Opinions of the United
2004 Decisions States Court of Appeals for the Third Circuit
9-14-2004
USA v. Rivera Precedential or Non-Precedential: Precedential
Docket No. 03-1658
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PRECEDENTIAL Martial A. Webster 116 Queen Cross Street
IN THE UNITED STATES COURT Frederiksted, St. Croix OF APPEALS United States Virgin Islands 00840 FOR THE THIRD CIRCUIT Counsel for Appellant Kelly
Case No: 03-1658 Beverly A. Edney UNITED STATES OF AMERICA P.O. Box 4958 v. Kingshill, St. Croix FELIPE RIVERA, United States Virgin Islands 00851 Appellant Counsel for Appellant Danielson
______________________
Case No: 03-1659 David M. Nissman UNITED STATES OF AMERICA United States Attorney v. St. Clair Theodore (Argued)
HOMER WILLIS KELLY, Assistant United States Attorney Appellant 1108 King Street, Suite 201 ______________________ Christiansted, St. Croix Case No: 03-1660 United States Virgin Islands 00820 UNITED STATES OF AMERICA Counsel for Appellee v. ______________________ LUDVIG DANIELSON, Appellant OPINION OF THE COURT ______________________ ______________________ On Appeal From the District Court of the Virgin Islands SMITH, Circuit Judge.
District Judge: The Honorable Raymond L. Finch This case involves the application (D.C. V.I. 02-cr-00167-1; 3; 4) of the Double Jeopardy Clause where a Argued May 6, 2004 District Judge has sua sponte declared a ______________________ mistrial over a defense objection. The Before: BARRY, AMBRO, and SMITH, defendants were indicted for violations of Circuit Judges 21 U.S.C. §§ 841 and 846, and 18 U.S.C.
§ 2. Near the close of the Government’s (Filed: September 14, 2004 ) case, a key witness injured his leg and was unable to appear in court as scheduled.
Jeffrey B. C. Moorhead (Argued) Before the witness’s prognosis could be C.R.T. Brow Building ascertained by counsel or the District 1132 King Street Court, and over the objection of Christiansted, St. Croix defendants, the District Judge declared a United States Virgin Islands 00820 mistrial, ordered the matter rescheduled Counsel for Appellant Rivera for a new trial and denied a motion to
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dismiss the indictment. The defendants Tuesday, February 18, the day after brought this timely appeal. We conclude Presidents’ Day. Schoenbaum returned to that the declaration of a mistrial was not Orlando, Florida for the long weekend. manifestly necessary and, as such, reprosecution is barred. Before trial resumed on Tuesday, February 18, the Government informed the I. Court that Schoenbaum had been On December 3, 2002, the United hospitalized with a broken leg. According States Attorney for the District of the t o t h e G o v e r n m e n t ’ s a t to r n e y, Virgin Islands filed an indictment against Schoenbaum had undergone surgery Felipe Rivera, Homer Willis Kelly and during which a plate and several pins had Ludvig Danielson, charging each with one been placed in his leg. The Government’s count of conspiracy to possess with the information was that Schoenbaum was still intent to distribute more than five in the hospital but that he was to be kilograms of cocaine in violation of 21 discharged in the near future. The trial U.S.C. §§ 841(a)(1), 841(b)(1)(a) and 846. was recessed until Thursday, February 20. The indictment also charged each defendant with one count of attempting to When court reconvened on the possess with the intent to distribute more morning of February 20, the attorney for than five kilograms of cocaine in violation the Government explained that all that of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(a), remained in the presentation of its case and 846, and 18 U.S.C. § 2.1 were tape recordings that would be played to the jury and the rest of the direct A jury was empaneled and trial testimony of Schoenbaum. 2 The commenced on Monday, February 10, Government explained, however, that 2003. The trial proceeded over the course Schoenbaum would not be able to travel of the week, with the Government until the following week. Upon learning presenting its case. On Friday, February this, counsel for co-defendant Miranda- 14, the Government began the direct Colon, stated: “[Y]our Honor, for the examination of its last witness, record . . . we’re going to move for a Christopher Schoenbaum. When the Friday session concluded, the District Court scheduled the resumption of trial for 2 The exact nature of these tapes is unclear from the record. It is clear that Schoenbaum was heard on at least one 1 Two other individuals, Claude Earl tape, and that the recordings were Francis and Daniel Miranda-Colon, were lengthy. One of these tapes had been charged in the same information and played to the jury, but 20 had not as of went to trial with the appellants. They the time trial was to resume on February are not parties to the present appeal. 18, 2003.
