United States v. Simonetti

• Court: Court of Appeals for the First Circuit
• Decided: July 20, 1993
• Docket: 93-1131
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 93-1131

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  DOMENIC SIMONETTI

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                              Torruella, Selya and Cyr,

                                   Circuit Judges.
                                   ______________

                                _____________________

               Edward  S. MacColl, by  Appointment of the  Court, with whom
               __________________
          Marshall  J. Tinkle and Thompson, McNaboe, Ashley & Bull, were on
          ___________________     ________________________________
          brief for appellant.
               Margaret D.  McGaughey,  Assistant United  States  Attorney,
               ______________________
          with whom Jay P. McCloskey, United  States Attorney, and Jonathan
                    ________________                               ________
          A.  Toof, Assistant  United  States Attorney,  were on  brief for
          ________
          appellee. 

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                                    July 20, 1993
                                 ____________________

TORRUELLA,  Circuit Judge.  Defendant Domenic Simonetti
                                _____________

          was charged  with conspiracy  to possess  cocaine with  intent to

          distribute   it  in   violation  of   21  U.S.C.       841(a)(1),

          841(b)(1)(C), and 846.  After the trial began, the district court

          severed  Simonetti's  case  from  that  of  his  codefendant  and

          declared a mistrial over  Simonetti's objection.  Simonetti later

          moved  to   dismiss  the   indictment,  alleging  retrial   would

          constitute  double jeopardy  in violation  of his  constitutional

          rights.  The district court denied the motion and we affirm.

                    Prior to trial,  the government  released to  Simonetti

          redacted  reports of government  interviews with  Peter Shoureas.

          The reports  referred to  drug transactions between  Shoureas and

          various other individuals.   At trial,  the government sought  to

          prove  that  Domenic  Simonetti  (also  referred  to  as  "Nick")

          conspired  with Shoureas  and  others to  possess and  distribute

          cocaine.  While  cross-examining Shoureas, Simonetti's  attorney,

          Mr.  Lilley, discovered that the unedited reports showed that the

          conspiracy arguably  involved  another individual  who  was  also

          referred  to as "Nick."   On different occasions  during his drug

          trafficking  career, Shoureas apparently  conspired with Nicholas

          Skinsacos  and later,  defendant Domenic  Simonetti.   Skinsacos'

          name was redacted in the government's reports, however.  This new

          information   offered   potentially   exculpatory  evidence   for

          Simonetti because the defense  could have attempted to show  that

          the references to "Nick" implicated Skinsacos, not Simonetti.

                    Attorney  Lilley moved to dismiss the case on the basis

          of  Brady v. Maryland, 373 U.S. 83 (1963), because the government
              _____    ________

failed to disclose  this exculpatory evidence  before trial.   In

          addition, Lilley informed  the court  that he had  a conflict  of

          interest  because  he  previously  represented  Skinsacos.    The

          district  court   determined   that  the   government   did   not

          intentionally violate its disclosure duty by deleting  Skinsacos'

          name from  the Shoureas reports,  but agreed that  the references

          should have  been provided  to the  defense.1  As  a remedy,  the

          court ordered  disclosure of  all references to  Skinsacos.   The

          court concluded that  the delayed disclosure did  not prevent the

          defense from effectively presenting its case and thus denied  the

          motion to dismiss, finding dismissal  unwarranted by Brady or its
                                                               _____

          progeny.  See United States v. Devin, 918 F.2d 280, 289 (1st Cir.
                    ___ _____________    _____

          1990)  (delayed  disclosure  does  not  warrant  dismissal  where

          defendant can effectively use information belatedly disclosed).2

                    Attorney Lilley's  conflict of interest  with Skinsacos

          remained,  however.    The   district  court  recognized  that  a

          legitimate defense strategy would attempt to show that references

          to "Nick"  implicated  Skinsacos, not  Lilley's  present  client,

          Simonetti.  Lilley's ability to represent Simonetti was impaired,

          however, because  Maine Bar Rules 3.4(e)3  and 3.6(l)(1) prohibit
                              
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          1     The  district  court  deemed  the  oversight  careless  and
          specifically found no bad faith on the part of the prosecutor.

