Opinion
No. 80-1332.
Argued and Submitted December 2, 1980.
Decided December 30, 1980.
Nancy Wieben Stock, Asst. U.S. Atty., Los Angeles, Cal., for appellee.
Howard L. Weitzman, Weitzman Fidler, Los Angeles, Cal., for appellant.
Appeal from the United States District Court for the Central District of California.
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.
Zimmelman also contends that the government improperly withheld discoverable information. His notice of appeal does not, as it could not, appeal from the district court's denial of his discovery request. We have no jurisdiction to consider the denial of discovery until after a final judgment. One of the criteria for permitting Abney appeals is that the rights involve "the very authority of the Government to hale . . . [the defendant] into court to face trial . . . ." Abney v. United States, 431 U.S. at 659, 97 S.Ct. at 2040. A motion to compel discovery is not such a right. It differs qualitatively from the double jeopardy rights protected by Abney.
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 transgression was not, however, intentional and in bad faith. The trial court did not abuse its discretion in denying the motion to dismiss.
Affirmed.