United States v. Julius Zimmelman

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. 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 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…