          2  Simonetti does not specifically challenge this ruling.

          3    Maine  Code   of  Professional  Responsibility  Rule  3.4(e)
          provides:

                      A  lawyer  shall  not  accept  employment
                      adverse  to a former  client without that
                      client's informed written consent if such

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the  use   of  confidential  information  obtained   in  a  prior

          representation  to the detriment of  the prior client  or for the

          benefit of another party without informed written consent  of the

          prior client.4   Consequently,  Lilley could not  have vigorously

          defended Simonetti without a waiver  from Skinsacos.  Cf.  United
                                                                ___  ______

          States v. Marren, 919 F.2d 61, 63 (7th Cir. 1990).
          ______    ______

                    The district  court granted  a continuance for  several

          days in  an effort  to resolve  the conflict  of interest.   Over

          Simonetti's objection,  the court eventually  severed Simonetti's

          case from his codefendant5  and concluded that manifest necessity

          justified declaring a  mistrial.  Simonetti moved  to dismiss the

          case on double jeopardy grounds and the district court denied the

          motion, finding that  a new  trial would not  violate the  Double

          Jeopardy Clause.  This appeal followed.

                    The  Double  Jeopardy  Clause of  the  Fifth  Amendment

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                      new   employment  involves   the  subject
                      matter  of the  former employment  or may
                      involve    the   use    of   confidential
                      information obtained  through such former
                      employment.

          4   Maine  Code of  Professional Responsibility  Rule 3.6  (l)(1)
          provides in relevant part:  

                      [A]   lawyer   shall  not,   without  the
                      informed written consent  of the  client,
                      knowingly reveal a  confidence or  secret
                      of the  client;  use such  confidence  or
                      secret to the disadvantage of the client;
                      or use such  confidence or secret to  the
                      advantage  of  the  lawyer  or   a  third
                      person.

          5    Counsel for  codefendant  argued  that  further delay  would
          prejudice his client.

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provides that no person shall be twice placed in jeopardy for the

          same offense.   Retrial after  a properly declared  mistrial does

          not automatically offend the Double Jeopardy Clause.   Arizona v.
                                                                 _______

          Washington, 434 U.S. 497, 505 (1978).  Where mistrial is declared
          __________

          over defendant's  objection, retrial  is permissible only  if the

          mistrial  was justified  by  "manifest necessity."   Id.;  United
                                                               ___   ______

          States v.  P rez, 22  U.S. (9  Wheat.) 579 (1824).   The  Supreme
          ______     _____

          Court  has  interpreted  "manifest  necessity" to  mean  a  "high

          degree" of necessity.   Arizona, 434  U.S. at 505;  see Brady  v.
                                  _______                     ___ _____

          Samaha,  667 F.2d  224,  228 (1st  Cir.  1981).   "The  'manifest
          ______

          necessity'   standard  provides  sufficient   protection  to  the

          defendant's  interests in having his case  finally decided by the

          jury  first  selected while  at  the same  time  maintaining 'the

          public's  interest  in  fair  trials  designed  to  end  in  just

          judgments.'"   Oregon  v.  Kennedy,  456  U.S.  667,  672  (1982)
                         ______      _______

          (quoting  Wade v.  Hunter,  336  U.S.  684,  689  (1949)).    The
                    ____     ______

          prosecution bears a heavy  burden in demonstrating that "manifest

          necessity" exists when the defendant's  "valued right to have his

          trial  completed   by  a  particular   tribunal"  is  implicated.

          Arizona, 434  U.S. at 503 &  n.11, 505.  Moreover,  the Court has
          _______

          consistently  emphasized that  the  standard  cannot  be  applied

          mechanically  or "without  attention  to  the particular  problem

          confronting the trial  judge."  Id. at 506;  see also Illinois v.
                                          ___          ________ ________

          Somerville, 410 U.S. 458, 462 (1973).
          __________

                    "Our duty as a  reviewing court is to  assure ourselves

          that the  trial  judge  engaged  in  a  'scrupulous  exercise  of

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judicial discretion'  in making the decision that  a mistrial was

          necessary."6  Samaha, 667  F.2d at 228 (quoting United  States v.
                        ______                            ______________

          Jorn, 400 U.S. 470, 485 (1971)).  In the past, we have considered
          ____

          significant  whether the trial  judge (1) considered alternatives

          to a mistrial, (2) afforded counsel an opportunity to be heard on

          the  issue, and  (3)  decided precipitously  or after  sufficient

          reflection.  United  States v.  Ram rez, 884  F.2d 1524,  1528-29
                       ______________     _______

          (1st  Cir. 1989); Samaha, 667  F.2d at 228-29;  see also Arizona,
                            ______                        ________ _______