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mistrial.” Miranda-Colon’s counsel reason for possessing the medication, also explained that he was concerned about the refused to allow him to board the plane lapse of time between the jury hearing the without a doctor’s waiver. Government Government’s direct examination and the counsel noted that Schoenbaum was e v e n t u a l c r o s s -e x a m i n a t io n o f scheduled for an appointment with his Schoenbaum by the defendants. Further, doctor at 10:00 A.M. that very day and Miranda-Colon’s attorney was concerned advised the Court that “within a few hours that, if Schoenbaum were required to use a we [will] know whether or not the doctor wheelchair, the jury would be more will release [Schoenbaum] to get on the sympathetic to his testimony. Counsel for plane.” the remaining defendants joined in support of the motion. Counsel for Kelly The defendants requested that the commented that he had concerns about two Government go forward or that the Court of his witnesses going on vacation if the strike Schoenbaum’s testimony. Rivera’s trial were to be postponed. Danielson’s attorney informed the Court that he did not counsel cited scheduling conflicts if the want a mistrial. Counsel for Mirandatrial were to be postponed. Counsel for Colon instead suggested that “perhaps Rivera expressed his concern that he [they] could resume testimony tomorrow.” would look like “some kind of animal” The Government pressed the Court for cross-examining Schoenbaum while he more time. The following discussion then was recuperating. The Government ensued: opposed the defendants’ motion for a mistrial. The District Court ruled promptly THE COURT: The fact of the and summarily: “Very well. Motion for matter is that in this case there is mistrial is denied.” The District Judge inconvenience to everyone, Court, made no other statements, nor did he counsel, the Government. I have provide the defendants the opportunity to 140 people ready to go in another seek reconsideration of his ruling. The trial in anticipation of something Court recessed the jury for the day, and like this happening. The big scheduled trial to resume on M onday, problem for me in this case is the February 24. way in which the case has unfolded. That is, with frequent When February 24th arrived, the inte rruptions, n u m e r o us attorney for the Government informed the interruptions, the jurors having to Court that Schoenbaum had attempted to sit for long periods of time, board a plane to return to the trial, but was sometimes for days, as a matter of turned back when narcotic medications fact. Together with the fact that the and syringes were found in his luggage. large portion of the testimony was According to the prosecutor, the airline, recorded, and a large portion of it, after questioning Schoenbaum as to his recorded testimony, is still to be
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presented to the jurors. I find that We have jurisdiction over the the nature of the recording District Court’s rejection of the particularly is such that jurors are defendants’ motion to dismiss under not likely to recall properly and fit Abney v. United States, 431 U.S. 651, 662 into the proper sequence of events (1977). While an order denying a and give proper weight to this motion to dismiss an indictment on double recorded testimony in light of the jeopardy grounds “lacks the finality continued interruptions and the traditionally considered indispensable to long delay. And I [am] dispose[d] appellate review,” Abney counsels that to declaring a mistrial, and will so such orders satisfy the collateral order declare. I will declare a mistrial. doctrine articulated in Cohen v. Beneficial Gentlemen and ladies, will you Industries Loan Corp. Id. at 659 proceed downstairs to Magistrate (discussing Cohen v. Beneficial Industries Resnick, and he will reschedule the Loan Corp., 337 U.S. 541, 546 (1949)). matter. I will discharge the jury. Because the District Court denied the defendants’ motion to dismiss on what [Counsel for Miranda-Colon]: For the were clearly double jeopardy grounds, the record, Defendant Colon would like to jurisdictional requisites of § 1291 have object and ask for a dismissal. been met. Id. at 662.
