govinfo:USCOURTS-paed-2_05-cr-00125-0

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA :
 :
v. : CRIMINAL NO. 05-125-01
 :
KENNETH WILLIAMS :
 
MEMORANDUM AND ORDER
Fullam, Sr. J. July 19, 2005
The defendant’s trial on drug charges commenced on June
20, 2005, but ended the next morning, when the court granted
defendant’s motion for a mistrial. The defendant has now filed a
motion to dismiss the Indictment, asserting that a retrial is
barred by the Double Jeopardy Clause of the United States
Constitution, since the mistrial was intentionally triggered by
the prosecutor.
In the course of cross-examining the defendant, the
prosecutor asked, “As a matter of fact, you have two prior
convictions for selling drugs?” Defense counsel objected, the
objection was sustained, and a sidebar conference ensued. 
Defense counsel stated that it had been agreed before trial that
the government would not introduce any evidence of defendant’s
prior convictions, and that defense counsel was considering
moving for a mistrial. As reflected in the transcript, the
following then occurred:
“THE COURT: Are you asking for one now? 
I’m inclined to grant it, if you do, but I

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might also say if I grant a mistrial, it will
be with the condition that any retrial both
sides are represented by different lawyers. 
What’s obviously happening here is that the
police were dealing with the drugs that were
found in the house, which have been
suppressed, and they’re getting that in by
the back door, and confusing the witness. 
MR. STEPHENS: That’s not true, Judge.
THE COURT: Of course, it is.
MR. GENOVESE: Judge, it’s a point
they’re trying to get his prior convictions
in through the back door as well.
THE COURT: Don’t do it again. If you’re
not moving for a mistrial, I won’t grant it. 
 
(End of side bar.) 
THE COURT: The jury will disregard that
last question.”
Cross-examination then resumed, but a few questions later, the
prosecutor asked:
“Mr. Williams, back in 1998 you were
convicted of selling drugs back then;
correct?” 
At that point, defense counsel moved for a mistrial, and the
mistrial was granted.
As the record reflects, the defense objection to the
question about the defendant’s previous criminal record had been
sustained, and government counsel had been specifically
instructed not to pursue that line of questioning. Even more
specifically, government counsel had been made aware that the
only reason a mistrial had not already been declared is because

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defense counsel did not seek a mistrial. By promptly disobeying
the court’s instruction and inquiring about a seven-year-old
previous conviction, the prosecutor must have known that it would
trigger a mistrial.
At argument, the prosecutor represented to the court
that he did not intend to cause a mistrial, and offered to
present evidence in support of his good reputation as a
prosecutor who would never dream of intentionally causing a
mistrial.
It is clear that mere harassment or overreaching which
results in a mistrial is not enough to bar retrial under the
Double Jeopardy Clause. “Only where the governmental conduct in
question is intended to ‘goad’ the defendant into moving for a
mistrial may a defendant raise the bar of double jeopardy to a
second trial after having successfully aborted the first on his
own motion.” Oregon v. Kennedy, 456 U.S. 667, 676 (1982). While
I have no doubt of the prosecutor’s sincerity in wishing, after
the fact, that he had not caused a mistrial, the prosecutor, like
everyone else, must be deemed to have intended the readily
foreseeable consequences of his actions. I conclude that the
Indictment must be dismissed.
In the interest of completeness, it should be noted
that, at an earlier stage, this court granted a motion to
suppress the drugs and weapons allegedly found in the course of a

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warrantless search of defendant’s residence. But, on the basis
of the evidence then available, I declined to suppress the fruits
of defendant’s interview with the police. It now appears, on the
basis of the evidence presented at trial, that defendant’s
written and oral statements should also have been suppressed on
grounds of involuntariness, as the fruits of the unlawful search
of defendant’s residence (the police coerced defendant’s
statements by telling him that his girlfriend was under arrest
and was being charged with the drugs and weapons allegedly found
in the warrantless search of the residence). Even more
important, the only incriminating statements made by the
defendant occurred after he had requested an opportunity to
review the police interview forms with his lawyer, and his
request had been denied.
An Order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA :
 :
v. : CRIMINAL NO. 05-125-01
 :
KENNETH WILLIAMS :
ORDER
AND NOW, this 19th day of July 2005, IT IS ORDERED:
1. Defendant’s motion to dismiss the Indictment is
GRANTED.
2. This court’s Order dated May 3, 2005 is AMENDED to
reflect that defendant’s motion to suppress the oral and written
statements he allegedly made to the police on August 27, 2004 is
GRANTED.
BY THE COURT:
/s/ John P. Fullam 
John P. Fullam, Sr. J.

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