          434 U.S. at 515-16.

                    In  the  present   case,  the   district  court   judge

          scrupulously  exercised his  discretion.   After the  conflict of

          interest was first discovered, the trial judge held  a conference

          in  chambers to discuss possible  remedies.  He suggested several

          options:   dismissal, declaration of mistrial,  or continuance to

          permit  Simonetti to retain other  counsel or to  obtain a waiver

          from Skinsacos.   The judge then  called a recess to  let counsel

          research  the problem and review all options.  Later, the hearing

          resumed,  only to be continued on several more occasions over the

          next  several days.   The  district judge  specifically requested

          alternative remedies from the parties  and provided ample time to

          obtain the  waiver from Skinsacos.   Simonetti ultimately engaged

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          6    Contrary  to Simonetti's  suggestion,  this  is  not a  case
          involving  prosecutorial  misconduct designed  to  "harass or  to
          achieve tactical advantage over the accused," which would warrant
          review under the "strictest scrutiny" standard.  See Arizona, 434
                                                           ___ _______
          U.S.  at 508.  The district court specifically found that neither
          party  could be faulted for  failing to discover  the conflict of
          interest prior to trial.  See United States v. Simonetti, No. 92-
                                    ___ _____________    _________
          22, slip op. at 1-2 & n.2 (D. Me. Jan. 27, 1993).

                                         -6-

substitute counsel who did not have a conflict of interest.   The

          judge asked new counsel whether  he could suggest other remedies,

          whether Simonetti  wished  to  continue  the case  with  his  new

          attorney,  or whether a waiver  could be obtained from Skinsacos.

          The  court  even  considered  continuing the  case  to  allow new

          counsel  time to prepare the case from where Attorney Lilley left

          off.  This solution was rejected because a continuance would have

          been unfairly  prejudicial to codefendant.   Likewise, to proceed

          with  the  codefendant  and  later reconvene  the  jury  to  hear

          Simonetti's case  was not viable because the  judge believed that

          the   jury  could   not  return   a  fair   verdict  under   such

          circumstances.

                    In sum, the judge considered alternatives, implored the

          original counsel and new counsel to proffer remedies, and devoted

          ample  time and  energy  to  resolve  the  conflict  of  interest

          problem, while  remaining mindful of Simonetti's  strong interest

          in completing his  trial before  the first jury  impaneled.   The

          court could not devise  a remedy that would resolve  the conflict

          of interest and permit  the case to continue before  the original

          jury.   As a  result,  mistrial was  a manifest  necessity.   The

          district court therefore did not abuse its discretion by granting

          the mistrial over defendant's objection.

                    Simonetti also  argues that,  even absent  less drastic

          alternatives  to mistrial,  retrial is  barred where  mistrial is

          caused by governmental misconduct.   Simonetti concedes that this

          is  not a case in  which the prosecution  intentionally goaded or

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provoked the mistrial.   See Oregon, 456  U.S. at 679.   However,
                                   ___ ______

          retrial also may  be barred where "egregious  or unfair behavior"

          by  the  prosecution   "could  be  considered,  objectively,   as

          equivalent to an intentional effort to provoke mistrial."  United
                                                                     ______

          States v. Larouche Campaign,  866 F.2d 512, 518 (1st  Cir. 1989).
          ______    _________________

          The inquiry into the  prosecutor's intent calls for a  finding of

          fact.  Id.  The district court found that the failure to disclose
                 ___

          the  references to  Nick Skinsacos  in  the redacted  reports was

          inadvertent,  although careless.   See supra  notes 1  & 6.   The
                                             ___ _____

          record evidence supports this factual finding.

                    Simonetti finally urges that we adopt the novel rule of

          Hylton  v. Eighth Judicial Dist.  Court, Dept. IV,  103 Nev. 418,
          ______     ______________________________________

          743 P.2d 622  (Nev. 1987), that  bars retrial where  governmental

          misconduct which  rises to the level  of "inexcusable negligence"

          causes  a mistrial.  In this case, the mistrial resulted from the

          conflict of  interest, not the unintentional  failure to disclose

          potentially  exculpatory evidence, see supra note 1.  Under these
                                             ___ _____

          circumstances, the  government simply  could not have  known that

          Attorney  Lilley's law  firm had  represented Skinsacos,  who was

          only a  peripheral player  in Simonetti's  case, some  five years

          earlier.   We thus  do not confront  a case in  which inexcusable

          neglect by the prosecutor  caused the mistrial, and consequently,

          have no cause to consider the wisdom of Nevada's rule.

                    We  affirm the  decision of  the district court  as the
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          Double Jeopardy Clause poses no bar to a new trial.

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