GREEN v. U.S.
451 U.S. 929

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U.S. Supreme Court

GREEN v. U.S. , 451 U.S. 929 (1981)

451 U.S. 929

Robert Lee GREEN
v.
UNITED STATES
No. 80-6039

Supreme Court of the United States

April 20, 1981

On petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit.

The petition for writ of certiorari is denied.

Justice MARSHALL, dissenting.

In United States v. Dinitz, 424 U.S. 600 (1976), this Court held that when a criminal defendant's successful request for a mistrial is precipitated by " 'prosecutorial or judicial overreaching,' " a subsequent trial on the same charges is barred by the Double Jeopardy Clause of the Fifth Amendment. Id., at 607 (quoting United States v. Jorn, 400 U.S. 470, 485, 557 (1971)). Because the decision of the Court of Appeals in the present case raises substantial questions concerning the scope of the Dinitz rule, I dissent from the denial of certiorari.

Petitioner was tried for conspiracy to distribute heroin.

Page 451 U.S. 929 , 930

The prosecution's chief witness was Special Agent Robert Dixon of the Drug Enforcement Administration. During cross-examination, defense counsel succeeded in eliciting several statements that substantially damaged Dixon's credibility. [Footnote 1] Annoyed at this turn of events, Dixon made a deliberate, impermissible, reference to petitioner's prior conviction for armed robbery. Defense counsel then moved for a mistrial, which was granted. Petitioner was subsequently reindicted on the same drug charge. He moved to dismiss this second indictment on the ground that the Double Jeopardy Clause, as interpreted in Dinitz, barred his retrial. The District Judge denied the motion, and a divided Court of Appeals for the Fourth Circuit affirmed. 636 F.2d 925 (1980). The majority reasoned that Dinitz was inapplicable because the improper statement was made with the general purpose of prejudicing petitioner rather than the specific purpose of provoking a mistrial and because the misconduct was by a Government witness rather than the prosecutor.

The court's reasoning is questionable on both grounds. The central issue presented by this case-whether prosecutorial misconduct must have the specific purpose of provoking a defendant's request for a mistrial in order to raise double jeopardy concerns-has divided the Courts of Appeals. The majority in the court below, as well as the Court of Appeals for the Tenth Circuit in United States v. Nelson, 582 F.2d 1246 (1978), cert. denied, 439 U.S. 1079 (1979), have limited Dinitz to situations in which the prosecution [451 U.S. 929 , 931]


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