172 F.3d 422 (6th Cir. 1999), 97-6027, United States v. Gantley

Docket Nº:97-6027.
Citation:172 F.3d 422
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John M. GANTLEY, Defendant-Appellant.
Case Date:March 30, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 422

172 F.3d 422 (6th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee,

v.

John M. GANTLEY, Defendant-Appellant.

No. 97-6027.

United States Court of Appeals, Sixth Circuit

March 30, 1999

Argued Oct. 26, 1998.

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[Copyrighted Material Omitted]

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David J. Guarnieri (argued and briefed), Johnson, Judy, True & Guarnieri, LLP, Frankfort, Kentucky, for Defendant-Appellant.

Charles P. Wisdom, Jr. (argued and briefed), Office of the U.S. Attorney, Lexington, Kentucky, for Plaintiff-Appellee.

Before: JONES and COLE, Circuit Judges; O'MALLEY, District Judge. [*]

O'MALLEY, D.J., delivered the opinion of the court, in which COLE, J., joined. NATHANIEL R. JONES, J. (pp. 431-32), delivered a separate concurring opinion.

O'MALLEY, District Judge.

Defendant-appellant John Gantley brings this interlocutory appeal challenging the district court's judgment denying a motion to dismiss a criminal information on grounds of double jeopardy. Because we conclude the district court's judgment was not in error, we AFFIRM and remand this case for trial.

I. Facts.

On December 23, 1996, the government filed a criminal information against defendant-appellant John Gantley, charging him with violating the Fair Credit Reporting Act, 15 U.S.C. § 1681(q), by posing as a paralegal to obtain credit information on several individuals. On May 27, 1997, the matter proceeded to trial in front of the Honorable Karl S. Forester. Toward the end of the first day of trial, Gantley moved the district court to admit the results of a polygraph examination he had taken voluntarily. Judge Forester denied the motion. The parties completed the presentation of their cases and the jury began deliberations on the afternoon of May 28, 1997. After more than a full day of deliberations, the jury declared itself hopelessly deadlocked. Judge Forester declared a mistrial and set the matter down for retrial to begin June 23, 1997.

The second trial began as scheduled. Early on June 23, 1997, Gantley again moved the district court to admit the results of his voluntary polygraph examination, and the district court again denied this motion. The parties then completed voir dire and opening statements, and the

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government completed the presentation of its case.

Gantley began the presentation of his case on the morning of June 24, 1997 by taking the witness stand. After Gantley completed his testimony on direct examination, the government's attorney, Mr. Taylor, began cross-examination. Within less than a minute's time, and despite the district court's twice having ruled he could not do so, Gantley attempted to bolster his veracity by mentioning he had taken a polygraph examination. The trial transcript reveals the following exchange between Gantley and Taylor, beginning with Taylor's very first question on cross-examination:

Q. Mr. Gantley, you have given a different version of that first conversation on March 13th where you signed up with the credit bureau than was given by Steve and Deryl. You recognize that, don't you?

A. Absolutely.

Q. You were here during their testimony; correct?

A. Sure.

Q. And you heard them testify that you told them you were a paralegal, newly in town, had not set up an office yet, you were going to be doing collections for attorneys, and their entire explanation, you heard all that; right?

A. Yes, sir.

Q. And you're saying to this jury that you told them that you were doing an investigation, you were up-front with them, and that if anybody violated the Fair Credit Reporting Act, it was them?

A. Sir, you're asking me three questions at one time. Would you please give them to me one at a time?

Q. Is it your position that it was them who assisted you in what we now know to be a violation of the Fair Credit Reporting Act?

* * * * * *

A. The answer is they assisted me in nothing. If the Fair Credit Reporting Act was violated, they did it themselves. I was not part of that.

Q. That's correct. If you're telling the truth, they're the ones who violated the Act; right?

A. Yes, sir, and you know I'm telling the truth, because you saw the polygraph test I took in the past--

MR. TAYLOR: Your Honor--

THE WITNESS:--that was used--

THE COURT: Mr. Gantley, Mr. Gantley, sit down and be quiet. Members of the jury, I'm going to excuse you to the jury room.

Joint Appendix ("J.A.") at 122-24.

The parties have characterized the emotional component of Judge Forester's initial reaction as quite strong. After the jury left the courtroom, Judge Forester made the following statements:

THE COURT: Mr. Gantley, I'm of the opinion that this was a purposeful statement by you, knowing that you violated the Court's order with regard to the polygraph examination to unlawfully influence the jury here today. I don't like it.

THE WITNESS: Sir, that's not--

THE COURT: I'm holding you in contempt of court for this obvious, this obvious attempt you have made to influence this jury illegally. So I'm going to--will be filing charges against you on that. I'm going to declare a mistrial. This is over. This statement was made--just unbelievable. I've never had this happen before in nine years, but I think that this is the sort of thing that Mr. Gantley has done in the past and he continues

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to do in the future. So there is a mistrial. I'm going to ask Madame Clerk to do whatever is appropriate to charge Mr. Gantley with contempt of court, and I will recuse and will not be involved in that. So, Mr. Gantley, you may step down.

* * * * * *

J.A. at 124-25. Judge Forester then ordered Gantley to be released on bond pending retrial and asked counsel to approach the bench.

The immediately subsequent colloquy between Judge Forester and counsel was not preserved on the record. When the district court went back on the record, however, Judge Forester made the following statements:

THE COURT: After reflecting on the contempt of court matter, the Court is of the opinion that Mr. Gantley probably, being the type individual that he is, probably did not know what he was doing and, as has been said, he's a combative-type personality, and so I am going to withdraw any reference to contempt of court with regard to Mr. Gantley, and the Court will recuse from this case and it will be under the general orders and it will be assigned to Judge Wilhoit for reassignment. All right. Anything else?

J.A. at 125. In response to this last question, Gantley's attorney replied "No, Your Honor." Judge Forester then called the jury back into the courtroom and explained as follows:

THE COURT: Members of the jury, I apologize to you for wasting two days of your time. I don't know if you know what happened there, but Mr. Gantley, while testifying, indicated that he had taken a polygraph examination and that he had passed that examination. I think he got that far. Well, I had previously ruled that there could be no reference to a polygraph examination because the polygraph has not reached the degree of reliability to where results of such an examination are accepted by courts as evidence. They're not accepted by courts as evidence anywhere that I know of, and I had made it clear that this was not going to be accepted. But he went ahead and mentioned the polygraph examination. Well, this should not have happened. So I have declared a mistrial, and we'll have to try again some other day with some other jury. So I do apologize to you for taking up two days of your time.

So we'll excuse you now. Thank you very much.

J.A. at 126-27. After the jury left the courtroom, Judge Forester again asked counsel if there was "anything else," and counsel again said "no."

Gantley's case was reassigned to the Honorable Joseph M. Hood, who set a third trial date of August 21, 1997. Nine days before trial, however, Gantley filed a motion to dismiss the information, asserting that a third trial would violate the Fifth Amendment's prohibition against double jeopardy. Judge Hood held a...

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