THE COURT: Denied. III.
The Double Jeopardy Clause [Counsel for Rivera]: Denied? forbids that “any person be subject for the same offence to be twice put in jeopardy [Counsel for Kelly]: I join in that. of life or limb.” U.S. Const. amend. V.
Under that clause, a defendant has a THE COURT: Denied. “valued right to have his trial completed by a particular tribunal,” Wade v. Hunter, That same day, February 24, a M agistrate 336 U.S. 684, 689 (1949), which is a right Judge issued an order re-scheduling trial held by the individual, independent of the for Monday, May 5, 2003. On March 5, public interest in conducting “fair trials 2003, the District Court issued a “notice” designed to end in just judgments,” which read: “Defendants moved for a Arizona v. Washington, 434 U.S. 497, 503 mistrial on February 24, 2003. At a n.11 (1978) (internal quotation and citation hearing held on such motion, for the omitted). reasons stated on the record, the Court granted Defendants’ motion.” This timely Protections against double jeopardy appeal followed.
II.
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are ancient3 and we interpret the Double Accordingly, a defendant may not be Jeopardy Clause in light of “its origin and reprosecuted where a first trial has ended the line of its growth.” Green v. United with an improperly declared mistrial. States, 355 U.S. 184, 199 (1957) United States v. Perez, 22 U.S. (9 Wheat) (Frankfurter, J., dissenting) (quoting 579 (1824). Gompers v. United States, 233 U.S. 604, 610 (1914)). The Double Jeopardy A mistrial “may be granted upon Clause’s prohibition of multiple trials the initiative of either party or upon the evolved in reaction to “a time when court’s own initiative.” United States v. English judges served the Stuart monarchs Scott, 437 U.S. 82, 92 (1978). 5 Ordinarily, by exercising a power to discharge a jury where the defendant seeks a mistrial, “[n]o whenever it appeared that the Crown’s interest protected by the Double Jeopardy evidence would be insufficient to convict.” Clause is invaded.” Id. at 100. The W a sh i n g to n , 434 U .S . at 507. 4 Government may, therefore, bring a subse que nt r e pr osec ution with o ut 3 offending the Constitution. Love v.
The Greek orator, Demosthenes, Morton, 112 F.3d 131, 133 (3d Cir. 1997).6 explained that “the laws forbid the same man to be tried twice on the same issue.” Whalen v. United States, 445 U.S. 684, 188, 189 (1795)). 699 (1980) (Rehnquist, J., dissenting)
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(citing 1 Demosthenes 589 (J. Vince See Washington, 434 U.S. at 498 trans., 4th ed. 1970)). Roman law (holding that defense counsel’s improper contained similar prohibitions, with the statements created manifest necessity for precept in the Digest of Justinian that the state trial court to grant the “the governor should not permit the same prosecution’s motion for a mistrial); person to be again accused of a crime of United States v. Valadez-Camarena, 163 which he had been acquitted.” Jay A. F.3d 1160, 1163 (10th Cir. 1998) (noting Sigler, Double Jeopardy: The that reprosecution is usually barred Development of a Legal and Social where the prosecution requested the Policy 2 (1969); see also Bartkus v. mistrial). Illinois, 359 U.S. 121, 152 n.3 (1959)
