The two defendants in the above-captioned case jointly filed a motion 1

captioned “Emergency Declaration, With Objections and Reservation of Rights and

Petition for Mistrial, Including Other Arguments Based on Newly Discovered

Evidence.” (Doc. 366).

A criminal defendant may request that a court declare a mistrial, just as the

government may do, and a court also has the authority to declare a mistrial upon its

own initiative. See United States v. Rivera, 384 F.3d 49, 54 (3d Cir. 2004) (citing

United States v. Scott, 437 U.S. 82, 92 (1978)). Ordinarily, where a court declares a

mistrial upon the defendant’s motion, the government may subsequently reprosecute the defendant without offending the Double Jeopardy Clause of the

Constitution. Id. (citing Scott, 437 U.S. at 100, and Love v. Morton, 112 F.3d 131, 133

(3d Cir. 1997)).

 The court notes that no exhibits were attached to the motion (Doc. 366). 2

 IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL NO. 4:07-CR-0422

:

v. : (Judge Conner)

:

ALBERT LEO BERRETTINI, JR., :

and MARY ANN BERRETTINI, :

:

Defendants :

ORDER

AND NOW, this 11th day of May, 2010, upon consideration of defendants’

motion for declaration of mistrial (Doc. 366), and it appearing that defendants 1

request “an Order or Judgment granting the Defendant(s) Petition moving for

Mistrial, or otherwise Dismiss With Prejudice[,]” (see Doc. 366 at 1), and that

defendants aver that they “file these pleadings . . . based on newly discovered

evidence and or newly or recently realized evidence, as presented with exhibits

which shall be attached hereto” (id. at 2), and it further appearing that defendants 2

Case 4:07-cr-00422-CCC Document 370 Filed 05/11/10 Page 1 of 3
 Defendant Albert Leo Berrettini filed a motion to dismiss the indictment 3

(Doc. 350) and a motion to dismiss for lack of territorial jurisdiction (Doc. 352). In

addition, both defendants filed a motion for acquittal, for arrest of judgment, or for

a new trial (Doc. 351), and they sought an order declaring a mistrial (see Doc. 354).

These motions were denied by a court order dated March 25, 2010. (Doc. 355). 

Defendants have also sought dismissal and challenged the court’s subject matter

jurisdiction on numerous prior occasions, without success. (See Docs. 38, 64, 75, 93,

198 at 15-16, 198 at 19-20, 306, 331 at 82-83).

2

contend that the indictment contained error, mistake, or fraud (id. at 4-5), and that

the government presented false testimony before the jury (id. at 5-6), and that

defendants present a variety of other allegations and arguments which are not

material to the pending motion, and the court noting that it has already rejected

defendants’ arguments that the court should declare a mistrial and that the court

should dismiss the indictment or otherwise dismiss the case, and the court 3

Case 4:07-cr-00422-CCC Document 370 Filed 05/11/10 Page 2 of 3
 When the Supreme Court first considered the authority of a trial court to 4

declare a mistrial, it held that courts have such authority “whenever, in their

opinion, taking all the circumstances into consideration, there is a manifest

necessity for the act, or the ends of public justice would otherwise be defeated.” 

United States v. Perez, 22 U.S. 579, 580 (1824). The Court also noted that “the

power ought to be used with the greatest caution, under urgent circumstances, and

for very plain and obvious causes[.]” Id. These principles remain in effect to this

day. See United States v. Wecht, 541 F.3d 493, 504 (3d Cir. 2008) (quoting Perez, 22

U.S. at 580); Rivera, 384 F.3d at 55 (quoting Perez, 22 U.S. at 580).

Although “it is impossible to define all the circumstances” under which

declaration of a mistrial would be proper, Perez, 22 U.S. at 580, the court has little

difficulty concluding that the pending motion presents no circumstances

warranting a mistrial. Defendants have failed to present evidence substantiating

their allegations of error, and therefore, the court cannot find that there is a “very

plain and obvious” cause for the declaration of a mistrial in the instant case.

concluding that defendants have failed to present any basis for declaring a mistrial,4

it is hereby ORDERED that the motion (Doc. 366) is DENIED.

 S/ Christopher C. Conner 

CHRISTOPHER C. CONNER

United States District Judge

Case 4:07-cr-00422-CCC Document 370 Filed 05/11/10 Page 3 of 3