United States v. Mechanik

756 F.2d 994

Opinions

PER CURIAM.

I

For reasons stated in the majority opinion of the panel, United States v. Mechanik, 735 F.2d 136 (4th Cir.1984), the judgments convicting Mechanik, Zarintash, Lill, and Riddle on count 1 of the indictment are reversed.

Dissenting, Judge Russell, Judge Hall, Judge Chapman, Judge Wilkinson, and Judge Sneeden would affirm for the reasons stated in the dissent to the panel opinion, 735 F.2d at 141.

II

The judgments convicting Mechanik on count 10 and Lili on counts 2 and 4 are affirmed for reasons stated in the panel opinion.

Judge Widener and Judge Phillips dissent. They would dismiss these counts of the indictment for the same reasons that count 1 is dismissed.

III

The jury was unable to reach a verdict with respect to Chadwick, and the district court declared a mistrial. He appealed assigning several errors, including the denial of the motion to dismiss the indictment and the denial of his motion for a judgment of acquittal on the ground of insufficient evidence. He claims that retrial will subject him to double jeopardy. The panel dismissed his appeal for lack of jurisdiction, citing United States v. Ellis, 646 F.2d 132 (4th Cir.1981).

After the panel opinion was filed, the Supreme Court decided Richardson v. United States, — U.S. -, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). The Court held that after a mistrial was declared because of a hung jury, the defendant’s contention that retrial would subject him to double jeopardy because evidence sufficient to convict had not been presented raised a colorable claim of double jeopardy appealable under 28 U.S.C. § 1291.

Footnotes

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* The Court held, however, that no valid claim of double jeopardy had been asserted because the declaration of a mistrial following a hung jury does not terminate the original jeopardy. The Court also said, 104 S.Ct. at 3086 n. 6:

It follows logically from our holding today that claims of double jeopardy such as petitioner’s are no longer “color-able” double jeopardy claims which may be appealed before final judgment. A colorable claim, of course, presupposes that there is some possible validity to a claim____ Since no set of facts will support the assertion of a claim of double jeopardy like petitioner’s in the future, there is no possibility that a defendant’s double jeopardy rights will be violated by a new trial, and there is little need to interpose the delay of appellate review before a second trial can begin.

The order denying Chadwick’s motion for a judgment of acquittal and subjecting him to retrial did not terminate the original jeopardy to which he was subjected. Accordingly, as Richardson explains in note 6, he now has no colorable claim of double jeopardy which may be appealed before final judgment. His appeal is dismissed.

No. 80-5166 (Mechanik): Count 1 reversed; count 10 affirmed.

No. 80-5167 (Zarintash): Count 1 reversed. No. 80-5168 (Lili): Count 1 reversed; counts 2 and 4 affirmed.

No. 80-5168 (Riddle): Count 1 reversed. No. 80-5169 (Chadwick): Dismissed.

The Court noted that United States v. Ellis, 646 F.2d 132, 135 (4th Cir.1981), reached a contrary conclusion. See 104 S.Ct. at 3083 n. 4.