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(Black, J., dissenting). We reject the Government’s contention that the defendants requested 4 Repeated attempts to convict fell out the mistrial at issue here. In its March 5, of favor by the late Seventeenth Century 2003 “notice,” the District Court did and the reign of King James II, when state that the defendants had moved for a prosecutions which subjected an mistrial and that the motion was granted individual to double jeopardy began to be at a subsequent hearing. Yet defendants barred. Washington, 434 U.S. at 508 did not request the mistrial declared on n.23 (citing State v. Garrigues, 2 N.C. February 24, which provides the basis for
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The realities of litigation preclude a A fundamentally different analysis precise definition of “manifest necessity”:
applies where a mistrial is sought by the [A] criminal trial is, even in the best Government, or, as here, entered by the of circumstances, a complicated Court sua sponte. There is an inherent affair to manage. The proceedings danger that the Government will “enter[] are dependent in the first instance on upon the trial of the case without sufficient the most elem entary sort of evidence to convict” and request a mistrial considerations, e.g., the health of the simply to marshal a better case. Downum various witnesses . . . . And when v. United States, 372 U.S. 734, 737 (1963). one adds the scheduling problems Similarly, the Double Jeopardy Clause arising from case overloads, and the “prevents a prosecutor or judge from Sixth Amendment’s requirement that subjecting a defendant to a second the single trial to which the double prosecution by discontinuing the trial jeopardy provision restricts the when it appears that the jury might not Government be conducted speedily, convict.” Green, 355 U.S. at 188. The it becomes readily apparent that a power to declare a mistrial “ought to be mechanical rule prohibiting retrial used with the greatest caution, under whenever circumstances compel the urgent circumstances, and for very plain discharge of a jury without the and obvious causes.” Perez, 22 U.S. (9 Wheat) at 580. Only where the mistrial is required by “manifest necessity” will testify); United States v. Sammaripa, 55 reprosecution be permitted under the F.3d 433 (9th Cir. 1995) (reprosecution Double Jeopardy Clause. Scott, 437 U.S.
barred where government moved for a at 92.7 mistrial, which was subsequently granted by the district court, on the grounds that the present double jeopardy claims. The the defendant had improperly exercised mistrial they had earlier sought was flatly peremptory challenges during jury denied by the District Court on February selection); United States v. Council, 973 20. The record is clear on this, and the F.2d 251, 256 (4th Cir. 1992) (where the District Court’s statement on March 5, prosecuton failed to show his request for 2003 that the defendants sought the mistrial was based upon a manifest February 24 mistrial is plainly wrong. necessity, reprosecution was barred);
United States v. Ruggiero, 846 F.2d 117, 7 See also United States v. Stevens, 123 (2d Cir. 1988) (“when the 177 F.3d 579 (6th Cir. 1999) (reversing Government moves for a mistrial, it must the District Court’s denial of defendant’s show a high degree of necessity, a motion to dismiss on double jeopardy ‘manifest necessity,’ to avoid a double grounds after the Government moved for jeopardy bar to a subsequent a dismissal when its key witness failed to prosecution”).
