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May 6, 1975

UNITED STATES of America ex rel. Joseph A. TRIANO, Petitioner,

Stern, District Judge.

The opinion of the court was delivered by: STERN

STERN, District Judge.

 On December 2, 1971, the Hudson County Grand Jury charged petitioner, in Indictment No. 326-71, with bribery (Count 1), unlawful taking (Count 2) and misconduct in office (Count 3).

 Count 1 charges petitioner with accepting a bribe in connection with government service, in violation of N.J.S.A. 2A:93-6, alleging that he did "willfully, knowingly, unlawfully and corruptly receive approximately $100 in cash as a bribe, present or reward" in return for obtaining an improper disposition of a pending criminal complaint. (RB: 25)

 Count 2 of the indictment charges petitioner with unlawful taking, in violation of N.J.S.A. 2A:105-1, alleging that he did "willfully, knowingly, unlawfully and by color of his office" receive "from Abraham J. Chasnoff . . . a fee and reward in the amount of approximately One Hundred Dollars ($100.00) in cash, the same not allowed by law to the said Joseph A. Triano for performing his duties as Deputy Clerk of the Criminal Division of the Hudson County District Court." (RB: 25)

 Count 3 of the indictment charges petitioner with misconduct in office, in violation of N.J.S.A. 2A:85-1, based on three separate acts allegedly committed by him: (a) representing to Chasnoff that petitioner would obtain a favorable disposition of the charges against James Cairns; (b) amending the summons of James Cairns; and (c) accepting $100.00. (PB:2)

 The jury returned a verdict of not guilty on Counts 1 and 2, but was unable to reach a verdict on Count 3. Accordingly, judgement of acquittal was entered on Counts 1 and 2, and a mistrial was declared as to Count 3.

 Petitioner successfully sought an order in Superior Court dismissing Count 3 on grounds of double jeopardy, which was granted on a theory of collateral estoppel by the trial court, Young, J.S.C., on January 22, 1973. The State appealed from the judgment of dismissal, and on February 21, 1974, the Appellate Division of the Superior Court reversed the dismissal and ordered a plenary trial. Petitioner's attempts to secure review by the New Jersey Supreme Court were denied on April 30, 1974. A petition for certiorari was denied by the United States Supreme Court on October 15, 1974, Justices Brennan and Stewart dissenting.

 The State now seeks to try petitioner for misconduct in office, the offense charged in Count 3, based on all three of the allegations of wrongful conduct set forth in that Count.

 The matter was set for trial on January 24, 1975 before Judge Thuring in Superior Court. Petitioner moved to preclude the State from introducing at retrial substantive evidence of the bribery and unlawful taking of which the first jury exonerated him. After oral argument, Judge Thuring denied the motion in an opinion dated January 20, 1975. The instant petition was filed in this Court on January 21, 1975.

 At a hearing before this Court on January 21, 1975, the State represented that it would not move the indictment for retrial while the matter was pending before this Court. (Tr. 1/21/75:4-6; 25-26)

 On the morning of January 22, 1975, however, the Court received a telephone call from counsel for petitioner. Counsel for the State was present with counsel for petitioner when the call was made, and also spoke with the Court. At that time, the Court was informed that superiors of the Assistant Prosecutor who had appeared the previous day had "overruled" the State's representation that the matter would not be moved for retrial, and that the State now intended to proceed with the retrial as scheduled, on Friday, January 24, 1975. (Tr. 1/22/75:6) The parties were ordered to appear before this Court for an emergent hearing.

No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb; . . ..

 It is clear from judicial construction of the Double Jeopardy Clause that the evil against which the clause protects a state defendant is not a second conviction or a second punishment for the same crime. Rather, the provision protects an individual against the second trial itself. As the court noted in Ashe v. Swenson, 397 U.S. 436, 445-446, 90 S. Ct. 1189, 1195, 25 L. Ed. 2d 469 (1970), in holding that federal principles of collateral estoppel were embodied in the Double Jeopardy Clause:

For whatever else that constitutional guarantee may embrace, North Carolina v. Pearce, 395 U.S. 711, 717 [89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656], it surely protects a man who has been acquitted from having to "run the gantlet" a second time. Green v. United States, 355 U.S. 184, [190 78 S. Ct. 221, 225, 2 L. Ed. 2d 199]

 At the hearing the State of New Jersey announced its intention to divest this Court of jurisdiction by moving the retrial before this Court could determine whether the very moving of the case in state court would do violence to the United States Constitution. *fn1"

 Accordingly, the Court entered an order on January 23, 1975 (1) staying all proceedings in the Superior Court in the matter of State of New Jersey v. Joseph A. Triano, Indictment No. 326-71, pursuant to 28 U.S.C. § 2251; *fn2" (2) issuing a Writ of Habeas Corpus ad Testificandum removing all restraints on petitioner pending this Court's disposition of the petition; *fn3" and (3) enjoining the Hudson County Prosecutor and his staff from proceeding with the prosecution of petitioner pending disposition of the petition by this Court, pursuant to 28 U.S.C. § 1651(a). *fn4"

 This Court has jurisdiction to consider this petition in advance of the state trial, under 28 U.S.C. § 2241(c)(3). Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. ...

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