prosecution was initiated after those witnesses had lost appeals of their convictions and thus could no longer claim the privilege. Brock, however, was decided before the requirements of the Double Jeopardy Clause were held to be fully applicable to the states and was based on the standard enunciated in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). See Brock, 344 U.S. at 426, 73 S.Ct. 349. Two dissenting Justices believed that retrial in those circumstances was so far beyond the norm that it violated due process under the Palko standard. See id. at 435, 73 S.Ct. 349 (Vinson, C.J., dissenting); id. at 442, 73 S.Ct. 349 (Douglas, J., dissenting). Chief Justice Vinson emphasized that the prosecutor knew or should have known that the witness would refuse to answer the key questions. See id. at 431, 440, 73 S.Ct. 349 (Vinson, C.J., dissenting).

4 . Military rules called for holding a court-martial near where the alleged crime occurred.

5 . In this case, as in Burks, there is no claim "that the trial court committed error by excluding prosecution evidence which, if received, would have rebutted any claim of evi-dentiary insufficiency." Buries, 437 U.S. at 5 n. 4, 98 S.Ct. 2141. Even if there were, it is unclear whether re-prosecution would be permitted. See Malinovsky v. Court of Common Pleas, 7 F.3d 1263 (6th Cir.1993), cert. denied, 510 U.S. 1194, 114 S.Ct. 1300, 127 L.Ed.2d 652 (1994) (discussed below).

6 . In a subsequent appeál, we affirmed a contempt order against the witness in Johnson for refusing to testify at a deposition ordered under Federal Rule of Criminal Procedure 15. See United States v. Johnson, 752 F.2d 206, 209-10 (6th Cir.1985). Although the witness was thus held in contempt prior to trial, the government did not thereby obtain any greater ability to coerce the witness’s testimony than it had to coerce Pizzo’s testimony in this case.

7 . This approach is consistent with United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), which arguably qualifies as an unavailable-witness case. In Jom, the trial judge rendered several witnesses temporarily "unavailable” by insisting that they could not testify until they had consulted attorneys about their Fifth Amendment privilege. The judge then declared a mistrial sua sponte. Id. at 472-73, 91 S.Ct. 547. Clearly, the witnesses’ "unavailability” was easily curable. There could hardly be manifest necessity for a mistrial when a short continuance would have sufficed. Accordingly, the Supreme Court held that the Double Jeopardy Clause barred retrial. Id. at 487, 91 S.Ct. 547.

8 . In this discussion, we assume that, as in this case, the government lacks sufficient evidence to substitute for the unavailable witness’s testimony. For example, if the government has the witness’s prior, cross-examined testimony or other admissible hearsay, it will have suffi-dent evidence to proceed after the witness’s death. We do not decide whether the government is entitled to a mistrial and a chance to re-prosecute based on its key witness's illness, even if it has hearsay evidence that could be used in lieu of the witness’s live testimony.