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defendant’s consent would be too is appropriate.” Washington, 434 U.S. at high a price to pay . . . . 508; Crawford v. Fenton, 646 F.2d 810, United States v. Jorn, 400 U.S. 470, 479- 817 (3d Cir. 1981) (“If, for example, a 80 (1971); see also Illinois v. Somerville, mistrial has been granted in order to allow 410 U.S. 458, 463 (“The interests of the the state to achieve a tactical advantage, public in seeing that a criminal prosecution then the strictest scrutiny is appropriate.”). proceed to verdict . . . need not be forsaken by the formulation or application of rigid Critically, a mistrial must not be rules that necessarily preclude the declared without prudent consideration of v i n d i c at i o n o f t h a t i n t e r e s t. ” ). reasonable alternatives. Federal Rule of Nevertheless, “trial judges may declare a Criminal Procedure 26.3 requires that, mistrial without barring reprosecution only “[b]efore ordering a mistrial, the court in extraordinary circumstances.” United must give each defendant and the States ex rel. Russo v. Superior Court of government an opportunity to comment on N.J., 483 F.2d 7, 13 (3d Cir. 1973). the propriety of the order, to state whether that party consents or objects, and to The question of whether “manifest suggest alternatives.” The dialogue necessity” existed in the case before us is fostered by Rule 26.3 ensures that only a mixed question of law and fact over those mistrials that are truly necessary are which we exercise plenary review. Id. at ultimately granted. Crawford, 646 F.2d at 15 (citing Townsend v. Sain, 372 U.S. 293, 817-18; United States v. McKoy, 591 F.2d 309 n.6 (1963)); United States ex rel. 218, 223 (3d Cir. 1979). The Government Thomas v. State of N.J., 472 F.2d 735, bears the burden of demonstrating that, 737-38 (3d Cir. 1973). Reprosecution may “under the circumstances confronting the be had when the mistrial is necessitated by trial judge, he had no alternative to the the jury’s inability to agree upon a verdict. declaration of a mistrial.” McKoy, 591 Perez, 22 U.S. (9 Wheat) at 580; F.2d at 222 (citing Jorn, 400 U.S. at 487). Richardson v. United States, 468 U.S. 317, Ultimately, however, the District Court 325 (1984) (“the failure of the jury to must exercise prudence and care, giving reach a verdict is not an event which due consideration to reasonably available terminates jeopardy”). Further, if a juror alternatives to the drastic measure of a is biased, Simmons v. United States, 142 mistrial. Crawford, 646 F.2d at 818-19. U.S. 148 (1891), or served on the indicting Where a District Court sua sponte declares grand jury, a trial judge may declare a a mistrial in haste, without carefully mistrial without precluding a second considering alternatives available to it, it prosecution, Thompson v. United States, cannot be said to be acting under a 155 U.S. 271 (1894). Where, as here, the manifest necessity. Morton, 112 F.3d at basis for the District Court’s declaration of 134-35; accord Glover v. McMackin, 950 a mistrial is the unavailability of a F.2d 1236 (6th Cir. 1991); Cherry v. Dir. prosecution witness, “the strictest scrutiny State Bd. of Corr., 635 F.2d 414 (5th Cir.
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1981) (en banc); Brady v. Samaha, 667 not outweigh the Court’s duty to protect F.2d 224, 229 (1st Cir. 1981). Any the defendants’ constitutional right to be subsequent reprosecution under those required to stand trial only once and are, circumstances is barred by the Double by themselves, insufficient to support the Jeopardy Clause. declaration of a mistrial. Jorn, 400 U.S. at 479-80.
IV.
The record in this case demonstrates Second, the District Court expressed that the District Court failed to consider concern that the deliberating jurors might both the constitutional implications have difficulty piecing together the attendant to the declaration of a mistrial, as evidence following a disjointed trial. Yet well as the reasonable alternatives to a at the time the judge declared the mistrial, mistrial. Ordinarily, the Government bears only three calendar days had passed since a heavy burden of demonstrating that there the Court had rejected the defendants’ own is no alternative but to declare a mistrial. request for a mistrial. Further, McKoy, 591 F.2d at 222. Here, however, Schoenbaum had an appointment with his the Government opposed the mistrial, doctor at the very moment that the Court informing the Court that Schoenbaum was considered declaring a mistrial. The meeting with his doctor to obtain the record provides no basis on which to necessary release to travel to the Virgin conclude that the three prior days had Islands. Rather than demonstrate manifest significantly eroded the jury’s ability to necessity, the Government presented the recall testimony, or that further erosion Court with a reasonable alternative to a would occur in the short time needed to mistrial, i.e., that the Court wait “a few determine Schoenbaum’s prognosis. hours [to] know whether or not the doctor will release [Schoenbaum] to get on the What makes this declaration