Gori v. United States

RESPONDENT: United States
LOCATION: Circuit Court of Montgomery County

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 367 US 364 (1961)
ARGUED: May 03, 1961
DECIDED: Jun 12, 1961

Facts of the case


Media for Gori v. United States

Audio Transcription for Oral Argument - May 03, 1961 in Gori v. United States

Earl Warren:

Number 486, Dante Edward Gori, Petitioner, versus United States.

Mr. Rand, you may proceed with your argument.

Harry I. Rand:

Mr. Chief Justice, may it please the Court.

This case concerns the impact of the Double Jeopardy Clause of the Fifth Amendment on criminal prosecutions in the federal courts where an early trial, whether it'd be the first of a second of a string of trials is terminated by mistrial and the defendant, the accused, is, thereafter, put to a retrial before another jury for the same offense.

The petitioner here was charged with a violation of the criminal code in that he had received and possessed some 20 odd cases of women's and children's gloves, knowing them to be stolen and he was put to trial before a jury in the Eastern District of New York sometime in February of 1959.

On the very first day of the trial, in the afternoon of the first day, while the Assistant United States Attorney was educing testimony from the Government's fourth witness, an FBI agent, the trial judge, without affording an opportunity to either of the parties -- either to the United -- Assistant United States Attorney or to defense counsel, to address himself to the action which the trial judge was about to take, the trial judge acting sua sponte directly in the presence of the jury, abruptly and rather vehemently declared a mistrial, terminating the trial, as I say, in the very afternoon of the -- of the very first day.

All of the trial judges at the time he declared the mistrial said that he was doing so, and I quote on page 14 of the record, “He was doing so because of a conduct of the District Attorney.

Everybody is in agreement as we stand before this Court.”

Indeed the majority in the dissent, the dissenting judge below are in agreement that the record discloses no evidence whatever of any misconduct by the Assistant United States Attorney.

Despite the plea of former jeopardy interposed by the petitioner, he was in three months later, again tried the same offense before another jury in the Eastern District of New York, my recollection is before another judge.

And there on the verdict, returned of guilty, the judgment of conviction was entered and petitioner was sentenced to imprisonment for three and a half years.

Petitioner thereupon appealed to the United States Circuit Court, the United States Court of Appeals for the Second Circuit and the appeal was heard by a panel of three judges which panel voted for reversal of the conviction.

One judge dissenting, pursuant to what apparently is the practice in the Second Circuit Court, the draft opinions reflecting the disagreement among the members of the panel were then circulated among the five active judges of the Circuit Court.

Felix Frankfurter:

Is the panel's opinion in the record?

Harry I. Rand:

There is no panel opinion.

The -- the --

Felix Frankfurter:

Do you know what the panel was?

Harry I. Rand:

The panel consisted of Judge Clark, Judge Waterman and Judge Lewis, a judge of the Tenth Circuit sitting by designation.

When the --

Felix Frankfurter:

My question was to --

Harry I. Rand:

Oh, and the --

Felix Frankfurter:

-- solicit -- solicit -- whether Judge -- Judge Waterman dissented when the --

Harry I. Rand:

The -- I --

Felix Frankfurter:

-- court en banc with the use on the original panel.

Harry I. Rand:

He was on the original panel.

It's my understanding, Judge Waterman and Judge Lewis voted for reversal, Judge Clark dissenting from the -- vote for us, so I think this is set forth in the first footnote of the opinion of the -- of Judge Clark's ultimate majority opinion.

And then when the matter went before the en banc court, a majority of the active judges voting for en banc consideration, a consideration by the way which was court of the case without further argument are further -- are just from the original papers, Judge Lewis was disqualified from sitting since he was not an active judge of the Circuit Court, and we then had in affirmance of the conviction, four judges voting for the affirmance, Judge Waterman remaining in dissent and Judge Clark writing the opinion for the majority of the court.

John M. Harlan II:

Could I ask you a question You said at the beginning that all parties in an agreement but the record show no misconduct by the District Attorney?

Is there an implication from that which your case should be different, if the record did show that?

Harry I. Rand:

If the record showed some misconduct by the District Attorney, we would then be getting into an issue on which there would be some disagreement between us as to whether that kind of misconduct, if it were egregious, could, at any time, have constituted the manifest necessity, reason of manifest necessity, for the declaration of mistrial permitting, under the previous cases from this Court and in other -- the lower federal courts, a retrial.