APPEAL FROM ORDER DENYING MOTION TO DISMISS OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (Crim. No. 80-00034-01)
Before Weis and Higginbotham, Circuit Judges, and Debevoise, District Judge.*fn*
The district court granted defendant Carroll Leppo's motion for a mistrial for the reason that a government witness referred in his testimony to Leppo's refusal to answer certain questions during an interrogation by a Federal Bureau of Investigation agent. Thereafter, the court denied Leppo's motion to dismiss the indictment on double jeopardy grounds and commenced a second trial. Leppo appeals from that order. We hold that the reprosecution of a defendant who has successfully moved for a mistrial is not barred by the Double Jeopardy Clause of the Fifth Amendment so long as the government did not act intentionally to provoke the mistrial request. In this case the government did not intentionally provoke its witness to testify as to Leppo's refusal to answer certain questions when the witness interrogated him before trial, and consequently we affirm the order of the district court.
In March, 1980, a grand jury indicted Leppo, charging him in two Counts of violating the Hobbs Act, 18 U.S.C. § 1951. Leppo pled not guilty and the case was scheduled for trial.
Immediately prior to the trial on June 16, 1980, the district court conducted a hearing outside the presence of the jury on Leppo's motion to exclude statements Leppo made to Special Agent Frank Cryan of the Federal Bureau of Investigation following a polygraph examination conducted by Cryan. The hearing established that Leppo had consented in writing to be interviewed and examined by means of the polygraph;*fn1 that on March 27, 1979, in the presence of Leppo's attorney and others, Cryan conducted the interview and polygraph examination and that Cryan made handwritten notes of the questions and responses and of questions which Leppo declined to answer.
Referring to his notes, Cryan testified at the suppression hearing that following the polygraph examination Leppo admitted that it had been improper for him to accept certain money but he did anyway; that the purpose of the payment was to influence his vote, and that he told the donor of the money that he planned to apply the money to his campaign debts. At that point Cryan further testified, without objection, as follows:
Then in the presence of Mr. Shoemaker, I asked him when he got the money and he answers, no. I asked him where and he said no, and I asked him how much, and he said, no. And I asked him who else there, and he says, no. The no's indicating that he did not want to discuss that, going back to the earlier agreement as to what we could ask him. (Appellant's App., at 47a.)
After the suppression hearing the district court concluded that the evidence did not support Leppo's contentions that the law enforcement personnel had failed to advise him properly of his Fifth Amendment rights and that the government had assured him that his statements would not be used against him. Leppo's motion to exclude these statements was denied.
At the trial which followed the suppression hearing Cryan was the government's last witness. On direct examination he was asked about the March 27, 1979 interview (omitting, of course, any reference to the polygraph examination). The government posed the question, "Will you tell the Court and the jury precisely what Mr. Leppo stated to you, if you recall?" Referring to his notes, Cryan recited the statements which Leppo had made, but instead of limiting himself to the substance of those statements he went on to testify, "We then asked him some other questions dealing with when the request, or when the offer and the transfer was made, where it was made, how much money was involved and who else was present, to which Mr. Leppo indicated he desired not to answer." (Appellant's App., at 76a.)
Leppo's attorney immediately moved for a mistrial on the ground that a government witness may not testify as to a defendant's refusal to answer questions. The court reserved decision on the motion. Cryan was cross-examined and thereafter the government rested.
Leppo then renewed his motion for a mistrial and also moved for a judgment of acquittal. The district court denied the latter motion, but relying on United States v. Williams, 181 U.S. App. D.C. 188, 556 F.2d 65 (1977), cert. denied, 431 U.S. 972, 97 S. Ct. 2936, 53 L. Ed. 2d 1070 (1977), and United States v. Ghiz, 491 F.2d 599 (4th Cir. 1974), granted the motion for a new trial, concluding that Cryan's testimony that Leppo declined to answer certain questions during the March 27, 1979 interrogation constituted a violation of Leppo's Fifth Amendment rights. The district court scheduled a new trial.*fn2
In August, 1980, prior to the commencement of the new trial, Leppo moved to dismiss the indictment on the ground that his retrial would constitute double jeopardy. The district court denied the motion, finding "that the Government's conduct cannot be classified as either grossly negligent or reckless". Leppo appealed to this Court from the district court's order denying his motion, treating the order as a final decision within the ...