of a plane.” mistrial particularly troubling is that it was due to the absence of a prosecution The concerns identified by the District witness. As the Supreme Court explained Court do not justify rejection of this above, the “strictest scrutiny is appropriate alternative, nor do they amount to manifest when the basis for the mistrial is the necessity. First, the District Court unavailability of the critical prosecution expressed concern about the scheduling evidence.” Washington, 434 U.S. at 508. difficulties Schoenbaum’s absence created. This is not to say that the absence of a key The judge explained that the trial had witness can never constitute manifest provided an “inconvenience to everyone, necessity. See, e.g., Downum, 372 U.S. at Court, counsel, the Government.” The 737 (cautioning that, based on the facts Court further observed that it was presented, the absence of a witness could scheduled to begin another trial soon. constitute manifest necessity for a Scheduling considerations, however, do mistrial). The District Court, however,
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must take great care to ensure that there prosecution witness simply broke his leg are no available alternatives before while away from the jurisdiction on a long declaring a mistrial in such circumstances. weekend. Wade is completely inapposite E.g., United States ex rel. Gibson v. to the comparatively trivial trial Ziegele, 479 F.2d 773, 778 (3d Cir. 1973). 8 inconvenience that the District Court That the Government itself presented the faced. District Court with a reasonable alternative to a mistrial places the Government in a Instead, the facts of this case are much poor position to now argue that the District closer to those in United States v. Tinney, Court exercised such care. 473 F.2d 1085 (3d Cir. 1973). Tinney was not present when the final day of his trial The Government’s attempt to analogize began, and the judge inquired as to his this c a s e t o th e u n f o r e se e a b le whereabouts. Tinney’s lawyer explained circumstances that necessitated a mistrial that he had phoned his client’s home and in Wade misses the mark. 336 U.S. at 687. been assured that the defendant had set out Wade arose out of a court martial initially for court some time before. The trial judge convened in Krov, Germany during World then stated that “‘if Tinney was not present War II. A mistrial was declared after a key in ‘ten minutes, I am going to have the witness became ill at the same time that marshals pick him up. I am going to the Army unit was forced by the ongoing revoke his bail and commit him.’” Id. at conflict to relocate. Id. at 689. The 1087. The defendant’s counsel objected, District Court here was hardly presented and asked for a short continuance to with the prospect of advancing armies or determine the whereabouts of his client. the invasion of hostile territory. Instead, a The motion was denied. Approximately ten minutes after the jury entered the room, Tinney appeared and explained that his 8 vehicle had broken down on the drive to In Ziegele, a key prosecution witness the courthouse. The judge ordered Tinney was too ill to testify after initially being taken into custody and declared a mistrial.
present on the first day of a murder trial.
Id. This Court was troubled that “the Id. at 775. The Court declared a recess decision was made without regard to other for the remainder of the day in order to reasonable possibilities and without taking ascertain the severity of the witness’s all the circumstances into consideration.”
illness. The next day the Court learned Id. at 1089. We concluded that the trial that the witness would be unable to court’s decision to declare a mistrial, after testify for several weeks. It was only waiting only ten minutes for the defendant after gaining this information and to arrive, was unjustified and did not conducting “considerable discussion”
display the care necessary to ensure that with the parties that the trial court the situation warranted such drastic action.
declared a mistrial. Ziegele, 479 F.2d at See also Morton, 112 F.3d at 134-35 775-78.
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(barring reprosecution where the trial judge declared a m istrial almost immediately after learning of the death of his mother-in-law; although this Court f o und the trial judge’s distr e ss understandable, a decision as to the course of the trial could have been made at a later date when there had been time for careful c o n si d e ration o f the appropr ia te alternatives).
We therefore conclude that the District Judge did not exercise “‘sound discretion’ in declaring a mistrial.” Washington, 434 U.S. at 514. Choosing not to await the final prognosis of Schoenbaum’s ability to appear and testify, the District Judge prematurely declared a mistrial without considering the constitutional import of his decision. Because the declaration of a mistrial was not manifestly necessary, any subsequent reprosecution of the defendants is barred by the Double Jeopardy Clause. The District Court’s order denying the defendants’ motion to dismiss will be reversed.