United States v. Julius Zimmelman

Ninth Circuit

United States v. Julius Zimmelman

634 F.2d 1237, 1980 U.S. App. LEXIS 11015

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 30, 1980

Docket80-1332

StatusPublished

Cited by1 cases

This text of 634 F.2d 1237 (United States v. Julius Zimmelman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Julius Zimmelman, 634 F.2d 1237, 1980 U.S. App. LEXIS 11015 (9th Cir. 1980).

Pincite

Opinion

PER CURIAM.

Julius Zimmelman appeals pursuant to Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977), from the denial of a motion to dismiss an indictment on grounds of double jeopardy. 1 We affirm.

After a jury trial resulted in Zimmelman’s conviction, the district court granted Zimmelman’s motion for a mistrial based upon alleged prosecutorial misconduct in the cross-examination of a witness. In doing so, the court ordered a new trial and denied Zimmelman’s request to dismiss the indictment.

The Double Jeopardy Clause bars re-prosecution of a case after the grant of *1238 a mistrial only where the mistrial was “attributable to prosecutorial or judicial overreaching . . . . ” United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). In this circuit, this has been interpreted to mean where the improper action of the prosecutor was intentional and done in bad faith. 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 (1980).

The government’s cross-examination of David Heath at Zimmelman’s trial arguably exceeded the spirit of an earlier court order in limine. The transgression was not, however, intentional and in bad faith. The trial court did not abuse its discretion in denying the motion to dismiss.

Affirmed.

1

. Zimmelman also contends that the government improperly withheld discoverable infor *1238 mation. His notice of appeal does not, as it could not, appeal from the district court’s denial of his discovery request. We have no jurisdiction to consider the denial of discovery until after a final judgment. One of the criteria for permitting Abney appeals is that the rights involve “the very authority of the Government to hale .. . [the defendant] into court to face trial . . .. ” Abney v. United States, 431 U.S. at 659, 97 S.Ct. at 2040. A motion to compel discovery is not such a right. It differs qualitatively from the double jeopardy rights protected by Abney.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

Julius Zimmelman appeals pursuant to Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977), from the denial of a motion to dismiss an indictment on grounds of double jeopardy. 1 We affirm.

After a jury trial resulted in Zimmelman’s conviction, the district court granted Zimmelman’s motion for a mistrial based upon alleged prosecutorial misconduct in the cross-examination of a witness. In doing so, the court ordered a new trial and denied Zimmelman’s request to dismiss the indictment.

The Double Jeopardy Clause bars re-prosecution of a case after the grant of *1238 a mistrial only where the mistrial was “attributable to prosecutorial or judicial overreaching . . . . ” United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). In this circuit, this has been interpreted to mean where the improper action of the prosecutor was intentional and done in bad faith. 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 (1980).

The government’s cross-examination of David Heath at Zimmelman’s trial arguably exceeded the spirit of an earlier court order in limine. The transgression was not, however, intentional and in bad faith. The trial court did not abuse its discretion in denying the motion to dismiss.

Affirmed.

1

. Zimmelman also contends that the government improperly withheld discoverable infor *1238 mation. His notice of appeal does not, as it could not, appeal from the district court’s denial of his discovery request. We have no jurisdiction to consider the denial of discovery until after a final judgment. One of the criteria for permitting Abney appeals is that the rights involve “the very authority of the Government to hale .. . [the defendant] into court to face trial . . .. ” Abney v. United States, 431 U.S. at 659, 97 S.Ct. at 2040. A motion to compel discovery is not such a right. It differs qualitatively from the double jeopardy rights protected by Abney.

Cite This Page — Counsel Stack

Bluebook (online)

634 F.2d 1237, 1980 U.S. App. LEXIS 11015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-julius-zimmelman-ca9-1980.

Opinion

Related

Cite This Page — Counsel Stack